November 21, 2019

Prosecuting the Holocaust: A personal and legal history

It is not often that a book comes along so vital to our understanding of human rights law that it becomes recommended reading for American presidents. But that is precisely what happened after French intellectual Bernard-Henri Levy reviewed “East West Street: On the Origins of ‘Genocide’ and ‘Crimes Against Humanity’ ” by international human-rights attorney Philippe Sands in The New York Times Book Review. Levy suggested that U.S. presidents “would be well advised to move [it] to the top of their reading lists.”  

A nonfiction work of both personal and international history, “East West Street” describes the Jewish origins of international rights-based law and its relationship to the Holocaust. Sands does so through an account of four interrelated biographies that ultimately intersect at the Nuremberg trials when Nazi war criminal Hans Frank, Hitler’s personal lawyer and governor general of Poland, is tried and hanged. Through that prism, the book introduces us to two lesser-known Jewish figures — Hersch Lauterpacht, who invented the concept of crimes against humanity, which protects the individual; and Raphael Lemkin, who coined the term genocide, which protects groups. Those two fundamental ideas provided the legal basis for the prosecution of Nazi war crimes. 

On June 9, the Los Angeles Museum of the Holocaust in Pan Pacific Park hosted a panel discussion with Sands, Hans Frank’s granddaughter Franziska Frank and UCLA Jewish History professor David N. Myers to discuss the book’s implications. 

Below is an excerpt from that conversation.

Danielle Berrin: Since there’s a lot of talk that your book reads like a John le Carre thriller, and I hear Hollywood is eager for the rights, can you give us your movie-pitch synopsis of the storyline?

Philippe Sands: It’s the story of one city, two crimes and four men. 

It began 6 1/2 years ago, in spring 2010, when I was invited to deliver a public lecture in the city of Lviv, in western Ukraine, on the work that I do as a litigating attorney and professor of law on crimes against humanity and genocide. 

I accepted the invitation because my grandfather was born in the city of Lviv in 1904. I grew up in a family where no one talked about what happened. And as a child, you respected that; you knew there were no-go areas. [So] I wanted to go [to Lviv] and I wanted to find my grandfather’s house.

I was astonished to discover, in preparing the lecture, that Raphael Lemkin, the man who developed the concept of genocide, who coined [the term] for the first time in November 1944, [had] studied at the very law school that had invited me to give the lecture. And the law faculty was unaware of that fact.

Then I discovered [Lauterpacht], the man who put the concept of crimes against humanity into the Nuremberg Statutes, also studied at the same law school. And they also did not know he had studied there. 

So what became a quest to understand what happened to my grandfather became a bigger quest to find out what happened in that city that caused those two men to do what they did.

Then there emerges a fourth man, Hans Frank — Adolf Hitler’s personal lawyer and governor general of occupied Poland, [who] links the three families — [mine, the] Buchholzes, the Lauterpachts and Lemkins. Frank arrives in Lemberg (what Lviv was called during the war) in August 1942 and announces the implementation of the Final Solution in that city; 125,000 people were killed within the next two to three weeks, including the entirety of the Lauterpacht family, Lemkin family and every single member of my grandfather’s family. 

Lauterpacht and Lemkin, who invented the two concepts, are [later] appointed to the prosecution teams in the famous Nuremberg trial, and they discover that the man they are prosecuting, Hans Frank, is the man most closely connected with the murder of their entire families. 

DB: Franziska, what was it like learning that your grandfather, Hans Frank, was a central figure in the Nazi regime? And how did you deal with the public shame surrounding your family’s past?

Franziska Frank: Ever since I was a child, it was clear to me who my grandfather was. My father was very vocal about it, and very clearly distanced himself from his father. The other four siblings were defensive; they were saying, “It’s not true, he was lovely, he was a great father, he didn’t do anything wrong.” In 1986, my father published a book called “My Father: A Reckoning,” in which he hugely, aggressively attacks his father. He was attacked for the book because he was so rude against his father, and [it was thought] you shouldn’t be rude against your parents regardless of the fact that they were war criminals and had killed millions of people. Ten or 15 years later, he published a book about his mother [because] he wanted to show the role of women in the second world war, that the women actually pushed their men, that they weren’t innocent victims. They were active and equally evil, but typically not brought to justice. So [the family history has] always been in the public. 

DB: Franziska, in the documentary film “What Our Fathers Did: A Nazi Legacy,” which serves as a companion to Philippe’s book, your father says of his father, “[He] loved Hitler more than his own family.” How did your father’s emotional damage from his upbringing impact the kind of parent he was to you?

FF: My father was 7 years old when my grandfather was hanged, the youngest of the five children. His father had once chased him around a table and called him fremde, stranger, because he suspected that [my father] Nicholas wasn’t his son. Later it became quite clear from the way my father looks that he is his son, but that gave my father, I think, quite a healthy sense of distance. 

Growing up the son of a war criminal [wasn’t] the worst thing in postwar Germany; he found that most people loved it. But when he wrote his book, it became very clear there was nothing to love about his father. And he made the quite correct decision that his trauma was just absolutely unimportant in comparison to what had happened [to the victims of the Holocaust]. The pictures of the corpses and the concentration camps made it quite easy for him not to be traumatized, because he knew who was rightfully traumatized, and that was not him. 

DB: David Myers, from your perspective as a Jewish studies scholar, tell us why this book is significant and what sets it apart from the ample literature on the World War II/Holocaust period.

David Myers: One of the things Philippe teaches us is that no detail is too insignificant, too small, to be ignored. 

In one way, this book is the chronicle of an obsession, an absolute obsession. It’s an absolutely spellbinding read. It has an extraordinary novelistic quality to it; it is massively researched; it is historically rich; and it makes an extremely important point about today. That combination of qualities is unsurpassed, and I say that with an immense dose of admiration and a slight element of envy. It is a kind of unfolding series of biographies of these four extraordinary individuals — Philippe’s grandfather, these two great Jewish jurists, and [Hans Frank]. It is, at the same time, the biography of the city of Lemberg, and recalls for us the extraordinary cosmopolitanism of a relatively small east-central European city in the waning days of the great imperial era and then into the post World War I nation-state. And it is a biography of two competing and central ideas of international law [crimes against humanity and genocide], two conceptions that have undergirded so much of our understanding of the international order. 

PS: At the heart of it, [the book addresses] the most fundamental question that all of us ask, which is: Who am I? Am I an individual? Or am I a member of a group? And if you’ve picked up in the book, you know I can’t make up my mind.

DM: And I want you to!

PS: The great question, of course, that we all have is: How could these things have happened? It’s the question I ask myself if I’m involved in a case in Yugoslavia or Congo or Rwanda or Chile or in Iraq: ‘How can people be so bloody terrible to each other?’ In the summer of 1942, Hans Frank receives a letter from his childhood sweetheart that her son is lost on the eastern front, and would he intercede? This is the woman he wanted to marry, but her parents [rightly thought] he wasn’t good enough. So they have an affair; Hans Frank decides he wants to divorce [his wife], Franziska’s grandmother, and move in with Lilly [his childhood sweetheart]. And what’s the argument he comes up with? He tells his wife that he’s about to get involved in something that is so terrible that it would be better if she got divorced so she would not be tainted by the horror in which he was about [to commit himself]. 

In other words, he’s using the Final Solution to get a divorce! Why is that interesting? I think we’ve tended to avoid the personal details in trying to understand [the Holocaust]. It wasn’t [only] about master plans and projects, it’s human weakness and slipping. One thing leads to another. 

DB: As someone who has spent a lifetime in international law studying crimes against humanity and genocide, what do you see as different or distinctive about the Holocaust?

PS: I oscillate on that question. There’s a part of me that thinks it is distinctive, and there’s another part of me, faced with 3 million killed in the Congo between 1998 and 2003 — 3 million human beings killed in five years — [that wonders] is that so different from what happened from 1933 to 1945? 

I think the human capacity to do absolutely terrible things is not an inherently German thing; I think that the Germans did it in a particular way. They left records and other things, but they don’t have a monopoly on horror. 

Nor do Jews have a monopoly on being victims. I think every example of mass killing is unique, and I think we have to be really careful about creating hierarchy. I learned from each of these horrors that there’s a common strand that runs through, and the common strand is this: In every single one of these cases, what emerges is a “them” and “us” scenario: They’re not human, they’re untermenschen; they’re cockroaches; they’re rats. And what happened in the Holocaust is that it was done on an industrial scale of efficiency, which probably distinguishes it from others, and it was done with a base of records that is literally unparalleled. 

But, of course, that has its own difficulties [because] people have learned from that; and leaders now who want to exterminate large numbers of people learn from the diaries of Hans Frank not to keep diaries — not to put things on paper. And then it becomes impossible to prove that mental intent [in a court of law]. 

What happened between 1933 and 1945 touches me personally, directly. I live with it on a daily basis, with people in my life bearing the legacy of that. But I refrain from saying [the Holocaust] is special because to say that it’s special is to say to the 3 million in Congo or the million in Rwanda or the hundreds of thousands in Chile and Argentina, “You’re different.” I just have difficulty doing that.

DB: David Myers, do you agree?

DM: I would say each event of mass murder is unique. The Holocaust may be the prototypical or paradigmatic act of mass murder of the 20th century, and the event that actually inspired Lemkin to think about categorizing. In addition to [Nazi] efficiency, there are a number of qualities present that made it as successful and destructive as it was — a charismatic leader; an efficient and willing state mechanism; a powerful and potent ideology; technological sophistication; and the millennial hatred of the Jews. 

FF: The reason the Holocaust is somewhat different has something to do with the German character. In the Globe Study [Global Leadership and Organizational Behavior Effectiveness], Germany scored lowest of all 62 countries [studied] in something called “humane orientation.” 

It doesn’t mean we’re all evil, but it means that in Germany, you divide hugely between personal life and professional life. That means that if you go to work, you’re not interested whether the person sitting next to you had a nice weekend. You do your duty. Germans are very good at task obedience; we’re very good at mission control. 

DB: Franziska, your grandfather was hanged before you were born, but if you could go back in time and meet your grandfather, what would you say to him?

FF: I do something in the decision-making process called “ex anta ex post” — so when I try to work out whether I’m behaving properly, I’m thinking, “What do I want?” If I see myself as an 80-year-old looking back at my life, what should I do now? And I wish my grandfather would have done that. Because then, every single step he took could have been reversed. He could have said, “Do I want to get to be 80 years old?” And, “What would I need to decide so I can look myself in the eye at 80 years old?” 

I think it could do the German nation a lot of good to look at themselves objectively.