LAUTERPACHT LEFT Nuremberg on the third day of the trial to return to Cambridge and the classroom. He traveled with Shawcross, who was needed in London on government business, which pushed back the British opening speech to December 4. Shawcross didn’t want his deputy, Maxwell Fyfe, to be the first British speaker.
Lauterpacht’s journey home was slow because of bad weather. By the time the small plane landed at Croydon Airport, he felt ill. Always a poor sleeper, he experienced nights that were ever more difficult, haunted by details heard in the courtroom. The words set out in Frank’s diaries, fears and uncertainties about the family in Lwów, the sense of failure and of responsibility that he’d failed to persuade them to move to England. Such personal concerns were compounded by professional doubts, about the poor quality of Shawcross’s opening speech, which was badly structured and weak on the law.
With Jackson’s strong opening, the British would have to up their game, he told Rachel first and then Shawcross himself, which was not an easy task because the attorney general had written large parts of the draft speech. Shawcross asked him to improve the draft, not an invitation to be declined. Ignoring his doctor’s instruction to rest, Lauterpacht dedicated a full week to the task, an opportunity to promote his own ideas about the protection of individuals and crimes against humanity. He wrote the draft in his own hand, then passed the pages over to Mrs. Lyons, his loyal secretary, who prepared a typescript for his review. The final typed manuscript ran to thirty pages, sent by train from Cambridge to Liverpool Street station in London for collection by Shawcross’s office.
Eli had his father’s original handwritten draft. I was able to read Lauterpacht’s treatment of the main subject allocated to him by Shawcross; Germany’s recourse to war, which Lauterpacht put in better order. He then introduced arguments on the subject for which he felt a greater passion; the rights of the individual. The text he crafted drew rather obviously from ideas he’d set out in An International Bill of the Rights of Man, published just a few months earlier. The gist of his thinking was captured in a single sentence: “The community of nations has in the past claimed and successfully asserted the right to intercede on behalf of the violated rights of man trampled upon by the State in a manner calculated to shock the moral sense of mankind.”
These words invited the tribunal to rule that the Allies were entitled to use military force to protect the “rights of man.” The argument was contentious then, and it remains so today, sometimes referred to as “humanitarian intervention.” Indeed, on the very day I first saw Lauterpacht’s original handwritten draft, President Obama and the British prime minister, David Cameron, were trying to persuade the U.S. Congress and the British Parliament that military intervention in Syria was justified in law, to protect the human rights of hundreds of thousands of individuals. The arguments they made—without success—drew on ideas expressed by Lauterpacht, reflected in the concept of crimes against humanity, acts so egregious that others were entitled to act in a protective capacity. Lauterpacht argued that he was doing no more than developing existing, well-established rules. The argument—an ambitious one in 1945—he now made as an advocate, not as a scholar.
Lauterpacht’s draft made no reference to genocide, or to the Nazis, or Germans as a group, or crimes against Jews or Poles, or indeed crimes against any other groups. Lauterpacht set his back against group identity in the law, whether as victim or perpetrator. Why this approach? He never fully explained it, but it struck me as being connected to what he experienced in Lemberg, on the barricades, observing for himself how one group turned against another. Later he saw firsthand how the law’s desire to protect some groups—as reflected in the Polish Minorities Treaty—could create a sharp backlash. Poorly crafted laws could have unintended consequences, provoking the very wrongs they sought to prevent. I was instinctively sympathetic to Lauterpacht’s view, which was motivated by a desire to reinforce the protection of each individual, irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it. By focusing on the individual, not the group, Lauterpacht wanted to diminish the force of intergroup conflict. It was a rational, enlightened view, and also an idealistic one.
The counterargument was put most strongly by Lemkin. Not opposed to individual rights, he nevertheless believed that an excessive focus on individuals was naive, that it ignored the reality of conflict and violence: individuals were targeted because they were members of a particular group, not because of their individual qualities. For Lemkin, the law must reflect true motive and real intent, the forces that explained why certain individuals—from certain targeted groups—were killed. For Lemkin, the focus on groups was the practical approach.
Despite their common origins, and the shared desire for an effective approach, Lauterpacht and Lemkin were sharply divided as to the solutions they proposed to a big question: How could the law help to prevent mass killing? Protect the individual, says Lauterpacht. Protect the group, says Lemkin.