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AS LEMKIN HARRIED and lobbied and persisted, Lauterpacht wrote parts of Shawcross’s closing speech. He worked alone on the first floor of 6 Cranmer Road, without pressing the flesh of journalists in the bar of Nuremberg’s Grand Hotel. I imagine Bach’s St. Matthew Passion playing in the background, as the ideas flowed and he put pen to paper. Occasionally he might look out of the window, looking over to the university library and the football field.
Lauterpacht worked on the draft for several weeks. He completed a short introduction and lengthier first and third parts of the attorney general’s speech, setting out legal arguments (the second part, on facts and evidence, was being written in Nuremberg). I had the typewritten version of Lauterpacht’s text but was curious to see the handwritten original, the one Lauterpacht gave Mrs. Lyons to type up. Eli had it in Cambridge, so I returned once more to take a look. The handwriting was familiar, as were the arguments, so clearly and logically set out, inviting the tribunal to reject the argument of the defendants that the charges were novel or unprecedented. The opening pages were understated; the emotion and passion had been stripped out. As in so many ways, Lauterpacht was the very opposite of Lemkin.
Yet this draft would have a different conclusion from the one he wrote for the opening of the trial, a finale that was raw, gripping, and impassioned. That’s not how it began, a nine-page introduction on the purpose of the trial and the need for fairness. The trial wasn’t about revenge, Lauterpacht wrote, but about delivering justice according to law, an “authoritative, thorough and impartial ascertainment” of the crimes. The tribunal’s task was to develop the law to protect individuals, to create “a most valuable precedent for any future International Criminal Court.” (The observation was prescient, because five long decades passed before the ICC came into being.)
The second part of Lauterpacht’s draft ran over forty pages, and wove together many ideas he’d spent years thinking about. On war crimes, he focused on murder and prisoners of war, on Polish intellectuals, on Russian political workers. He went out of his way to assert that the charge of “crimes against humanity” wasn’t in any way novel, directly contradicting what he’d told the Foreign Office just a few months earlier. Rather, it was a starting point to vindicate “the rights of man,” to offer protection against the “cruelty and barbarity of his own State.” Such acts were illegal even if German law allowed them. The draft proclaimed that the fundamental rights of man trumped national laws, and it set forth a new approach to serve the interests of individuals, not states.
In this way, each individual human being was entitled to protection under the law, a law that could not turn a blind eye to atrocity. Notably, Lauterpacht made only a passing mention of Hitler and a solitary reference to the Jews, five million of whom were murdered “for no other reason than that they were of Jewish race or faith.” Of the events in Lemberg, addressed by the Soviets on the opening days of the trial, he wrote nothing. Lauterpacht stripped out references to matters that might be seen as personal, writing nothing of the treatment of the Poles, and of course he did not use the word “genocide.” He remained implacably opposed to Lemkin’s ideas.
His focus then turned to the defendants, a “pathetic” bunch who invoked international law to save themselves. They sought refuge in outmoded ideas, that somehow the individual who acted for the state was immune from criminal liability. Of the twenty-one defendants in the courtroom, he identified five by name, singling out Julius Streicher for his race theories and Hermann Göring for participating in the “butchery” of the Warsaw ghetto.
The only defendant Lauterpacht mentioned repeatedly was Hans Frank. It was perhaps no coincidence that he was the man in the dock most closely connected to the murder of Lauterpacht’s own family. Frank was a “direct agent” of the “crimes of extermination,” Lauterpacht wrote, even if he was not personally involved in the act of execution.
Lauterpacht put the emphasis on Frank in the last pages of his draft, the closing bars of a near-symphonic text. The new Charter of the United Nations offered a step toward the enthronement of the rights of man. It heralded a new epoch, one that placed “the rights and duties of the individual in the very center of the constitutional law of the world.” This was pure Lauterpacht, the central theme of his life’s work. But in these pages, he also found a different voice, releasing a well of pent-up emotion and energy. The handwriting changed, words were added and crossed out, a raw anger aimed at defendants who didn’t even offer “a simple admission of guilt.” Yes, there were “abject confessions,” perhaps some with an air of sincerity, but these were false, no more than “artful evasions.”
Then Lauterpacht homed in on the defendant most closely connected to the fate of his own family, a man who offered a tentative expression of responsibility in April. “Witness…defendant Frank,” he wrote, “confessing to a sense of deepest guilt because of the terrible words which he had uttered—as if it were his words that mattered and not the terrible deed which accompanied them. What might have become a redeeming claim to a vestige of humanity reveals itself as a crafty device of desperate men. He, like other defendants, have [sic] pleaded, to the very end, full ignorance of that vast organized and most intricate ramification of the foulest crimes that ever sullied the record of a nation.”
This was uncharacteristically emotional. Interesting, Eli said, when I took him to the passage. He hadn’t appreciated the significance of the words; “my father never spoke to me of these matters, not once.” Now, faced with the document in the context I explained, Eli reflected aloud on the connection between his father and the defendants. Nor did he know, until then, that Governor Otto von Wächter, Frank’s deputy, a man directly involved in the Lemberg killings, was a classmate of his father’s in Vienna. A few months later, a chance arose for him to meet Niklas Frank and Robby Dundas, a reunion of the children of judge, prosecutor, and defendant. Eli declined.
Lauterpacht fretted that Shawcross wouldn’t use what he’d written. “I am naturally inclined to think [it] is relevant and necessary,” he told the attorney general, reminding him of the need to reach the audience outside the courtroom. If the speech was overly long, Shawcross could submit the whole text to the tribunal but only read out “selected portions.”
On July 10, Lauterpacht’s secretary placed these covering thoughts and the typewritten draft into a large envelope and sent it off.