The Two Different Ways of Looking at Nazi Murder

The Nuremberg Trials marked a milestone in the development of international law in part because individuals who participated in the commission of state crimes were no longer shielded by the legal defenses of either sovereign immunity (for leaders) or obedience to orders (for underlings). But the trials were also notable because, to capture the magnitude of Nazi criminality, they occasioned the emergence of two new legal concepts that have since been enshrined in international law: “crimes against humanity” and “genocide.”

These two concepts may be thought of as complementary—a dual legacy of Nuremberg to international law to deal with the legal challenge of state-organized mass atrocities. The beauty of Philippe Sands’s book East West Street is to show that in their origins they were competing, rival concepts devised by two remarkable legal minds—Hersch Lauterpacht and Rafael Lemkin. These two men were of utterly different personality but, separated by just several years, they had attended the same law school in Lviv (alternatively Lemberg, Lwów, or Lvov depending upon the ruler of the moment) and had classes from some of the same professors. It was the discovery of this coincidence, when Sands was preparing to deliver a lecture on the origins of international law at that law school, that led him to undertake his book. It ultimately developed along four major tracks and several fascinating byways.

Along the first track Sands explores the past of his own maternal grandfather Leon Buchholz, including the family’s roots in Żółkiew outside Lviv, Leon’s birth in Lviv, migration to Vienna at the beginning of World War I, flight to Paris in 1939, subsequent reunion with his daughter that summer, and improbably with his wife (who remained behind in Vienna until November 1941, the very last minute that emigration from the Third Reich was permitted) much later. Threatened by the deportation from France of Jews, especially foreign Jews, beginning in 1942, Sands’s mother survived in hiding and his grandparents survived with false papers. But the grandfather’s mother, mother-in-law, sister, and brother-in-law, as well as all the more distant relatives still in Żółkiew, perished in the Holocaust.

Sands’s remarkable sleuthing into his own family history uncovered surprises, among them his grandfather’s twelve-year close and constant companionship with a male friend before his affectionless and tension-filled marriage, and his grandmother’s presumed affair while remaining in Vienna apart from her husband from early 1939 to late 1941. And finally there is the story of an Englishwoman, Miss Tilney, a Christian missionary more concerned with helping than converting Jews, who brought Sands’s mother, one year old at the time, from Vienna to Paris in the summer of 1939.

Living on the same East-West Street in Żółkiew were both Leon’s mother’s family and the Lauterpacht family, where Hersch Lauterpacht was born in 1897 before moving to Lviv in 1910. There he studied law from 1915 to 1919 while simultaneously experiencing the political whirlwind of the city’s wartime conquest by Russia and reconquest by Austria-Hungary, followed by postwar Ukrainian–Polish ethnic struggle and anti-Jewish pogroms, and Lviv’s ultimate incorporation into recently independent Poland. Partly in response to the pogroms that accompanied the dissolution of multinational empires at the end of the war, nation-states newly created by the postwar settlement were obligated by the Allies to sign a Minorities Treaty—an initial attempt to limit sovereign immunity by guaranteeing the rights of at least some minorities in some countries.

The Minorities Treaty came too late for Hersch Lauterpacht, who—denied the right to take his final exams in Lviv—moved to Vienna in the summer of 1919 and completed his doctorate there in 1922. He then moved to Great Britain and obtained another doctorate at the London School of Economics. Recognized as a major scholar in international law, he obtained a professorship at Cambridge University. Presumably influenced by his formative experiences in Lviv, he increasingly focused on the need for an “international Bill of Rights of the Individual” guaranteeing “the fundamental rights of man,” as opposed to group rights guaranteed to minorities, as under the then-collapsing Minorities Treaty. During World War II Lauterpacht both worked with British preparations for dealing with Nazi war crimes and had increasing contact with his American counterparts, especially Justice Robert Jackson. He was thus well positioned as an insider in 1945 to influence the conceptual framing of the charges to be brought at the first Nuremberg Trial.

In contrast, Rafael Lemkin was the ultimate outsider. Born in present-day Belarus, he began his legal studies in Lviv in 1921, two years after Lauterpacht had departed. Lemkin frequently recounted the profound influence on him of the 1921 Berlin trial of Soghomon Tehlirian, the Armenian assassin of Talaat Pasha, the former grand vizier of the Ottoman Empire who was widely thought responsible for the Armenian Genocide. How could it be possible, he allegedly argued with one of his law professors, that the Armenian’s killing of one man, Pasha, could be a crime, but the latter’s killing of one million was an allowable act of state protected by sovereign immunity?

Pursuing a legal career in Warsaw, by 1933 Lemkin had written about the need for international rules to protect threatened groups through prohibiting “barbarity” (the destruction of groups) and “vandalism” (attacks on culture and heritage). With the Nazi invasion of Poland, he fled first to Sweden and then to the United States. In both countries he devoted himself to documenting Nazi occupation practices, a project that resulted in the November 1944 publication of Axis Rule in Occupied Europe, in which he discarded the terms “barbarity” and “vandalism” and coined a new term—“genocide”—to articulate his argument that the Nazis were engaged in a special crime, namely a systematic campaign to exterminate entire nations and ethnic groups (especially Jews, Poles, and gypsies) that went well beyond typical war crimes and acts of repression. Lemkin lobbied hard to join Robert Jackson’s prosecutors at Nuremberg in order to push his cause, but his obsessive nature and inability to function as part of a team alienated many others, and he was initially left at home when the legal team departed for Europe.

In addition to these three central figures—Leon Buchholz, Hersch Lauterpacht, and Rafael Lemkin—the fourth track of Sands’s book follows two Nazis, primarily Hans Frank but also Otto von Wächter, whose life paths intersected with those of the first three in numerous places. As Hitler’s lawyer, Frank became one of the legal stars of the Third Reich, advocating a concept of law entirely at odds with both Lauterpacht’s and Lemkin’s, namely that law served the leader and the national community he embodied rather than protecting individuals or minorities. And as head of the General Government (Germany’s Polish colony), he presided over the murder of the families of Buchholz, Lauterpacht, and Lemkin, in either the killing fields of Galicia or the death camp of Treblinka. Otto von Wächter’s path intersected with those of Buchholz, Lauterpacht, and Lemkin first in Vienna, where he headed the attempted Nazi coup that assassinated the Austrian chancellor Engelbert Dollfuss in 1934, and then as Frank’s district governor of Galicia, the capital of which was Lviv.

The crucial and final intersection occurred in Nuremberg, where Frank was in the dock as one of the major war criminals whose prosecution Lauterpacht and Lemkin tried to shape. Clearly Lauterpacht was more influential. His consultation with Robert Jackson led to giving the fourth charge of the indictment the title of “crimes against humanity,” which included “murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population” and applied “whether or not in violation of the domestic law of the country where perpetrated.”

Contrary to German complaints, this was not ex post facto law; although the term was new, the acts included under this rubric such as murder and enslavement were already crimes. What was crucially new was the assertion of the jurisdiction of international law over such acts of states against individuals that had previously been shielded by sovereign immunity. In contrast, Lemkin’s concept of “genocide” was mentioned only as one aspect of war crimes in count 3 and loosely defined as acts of extermination “against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups.”

Thereafter the term “genocide” virtually disappeared from the trial except for mention by two British prosecutors—in Maxwell Fyfe’s cross-examination of Constantin von Neurath (former foreign minister and protector of Bohemia) and in Hartley Shawcross’s closing statement. The word was omitted from the judgment entirely. In contrast Lauterpacht is credited by Sands with writing large parts of Shawcross’s arguments, including especially his summation that “the individual human being, the ultimate unit of all law, is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind.”

If Lauterpacht and Lemkin both rejected sovereign immunity and sought to hold Nazi leaders accountable for their crimes against the civilian populations of Europe, why did Lauterpacht then and does Sands now see the notion of genocide as a rival of and threatening to the concept of crimes against humanity? Why are the protection of groups on the one hand and of individuals on the other considered to be at odds? Why was Lemkin, aside from his difficult personality, marginalized?

Sands, who in yet another coincidence was hired at Cambridge by Lauterpacht’s son Eli, articulates and generally shares Lauterpacht’s reservations. One concerned the practicality of genocide as a prosecutorial tool, which was rendered even more difficult when the subsequent Genocide Convention placed emphasis on “the intent” to destroy, in whole or in part, an ethnic, national, or religious group. This created a much greater burden for any prosecutor, who now had to prove not just the actions of the accused but also his or her state of mind.

But more important to Lauterpacht at the time was the fear that “if one emphasizes too much that it is a crime to kill a whole people, it may weaken the conviction that it is already a crime to kill one individual.” In what was assumed in effect to be a legal zero-sum game rather than a shared mission, emphasis on genocide and protection of groups would leave individuals less rather than more protected. Even worse, emphasis on groups—both as victims and perpetrators—would intensify tribal instincts and polarization between “them” and “us,” ironically making the acts that the notion of genocide sought to criminalize more rather than less likely to occur and reconciliation after such events even more difficult to obtain.

Whatever his and Lauterpacht’s legal reservations, Sands also recognizes a central insight at the heart of Lemkin’s crusade. Virtually the entire families of his three central figures were all killed not as individuals but solely because they were members of a group that the Third Reich was determined to destroy. The fate of these families is inexplicable without resort to some notion of the deliberate destruction of entire groups as such, as Lemkin was one of the first to understand. The notion of crimes against humanity provides little help in explaining why they were killed, even if it might provide a more flexible legal tool in bringing their killers to justice. Is genocide, therefore, more usefully and appropriately employed as an historical and political rather than a legal concept? Unfortunately, it has remained a highly problematic and contested concept in both cases.

Precisely because the concept of genocide gained an ascendency after Nuremberg that it did not enjoy at the trial itself and came to be seen by some as “the crime of crimes” as Lemkin had hoped, it became an important political weapon with which to stigmatize enemies and validate and elevate a group’s own suffering in an unfortunate process of competitive victimization. Turkey’s persistent campaign to deny the genocide of the Armenians on the one hand and indignant campaigns of various groups that their sufferings be recognized as genocide on the other provide ample evidence of what a powerful weapon of stigmatization and validation the term has become.

Within the historical profession the stakes may be lower, but the contestation is even more complex. There are at least two fault lines that have produced tension and conflict. The first was between scholars who emphasized the uniqueness of the Holocaust and viewed any attempt to subsume it within a wider study of genocide as an attempt to deny that uniqueness; the second involved genocide scholars who viewed the claim to uniqueness as both historically misconceived and dismissive of the suffering of others, and who resented their own research topics being overshadowed by what they considered the inordinate attention paid to the Holocaust. Fortunately, much of the emotional heat from this initial conflict has dissipated, as comparison of the Holocaust with other genocides has become widely accepted among more recent generations of scholars.

Still contested, however, is the definition of the term itself; virtually all historians using it find the legal definition of the UN convention inadequate for analysis, but there is absolutely no consensus on how that definition should be revised. Steven Katz has formulated a very narrow and strict definition, from which he deduces that the Holocaust was the only true genocide in history. Dominik Schaller has argued for an extremely wide definition that equates genocide and colonialism (“not only are genocides always colonial, but colonial rule and colonialism as such are constantly genocidal”).¹

Under the circumstances, some historians—preferring to concentrate on expanding our knowledge and understanding of particular events rather than to wrangle endlessly over whether these events can or should be shoehorned into this or that particular definition of genocide—have given up on using the term entirely. Thus Timothy Snyder has argued that we need more empirical research and less theorizing, and in both his recent books, Bloodlands and Black Earth, has not used the term “genocide” at all.

Over time, therefore, a strange inversion has occurred. While previously those emphasizing the uniqueness of the Holocaust steered away from the term “genocide,” now the most ardent proponent of Holocaust uniqueness, Steven Katz, wants to appropriate it solely for the Holocaust, while Christian Gerlach’s The Extermination of the European Jews, which examines the Holocaust in a broader setting than any history thus far, does not use the term. As in his previous work, Gerlach prefers an approach and terminology that focus on “mass violence” in “extremely violent societies.” For Gerlach, Lemkin’s concept is too focused on intent and the actions of the state rather than broad societal participation and excludes too many victims not easily categorized as members of a protected group.

Gerlach’s concerns for linguistic purity go well beyond genocide. He eschews the terms “Holocaust” and “Shoah” as having no analytical value on the one hand and, on the other, being too imprecise and “teleological”—investing complex processes with the appearance of a single, coherent event. “Final Solution,” he writes, is “out of the question” as “perpetrator language.” He rejects “anti-Semitic” in favor of “anti-Jewish,” because the former was invoked by Hitler and others to falsely imply that their hostility was grounded in scientific racism. He rejects “collaborator” and “collaboration” because of their connotation of treason, which hampers us from understanding such participants’ own self-perception as ardent nationalists. And finally “perpetrators” gives way to “persecutors,” since Gerlach sees the former term as too legalistic, implying only those who were criminally culpable and excluding the noncriminal but nonetheless harmful behaviors of many.

Gerlach should be able to choose his own terminology, and to his credit he has explained to the reader his choices. But some of his arguments strike me as specious. I realize that German historians writing in German must place all Nazi terminology within quotes, lest they be accused of inadequately distancing themselves from the Nazis. But refusing to use the term “Final Solution” strikes me as parallel to a scholar of the Franklin Roosevelt presidency not using the term “New Deal” because it might imply overidentification with his subject. And given Gerlach’s manifest concern for language, I find his choice of title puzzling. The German word Vernichtung can be translated as either “destruction,” “annihilation,” or “extermination.” Of the three, “extermination” has the closest connotation to how the Nazis themselves represented what they were doing, namely ridding themselves of an infestation rather than murdering human beings. Gerlach’s careful attention to connotation does not seem to have extended to his title.

What distinguishes Gerlach’s book from previous histories of the destruction of the European Jews? Gerlach includes the largest array of persecuting nations other than Germany, the largest array of victims other than Jews, and the largest array of motives and causal factors other than anti-Semitism and racism—what he sums up succinctly as “broad participation, multiple motives,” and “a multitude of victims.” He has written what he calls a “social” history of both persecutors and victims rather than just a “political” history of the perpetrators. He is less interested in a national history focusing on German plans, policies, and actors than in the “labyrinth of persecution” that spanned the European continent. His approach is thematic and quantitative rather than narrative.² All of this, it should be emphasized, is underpinned by his extraordinary breadth of research.

Concerning the multitude of victims, Gerlach notes that up to the fall of 1939, in numbers killed, Hitler and Nazi Germany were far behind the Soviet Union, Imperial Japan, and even Mussolini’s Italy and Franco’s Spain. During the first nine months after the invasion of the Soviet Union, however, the Nazi regime presided over the execution and mass starvation of over two million Soviet POWs, more than twice the number of Jews it killed in the same period. More Jews were killed in 1942 than any other year, but by 1943 Jewish fatalities were probably equaled by the number of civilian casualties inflicted by Germany’s ever more savage antipartisan operations, especially in the rural areas of occupied Soviet territory. Alongside the more than three million Soviet POWs who died, Gerlach estimates that one million civilians perished in German antipartisan operations, another one million from German-induced famine, and 300,000 while subjected to forced labor.

He calculates that altogether in World War II, between six and eight million non-Jewish noncombatants died alongside six million Jews at the hands of Germans and their allies and supporters. While many groups of victims (Roma and Sinti, the disabled, etc.) have been able to promote the memory of their fate, Gerlach explicitly wants to emphasize “the quantitatively deadliest phenomena”—the destruction of the Jews and Soviet POWs as well as victims of antiguerrilla warfare, famine, and forced labor. All but the Jews, it should be noted, would neither fit into any of the groups protected by the Genocide Convention nor satisfy its requisite intent to destroy.

Perhaps the most complex and important thematic section of Gerlach’s book is his attempt to work out the interdependence and interaction between Nazi anti-Semitism and racism; diverse economic factors such as labor, food supply, housing, and transportation; and the timing and intensity of the killing of Jews. Gerlach has performed the unenviable task of reading through many of the writings of Nazi self-proclaimed scientific racists and anti-Semites. He correctly concludes that there was no agreed-upon codification of Nazi racial anti-Semitism, nor did it determine the implementation of Nazi policy. The most notorious example in this regard, of course, is the fact that the definition of Jews in the Nuremberg Laws was based upon the religion of grandparents, because there was in reality no workable biological or scientific basis for identifying Jews. Even SS policies were riddled with contradictions (such as the recruitment of Asians and Slavs in SS units).

Gerlach therefore emphasizes the common popular stereotypes that linked anti-Semitism and racism to other domestic issues as well as to notions of German superiority and entitlement to empire. Jews were associated with exploitive capitalism and unfair business practices, liberalism and communism, clannish loyalty above national patriotism, sexual deviancy, and cultural degeneration. Poles were deemed lazy, primitive, unsanitary, stupid, and undisciplined. None of this distinguished Germans from other Europeans, other than that Nazi Germany’s racial imperialism was realized inside Europe at the expense of fellow Europeans rather than overseas.

I have at least two reservations about Gerlach’s assessment. First, despite the fact that Nazi scientific anti-Semitism and racism could not be formulated in an agreed-upon, coherent dogma (because they were based upon fundamentally unscientific assumptions about race), nonetheless the conviction was very widespread that race was a biological reality and constituted the driving, explanatory factor of politics and history. Belief in the scientific validity of racial thinking was part of, not distinct from, the popular stereotypes Gerlach notes. Second, whatever the differences and contradictions within Nazi racial thinking that Gerlach demonstrates, Hitler’s anti-Semitic and racial beliefs were both more coherent and more central to him and the course of the Nazi regime than Gerlach suggests, not in the sense of producing a blueprint or grand design but rather in setting parameters and offering signposts for those “working toward the Führer.”

Rejecting the usual view that there were inherently conflicting demands of racist ideology and wartime economic utility, Gerlach makes a strong case for an interdependent and fluctuating relationship between the persecution and murder of the Jews on the one hand and economic concerns about labor, food, housing, and transportation on the other. Sometimes one or more of these factors “tended to spur the murder of the Jews in crucial ways” while other times they posed “obstacles.” Underpinning any economic analysis is the fact that the persecution and murder of the Jews had no official allocation or budget but was based on improvised self-financing, in which the assets of Jews were used to both finance their own destruction and enrich their persecutors. In most instances, mass persecution and killing were profitable.

The chronic shortage of housing invariably motivated local authorities to support the relocation of local Jews, first into ghettos and then to the east. Contrary to a popular perception that allocating train cars to carry Jews to Auschwitz rather than supplies to the front proved that the Nazis preferred killing Jews to winning the war, Gerlach—quite correctly, I believe—argues that the amount of transportation capacity allotted to deporting Jews was in fact such a minute fraction of total capacity as to be a nonfactor.

On two occasions, he argues, worry over food shortages sharply accelerated the mass killing. First, in the spring of 1941 the German economic planners expected to feed the German army by seizing food normally sent from the agricultural surplus to the agricultural deficit areas of the Soviet Union. They were fully conscious that what historians call the “hunger plan”—what Gerlach deems “one of the biggest mass murder plans in human history”—would involve the mass starvation of many millions.

In reality, limited German control behind the lines did not permit implementation of the “hunger plan” other than in the POW camps, where mass starvation was the single most important factor in the death of more than two million Soviet POWs by the spring of 1942. Second, poor harvests in 1942 caused fear among the German leadership of domestic unrest and collapsing morale from food shortages. Therefore both the expulsion of Polish Jews from ghettos and their mass murder were vastly accelerated in the late summer and fall.

The self-inflicted loss of Jewish labor is the one instance most often cited to demonstrate the Nazis’ sacrifice of economic utility to ideological primacy. Gerlach deems this view “simplistic.” He generally downplays the overall significance of Jewish labor, noting what a small portion it was of the entire workforce under Nazi control and that, as unskilled labor, Jewish workers “were also easily replaced.” Here, I think, he is less persuasive, especially as Himmler’s maniacal campaign (with Hitler’s support) to liquidate Jewish labor camps in 1943 goes unmentioned. The intensification of the Nazi forced labor program in 1943 significantly intensified resistance everywhere. The Jewish uprisings in the Warsaw ghetto and killing centers of Treblinka and Sobibor confirmed Himmler’s ideologically grounded conviction that Jews were behind the resistance everywhere, and only the destruction of hitherto-exempted Jewish labor would free Germany from both this threat as well as the danger that German employers were being corrupted by the Jewish spirit of materialism by profiting from their Jewish workers. From the spring to the fall of 1943, Himmler carried out the systematic and total liquidation of Jewish labor camp complexes in quasi-military operations, culminating in the great Erntefest massacre of more than 42,000 Jewish workers in the Lublin district in two days in November 1943.

Only then did the ever more critical labor shortage bring his rampage to a halt, and Jewish workers in the most western labor camps in Poland and Silesia as well as the Łódź ghetto survived. Here is precisely the kind of violence-generating vicious circle of interdependent factors—labor shortage, intensified roundups of forced labor, greater resistance, self-damaging destruction of Jewish workers, and therefore even greater labor shortage—that Gerlach normally emphasizes. But in this case, the key link is the ideological myopia of Hitler and Himmler, which he tends to downplay.

Rafael Lemkin derived his concept of genocide primarily from his study of Nazi occupation policies, and the UN Genocide Convention in turn was based on the Nazi template, with emphasis on the intent of state actors on the one hand and the ethnic or national identity of the victim groups on the other. Since then many other scholars and activists have sought to include other mass killings within this Nazi-derived template of genocide. Ironically, several of the most recent works on Nazi mass killing have now sought to dispense with the concept of genocide altogether. Gerlach’s book, with its emphasis on society rather than leaders and states, on a multitude of causal factors other than ideology and intent, and on a multitude of victims not targeted as ethnic or national groups, is a prime example. If Rafael Lemkin would have been disappointed, Hersch Lauterpacht would not.