East West Street, the Bar and the world stage

The significance of individual histories in the development of international law

By Professor Philippe Sands QC


In the historian Eric Hobsbawm’s fine autobiography Interesting Times, he recognised that complex connection between who we are and what we do, noting the ‘profound way in which the interweaving of one person’s life and times, and the observation of both, [help] to shape a historical analysis’.

I am not a historian but a lawyer; one who focuses on matters international. I am interested in law’s functions: how rules come into being, how they are interpreted and applied, how they affect behaviour. And my experiences over the past quarter of a century – not least in the courtroom – makes it clear that individual lives, memory and personal histories matter and they make a difference.

My own book, East West Street came about by chance; it was the consequence of an invitation to deliver a public lecture on my academic and case work on crimes against humanity and genocide, the Nuremberg trial and its consequences for our modern world. The invitation was from the law faculty of the university in a city called Lemberg during the Austro-Hungarian empire, until 1918, then Lwów during the Polish years until 1939, then Lviv after 1945. Today it is in Ukraine.

I accepted. I had my own personal reasons to visit Lviv, and was keen to find the house where my grandfather, Leon Buchholz was born in 1904. I’d also long been fascinated by myths of Nuremberg, the words, images and sounds. I was mesmerized by tiny points of detail in the transcript, the grim evidence, the books and memoirs and diaries, the testimony, the judges and the affairs that went on behind the scenes. I loved the film Judgment at Nuremberg, the 1961 Oscar winner made memorable by Spencer Tracy’s momentary, unexpected flirtation with Marlene Dietrich and the simplicity of a closing line from his judgment: ‘We stand for truth, justice and the value of a single human life.’

East West Street, then, is about four lives: the two Nuremberg prosecutors, Hersch Lauterpacht and Rafael Lemkin, who coined the crimes of ‘genocide’ and ‘crimes against humanity’ in 1945; Hans Frank, the Nazi governor responsible for the murder of thousands in and around Lviv; and my grandfather, Leon Buchholz. Seven years in the writing, it sought to understand how the particular circumstances of each man contributed to the roads he took, and how the different roads thus travelled changed the system of international rules that is my daily work. The book also touches on a more personal theme, how these four interweaving lives influenced my path, and poses some bigger questions that touch upon matters of identity: questions as pertinent today as they were when the Nuremberg judgment blew a powerful wind into the sails of a germinal human rights movement. Sure, there was a strong smell of ‘victor’s justice’, but the case was catalytic. For the first time in history, the leaders of a country could be put on trial before an international court.

The trial lasted for a full year, and judgment was handed down on 30 September and 1 October 1946. I cannot address here the totality of what transpired over the course of a remarkable year, but what I can set out in this article is the significant role played by the Bar of England and Wales in the proceedings, which emerged strongly from my immersion into the Nuremberg moment.

Members of the Bar were deeply involved in the drafting of the Charter, prosecuting the defendants and, in the person of Sir Geoffrey Lawrence, presiding over the Bench. Lauterpacht, a member of the Bar, put the concept of crimes against humanity into the Charter; David Maxwell-Fyfe, the deputy British prosecutor, brought ‘genocide’ back into the trial in June 1946, after six months of silence, during the cross-examination of Konstantin von Neurath. ‘Now, Defendant,’ he asked Hitler’s first Foreign Minister, ‘do you recognise you are being charged with genocide, which we say is the extermination of racial and national groups?’

One role the Bar did not play, however, was in assisting the defence. After one of the defendants sought to instruct Sir Andrew Clark KC, a leading Chancery barrister, the Bar Council, in its wisdom, issued a statement in October 1945 that ‘it is undesirable that a member of the English Bar should appear for the defence’.

In March 1946, the defendants came to the stand. Hermann Göring was up first, a long moment captured by the New Yorker’s correspondent, the wonderful American writer Janet Flanner, in her widely read Letter from Nuremberg. ‘In that extremely important Göring-Jackson duel it was, unhappily, Prosecutor Jackson who lost,’ she recorded. In the ‘important struggle between two opposing men’s brains and personalities, Göring showed more of both’, as Jackson ‘spraddled and teetered like a country lawyer’.

On her account, it was the British who saved the day. ‘It is not only the British worldliness and knowledge of history that gives them a special place in the trial; it is their legal prestige, exemplified in the person of the Court President, Sir Geoffrey Lawrence. The mere sight there of his bald, wise head sets the tone of the Bench. His courtesy to the German lawyers has been cutting.

‘In the courtroom itself, the... physical dignity and sartorial elegance of Prosecutor Sir David Maxwell-Fyfe, impeccable in his [...] attire, have unquestionably affected the Nazis, hypersensitive to formality and chic in the male. As the cross-examiner who forced a weary Göring to admit that, by deduction, at least, Hitler had been a murderer, Sir David was polished, courteous and masterly. His strength lay in conducting the cross-examination in a manner that clearly kept Göring guessing about what was coming next... He succeeded in doing what had not yet been done: he forced Göring to separate himself intellectually from the Nazi myth, he forced him to admit the difference between the glorified Nazi plan and the ghastly human results.’

It may not be overstatement to suggest that Nuremberg in general, and the Maxwell-Fyfe cross-examination in particular, was the moment when the Bar launched itself on the world stage.

It has, since, adopted a position of undisputed pre-eminence. The Bar played a key role in the elaboration of post-1945 legal order, in the drafting of the UN Charter, the Universal Declaration of Human Rights, the General Agreement on Tariffs and Trade, the Convention on the Prevention and Punishment of Genocide (the first modern human rights treaty) and, in 1950, the European Convention on Human Rights. That emerging international edifice – the foundations of our modern international rule of law today – had at its heart an enhanced role for international courts and tribunals. The UK and US have played a key role.

The Permanent Court of International Justice, created by the Treaty of Versailles, in 1918, was the first global international court. The first British judge, appointed in 1921, Sir Robert Finlay, was a member of the English Bar, although a Scotsman.

In 1946 the International Court of Justice (ICJ) came into being. The first British judge was Sir Arnold Macnair, the second was Lauterpacht (although he had some difficulty: Attorney-General Sir Lionel Heald MP’s opposition to his nomination was that ‘our representative at The Hague should both be and be seen to be thoroughly British, whereas Lauterpacht cannot help the fact that he does not qualify in this way either by birth, by name or by education’). He was followed by five other British judges: Gerald Fitzmaurice, Humphrey Waldock, Robert Jennings, Rosalyn Higgins and Christopher Greenwood.

In 1950 the European Court of Human Rights (ECtHR) was created. The first British judge was Lord Macnair (1959-66), and there have been seven more since. In 1957 the European Court of Justice (ECJ) was created. After Britain joined in 1973, Alexander Mackenzie Stuart became the first British judge (1973-88), and there have been four more, not counting the Court of First Instance or the Advocate Generals (Gordon Slynn (1988-92); David Edward (1992-04); Konrad Schiemann (2004-12); and Christopher Vajda (2012-20)).

In 1994 the International Tribunal for the Law of the Sea (ITLOS) was created, and David Anderson became the first British judge there. It was followed by ad hoc courts; the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, with a number of British judges. In 2003, the International Criminal Court (ICC) came into being. Sir Adrian Fulford was the first judge, Howard Morrison the second.

By 2004, of five major international courts, the UK has had a total of 21 international judges, almost all members of the Bar of England and Wales, the rest from the Scottish Bar. No country has had more. All white, and just one woman.

It is not just courts of course, but also arbitration in cases in which states are involved, known as investor state arbitration (equivalent statistics on international commercial arbitration not so easy to gather; as I write, the International Centre for Settlement of Investment Disputes has 264 cases pending – of these, members of the Bar are sitting in just over 100 cases ).

The role of the Bar as counsel is equally impressive in the field of public international law. Judges at all international courts will tell you that. At the International Court of Justice there are, at the time of writing, 19 cases pending. Of those, there have been hearings in 10 cases, in every single one members of the Bar of England and Wales are counsel. In the other nine, as far as I am aware, a member of the Bar, is acting as counsel or adviser.

In public international law, therefore, the role of the Bar is deeply ingrained. How to explain this? I wrote an article a few years in which I suggested there were three reasons. First, a shared commitment to the value of the rule of law, as defined by the UK cultural context. Although manifested for each person in a different way, this meant a loyalty to the law above all: professional objectivity; personal disinterestedness and independence; and a balancing of the interests of the client with the demands of justice. Whether this meant voting against Britain as a judge (eg Finlay), representing ‘pariah States’ against the UK as counsel (eg Brownlie) or speaking plain, if unpalatable, truths to the UK as Legal Adviser (eg Waldock), the commitment to an overarching rule of law partially explains the remarkable success of the international law Bar in providing its services not only to the UK but to a significant clientele around the world.

Second, the evident dedication to work ethic, meticulousness, efficiency, general professional competence. Without exception, the lawyers who reach the upper echelons of their profession bring these qualities to their work, whether in advising and representing clients, conducting academic research or undertaking public service.

Third, most of them (Lauterpacht excepted) placed a premium on a highly pragmatic approach that placed practicality over theoretical integrity. It is no coincidence that they gravitated towards areas of law that offered scope for tangible outcomes and that essentially concerned the development of legal rules and the construction of a legal and political architecture to regulate and enforce them. The fact that several of them made significant contributions to the development of international legal procedure, particularly at the ICJ, reflects a grounding in the common law approach, and a belief in incrementalism.

The record thus far is impressive. But what about the future? Are the particular conditions that enabled this group of international lawyers to contribute as they did, changing? Yes. First, the role of academic practitioners: the nature and demands of university life suggest there may be a declining appetite to allow academics to engage extensively in practice. Second, the Bar is increasingly challenged by legal services offered by law firms, which may provide a less fertile ground in allowing individuals to combine academic or governmental service with practice, and may be more committed to the financial rewards than may have previously been the case. Third, barristers chambers are seen as becoming more like law firms – limiting the possibility of acting for and against each other and as counsel in a case in which a member of your chambers sits as arbitrator. Fourth, Britain’s changing place in the world – the consequence of political decisions taken – is having an impact on it being seen as a country that is truly open to the world, and that tolerates or even encourages a broad range of views. Is the UK as committed as it was to the rule of law, and to an international role? (Iraq; Brexit; proroguing of Parliament; and reaction to the Chagos Advisory Opinion, in which I declare an interest, have combined to damage Britain’s international standing.)

UK success in getting judges elected is on the wane. In 2004, the UK lost its seat on ITLOS. In 2017, it lost its seat on ICJ. And following Brexit, it will have no judge at ECJ? That leaves the ECtHR and the ICC – and we can only speculate what happens here. We go from five international judges, to just two? And maybe fewer? As the judges disappear, will counsel follow?

I don’t want to end on a pessimistic note. As a group, the Bar has made an incredibly positive contribution to international justice. The international rule of law is a long game – two steps forward, one sideways, one back, and forward again. Despite the present travails, despite this country turning inwards, the Bar can continue to play an important role if it sticks to the core values and principles that underpin our work. It will be the young members of the Bar in particular who will lead the way in ensuring that continued role.

Sir David Maxwell Fyfe (centre) and Major General Viscount Wells of Essex KG (right) pictured at the Nuremberg Trial.
  

The Ratline: love, lies and justice on the trail of a Nazi fugitive, published in April 2020 (Weidenfeld & Nicolson), is the second book in the planned trilogy by Philippe Sands QC.
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Professor Philippe Sands QC

Professor Philippe Sands QC is a barrister in general international law at Matrix Chambers and Professor of Laws and Director of the Centre on International Courts and Tribunals at University College London.