Reclaiming international law

Much of international law would not exist were it not for the Jewish people. Yet the Jewish state has been disappointingly cavalier when responding to allegations of international law violations.

The Israeli government’s mocking welcome letter to protestors involved in April’s “flytilla” is a prime example. The letter bluntly expressed the now-standard Israeli response to any human rights criticism: Deal with worse violations of international law elsewhere in the world before you protest against us.

Without a doubt, Israel faces disproportionate criticism of its human rights and humanitarian law record. However, that entirely justified complaint does not excuse Israel from its obligations under international human rights law and international humanitarian law. The extent to which other countries violate international law is irrelevant to Israel’s obligations.

Israel should take all criticism of its human rights and humanitarian law record seriously and respond substantively. When it comes to international law, the Jewish state should always strive to do better and be better. After all, international law is one of the greatest legacies that the Jewish people have given the world. It is written in the blood of our people, by our people.

Before the First World War, international law did not regulate a sovereign nation’s conduct within its own borders. A series of atrocities pushed the permissiveness of sovereign right to its limit. The Holocaust was the last straw for unlimited sovereign power. The mass slaughter of our people spurred the world to action.

A Polish-Jewish jurist named Raphael Lemkin was an early advocate for expanding international law. He escaped the German invasion of Poland for the U.S., where he published Axis Rule in Occupied Europe. It was in that book that Lemkin coined the term “genocide.” He soon returned to Europe with the American team preparing for the Nuremberg trials. Genocide was not yet recognized as a crime under international law, but Lemkin managed to get the word into the first indictment as a description of atrocities committed. For the first time in history, international law held national officials to account for “deliberate and systematic genocide, viz., the extermination of racial and national groups.” Among those the Nazis murdered were over four dozen of Lemkin’s family members, including his parents. On his return to the U.S., Lemkin co-drafted the United Nations Convention for the Prevention and Punishment of the Crime of Genocide and tirelessly led a one-man campaign to ensure its ratification. Lemkin died alone and penniless in 1959; only seven people attended his funeral. But the task he could not complete during his life became a resounding success years after his death. Today, 142 countries have ratified the Genocide Convention.

Also working on the Nuremberg trials was Transylvania-born Jewish-American lawyer Ben Ferencz. The feisty nonagenarian tells his story better than I can, and his interview at the U.S. Holocaust Memorial Museum in 2000 is a captivating read. Ferencz has dedicated his life to championing the cause of international criminal law. He began his journey as an enlisted soldier collecting evidence of Nazi atrocities for the War Crimes Branch of the U.S. Army. Witnessing the horrors at camp after camp left Ferencz with painful emotional scars that he would have been content to leave behind when he was discharged. But, with some convincing, he soon returned to the task in Germany, this time as a civilian. While gathering evidence, he came across detailed Einsatzgruppen records. Because of the prosecutorial team’s limited resources, the only way the Einsatzgruppen leaders would face trial was if Ferencz prosecuted them himself in his spare time. Thus Ferencz became the chief American prosecutor in the largest murder trial in history. Ferencz was 27 years old. It was his first trial. Since then, Ferencz continued his efforts to develop international criminal law and advocated for a permanent international criminal tribunal. In 2002, his dream was achieved with the establishment of the International Criminal Court. Currently, 121 countries have accepted the ICC’s jurisdiction.

Thomas Buergenthal is another Jew for whom experiencing the Holocaust inspired a life committed to furthering international law. Buergenthal is a survivor of the Auschwitz and Sachsenhausen concentration camps. After the war ended, Buergenthal immigrated to the U.S., where he began a long career in international human rights law. Aside from teaching international law to generations of law students and authoring countless books and articles on international law, Buergenthal served as a judge on the Inter-American Court of Human Rights and the International Court of Justice. In 2008, he won the Gruber Justice Prize for dedicating his life “to upholding the rule of law and ending human rights abuses perpetrated by antidemocratic regimes on several continents.”

International human rights law itself was essentially co-created by French Jew René Samuel Cassin. The 1968 Nobel Peace Prize laureate co-authored the foundational legislation of human rights law, the Universal Declaration of Human Rights. Cassin later served on the United Nations Commission on Human Rights and the European Court of Human Rights.

Cassin is not the only Jewish lawyer to win a Nobel Peace Prize for his contribution to international law. Tobias Michael Carel Asser won in 1911 for his efforts to establish the Permanent Court of Arbitration. The PCA, the oldest institution for international dispute resolution in the world, has wide-ranging jurisdiction that includes human rights disputes between states.

These and numerous other Jews made international law what it is today. Concerns over human rights and humanitarian law violations are a compliment to their achievements. Israel should honor the Jewish tradition in international law by taking such concerns seriously. Whether the issue is African refugees, Jewish women, Jewish diversity, or Palestinians in the territories, the Jewish state should always strive to strengthen its adherence to international law. At their essence, international human rights law and international humanitarian law are about freedom and security, and freedom and security is the hope we yearn for in Zion.

About the Author
Andrew writes on (inter)national security law and policy. He holds a JD from the University of Maryland School of Law and an AB in Economics from Vassar College