[IntLawProfessors] Sands on Lauterpacht

[Don Anton]

My legal hero: Hersch LauterpachtHuman rights advocate, Lauterpacht's role in helping forge a modern system of international law is hard to overstate

Philippe Sands
guardian.co.uk, Wednesday 10 November 2010 16.09 GMT
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Hermann Goering stands during the Nuremberg war crimes trial. Hersch Lauterpacht assisted with the prosecutions. Photograph: AP
I doubt that many people outside the world of international law will be too familiar with the life and work of Hersch Lauterpacht.
His writings and professional activities, including as a judge, presaged the foundations of today's international legal order. He spoke up, well before it was fashionable, for thehuman rights of all, the need for accountability by reference to new international crimes, and an effective system of international courts. Given the circumstances of his efforts and the results he achieved, he stands out as the great international jurist of the 20th century.
Lauterpacht was born in 1897 in the small town of Zolkiew, which was then part of the Austro-Hungarian empire and is now near Lviv, western Ukraine. He studied at the Jan Kazimierz University, although it is not clear whether he actually graduated: Lauterpacht wrote that he had not been able to take the final examinations "because the university has been closed to Jews in Eastern Galicia".
He moved to Vienna in 1919 to study with Hans Kelsen, politically engaged and "angered by … social inequality, opposed to chauvinism and dream[ing] of a Jewish Renaissance based on the spirit of social justice". His writings already "displayed a vast culture, an extraordinarily powerful style and clarity of thinking and exposition of ideas". He obtained a doctorate and met his future wife, Rachel Steinberg, who was studying piano.
In 1923 they moved to the UK, where Lauterpacht studied at the London School of Economics with Dr Arnold McNair, who became a mentor and a friend. He taught there until 1937, was then appointed Whewell professor of international law at Cambridge, and in 1954 was nominated for election to the international court of justice by the government.
As an immigrant, however, his nomination raised concerns in some quarters: the then attorney-general, Sir Lionel Heald, was concerned that it would be badly received. "It is … surely desirable 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," said Heald. The objection came too late; to great acclaim he was elected to the court and served with great distinction from 1955 until his death in 1960.
Lauterpacht's writings and activities reflect the reality that words matter, that ideas can lead to change. His writings – which are widely consulted today –reflect his belief, as one colleague put it, that international law is "a translation of natural decency, rationality and universal values into its professional language", an approach "based on principles of legal normativism, legal completeness and absolute justice". These themes run as a leitmotif through his work: his works include his doctoral thesis on Private Law Sources and Analogies of International Law (1927), The Function of Law in the International Community (1933), and An International Bill of Human Rights (1945) (contributing to the adoption of the 1950 European convention of human rights), to The Development of International Law by the International Court (1958).
He was deeply interested in the practical side of things. With Macnair, from 1929 he edited the Annual Digest of International Law (now the International Law Reports) and was called to the bar in 1935, appearing as counsel for Britain in two cases at the ICJ. He assisted with the Nuremburg war crimes trials, preparing first drafts of the opening and closing speeches of the chief prosecutor, Sir Hartley Shawcross. Most crucially, he crafted the language of Article 6 of the Nuremburg charter, enshrining crimes against humanity, war crimes and the crime of aggression into modern international law.
Through the turmoil and grief of the 1930s and 1940s – with one exception, Lauterpacht lost every member of his family who remained in and around Lviv – Lauterpacht was fiercely dedicated to the rule of law. He advocated for individual criminal responsibility (prevailing over claims that only states could incur liability under international law) and the recognition and prosecution of international crimes.
It is hard to overstate Lauterpacht's role in the emergence of the modern system of international law. Following his death, Macnair wrote that "his prominence and success … were due to his passion for justice, his devotion to the relief of suffering, his transparent sincerity and his gifts of persuasion, both in writing and in speech."
Never starry-eyed about the law, he was a remarkable individual whose principled approach resonates widely today. I regret not having had the opportunity to get to know him, but two decades after his death his son Eli taught me at Cambridge, inspiring and encouraging me into the world of international law. For that too I am hugely grateful to Lauterpacht the father.
Philippe Sands QC is professor of law at University College London. This is drawn from a lecture delivered at the Ukrainian Catholic University on 29 October 2010, A Memory of Justice: a personal history of international law. The Life of Hersch Lauterpacht by Elihu Lauterpacht is published this month by Cambridge University Pressguardian.co.uk © Guardian News and Media Limited 2010
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