The Holocaust and the Age of Rights

Professor Tom Ginsburg, 29 January, 2024

Thank you for giving me the honor of delivering this lecture on the occasion of International Holocaust Remembrance Day. I would like to first mention Tom Buergenthal, a distinguished jurist who passed away at the age of 89 in 2023, after a long career devoted to the protection of human rights. I had the privilege of knowing him, as perhaps some of you also did. A survivor of Auschwitz, he went on to become a major force in the construction of the international human rights regime, transforming his traumatic childhood into a lifetime of

effort for universal justice. As a scholar and professor at George Washington University, he co-authored a pioneering casebook on human rights. As a jurist, he played a critical role in the development of the InterAmerican Court of Human Rights, after being appointed by Costa Rica as one of the first judges when it was established in 1979. He went on to serve on numerous international bodies, culminating in a decade of work as a judge on the International Court of Justice, in the building in which we are meeting.

This lecture is co-sponsored by the Jewish community of The Hague, of which I have fond memories from my own two years here. I would like to begin the first part of my lecture by reflecting on the role of Jewish jurists like Tom in contributing to the development of human

rights both before and after World War II. My theme is the interplay of cosmopolitanism and particularism. These ideas are usually seen as in some tension, but I believe that they are mutually constitutive and necessarily dependent on each other. While human rights is a cosmopolitan idea, its historical emergence was motivated by a particular set of sufferings and experiences, from the African slave trade to the Armenian genocide to the destruction of European Jewry. The movement for rights for all was championed in large part by people who suffered for their own particular identities, and responded not by fleeing or rejecting those identities but by working for justice.

Cosmopolitan liberalism seeks to limit the power of states to mistreat their own citizens and others. Once the human rights movement emerged, however, it turned out that states were not only the greatest threat to rights, but the primary mechanism by which rights could be effectively advanced. We have just celebrated the 75th anniversary of the Universal Declaration of Human Rights (UDHR), a monumental step in the formation of the international human rights movement. Yet despite the expectations of its drafters, the Declaration’s enforcement has not really come about through the United Nations, which has a sclerotic human rights machinery and a Human Rights Council made up primarily of human rights abusers. Instead, it has come about through the power of states, which have incorporated rights into their national constitutions and deployed their (sometimes imperfect) tools to enforce them. Cosmopolitan values, then, only take life through particular national projects, of whichnational constitutions are central.

I will elaborate on the Jewish contribution to the emergence of human rights. Rights can be conceived of as either national or universal. The historiography of rights emphasizes how they first emerged in national contexts, like the American colonies and later the French revolution. The colonists in America were fighting for the rights of Englishmen. The French were more universalist and spoke grandly of the rights of man but did not extend them to the enslaved people in their own colonies, or to women. As national constitutions began to spread in the 19th century, they included lists of rights for particular peoples, be they Dutch, Danish, or Bolivian. It was the transformation of these national projects into a truly international concept, by which every person by virtue of her humanity was worthy of protection, that required the horrors of the Holocaust to effectuate it. That was the vision of the Universal Declaration.

Jewish scholars were well-represented in the group of lawyers who built our modern conceptual architecture. These include Tom Buergenthal’s own teacher and collaborator, Louis Henkin, the scion of a great rabbinic family, who authored an important book called The Age of Rights (whence my title); Rafael Lemkin, the principal author of the Genocide Convention and inventor of the term, who began his life’s work after encountering the Armenian genocide; Egon Schwelb, who served in the United Nations’ Human Rights Division, playing a role in the international covenants that legalized human rights in the 1960s, and who authored the idea of crimes against humanity; René Cassin, the French jurist who played a central role in the drafting of the Universal Declaration of Human Rights; Jacob Robinson, the first legal advisor to the UN Commission on Human Rights who also served as the legal advisor to Israel’s mission to the UN; and perhaps most famously, Hersch Lauterpacht, a judge of the International Court of Justice who provided intellectual underpinnings to the human rights idea and worked behind the scenes at Nuremberg. Those men and others played an outsized role in producing the norms of international human rights; Tom, who was a generation or more younger than the others, worked to institutionalize them. Most of them were born into a Europe in which they were second class citizens, and most lost their families in the Holocaust. They were able to transcend these things, in part because they took advantage of the cosmopolitan opportunities of general legal education that were newly available to Jews.

This Jewish contribution to international human rights may on its surface seem unusual. The principal − though not only − political program for Jewish security in international law was particularist, namely the Zionist movement to establish a homeland for the Jewish people

in Palestine. We know and understand the connection between the Holocaust and the founding of the State of Israel in 1948; the tension between that particularist project and the general law of human rights is being adjudicated in this very building as we meet, and debated on the streets of Tel Aviv. There is much to say about that issue, which is beyond the scope of my lecture, except to say that the way Lemkin defined genocide is broad, and acts need not rise to the level of the Holocaust to meet it. For my main theme, the relevant point is that the founding of a state is a reflection of particular national aspirations, rather than international ones.

There were other strains of modern Jewish history that pushed in a cosmopolitan direction. With the rise of European romantic nationalism in the 19th century, the position of Jews was in great flux. Even as they were being emancipated from ancient restrictions, they were in a vulnerable position as a landless minority within a continent awash in territorial nationalism. Hungary for the Hungarians and Romania for Rumanians created particular problems for those of different ethnicities who lived in each other’s respective country, but at least they

had a putative homeland which could offer a place to flee to and a government to which they could appeal in the event of abuses. That did not work for the Jews or the Roma, the European peoples without land. For such groups, national rights did little good.

Thus, the position of Jews within Europe − a people without a land in a land of peoples − meant that they were driven to seek protection from international law. A higher order legal system that could discipline the newly proliferating nations was attractive to the extent that it

could overcome a state’s sovereign claim that domestic matters were not the business of anyone else. As Henkin wrote, “The primitive international human rights movement of the 19th century, much of it on behalf of Jews, provided fertile seed for an international law of

human rights.”

The universalist seeds were slow to develop. Early efforts at international conferences in the 19th century had not produced fruit. The Hague Peace Conferences of 1899 and 1906 (which established the Permanent Court of Arbitration and inspired this very building to house it) focused on humanitarian law during wartime, rather than the day-to-day practices of discrimination and internal violence that Jews routinely suffered. But the announcement in Woodrow Wilson’s Fourteen Points speech that the self-determination of “peoples” would be the basis for a post-Imperial world order gave new urgency to what we might, with Karl Marx, call the Jewish question. Wilson’s call generated a proliferation of peoples each claiming self-determination, but of course they did not live within easily circumscribable borders.

The solution in Europe after World War I was to combine recognition of the new nations with a set of collective guarantees of minority rights. These were embodied in a set of “Minorities Treaties” which identified external guarantors of minority rights, especially the great powers, that would be able to intercede when mistreatment was occurring. The rights included in these treaties were mainly religious freedom, minority language rights, and control over communal affairs − what international lawyers now call “internal” self-determination to distinguish it from actual statehood. This was not yet a full-blown international human rights system. For one thing, the rights were collective or communal, rather than individual and belonging to everyone on earth by virtue of their humanity. One obtained rights by virtue of membership in a particular community. In addition, enforcement was to be guaranteed by specifically identified external powers which were territorial states.

Such states could bring claims to the Permanent Court of International Justice, but only states could do so. There was not yet an international machinery to protect rights at the behest of individuals. The system was not yet cosmopolitan, nor was it particularly effective for Jews. The persistence of vicious antisemitism in the new nation states led to new massacres on an even larger scale than those of the 19th century. The Jewish question was neither extinguished nor resolved by the idea of self determination.

Around the same time, the parallel Zionist project was blossoming, with its various strands. The League of Nations’ failure to actually enforce the minority treaties had the effect of deepening, not redirecting, Jewish energy toward establishing a homeland in Palestine. Had the minorities regime worked out as planned, it may not have been necessary, and diasporic communities could have remained intact. (I note, in light of the vicious fighting under way in Gaza, that we can look back and imagine alternative histories, in which the “revisionist” strand of Zionism associated with Zev Jabotinsky did not come to dominate. Theodore Herzl’s own novel, Altneuland, envisions a multicultural state in which Jews and Arabs live in coexistence, and Moria Paz has shown that René Cassin laid out a vision of a joint state with full equality for both Arabs and Jews. I recommend further analysis of this topic and the study of history in depth to anyone interested in understanding how we got to where we are.)

The alternative histories that we now can imagine were not to be. European Jewry was, in very large part, destroyed, and it is in solemn memory of this monumental cataclysm that we gather here today. (As an aside, I feel privileged to have lived here 25 years ago, to know people like Mijnheer Stemmer, who survived by taking his family across the Swiss border; Mevrouw Niehom, who was hidden by Dutch Christian farmers who saved her life; and many others.)

The United Nations was founded in the immediate aftermath of the war, and among its purposes was to “reaffirm faith in fundamental human rights.” In the short period between the founding in 1945 and the UDHR in December 1948, we see the formation of a new set of institutions to advance the protection of individuals. The Nuremberg trials provided the basis for the field of international criminal law, later embodied in the International Criminal Tribunal for the former Yugoslavia and later the International Criminal Court here in The

Hague, along with others such as the Kosovo Specialist Chambers and the Special Tribunal for Lebanon. It also led to the writing of the Universal Declaration of Human Rights by the Human Rights Commission, with Cassin playing a central role.

The conceptual break was to treat rights as individual, and protection as universal. To understand the intellectual underpinnings of this shift, I must delve more into the person of Hersch Lauterpacht, whose life embodies the fusion of particularist and cosmopolitan visions. He was born in Galicia in 1897, and experienced the usual levels of antisemitism prevalent in his time and place. He became politically active in Zionist youth movements, but his life turned in a more cosmopolitan direction. He eventually moved to Vienna and ultimately to London where he quickly became an important scholar of international law. He contributed a good deal to the transformation of international law, from a framework focused on interactions among sovereign states, to one in which human rights were seen as being a legitimate subject of international concern; individuals enjoyed rights, as well as duties, so that they could bear international criminal responsibility; and intergovernmental organizations like the United Nations became important actors. His career culminated in service in this building as the British judge on the International Court of Justice from 1955 to 1960.

Lauterpacht’s 1945 book, An International Bill of the Rights of Man, foreshadowed the Universal Declaration. His was one of several proposals to the United Nations Human Rights Commission, which was charged with drafting the text in 1948.12 Lauterpacht, however, was

ultimately disappointed that the United Nations did not include a right of petition for victims of abuses. He wanted a direct appeal from the individual to international institutions, as he understandably did not trust states to be uniform guarantors of rights. His proposal was rejected, and so the glaring gap between normative articulation of rights and their actual enforcement on the ground was present at the beginning.

It is interesting that a “globalist” like Lauterpacht also remained a Zionist and contributed to the drafting of the Declaration of Independence of Israel. Shortly after his appearance in this building in March 1948, arguing the famous Corfu Channel case before the International Court of Justice, he went to New York for the International Law Commission. He was contacted by the Jewish Agency, which had decided to move forward with a declaration of independence for the prospective country. Lauterpacht produced a draft, including a justification for Jewish self-determination within a cosmopolitan legal order. As with the Universal Declaration, his proposal was one of many, and not adopted, although part of the

conversation. (The final document makes explicit mention of the Nazi Holocaust, and mentions both the self-determination rights of Jewish people as well as the “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex” and a promise to guarantee freedom of religion, conscience, language, education and culture. Thus, even a very particularist project, the establishment of the State of Israel, was accompanied by some notion of rights granted to all.)

So far, I have shown that the Holocaust led, as many have argued, to what Henkin has called the Age of Rights after 1945. What is notable is the outsized contributions of many Jewish lawyers as individuals, as well as the important role of arguments about Jews in general in the prehistory, with the minorities regimes. The suffering of the Jewish people as a collectivity propelled the world to seek to re-found itself with human rights as a normative core, even as the State of Israel was being formed as a kind of completion of the European project of territorial nationalism that had accelerated after the springtime of nations in 1848. For a moment, at least, there was a vision that general human rights were aligned with a particularist form of liberation.

Let me now turn to the postwar period to describe the Age of Rights. At one level, the impact was at the international level − the formation of an ever-denser network of treaties, committees and regional human rights arrangements. The thick set of institutions, special

rapporteurs and procedures at the United Nations is one institutional manifestation. Yet in a world of war and abuses, it is frankly hard to know what the impact of these institutions is. Lauterpacht’s frustration remains intact.

It is my belief that human rights commitments are best advanced through the creation of national institutions, that they take life through particularist commitments in the life of states. A central mechanism here is national constitutions. As Henkin noted, “human rights are enshrined in the constitutions of virtually every one of today’s … states − old states and new; religious, secular and atheist; Western and Eastern; democratic, authoritarian and totalitarian; market economy, socialist, and mixed; rich and poor, developed, developing and less developed.” The age of rights is captured by an expanding set of norms in nation-states, which are the entities best positioned to protect them − and also the most dangerous entities in terms of abuses. Constitutional rights have expanded dramatically since 1948. The average national constitution had 22 rights in 1948; today that number is 49. Figure 1 demonstrates the expansion in textual articulation of rights.

Figure 1: The Rise of Rights

The growth of rights reflects a kind of technological expansion, in which the conceptual apparatus of rights has been deployed to an ever growing set of beneficiaries. If the minorities regime focused on collective rights, such as language and religion, the Universal Declaration was framed as being directed at every individual on earth. We have seen a great expansion in socioeconomic rights, like those of health care, education and social security, but also rights that require major state apparatus, such as a right to clean environment (now in roughly 40% of constitutions). Indeed, in recent years, we have seen rights spread from humans to animals, and, in some constitutions, mother nature itself.

Obviously the mere articulation of a right in a national constitution is neither necessary nor sufficient for its enforcement. But one aspect of the age of rights is the spread of concepts, and so I focus on the decisions of constitutional drafters. When a set of drafters get together to write a constitution, they are engaged in a particularist project.

Last year I worked with the country of Tuvalu in the middle of the Pacific to reform its constitution. A major issue was balancing rights of equality and religious freedom with traditional customs and practices. In doing so, some of the discussions questioned whether rights were a foreign imposition, but it was agreed that they had over time become Tuvaluan and so should be kept in the Constitution. The particular set they chose is theirs. But how do they decide which ones to consider in the first place? Where does the menu come from?

This is where the UDHR comes in. Along with my colleague Zachary Elkins, I have shown that the UDHR formed a kind of menu for national constitution-makers. In a series of statistical analyses, we show how constitutions adopted after the UDHR became more similar to it. Using our Comparative Constitutions Project data, we identified a list of 117 rights that are found in constitutions. (There are others that are outside of our ontology, but we believe that all the widely distributed rights are included in our list.) We then looked at the set of these rights found in each constitution adopted before and after 1948, and compared it with the list in the UDHR. The average level of similarity after 1948 was much higher than before, suggesting that the UDHR had formed something of a template for constitution-makers. We also looked at the overall popularity of each individual right. Those rights which had been included in the UDHR in 1948 had much higher levels of popularity thereafter, whereas rights left out of the document did not increase in popularity. Some of these rights are enforced in some constitutions, which implies that the UDHR enforcement works best when it is instantiated in national constitutional orders.

In short, the age of rights has been one of expanding cosmopolitanism, but it has been one that has taken life through national constitutions. These documents have included enforcement machinery, such as human rights commissions and national constitutional courts, that in decent societies can advance the promise of the UDHR. Universalism requires particularist commitments to be fully effectuated.

It is a commonplace, of course, that rights remain underenforced in our deeply broken world. The last year saw the biggest increase in the number of refugees in history, to 36 million worldwide. Perhaps twice that many are internally displaced, as war rages in Syria, Ukraine, Yemen, and of course Israel and Gaza. Even in rich democracies we struggle to deliver fully on the rights promised in constitutions. Without the cosmopolitan aspirations laid out in the Universal Declaration we would be even worse off. We cannot reject cosmopolitanism or particularism in making a better world.

Let me close by returning to Tom Buergenthal. When I think of Tom, and I think of this building, I realize that we are all bricks in the wall of history. One thing about Tom was his relentless optimism: “The task ahead is to strengthen these tools, not to despair, and to never believe that mankind is incapable of creating a world in which our grandchildren and their descendants can live in peace and enjoy the human rights that were denied to so many

of my generation.”