A memory of justice: the unexpected place of Lviv in international law - a personal history.

• Author: Sands, Philippe
• Position: Divided Loyalties: Professional Standards and Military Duty

Klatsky Lecturer, The Case Western Reserve School of Law January 12, 2011

1. PARIS

   Earlier this year, in the summer, a curious thing happened. In preparation for my visit to deliver an earlier version of this lecture in the city Lviv, in the Ukraine, I was introduced to an elderly lady in Paris. I had told a friend of the invitation, and was delving with increasing fervour into the city's history. "You should visit my relative Inka," my friend said, "she lived in Lwow from 1930 to 1945, she can tell you what it was like." So I made contact with Inka by telephone. We agreed that when next in Pads I would visit her, and last June we met. She told me her story, which is a remarkable account of survival and loss and renewal, for she is an admirable and courageous person, undimmed by the brutality of her experience. For present purposes, I will share just one aspect of the visit.

   We were sitting at Inka's dining room table, which was covered in a lovely white cloth, drinking tea. On the table, I had laid out an old map of Lwow, dating back to 1938, where Inka lived as an eight year old, as well as copies of some old black and white photographs. One of the photographs was of a building in the small town of Zolkiew, about twenty miles from Lwow. The building was a famous synagogue constructed in the seventeenth century that still stands today, albeit in a state of abject dilapidation. Inka had told me that after the war she had lived for a few months in Zolkiew. Did she remember the building, I asked her. She examined the photograph. "No," she said, "I do not remember this building."

   As she held the picture close to her face, the doorbell rang. Inka gently raised herself and went over to the front door of her apartment. It was the concierge, with the mail. One letter. Inka took the letter, looked at it, looked at me, and said: "I don't know what this is, maybe it's for you." This was curious, since I had never before met Inka, or set foot in her apartment. She handed me the letter, which was addressed to her. It came from Israel, from a body calling itself the association of the martyrs of Zolkiew. I opened the envelope. It contained a brochure. On the front was a picture of the very same building that Inka told me she had never before seen.

2. LONDON

   Memory and coincidence are curious things. They appear occasionally and unexpectedly, and when they do they get us thinking, even if we can usually not find a pressing or persuasive explanation as to what we remember and do not, or why certain things happen. We speculate, but we do not know. These things hover in the ether, drawing lines and connections that are imaginary or real, or perhaps both. In preparing this lecture, I have again thought about that visit with Inka, about the letter, about the photograph, about what these coincidences mean, about the life she left, and about the state of the world today.

   I visited Lviv in October. More than two thousand kilometers from my home, in London, I was invited to deliver a public lecture on international law, in a country I had not previously visited, and to deliver a seminar at the University of Lviv's law faculty. What possible conspiracy of circumstances caused an invitation to be extended, and encouraged me to accept it? I will say this for now: the reasons are personal and not disconnected from the city's unlikely but--it seems--largely unknown contribution to the modern international legal order.

   Why was I invited? I am an international lawyer who wears two hats. For half of the week, I am an academic, a professor of law at University College London, teaching classes about human rights, the environment and natural resources, international courts and tribunals, and writing books and articles. For the other half, I am a barrister, privileged to be an advocate before the courts about which I teach, arguing cases before the International Court of Justice (ICJ) in The Hague and other courts and tribunals.

   These cases raise a great number of issues, invariably about the rights of states and, increasingly, the rights of individuals. (1) They reflect the changes that have occurred in the international legal order over the past decades, in the period since the Second World War That legal order is characterized by three modern features: first, the rights of individuals being recognized, in particular in relation to human rights; second, the emergence of the new field of international criminal law; and third, the creation of new international courts and tribunals providing a forum for the settlement of international disputes. (2) This world of international law in which I work did not exist prior to the Second World War. (3)

   Therefore, a typical working week can vary. I could spend a couple of days advising Croatia on its case at the ICJ that was brought under the 1948 Convention on the Prevention and Punishment of Genocide, the first modern human rights treaty adopted after the Second World War. The Convention prohibits genocide and commits to prevent and punish that act. (4) The Convention gives the Hague Court an enforcement role. In 1999, Croatia brought proceedings under the Convention against Serbia, accusing it of having committed genocide in Vukovar and other parts of Eastern Slavonia. (5)

   Then I could spend a day on other issues of international crime. This week, it has been the question of whether a lawyer who authorizes acts of torture can be complicit in the commission an international crime. (6) The fact that such an argument could be made at all arises from the adoption by the United States, United Kingdom, Soviet Union, and France of the Charter of the International Military Tribunal, on August 8, 1945, and better known as the Nuremburg Charter. (7) This recognized, in its Article VI, that certain acts--crimes against peace, war crimes, and crimes against humanity--are so heinous that they give rise to individual criminal responsibility, and that no one was to be immune from the jurisdiction of the Tribunal, even a Head of State. (8) These principles led directly to the emergence of the modern rules of international criminal law and the case against Senator Pinochet in the London courts; the International Criminal Tribunal for the former Yugoslavia proceedings against President Milosevic, a serving head of state; and also the adoption by nearly two hundred states of the Statute of the International Criminal Court (ICC). (9) These three events, all of which occurred in 1998, were made possible by the rather revolutionary legal developments post-1945.

   And then I could spend a couple of days on maritime issues, on the fascinating cases concerning the delimitation of the boundaries of the Bay of Bengal, advising on cases brought by Bangladesh, for whom I act, against India and Myanmar. (10) That such work is even possible is due to the adoption of the 1982 United Nations Convention on the Law of the Sea, a charter for the oceans, which provides also for the possibility of binding dispute settlement before bodies like the new International Tribunal for the Law of the Sea, in Hamburg, and international arbitration. (11) These too are illustrative of the new approach to international law.

   I mention my involvement in these cases--for which I recognize a great privilege--simply to make the following point: the life of an international lawyer today is constructed upon foundations that were put in place after the Second World War. Without those rules--without the law of the sea, or the modern system of human rights law, or the new international criminal law--my working week would be very different. There is another reason I make this point in this lecture: these juridical developments, and many others, are connected to the city of Lviv.

   For the students in the audience, let me say something briefly about becoming an international lawyer. I grew up in North London, in a middle class family. Home was not intellectual, not academic, and certainly not legal; there had never been any lawyers in my family. I went to university--Cambridge--to study economics, but having benefited from a wonderful economics teacher at school, with whom we had covered much of the first year university syllabus, decided to change to law (which in England is an undergraduate course). I did not love the study of law, learning about cases on contract and tort in a way that seemed divorced from the underlying political, social, and economic realities that cause particular rules to be adopted and enforced. But I had one professor who made a real difference: Professor Jennings, a Yorkshireman whose course on international law was the last he gave before he served as a judge at the World Court in The Hague. His lectures were different, not so much because of the quality of the delivery--I recall he delivered most lectures without any notes--but because of the subjects he addressed. His lectures were about war and boundary disputes and maritime issues, and other matters that excited the imagination, taking us out into the world, to exotic places with a propensity for conflict. Although I was English, I had a French mother who was born in Vienna in 1938. So Professor Jennings' lectures connected to some degree with personal experience.

   I added a year to my studies to do more international law. In 1983, I earned a specialist masters degree in international law--indispensable if you are truly committed to the subject--and then followed my heart, going off to America to be with my then girlfriend, an American neuroscientist, to the other Cambridge, in Massachusetts, to Harvard. I arrived the week that the Soviet Union shot down a Korean airliner, an event that became the subject of my first academic article. (12) I turned up at Harvard with a place to stay but not much else. I went to the law school to see if someone needed a research assistant on international law, and was fortunate to chance across David Kennedy, a young scholar newly appointed...