L. Bilsky u.a. (Hrsg.): Jewish-European Émigré Lawyers

Cover
Title
Jewish-European Émigré Lawyers. Twentieth Century International Humanitarian Law as Idea and Profession


Editor(s)
Bilsky, Leora; Weinke, Annette
Series
Schriftenreihe Menschenrechte im 20. Jahrhundert (8)
Published
Göttingen 2021: Wallstein Verlag
Extent
232 S.
Price
€ 24,00
Reviewed for Connections. A Journal for Historians and Area Specialists by
Rotem Giladi, University of Roehampton Law School/Leibniz-Institut für jüdische Geschichte und Kultur—Simon Dubnow

This collection, the result of a 2017 conference (in which—disclosure is due—the reviewer has participated), represents a topical addition to the growing bookshelf dedicated to Jewish activists and jurists and their contribution to 20th century international law.[1] The opening essay by Annette Weinke serves in lieu of traditional introductory reflection on the contributions, their relation to existing scholarship, epistemologies, and method; what they signify and what new inquiries they compel. Through a rich longue durée tour of Jewish presence in the field during the 20th century, Weinke ponders some of the key questions attending the study of legal aspects of “Jewish internationalism”(p. 9). She reveals the editors’ commitment to going beyond revisiting the intellectual biographies of elite usual suspects, “a few academics and honorees”(p. 9). This ambition to examine a wider corpus of historical agents and types of agency consolidates a recent important move by scholarship. Bilsky’s chapter on Rachel Auerbach provides one historical corrective; Brot’s essays on legal aid in DP Camps, or De Vita’s work on communist Kaul, represent others. These beg, however, other questions. One concerns the limitations of a field of inquiry that is expanded—yet only to cover the study of the agency of European Jews, alone. The international law engagement of non-European Jews, often marginalised as Jews and as non-European both, has not received any attention in legal-historical research. The ambition to give voice to those “erased from conventional accounts of international (legal) thought” (p. 10) by studying “various facts of legal engagement” (p. 11) merits some reflection on exclusions inherent in the framing of this collection’s field of study.

Some of the essays follow the tendency to downplay, in principle or effect, the import of intra-Jewish political contestation for the understanding of the kaleidoscope of Jewish ideological sensibilities, political projects, and reform agenda in the international legal arena. Weinke’s counterpoint that “competition as well as crossfertilization” (AW13) both characterised the complex relationship between e.g. national and assimilationist international law protagonists and institutions offers a fresh insight on the contribution of modern Jewish politics to international law—and, no less important, vice versa. The engine of ideological animosity and institutional jealously has been, indeed, a common thread running through familiar and less-known episodes of 20th century Jewish international law activism from e.g. the strange coalitions promoting minority rights in Paris 1919; the credit war for the Bernheim petition of the 1930s;[2] competing authorship claims over the human rights project in the 1940s;[3] and the contestation over primacy of Jewish representation on world stage before, but especially following, Israel’s UN admission.[4] Weinke’s insight captures well both the collection’s ambition and its achievement: to de-essentialise and politicise the shifting dynamics of Jewish international legal agency and so move away from “the tropes of a liberal Jewish legal cosmopolitanism and of a victim-centered international justice”(p. 18)—and to do so through concrete historicising of diverse Jewish agencies. Downplaying political or ideological contestation, however, comes with a risk patent e.g. in how she reads the cosmopolitan citizenship potential of the Nansen passport. Mindful of the Vienna School critics of that project, that reading nonetheless misses out on another critical attitude to that instrument of protection. Such passports, for Zionists, furnished evidence of Jewish vulnerability and political inferiority: as an official League of Nation recognition of Jewish statelessness, these presented an odious privilege.[5]

James Leoffler’s reflection on the “Promise and Peril” of “Jewish International Legal Biography” complements, in many respects, Weinke’s survey. It explores the tensions between two approaches to such biographies. One deploys “a liberal cosmopolitan metanarrative that frames international Jewish lawyering as a form of legalist antipolitics”, the other, a “liberal nationalist metanarrative” that privileges Jewish politics as the point of departure for “a necessary legal reordering of the world” (p. 38). The former, he proposes, tends to erase the politics of its biographical subjects, emphasise their victimhood, and produce martyrologies where Jews serve as “avatars of international morality” (p. 43); the latter, Leoffler implies, runs the risk of venerating the politics of Jewish nationalism—although here, concrete examples of such biographical veneration—or, indeed, any biographical work that follows that approach—would have bolstered the evidence provided by two primary, contemporaneous sources. The essay concludes with a call to historicise “the relationship between Jews and international law” by “excavating Jewish political investments” without “reifying Jewish politics” that underly these investment.

Helmut Philipp Aust republished essay traces André Mandelstam’s transition “From Diplomat to Academic Activist” and, in particular, his human rights project, to the demise of the Russian and Ottoman empires; a relativist reading of state sovereignty; and the demand to “generalise” the selective obligations imposed, in the aftermath of the Great War, on some states in respect of their minorities. The 1929 Declaration on the “Universal Rights of Man” adopted by the Institut de Droit International as the outcome of Mandelstam’s work unsettles both the orthodoxy that considers human rights to be the product of moral outrage of the late 1940s and the revisionist charge, led by Samuel Moyn, that points to the 1970s as the moment of their birth. While asserting the nexus linking both late imperial interventionism and interwar minority protection to the human rights idea, the essay raises pertinent questions on dead ends, roads not taken, and discontinuities. The essay, notably, mentions Mandelstam’s Jewish origins only en passant, demonstrating in extremis the risk inherent in the project to de-essentialise Jewish international lawyering. For if Mandelstam’s work bears no relation to his Jewish origins or self-understanding, why ought this analytical category matter at all?

Leora Bilsky’s essay takes the form of eleven “takes” scripting her protagonist’s project to reimagine “the Victim as ‘Eyewitness’ to the Nazi Camera”. These snapshots, the first of which captures her own out-of-court testimony taken by Raphael Lemkin in his preparations for Nuremberg, bring to the fore Rachel Auerbach’s work to collect victims’ testimonies—in the Warsaw Ghetto and after the war. Instead of accounting for the enterprise of a historically-minded journalist-activist, Bilsky insists on reading Auerbach as the author of legal interventions. Deftly linking the questions of atrocity representation, trial evidence, and victims’ historical agency and legal voice, Bilsky records Auerbach’s turn to invoke, in her Lemkin testimony and elsewhere, Nazi cameras set up to film carefully-staged scenes of Ghetto life as an act of legal resistance against the perpetrators’ manipulated representation of the crime and its victims: to reclaim, we could say, the right to record. For Bilsky, Auerbach’s interventions—in the Ghetto, in the margins of Nuremberg, in her post-war work, and in the Eichmann trial—affected a “different perception of the role of the witness”(p. 88): not to authenticate the crimes forensically but to “expose the manipulation” (p.96) of their representation by the objective pretence of Nazi cameras—and defy it.

Rivka Brot’s essay, too, portrays unexpected ways where law may be used to assert victims’ agency, even in the ephemeral existence of DP camps. Brot argues that the significance of legal aid provided by the American Jewish Distribution Committee (JDC) to Jewish DPs in the American Zone of occupied Germany lies in the framing of protection of the “rights and interests of Jews as a collective” (p. 105). Indeed, Jewish philanthropy and advocacy had long been preconditioned by an ideological rift separating the construction of Jews (and thus their needs and interests) as individuals or as members of a national collective.[6] In this sense, Brot’s account of how material relief transmuted, from below, into legal advocacy work, speaks of continuity—but also of a break brought by the exceptional. Brot argues, in contrast to prevalent accounts perceiving DP camps as the locus of Zionist aspirations in respect of Palestine/Israel, that JDC aid workers were driven by a “vision of […] extraterritorial”(p. 107) legal aid. She proposes, moreover, to understand that vision in terms of Gegenwartsarbeit. Yet adherents of that programme—development of national life and promotion of collective national rights in the Diaspora—had nonetheless supported the upbuild of the National Home in Palestine and shared with Zionists the same aversion to Western-style philanthropy of organisations like the JDC as prejudicial to their claim to collective national rights. The rich new evidence produced by Brot does not quite appear to suggest that JDC activists considered their actions either in national terms or as the revival of interwar Gegenwartsarbeit. If legal aid they provided was couched in collectivist terms, this perhaps can be better understood as a temporary suspension, in the face of unprecedented conditions, of ideological commitment to a Western-style civic-political emancipation predicated on individual equality.

Katharina Rauschenberger examines the Fritz Bauer’s Scandinavian exile and the marks it left on his more familiar career as a prosecutor in post-war Germany. In particular, she traces the intellectual origins of his 1944/1945 Kreigsverbrecher vor Gerchit, composed in relative isolation from post-war planning debates in London, New York and Washington DC, and surveys Bauer’s stance on various legal challenges for bringing Nazi criminals to trial after the war. Rauschenberger proposes that though Bauer’s isolation limited the reception of his readings, his criminal justice work was geared towards the reconstruction of a Germany where he could find his own political and professional place. That work, she concludes, in time, shaped Bauer’s prosecutorial strategies.

A juxtaposition to social democrat Bauer is provided by Lorena De Vita’s essay on communist Friedrich Karl Kaul whose extraordinary 1961 journeys from East Germany to Jerusalem, in connection with the trial of Adolf Eichmann, served as a turning point in the legal career of the GDR’s “star lawyer”. Recounting Kaul’s improbable biography and its many changing political contexts, De Vita captures just how unlikely had been the GDR’s decision to dispatch him to Israel in order to expose the Nazi past of members of Bonn’s establishment and embarrass the FRG. Though Kaul’s presence in Jerusalem yielded only partial outcomes, De Vita notes that, in its wake, Kaul would produce “a stream of publications” (p.170) and take part in West German proceedings dealing with the Nazi era while navigating the constraints imposed by the regime he had served; a closer look at his post-Eichmann oeuvre and its GDR reception, however, would have strengthened the timely reminder served by De Vita: tracing Kaul’s own ability to pierce the iron curtain, her intervention aptly illustrates that the phenomenon of Jewish legal internationalism is not limited, geographically or ideologically, to the project of Western liberalism alone.

In order to rectify the historiographical marginalisation of women, Marion Röwekamp’s proposes to consider the life and works of Helen Silving as a “case study” (p. 175) for global consciousness and activism—a “parallel network” (p. 173) of women lawyers centred around “women’s equal rights” (p. 186). Her essay tracks Silving’s adaption of Hans Kelsen’s legal positivism e.g. in her consideration of the Eichmann trial and the thorny jurisdictional questions it raised. It illustrates how, in departure from her teacher’s “pure” theory of law, her work reasserted the role to be played by natural law. For Silving, positive and natural law were not “mutually exclusive opposites but complementary concepts” (p. 179); her moral approach to international law, attempting to “integrate, to embrace, and to overcome” may thus be described as “female” (p.180) and, drawing on traditional Jewish sources and closely linked to her own self-identification, also as Jewish. Yet while the essay is careful to point to the context of Silving’s cosmopolitanism and ponder her historical marginalisation, it does not locate her work within a “parallel network” of women lawyers; it highlights, instead, the exceptionality of her focus on areas of international law perceived as masculine.

In the concluding essay, Daniel Stahl aptly critiques the biographical genre by reconstructing the political context of the belated interest in Raphael Lemkin and Benjamin Ferencz. This, he argues, was driven by the need to “create a legitimating narrative for certain political agenda” (p. 189)—specifically, those driving the projects of international criminal law and humanitarian intervention—in the wake of the Cold War’s end. Here, Stahl proposes that, like other former Nuremberg prosecutors, “Ferencz proved to be especially useful” (p. 193) to the German delegation to the Rome negotiations. Ferencz willingly lent credibility to Germany’s embrace of the Nuremberg trials that was meant to further its post-unification international policies—while, at the same time, helping to entrench a narrative of American tradition to overcome Washington’s hesitation with regard to the emerging International Criminal Court. Similarly, Stahl locates the onset of the “Lemkin hype” (p. 196) in debates on US global strategy and, specifically, in George W Bush’s reversal of the multilateral investment of the Clinton’s administration. At that moment, an alliance comprising the UN Secretary-General, US Jewish organisations, and scholars moved to mobilise Lemkin’s figure to overcome the crisis of liberal internationalism and its failure to stop genocide in the Former Yugoslavia and Rwanda. Together, they portrayed the Genocide Convention’s father as apolitical, lone warrior maverick whose activism embodied a critique of American disengagement. Stahl concludes, soberingly, that the late “discovery” of these two protagonists “was not a symptom of a success, but the expression of a deep crisis of the liberal project” (p. 201).

The collection leaves a few loose ends. One concerns terminology. The subtitle’s reference to “International Humanitarian Law” is misleading. The collection only marginally engages with legal norms governing the conduct of warfare which the phrase “international humanitarian law” today commonly denotes. Instead, it often examines public international law norms concerned the welfare of individual and groups. Of course, the case can be made that contemporary rules regulating the conduct of warfare do not quite merit the qualifier “humanitarian”; or that the international rights-regimes discussed in the collection share common denominators of humanitarian content, effect, or aspiration. The collection neither makes any such case nor explain the choice to use a term against existing conventions. Another loose end concerns the choice to frame the collection’s protagonists as émigré. Some contributions leave little doubt that displacement was experienced by their respective protagonists. They mark the detail and, at times, outcomes of that experience e.g. the transatlantic transfer of knowledge and sensibilities during World War II (p. 20-21). The significance of that experience to our understandings of the phenomenon—modern Jewish international law activism—remains, however, largely assumed rather than systematically examined, analysed, or critiqued.

Notwithstanding loose ends, the collection makes a very compelling case for expanding the study of Jewish legal internationalism, its forms, sites, agents, and its many political contexts. This renders the volume’s eclecticism a virtue: while, perhaps inevitable, individual essays are uneven and at times require some conceptual tightening, together they represent an invitation to reconsider the scope, limitations, and exclusionary tendencies of existing historiography and re-imagine the terms on which modern Jewish history and modern international law had met—and ought to be historicised. This expanded prosopography presents a timely and thought-provoking addition to a growing bookshelf on Jews, international law, and modern history.

Notes:
[1] Usefully surveyed in James Loeffler/Moria Paz (eds), The Law of Strangers. Jewish Lawyers and International Law in the Twentieth Century, Cambridge 2019.
[2] Philipp Graf, Die Bernheim-Petition 1933. Jüdische Politik in der Zwischenkriegszeit, Göttingen 2008.
[3] James Loeffler, “The Conscience of America”. Human Rights, Jewish Politics, and American Foreign Policy at the 1945 United Nations San Francisco Conference, in: The Journal of American History 100 (2013) pp. 401-428.
[4] Rotem Giladi, Jews, Sovereignty, and International Law. Ideology and Ambivalence in Early Israeli Legal Diplomacy, Oxford 2021.
[5] Ibid, p. 278.
[6] E.g. Yfaat Weiss, Deutsche und polnische Juden vor dem Holocaust. jüdische Identität zwischen Staatsbürgerschaft und Ethnizität 1933-1940, München 2000.

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Published on
17.06.2022
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