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G. DANIEL COHEN
Speaking at the tribune of the United Nations in June 2004, the former Secretary-General Kofi Anan explicitly linked the Holocaust to the emergence of modern human rights: “Worldwide revulsion at this terrible genocide was the driving force behind the Universal Declaration of Human Rights.”1 Reactions to the mass murder of European Jews, intimated the Ghanaian diplomat, promoted the diffusion of human rights norms in the postwar era. This statement certainly conveyed noble intentions. “A human rights agenda that fails to address anti-Semitism,” Anan rightly reminded his audience, “denies its own history.” Yet the causality between the Holocaust and the expansion of human rights inferred in this address also echoed a widespread assumption: at the end of the Second World War, the shocking discovery of the Jewish genocide allegedly added a moral core to international politics. Accordingly, the various human rights instruments designed under the umbrella of the United Nations and the Council of Europe in the late 1940s—the Universal Declaration of Human Rights (1948), the Genocide Convention (1948), the European Convention on Human Rights (1950), and the Geneva Convention on Refugees (1951)—exemplified a deliberate rejection of “barbarous acts which have outraged the conscience of mankind,” the Holocaust chiefly among them.2 The official websites of the United Nations and the European Union are not the only propagators of this foundational narrative. Numerous historians of human rights have also contended that the first international guarantees aimed at sheltering individuals from abusive states predominantly stemmed from Holocaust awareness, even if detailed knowledge of Nazi genocidal intentions and actions was still decades away. Although the 1948 Universal Declaration of Human Rights (UDHR) has multiple origins, one of its premier commentators argued, “none of them match the Holocaust in importance.” Consequently, the liberal-individualist overtones of the “Magna Carta for Mankind” did not merely resurrect Enlightenment principles but also affirmed “deep truths rediscovered in the midst of the Holocaust and put on paper again shortly thereafter.”3 For Paul G. Lauren, what ultimately tipped the scale in favor of human rights after the Second World War was the “unimagined destruction of human life in the genocide of the Holocaust’s ‘Final Solution’ that exceeded all previously known bounds.”4 Michael Ignatieff offered more abstract wording; in his opinion, the postwar preoccupation with human rights was a radical attempt at creating “firewalls against barbarism” and symbolized a “war-weary generation’s reflection on European nihilism and its consequences.”5 Yet even when not overtly named, the Holocaust ranks particularly high among the explanatory factors currently advanced to elucidate the outbreak of the so-called human rights revolution.6
This “Holocaust-centric” interpretation has not always prevailed. The first pamphlet on human rights issued by the United Nations in 1950 devoted only a few lines to Nazi anti-Semitic violence. What first and foremost stirred the “conscience of the free world” after the Second World War, explained the UN Department of Public Information, was the “absolute power of the state” and the “disappearance of political freedom” under fascism and Nazism.7 Similarly, legal commentaries on the UDHR written during the early Cold War era hardly singled out the Nazi genocide as the progeny of human rights law. Although published by the World Jewish Congress to commemorate the tenth anniversary of the Declaration, Nehemiah Robinson’s pioneering study limited itself to a general observation: “the war initiated by the Axis in violation of the most elementary rules of civilized behavior” was the document’s main source of inspiration.8 Five years later, another commentator succinctly added that “the savage campaign of extermination directed against the members of the Jewish race” ranged among the crimes which the Declaration sought to banish.9 Since the late 1960s, however, the central place occupied by the Holocaust in the remembrance of the Second World War has reshaped our perception of the origins of modern human rights. Now elevated to the rank of iconic “breach of civilization,” the Holocaust is today equally portrayed as a “civilizer of nations”: the epitome of twentieth-century suffering that purportedly fostered the internationalization of human rights and the humanization of international law.10 As one author summarized, “the horror of the Holocaust would shape new international humanitarian law for decades to come.”11 Implicit in this view is that immediate memories of the Jewish catastrophe rescued the postwar human rights project from its numerous shortcomings. Despite the persistence of racial segregation in the United States, of European rule in the colonial world, and of the gulag system in the Soviet Union, widespread outrage at Nazi genocidal policies infused substance and moral energy into the emerging human rights regime. The legacy of the Holocaust thus solidly “lies at the heart of the moral consensus on human rights that was born in the 1940s and has expanded ever since.”12
Remarkably, few historians have weighed the merits of this popular claim. The recent emergence of “human rights history” has generated important research on the diplomatic, political or cultural foundations of human rights but has left the specific question of “Holocaust causality” largely unaddressed. To the extent that an historical debate exists over the main factors accounting for the expansion (or invisibility) of human rights after 1945, it chiefly revolves around the role successively played by American hegemony, anticolonialism, détente, Eastern European dissidence, Jimmy Carter’s foreign policy, or post-1989 globalization. Another dividing line separates historians who attribute the postwar resonance of human rights to the top-down protections envisioned in the late 1940s from others who now locate in the 1970s the soaring phase of the “last utopia.”13 A question generally shunned by historians, the precise impact of the Holocaust on the articulation of human rights principles has been predominantly investigated by sociologists and legal scholars focused on the post–Cold War period. As the human rights impulse finally “burst free into an interconnected world that seemed made for it,” expansive memories of the Holocaust elicited a new “cosmopolitan morality”; dramatized other abuses of human dignity; and heavily impinged on the conduct of international justice and humanitarian interventions.14 While illuminating the role played by Holocaust memorialization in the production of contemporary moral and legal norms, these studies reassert what has become the conventional story of origin: “The horrors of the Holocaust formed the background against which human rights norms and a host of other UN conventions initially established their legitimacy.”15
Historians have nonetheless started to challenge the ideational premises of this “Holocaust-centric” thesis. More interested in Great Powers politics than in the idealism of individual “visionaries,” Brian Simpson and Mark Mazower have belittled the significance of the “human rights revolution” as a corrective to the Final Solution. Admittedly, the 1948 Genocide Convention was passed in response to the “European Holocaust.” But throughout the second half of the 1940s, the permanent concern of the Great Powers—and of the British government in particular—remained first and foremost the safeguard of sovereignty against external interventions in national and colonial affairs. At best a “pious exhalation of hot air,” the nonbinding Universal Declaration was perfectly suited to secure this goal. The human rights regime thus originated in “complicated interrelationships between individuals, institutions, and governments, with their varied ideological commitments and perceptions of reality, history and self-interest.”16 For Mark Mazower, the “strange triumph” of human rights reflected a widespread international desire to finish off the moribund interwar system of minority rights in favor of individual rights abstract enough to be safely embraced. Designed at a time when colonized nations did not yet belong to the United Nations, the human rights framework intentionally blocked the full-fledged recognition of self-determination and only offered weak protections to endangered minority groups. Rather than a radical shift in moral standards, the “human rights revolution” reinforced the sovereign prerogatives of nation-states.17 From this perspective, therefore, what had yet to be called the Holocaust hardly functioned as a driving force toward a moral world: polite invocations aside, the legacy of the Final Solution remained peripheral to the formation of the human rights system. Since there was no Holocaust-consciousness in the immediate postwar era, stated Samuel Moyn in a thought-provoking study, “human rights could not have been a response to the Nazi genocide. Unrelated to the Holocaust or at times explicitly silent on Nazi murderous anti-Semitism, Christian-personalist and conservative thought strongly inspired the turn to human rights after 1945.18
This essay strikes a middle ground between these polarized interpretations. The dominant ideational school of thought plausibly asserts that the Holocaust weighed upon the dawn of the “age of rights,” but this argument warrants qualification. The United Nations human rights project did not miraculously rise “from the ashes of the Holocaust,” as a self-congratulatory Kofi Anan proclaimed. Even if politically marginal until the outbreak of the Second World War, the idea of individual rights enshrined in international law was incubated in Western Europe and the United States in the first half of the twentieth century. At the end of the Second World War, the seven nonbinding and hortatory mentions of human rights in the United Nations Charter undoubtedly installed this rhetoric at the core of the new world order. But in June 1945, this first international evocation of human rights was not a reaction to the Final Solution. A few weeks removed from the liberation of Europe, participants in the San Francisco conference did not yet “grasp the full scale of the horrors perpetrated by the Nazis.”19 Often described as the imperfect but pathbreaking beginning of the “human rights revolution,” the United Nations Charter bore little relation to the Nazi assault on European Jewry. Six months later, the massive documentary evidence produced in the course of the Nuremberg Trials (November 1945–October 1946) nonetheless brought the Holocaust into closer proximity with the human rights project. The first distinctive international effort “outside of Jewish circles to grasp the awful significance of the murder of European Jews,” the proceedings of the International Military Tribunal also played a pivotal role in the subsequent drafting of human rights instruments.20 Elicited in part by this wealth of information, references to the Holocaust are traceable, among others, in the UDHR and the Genocide Convention. They generally intermingled with the denunciation of other German atrocities and served to broadly magnify Nazi inhumanity. But the language of international human rights did not encourage historical amnesia: the human rights regime established under the auspices of the United Nations universalized the Holocaust without negating its historical significance. While in postwar Europe the Jewish catastrophe was expediently blurred within a narrative of national or antifascist martyrdom, it was both memorialized and naturalized in international law.
On the other end, skeptical authors offer essential cautionary tales for historians too easily seduced by the idealist pronouncements of celebrated human rights pioneers. The political scientist Andrew Moravcsik warned that when engaged in the study of human rights regimes, “scholars should not jump too easy to the conclusion … that altruism must motivate the establishment of morally attractive international norms.”21 The UN General Assembly could solemnly proclaim, as it did on the passing of the 1948 Genocide Convention, that “in this field relating to the sacred right of existence of human groups, we are proclaiming the supremacy of international law.”22 But in the context of the nascent Cold War, recently countered Mark Mazower and Samuel Moyn, “international law could no longer claim a position over politics.”23 Their harsh dismissal of the “revolution” obscures, however, the triggering effect of the Holocaust on the formulation of human rights, irrespective of their shape or immediate effectiveness. The turn to individual rights characteristic of the 1940s may well have served to hinder third-party interference in the Great Powers’ affairs, legitimate ethnic cleansing and population transfers, or prevent self-determination in the colonies. Yet the individualization of international law, even if devoid of rigorous mechanisms of enforceability, was also a response to Nazi genocidal actions and to the plight of Jewish survivors in displaced persons camps. That Great Power politics obstructed the implementation of human rights and narrowed their scope should not mask this referential dimension. Despite its flaws, the “human rights revolution” constituted the first international site of Holocaust remembrance.
The place occupied by the genocide in the writings of three influential Jewish jurists aggrieved by Nazi violence exemplifies the simultaneous centrality and invisibility of the Holocaust in postwar human rights discourse. Hersch Lauterpacht, the Galician-born legal scholar who during and after the Second World War forcefully endorsed individual rights as the foundation of international law, lost his parents and siblings in the Holocaust. René Cassin, the premier French drafter of the 1948 Universal Declaration, never saw twenty-nine relatives, including his sister, return from Vichy-condoned deportation. Raphael Lemkin, the tireless crusader for the criminalization of genocide, miraculously escaped his native Poland before the Nazis murdered forty-nine members of his family in the Warsaw ghetto, in concentration camps, and during death marches.24 Yet, in their respective and divergent efforts to promote human rights after the war, Lauterpacht and Cassin remained silent about the Holocaust. According to an attentive reader of Lauterpacht’s postwar writings, the Cambridge scholar alluded to the Final Solution only once, in a footnote.25 In keeping with French public discourse in the aftermath of the Liberation, René Cassin never addressed “Nazi barbarism” in specific Jewish terms. Although an open advocate of Jewish rights and (like Lauterpacht) a sympathizer of Zionism, Cassin preferred to evoke the “atrocities of the Second World War,” “Nazi aggression,” or the “revolting and monstrous acts” perpetrated by the Axis to stress the historical timeliness of the Declaration. Raphael Lemkin was, of course, much more explicit about the annihilation of European Jews. His landmark Axis Rule in Occupied Europe, published in 1944, presciently grasped the gravity of the Holocaust. Lemkin’s subsequent campaign for the Genocide Convention, however, did not exclusively stem from the Jewish catastrophe. The lone crusader was also deeply affected by the ruthless destruction of Poland, as well as greatly influenced by Johann Gottfried Herder’s thought on the singularity of world cultures and the crucial need to protect them. In unpublished research conducted in the last years of his life, Lemkin also extended the concept of genocide to settler colonialism. Although Lemkin was more vocal than Lauterpacht and Cassin about the Holocaust, his concern for the “essential foundations of the life of a national group” transcended the exclusive realm of Jewish history.26
Important doctrinal and political differences separated Lauterpacht, Cassin, and Lemkin from one other. Lauterpacht was a strict “neo-Grotian” with grave legalistic focus on the individualization of international law. A French republican and World War One veteran, Cassin was a more flexible individualist who sought the inclusion of social rights and the protection of the human “personality” into the human rights regime whose birth he oversaw.27 At odds with legal individualism, Lemkin’s single-issue campaign for the recognition of genocide revivified the dwindling legacy of interwar minority rights. These three Jewish jurists nonetheless conveyed the experience of the Holocaust through the formulation and codification of human rights. Above all, they sought to extract universality from the singular Jewish tragedy. The Holocaust, in their mind, violated humanity as a whole; whether through individual or collective rights, the most urgent form of redress was to challenge the “Leviathan State” as an entity beyond the reach of law. Staunch individualists like Lauterpacht regretted that the attack against state sovereignty was significantly weakened by the impossibility for individual citizens to petition the United Nations against abusing states. Contrary to Lauterpacht, Cassin pinned his hopes on the future compliance of nation-states with the new moral standards vibrantly proclaimed by the Declaration. More interested in the protection of collective rights than in the promotion of individual rights, Lemkin advocated the international criminalization of genocide and the adoption of uniform domestic laws prohibiting this offense. All, nevertheless, crucially imported the Holocaust into their own conceptions of international law.28
Recent commentators on the Universal Declaration found a similar disposition among the multiple diplomats, NGO representatives, and United Nations spokesmen who took part in drafting the document from January 1947 to December 1948. Johannes Morsink regards nearly every article of the Declaration as an expression of outrage at the Holocaust. In his opinion, articles on personal security, legal rights, democratic governmental procedures, citizenship, and asylum mirror the experience of the Final Solution. According to Morsink, recent historical research retroactively confirms the “impetus of the Holocaust behind the acceptance of the entire range of rights in the Declaration.”29 A closer examination reveals, however, a more ambivalent picture.30 If the finalized language of the Declaration can be easily opposed to Nazi crimes, it does not always call the Holocaust to mind. “All human beings are born free and equal in dignity and rights” (Article 1) may well have alluded to “the unity of the human race as opposed to the theories like those of Hitler,” as Cassin himself argued, but this article also resurrected the late eighteenth-century rhetoric of the Atlantic revolutions. Article 2 on the universal enjoyment of “the rights and freedoms set forth in the Declaration” counteracted Nazi claims of racial supremacy but also nominally challenged European rule in the colonial world. The “right to life, liberty and security of persons” guaranteed in Article 3 alluded to the Nazi euthanasia program, which subsequent research identified as the preparatory phase of the Final Solution. Cassin again stressed the necessity of such a provision when he reminded the General Assembly that “when Germany began to violate these principles in 1933 … the nations of the world did not intervene.” But Charles Malik, the Lebanese rapporteur of the Commission of Human Rights and a former student of Martin Heidegger, championed the “right to life” as a way to safeguard “bodily integrity from the moment of conception.” Representatives of women’s organizations logically countered that such a provision could impede the passing of “advanced legislation” favorable to abortion, thereby taking the debate further away from Nazi euthanasia. In Article 4, “No one shall be held in slavery of servitude” surely implied a condemnation of Nazi slave labor—not incidentally voiced during the deliberations by a Polish delegate—but also covered the Nazi treatment of prisoners of war and more generally the trafficking of women and children.31 The prohibition of “torture, cruel and degrading treatment or punishment” (Article 5) pertained in part to Nazi medical experiments performed on concentration camp inmates or more generally to the “medieval methods … practiced in the recent past by the Nazis and Fascists” but also encompassed other forms of corporal violations.32
The series of legal rights spelled out by the Declaration appear more specifically related to the origins of the Final Solution. Article 6 on the “right to recognition everywhere as a person before the law” derived from the exclusion of German Jews from the juridical realm prior to their physical elimination. The World Jewish Congress (WJC), one of the most active consultative organizations at the United Nations, successfully reminded the drafters that Hitler “annulled every human right by law … up to the point of mass murder of six million Jews and innumerable other victims in Germany and the whole of Europe.” The WJC also scored a victory in amending Article 7, guaranteeing universal equality before the law. Because the initial assault on German Jews was paradoxically mounted through legal means, “this equality [before the law] must be protected by prohibiting incitement against discrimination.”33 More important, the WJC and other advocates of ex post facto prosecution demanded the retroactivity of crimes against humanity perpetrated under the Nazi regime. The first draft of Article 11 presented by the Commission of Human Rights had initially proposed—in conformity with Anglo-American principles—that no law should be retroactive. This language prevented the prosecution of crimes not punishable under German law at the time they were committed. But the Declaration ultimately recognized the retroactivity of international law: even if committed with impunity under Nazi law, any offense subsequently defined as crimes against humanity by the Nuremberg and Tokyo tribunals was considered punishable.34 Article 13 on the “right to leave a country” was undoubtedly inspired by the Jewish refugee crisis of the late 1930s, even if it was complemented by “the right to return to one’s country,” applauded, among others, by representatives of Arab governments in support of Palestinian refugees. Article 14 (“Everyone has the right to seek and enjoy in other countries asylum from persecution”) was stripped of the more daring “right to be granted asylum,” which was dear, in particular, to René Cassin and the World Jewish Congress. But this first international recognition of the right to seek asylum sought to prevent another “abandonment of the Jews” or other disenfranchised communities in the future. Article 15 on “the right of everyone to a nationality” also evoked the predicament of Central European Jewish refugees on the eve of the Second World War. The second part of this article—“No one shall be arbitrarily deprived of his nationality”—explicitly referred to the wholesale denationalization of Jews under Nazi law.
The social, economic, and cultural rights proclaimed in the second half of the Universal Declaration are much more difficult to link to Nazism, let alone to the Holocaust. The right “to marry and found a family” (Article 16) obviously had little to do with the Final Solution. Nazi marriage laws, as Cassin reminded, forbade unions between Aryans and non-Aryans, but during the drafting process the debate chiefly revolved around the definition of consent and on the equality of men and women in contracting marriage. Evidently, the “right to social security” (Article 22) and “the right to work and form labor unions” (Article 23) expressed liberal, social-democratic and communist concerns, even if it was occasionally claimed that the international recognition of these rights “would make the return of fascism impossible.” Finally, the right to a “peaceful international order” (Article 28), the duty to exercise rights and freedoms according to “the principles of the United Nations” (Article 29), and the warning sent to states against the performance of acts “aimed at the destruction of any of the rights and freedoms set forth herein” (Article 30) sought to establish the Declaration as an international code of conduct. But overall, precise references to the Holocaust in this general appeal to humanity are scarcer than assumed in the idealist literature. This relative invisibility did not however amount to oblivion: the Declaration did honor to Jewish suffering by processing its singularity into a universalistic vision, to the ample satisfaction of postwar Jewish organizations.35 The Holocaust was therefore simultaneously visible and absent from early human rights rhetoric and sufficiently reconciled particular memories with universal rights.
Passed by the UN General Assembly on December 9, 1948, the Convention on the Prevention and Punishment of the Crime of Genocide bore in its very title a more tangible relation to the Holocaust. Yet like the UDHR adopted in Paris one day later, it significantly broadened the legacy of the Jewish tragedy. Here again, the writings of the World Jewish Congress jurist Nehemiah Robinson—the first legal commentator on the Genocide Convention—serve as a reliable yardstick to gauge the level of “Holocaust-centrism” in the emergence of postwar human rights.36 For Robinson, the “Nazi war of aggression and the crimes against the Jews and other nationalities demonstrated clearly the necessity of international action to punish the perpetrators of the mass destruction of peoples.” The United Nations Department of Public Information concurred with this rationale: “In modern times, this crime of crimes was practiced on a larger scale by Nazi Germany … to destroy millions of Jews, Slavs and almost all the gypsies of occupied Europe.”37 These statements faithfully conveyed Lemkin’s cosmopolitan goal of outlawing all forms of group destruction. They were also historically sound, as well as historiographically prescient. As Timothy Snyder demonstrated in his study of mass murder in wartime Eastern Europe, the Final Solution was originally only one of the exterminatory projects to be implemented after a victorious war against the Soviet Union. Contrary to their expectations, the Germans were unable to eliminate some fifty million people as envisioned in Generalplan Ost. They nonetheless intentionally starved one million people in the siege of Leningrad, provoked famines in Ukrainian cities, and allowed three million Soviet POWs to perish.38 This plurality of murderous practices prompted the Soviet delegation at the United Nations to demand the recognition of an “organic connection” between the concept of genocide and Nazi eliminationist violence. This proposal was ultimately rejected on the grounds that a strict correlation between the Genocide Convention and Nazism would impede its applicability in the future. Its core articles, however, clearly mirrored various instances of planned mass murder in wartime Eastern Europe: all recognize the Holocaust as an ideal-type for the crime of genocide while acknowledging other patterns of collective annihilation. The Genocide Convention has often been criticized for its deliberate omission of “cultural genocide” (due to American and European lack of enthusiasm for the group rights of minorities and colonial peoples); and for its disregard of “political genocide” (due to Soviet fears of retroactive incrimination and the opposition of NGOs such as the World Jewish Congress reluctant to downgrade genocide to a struggle of states for predominance). As part of the United Nations weak preventative system, the Genocide Convention has also been blamed for failing to protect minorities from massive violence during and after the Cold War. But more than any other United Nations instrument, the Genocide Convention availed the Holocaust as a referential “crime of crimes” for postwar human rights activists.
In this regard, the European Convention of Human Rights (ECHR) adopted in 1950 by the Council of Europe presents a sharply different case. Rooted in the politics of European integration and Cold War diplomacy, the ECHR sought to stabilize Western European liberal democracies—or as one of its promoters explained, “generalize social democracy”—against the threats of domestic communist parties and Soviet hegemony on the Continent. Its overall goal was to cement a consensus on the political importance of individual liberty in Europe through common standards of human rights. Initially crafted by a group of elite jurists, including the former French resister and Christian-Democrat politician Pierre-Henri Teitgen, the Conservative British lawyer and former prosecutor at the Nuremberg Trials David Maxwell Fyfe, and the Belgian legal scholar and pan-European Fernand Dehousse, the ECHR “was not simply a continuation of the UN system but also a pragmatic reaction to it.”39 Indeed, the distinctive feature of the first regional human rights covenant signed in the postwar era was its juridical enforceability. In addition to a catalog of rights, reminiscent of those proclaimed in the Universal Declaration, the ECHR allowed the right of individual petition to a European Court of Human Rights enabling citizens to mount a legal challenge against their own state. Although few governments initially accepted this daring but optional supranational provision, the ECHR drastically improved on the limited declarative purpose of UN instruments.
Holocaust memories did not, however, impinge upon the birth of the European human rights system. The rich scholarship on the origins of the ECHR is noticeably silent on any link between the Final Solution and the European covenant.40 Among the forefathers of ECHR, surmises Andrew Moravcsik, “some Jewish parliamentarians and law professors were also prominent and may have been influenced by their experiences and beliefs.”41 One reason accounting for the absence of Holocaust invocations in the preparation of the ECHR lies in its limited number of articles, eighteen overall. Designed with enforceability in mind, the ECHR purposely restricted the amount of rights which individual claimants could take to court. This economical scope contrasted with the expansive rhetoric of the Universal Declaration and its larger array of rights potentially related to the Holocaust. Promoters of the ECHR—at times, like Fernand Dehousse, also key actors in the drafting process of human rights at the United Nations—benefited therefore from a set of ready-made articles already debated at length under the auspices of the world organization. Their main task was instead to produce a list of basic binding rights and imagine methods of implementation.
Yet redundancy with the Universal Declaration does not fully explain the absence of specific mentions of the Holocaust in the ECHR. Sponsored by overtly anticommunist politicians to prevent the resurgence of dictatorship and foster consensus politics and economic integration in Western Europe, the European Convention was first and foremost “antitotalitarian” in nature. Echoing the Atlanticist rhetoric of NATO founders, Robert Schuman recognized in the ECHR “the foundations on which to base the defense of human personality against all tyrannies and against all forms of totalitarianism.”42 From this perspective, the Holocaust disappeared into a broader campaign to salvage democracy from the threat of authoritarianism. The legacy of Nazi political violence remained, of course, linked to this antitotalitarian agenda. “Democracies do not become Nazi countries in one day,” declared the French promoter of the European Convention Pierre-Henri Teitgen. “One by one, freedoms are suppressed, in one sphere after another. And then, when everything is in order, the Führer is installed and the evolution continues even to the oven of the crematorium.” This “progressive corruption,” warned Teitgen, inexorably led to “Buchenwald and Dachau.”43 A Europeanist politician with impeccable resistance credentials, Teitgen naturally pointed to these two symbolic sites of political deportation to champion the idea of an enforceable European system of human rights guarantees. The iconic incarnation of “l’univers concentrationnaire” in early French memories of the Second World War, “Buchenwald and Dachau” conjured up memories of the ruthless treatment of predominantly non-Jewish resisters and political prisoners and absorbed the Final Solution into indiscriminate evocations of Nazi evil. As sociologists Daniel Levy and Natan Sznaider have shown, the Holocaust has played a central role in the fashioning of a common European cultural memory since the end of the Cold War.44 In the immediate postwar period, however, it was devoid of explicit historical significance within the European segment of the “human rights revolution.”
In July 1951, the Geneva Convention on the Status of Refugees capped off several years of intense activity in the field of human rights law. Like the ECHR, the Refugee Convention was strongly influenced by the Cold War climate. Its individualized definition of refugees as persons in flight with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” directly pertained to escapees and dissidents from Iron Curtain countries. “The drafters thought mainly of the refugees from Eastern Europe,” commented a jurist who took part in the deliberations, “and they had no doubt that these refugees fulfilled the definition they had adopted.”45 Moreover, temporal and geographical restrictions attached to the Refugee Convention initially favored European asylum seekers so as to permanently solve the lingering postwar displacement problem on the Continent and offer advantageous conditions to future anticommunist exiles. “In a Manichean political world,” wrote a refugee expert, “recognizing persecution and identifying perpetrators caused no headaches and the grant of asylum was generally used to reaffirm the failures of Communism and the benevolence of the West.”46 The 1951 Refugee Convention should not however be reduced to Cold War strategy. It also introduced for the first time a healthy dose of enforceability into the UN human rights project. As an American advisor observed at the time, “it is a curious paradox that out of a postwar clean up job, out of the wreck of the refugee’s fundamental freedoms, there had arisen the first widespread and binding international agreement for the advancement of human rights.”47 The commitment of contracting states to honor the provisions of the Refugee Convention directly stemmed from one of the most tragic features of the Jewish refugee crisis before and during the Second World War. Like the Universal Declaration, the Refugee Convention did not formally recognize the right “to be granted” asylum. Yet it guaranteed unprecedented and legally binding protections against the arbitrary deportation of aliens: “No country shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened,” stipulates the landmark and still-effective Article 33. Several other articles among the long list of individual rights embedded in the Refugee Convention similarly read like retroactive atonement for the German-Jewish refugee tragedy: the right to exercise liberal professions or the right to freedom of movement within a host country—related to the travails experienced a decade earlier by the “scum of the earth.” Substantially shaped by the Jewish “pariahs” of the 1930s, the figure of the refugee finally reconciled the declarative “human rights revolution” with enforcement and implementation. In the emphatic words of United Nations officials, the “Magna Carta for Refugees” elicited a “new level of world morality” and stood as “the most international code of ethics yet devised for refugees.”48
Even more so than their interwar predecessors, postwar Jewish refugees also left their mark on the human rights project. The quarter-million Jewish displaced persons (DPs), predominantly regrouped between 1945 and 1949 in the American occupation zone of occupied Germany, formed the most conspicuous group of Holocaust survivors in the postwar period. Their central role in the political and diplomatic struggle that led to the partition of Palestine and the creation of the State of Israel has been amply documented. The “Surviving Remnant,” however, also exerted considerable influence on one of the most emblematic human rights figures of the 1940s. Eleanor Roosevelt’s “conversion” to human rights owes much indeed to her personal encounters with Jewish displaced persons in Germany. In December 1945, President Franklin Roosevelt’s widow’s unexpected appointment to the U.S. delegation at the first session of the UN General Assembly in London gave her ample opportunity to grapple with issues with which she had long taken a keen interest, such as “refugees, relief, and rehabilitation and human rights.”49 There she faced a hard Soviet stance on the question of non-Jewish anticommunist displaced persons who the USSR wanted to repatriate. “The battle is on about the refugee resolution,” she wrote in her diary on January 9, 1946.”50 A decisive trip to the DP camps of Germany added a crucial Jewish dimension to her concern for refugee rights in particular and human rights in general. Between February 13 and 16, she toured four refugee camps in the American and French occupation zones. A visit to a DP camp for non-Jewish Polish and Baltic refugees left her with mixed feelings of sadness and hope. She was, however, particularly shocked by her discovery of Zeilsheim, a Jewish camp near Frankfurt. There she “felt all the time … a kind of spiritual uprooting, a kind of being lost.”51 A few weeks before her appointment as chairperson of the UN Commission of Human Rights, her first exposure to the desolate world of Holocaust survivors convinced her of the urgency of an international human rights infrastructure. “Even in the worst days of the Depression,” she told a Jewish audience upon her return to the United States, “the people came to one and said ‘We want our government to know …’ Nobody has that right in a displaced persons camp.”52 In Zeilsheim, she also realized that the rehabilitation of refugees did not simply entail material improvement but was also a civic and political process: “What is important is rehabilitation [of the person] … the sooner those people can be taken where they can become citizens and feel that they are actually building a new life, the better it will be for the whole world.”53 Among Jewish survivors, she vividly sensed “a kind of desperation about the dignity of the individual” and “the crumbling of the thing that gives most of us a sense of security,” thereby announcing some of the main themes of the Universal Declaration.
Eleanor Roosevelt’s compassionate feelings for the “Surviving Remnant,” part of her growing sensitivity to Jews and Judaism since the late 1930s, did not merely pave the way for her advocacy of human rights at the United Nations.54 “In the mud of Zeilsheim,” she recalled later with reference to the State of Israel, “I knew for the first time what that small land meant to so many, many people.” At the beginning of the 1950s, her deep sympathy for Jewish nationhood—then an exceptional foray into the dangerous waters of collective rights—had evolved into a wider belief in “the Universal Validity of Man’s Right to Self-Determination.”55 In a speech delivered on this topic at the UN General Assembly in December 1952, Roosevelt cautiously refrained from advocating immediate decolonization. “Self-determination as applied to non-self governing territories,” she declared, “was a much more complicated matter.” In the midst of the Cold War, she insisted that self-determination should also apply to the captive nations of Eastern Europe overrun “by a conqueror and subjected to his dictatorial control.” Despite these qualifications, Eleanor Roosevelt now branded self-determination as a “universal human right” for the benefit of all peoples around the world. Initially restricted to the urgent predicament of Jewish refugees, self-determination had expanded into a soft, noncommittal but universal value. As Mark Mazower convincingly argued, the establishment of the State of Israel by the United Nations was a first step toward the global expansion of the principle of national self-determination in the 1950s and 1960s.56 From her early sympathies for Jewish nationhood to her later affirmation of self-determination as a universal human rights, Eleanor Roosevelt’s rhetorical evolution paralleled this Holocaust-inspired political path.
“Prior to World War Two,” wrote the United Nations war crimes investigator Richard Goldstone, “the subjects of international law were not individuals but nations. Individual human beings had no standing. But the Holocaust changed that.”57 The former chief prosecutor of United Nations International Tribunals referred to the Nuremberg judgment recognized by the United Nations as universal jurisdiction as early as 1946. Revived in the 1990s when the United Nations finally confronted instances of mass murder in Yugoslavia and Rwanda, the concept of crimes against humanity had become instrumental to redress contemporary genocidal acts. The Holocaust is also firmly rooted today within international law thanks to a “memory of judgment” gradually accrued through the successive trials of Nazi perpetrators. In the late 1940s, however, the impact of the Holocaust on the emergence of human rights was more diffuse. Alongside other German crimes, a blend of precise and abstract references to the destruction of European Jewry informed the drafting of human rights documents. But in sharp contrast with the first Holocaust “memory regime” (1945 to the 1960s), often criticized for its repressiveness and silence, the “revolution” offered an incomparable channel of communicability. “Human rights talk,” in other words, amounted to the first significant instance of “Holocaust-talk” in a non-Jewish environment. This unique forum of discussion was facilitated by the desire of Jewish human rights actors to incorporate Holocaust legacies in a liberal cosmopolitan democracy (this time however at the risk of self-repression). For René Cassin, the overall achievement of the Universal Declaration was its ability to redress the “monstrous acts” of the past while offering the world a “monument of positive progress” directed to the future.58 For the consultative NGOs involved in the drafting of human rights, the main flaw of the United Nations’ instruments was not their insufficient references to the Holocaust but their weak enforceability.59 Loosely “Holocaust-centric” without violating Jewish memories, the postwar human rights project facilitated the appearance of philosemitism in postwar international politics.
NOTES
1. See Kofi Anan’s statement of June 21, 2004, at the UN website, http://www.un.org/News/ossg/sg/stories/statments_search_full.asp?statID=54.
2. Preamble of the 1948 Universal Declaration on Human Rights.
3. Johannes Morsink, The Universal Declaration of Human Rights. Origins, Drafting and Intent (Philadelphia: University of Pennsylvania Press, 1999), 37–38.
4. Paul Gordon Lauren, The Evolution of International Human Rights. Visions Seen (Philadelphia: University of Pennsylvania Press, 1998), 291.
5. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2001), 5.
6. Although several activists in the 1940s used the term “revolution” to describe the emergence of international human rights, this contested expression only gained currency in the post-Cold War era.
7. UN Department of Public Information, These Rights and Freedoms (New York: United Nations, July 1950), 2.
8. Nehemiah Robinson, The Universal Declaration of Human Rights; Its Origins, Significance, Application and Interpretation (New York: Institute for Jewish Affairs, 1958), xix.
9. Ambert Verdoodt, Naissance et signification de la Déclaration Universelle des Droits de l’Homme (Louvain-Paris, 1964), 37.
10. Thomas Buergenthal, “International Law and the Holocaust” in Holocaust Restitution. Perspectives on the Litigation and its Legacy, ed. Michael Bazyler and Roger P. Alford (New York: New York University Press, 2006), 17–30.
11. Micheline R. Ishay, The History of Human Rights. From Ancient Times to the Globalization Era (Berkeley: University of California Press, 2004), 241.
12. Morsink, The Universal Declaration of Human Rights, 36.
13. Samuel Moyn, The Last Utopia. Human Rights in History (Cambridge, MA: Harvard University Press, 2010).
14. Daniel Levy and Natan Sznaider, “The Institutionalization of Cosmopolitan Morality,” Journal of Human Rights 3, no. 2 (June 2004): 143–57. Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, NJ: Transactions Publisher, 1999); Lawrence Douglass, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, CT: Yale University Press, 2001).
15. Levy and Sznaider, “The Institutionalization of Cosmopolitan Morality,” 149.
16. A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001), vii.
17. Mark Mazower, “The Strange Triumph of Human Rights, 1933–1950,” The Historical Journal 47, no. 2 (2004): 379–98; No Enchanted Palace. The End of Empire and the Ideological Origins of the United Nations (Princeton, NJ: Princeton University Press, 2009), 130.
18. Moyn, The Last Utopia, 6; See also Samuel Moyn’s essay on Gerhard Ritter’s human rights conservatism: “The First Historian of Human Rights,” American Historical Review 116, No. 1 (February 2011), 58–79.
19. J. H. Burgers, “The Road to San Francisco: The Trajectory of the Human Rights Idea in the Twentieth Century,” Human Rights Quarterly 14 (1992): 447–77.
20. Michael Marrus, The Nuremberg War Crimes Trial 1945–46: A Documentary History (Boston: Bedford Books, 1997), 254.
21. Andrew Moravcsik, “The Origins of Human Rights Regime: Democratic Delegation in Postwar Europe” International Organization 54, no. 2 (Spring 2000): 217–52.
22. UN, These Rights and Freedoms, 125–26.
23. Mazower, No Enchanted Palace, 131. Moyn, The Last Utopia, 187.
24. To that list can be added the Lithuanian-born brothers Jacob and Nehemiah Robinson, two eminent jurists closely involved with human rights at the United Nations on behalf of the World Jewish Congress.
25. Martti Koskenniemi, “Hersch Lauterpacht (1897–1960),” in Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain, ed. Jack Beatson and Reinhard Zimmermann (Oxford: Oxford University Press, 2004), 601–61, 644.
26. See, among others, John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York: Palgrave MacMillan, 2008); John Docker, “Are Settler Colonies Inherently Genocidal? Re-Reading Lemkin” in Empire, Colony, Genocide, ed. A. Dirk Moses (New York: Berghahn Books, 2008), 81–101; Samantha Power, “A Problem from Hell”: America and the Age of Genocide (New York: Basic Books, 2002), 18–60.
27. On the French origins of Cassin’s human rights ideas see Jay Winter, Dreams of Peace and Freedoms: Utopian Moments in the Twentieth Century (New Haven, CT: Yale University Press, 2006), 99–120.
28. For a comparative view of Lemkin and Lauterpacht see Ana Filipa Vrdoljak, “Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law,” European Journal of International Law 20, no. 4 (2009).
29. Morsink, The Universal Declaration of Human Rights, 40.
30. The following section derives from Robinson, The Universal Declaration of Human Rights; Verdoodt, Naissance et signification; and UN, These Rights and Freedoms.
31. UN, These Rights and Freedoms, 25. Verdoodt, Naissance et signification, 105.
32. Robinson, The Universal Declaration of Human Rights, 106. yes correct book.
33. Nehemiah Robinson, The United Nations and the World Jewish Congress (New York: Institute of Jewish Affairs, 1955), 69–74.
34. Ibid.
35. Michael Galchinsky, Jews and Human Rights: Dancing at Three Weddings (Lanham, MD: Rowman & Littlefield, 2008), 29–41.
36. Nehemiah Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, 1960).
37. UN, These Rights and Freedoms, 124.
38. Timothy Snyder, Bloodlands. Europe Between Hitler and Stalin (New York: Basic Books, 2010).
39. Moravcsik, The Origins of Human Rights Regime, 234.
40. A. H. Robertson and J. G. Merrils, Human Rights in Europe: A Study of the European Convention on Human Rights, 3rd. ed. (Manchester: Manchester University Press, 1993); Simpson, Human Rights and the End of Empires; Mikael Rask Madsen, “From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics,” Law & Social Inquiry 32, no. 1:137–59; Tom Buchanan, “Human Rights, The Memory of War and the Making of ‘European’ Identity” in Europeanization in the Twentieth Century. Historical Approaches, ed. Martin Conway and Kiran Klaus Patel (New York: Palgrave Macmillan, 2010), 157–171.
41. Moravcsik, The Origins of Human Rights Regime, 235.
42. Cited in Robertson and Merrils, Human Rights in Europe, 5.
43. Ibid, 4.
44. Daniel Levy and Natan Sznaider, “Memory Unbound: The Holocaust and the Formation of Cosmopolitan Memory,” European Journal of Social Theory 5, no. 1 (2002): 87–106.
45. Paul Weis cited in Ivor C. Jackson, The Refugee Concept in Group Situations (The Hague: Martinus Nijhoff Publishers, 1999), 79.
46. Gil Loescher, “The UNHCR at Fifty,” in Problems of Protection: The UNHCR, Refugees, and Human Rights, ed. N. Steiner, M. Gibney, and G. Loescher (New York: Routledge, 2003), 7.
47. L. K. Hyde, The United States and the United Nations: Promoting the Public Welfare 1945–1955 (New York: Carnegie Endowment for International Peace, 1960), 79.
48. UN Department of Public Information, Magna Carta for Refugees (New York: United Nations, 1953), 3.
49. Allida M. Black, ed., The Eleanor Roosevelt Papers: The Human Rights Years, 1945–1948, vol. 1 (New York: Thompson Gale, 2007), 172.
50. Ibid., 230.
51. Ibid., 255.
52. Ibid.
53. Ibid., 258.
54. Michelle Mart, “Eleanor Roosevelt, Liberalism, and Israel,” Shofar: An Interdisciplinary Journal of Jewish Studies 24, no. 3 (2006): 58–89; Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York, Random House), 2002.
55. U.S. Department of State, “The Universal Validity of Man’s Right to Self-Determination” Bulletin 27, no. 702 (December 8, 1952): 917–19. Reproduced in What I Hope to Leave Behind: The Essential Essays of Eleanor Roosevelt, ed. Allida Black (New York: Carlson Publishing, 1995), 603–7.
56. Mazower, No Enchanted Palace, 25.
57. Richard Goldstone, For Humanity: Reflections of a War Crimes Investigator (New Haven, CT: Yale University Press, 2000), 75.
58. Cited in Verdoodt, Naissance et signification, xi.
59. Galchinsky, Jews and Human Rights, 40–41.