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Jews and Human Rights In Europe: the Unfulfilled Promise

Seventy years ago, on December 17 1942, British Foreign Minister Sir Anthony Eden reported to the House of Commons that the Jews of Germany and German-occupied Eastern Europe were being systematically starved and murdered.  He read a declaration by the Allies (named by Franklin Delano Roosevelt the “United Nations”) condemning this “bestial policy.”  The declaration included a “solemn resolution to ensure that those responsible for these crimes shall not escape retribution.”  The Allies, declared Eden, would try to give asylum to as many refugees as possible. 

Relevant Links
The New Enemies of Circumcision  Jon D. Levenson, Commentary. The anticircumcision movement’s Jewish wing reveals fault lines within contemporary Jewry that affect a good deal more than the fate of one mitzvah.
The Wrongs of Human Rights  Jonathan Fisher, Jewish Chronicle. “The Jewish jurists who helped inspire the human-rights movement must be spinning in their graves at the intellectual violence that their legacy has spawned.”

After the Second World War, the General Assembly of the newly created United Nations, a body larger than the anti-Hitler coalition, accepted a Universal Declaration of Human Rights on December 10, 1948.  Five months later, a group of European countries created a Council of Europe, agreed to a European Convention on Human Rights, and gradually accepted the jurisdiction of a European Court of Human Rights based in Strasbourg, a city which had switched several times between French and German sovereignty.  Today, the Council of Europe consists of 47 countries all of which accept the permanent jurisdiction of the Strasbourg Court as the final arbiter of cases brought under the very wide terms of the European Convention on Human Rights (a document broadly similar to the Bill of Rights in the U.S. Constitution). 

The Universal Declaration of Human Rights and the European Convention both emerged as responses to the Holocaust.  Jewish jurists such as Sir Hersch Lauterpacht, Raphael Lemkin, and René Cassin played prominent roles in their creation.  In front of the entrance to the Strasbourg headquarters of the Council of Europe, a memorial to those who died in Auschwitz makes clear the intention of the European Convention on Human Rights and the European Court of Human Rights to guarantee that the Holocaust could never recur. 

It is worth asking whether these various human-rights declarations have protected Jewish safety and Jewish interests as intended.  The record has been mixed at best.  In much of Europe, Jews still feel distinctly uncomfortable.  Moreover, there is a risk that the European Court of Human Rights may in the next few years restrict such fundamental Jewish religious practices as circumcision. 

In the two-and-a-half years of war after December 1942, it is doubtful whether the threat of Allied retribution provided any real protection to the Jews of German-occupied Europe.  The declaration of December 1942 was not an adequate substitute for more determined rescue efforts.  There were major limits on the ability of the Allies to help Jews under German rule, but more could have been done. 

After Hitler's defeat, a limited number of Nazi war criminals were brought to trial.  But the pursuit of Holocaust perpetrators was relatively short-lived.  Within months of the German surrender, the United States, Britain, and France turned their attentions to the Soviet danger.

Prominent supporters of the Nazi regime whose prosecution was briefly sought were soon courted by Western governments, especially if they possessed knowledge or had economic resources useful for the burgeoning Cold War. 

For the leading Jewish jurists, the project of creating a new world order of human rights conventions, organizations, and courts, laudable as it was, acted as a diversion from the immediate task of searching out and prosecuting the perpetrators of the Holocaust.  The Council of Europe was created at the very time that war crimes investigations and trials were being abandoned; it was the time when most of the mass murderers sentenced to imprisonment in the Nuremberg trials were being prematurely released. 

Although the European Convention on Human Rights aimed to create a new Europe based on legally enforceable human rights, it is remarkable that Germany was able to escape liabilities for the Holocaust. Through an intricate series of maneuvers over several decades, Germany and German companies that used slave laborers during the Second World War have refused to acknowledge legal responsibilities.  In the 1990s, I accompanied two former slave laborers at Auschwitz to a meeting with the German ambassador in London. When one of them described the conditions he had been forced to endure, the ambassador turned to me to explain that “strictly speaking” there had been nothing illegal in his treatment. 

For more than a year I have been in correspondence with the head of the Volkswagen Foundation in a fruitless attempt to obtain a reply as to whether Volkswagen accepts the fact that its atrocious actions during the Second World War were illegal. 

Among the stratagems employed by the German authorities to escape legal obligations to Jewish and non-Jewish victims was an agreement in the so-called London Debt Settlement of 1952 that consideration of such payments would await the final settlement of the Second World War in a peace treaty.  At the time Germany was divided into two rival states.  The (West) German negotiator of the London Debt Settlement, Hermann Abs of Deutsche Bank, had been a member of the board of I. G. Farben when it commissioned the Buna factory at Auschwitz. 

After the fall of the Berlin Wall in 1989, the 1990 treaty recognizing German unification was drawn up in a manner that, technically, did not constitute a peace treaty.  Apparently the Second World War has never and will never come to a legal close.  

Such legalistic fiddles may have little practical import apart from denying Holocaust survivors the entitlement to adequate compensation.  But it is more than a paradox that the European Convention on Human Rights was created to prevent another Holocaust, but few Nazi perpetrators were brought to justice; and the German state and German corporations that employed and murdered slave laborers have doggedly rejected legal responsibilities.  The failure to establish a legal reckoning for the Holocaust morally undermines the European system of human rights. 

Although more senior British supporters of this system, like the Jewish lawyer Philippe Sands QC, stress the Holocaust-prevention roots of the European Court of Human Rights, it is remarkable how flippantly some younger human rights lawyers in London, including the Jewish legal blogger Adam Wagner, dismiss all mention of the Holocaust in connection with debates on human rights. 

One of the latest debates within Anglo-Jewry is about whether there is a danger that the European Court of Human Rights may restrict brit milah (infant male circumcision).  In September, 2012, a leading British lawyer, Jonathan Fisher QC, wrote in the London Jewish Chronicle warning of the Strasbourg Court's potential hostility to circumcision.  He cited the opinion expressed in passing (obiter dicta) in a 2010 case involving Jehovah's Witnesses in Russia.  The judgment referred to circumcision as a "contentious" practice and as potentially harming believers' well-being.  Fisher's alarm about this wording increased because a German judge in Cologne had recently declared that infant circumcision contravened the rights of the child. This created considerable uncertainty about the legality of brit milah throughout Germany and led the German Government to pass a law asserting the right to brit milah, albeit under restricted conditions.  A new organization of British Jews, Milah UK, was created to mount a defense against anti-circumcision campaigners in the United Kingdom.  

Another Jewish campaign body had previously been created in Britain to protect ritual slaughter (shehitah) against hostile lobbies in Continental Europe.  In 2011, the lower house of the Dutch parliament voted by 116 to 30 to ban both Jewish and Muslim ritual slaughter.  Eventually, the upper house rejected this vote and agreed to the continuation of ritual slaughter, but with new restrictions.  In 2012, shehitah was declared unconstitutional by a court in Poland. 

Lawyers such as Fisher feel there is a genuine risk that core Jewish religious practices may come under attack through the European Court of Human Rights.  If Germany passes a law guaranteeing the right to circumcision, that law may be challenged in the Strasbourg Court.  A verdict against circumcision in that court would apply in all 47 member states of the Council of Europe (including the U.K., France, Russia, and Ukraine).  Though the European Convention protects freedom of religion, it also includes other rights which may be cited as a basis for protecting male infants against what may be seen as mutilation to which they have been too young to consent.   

Jewish supporters of the Strasbourg Court, including Wagner and the London-based Jewish human-rights organization named after René Cassin, make light of the remarks of the judge in the 2010 Jehovah's Witness case about the contentious character of circumcision.  Wagner accuses both Fisher and me of being influenced by British politics and by the wish to spread alarm about the Strasbourg Court rather than by Jewish religious concerns or by a realistic assessment of the dangers of a legal ban or restriction on circumcision.  

It is too early to gauge the severity of the risk to brit milah or to shehitah in Europe. What is clear, however, is the increasing use of “lawfare” within European forums against Jewish and Israeli interests. Moreover, the assumption, held by some of the great Jewish jurists, that human-rights institutions and courts tend to provide better protection than parliaments to minorities like the Jews may be over-simple. 

Dr. Michael Pinto-Duschinsky was a member of the United Kingdom Commission on a Bill of Rights. In the 1990s, he was honorary academic adviser to the London-based Claims for Jewish Slave Labor Compensation.

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Carl on December 28, 2012 at 2:05 am (Reply)
Europe refuses to declare Hizbollah, an organization that openly calls for the genocide of the Jews, a terrorist organization. Europe ignores the very widespread antisemitism throughout the Moslem world. Europe ignores the theft by the Swiss of billions of dollars of holocaust victim's money. For much of the European press the word Jew has simply been replace with Israeli or Zionist. Nothing has changed since 1939. European Jews; wake up.
Ciaran Goggins on December 29, 2012 at 12:41 pm (Reply)
Whilst I broadly agree with Dr P-D one ought not to overplay the Shoah card. That said it is a valid point, there are 2 types of folks those who can "tell a Jew" and those who cannot. Finally Dr P-D could pay more attention to issues that impinge on both Jews and non-Jews such as the National DNA Database which still has 2 million innocent samples on it contrary to ECHR legislation.
Adam Wagner on December 31, 2012 at 4:21 am (Reply)
I have never "dismiss[ed] all mention of the Holocaust in connection with debates on human rights."

The piece which you refer to is here - - readers can make up their own minds.

My point (which is entirely clear from the article and has mischievously been misrepresented above) was that it is easy to invoke the Holocaust in the human rights debate, but that doesn't mean you automatically win the argument. As I said in my post:

"At first, it was death by a thousand injudicious cuts and the drafters of the European Convention – which, yes, always included the right to family life – knew that guaranteeing free speech, the right to vote and other civil rights would act as a bulwark against the rise of fascist governments.

Is Pinto-Duschinsky arguing that the ultimate, unchallengable power of Parliament, reflecting “the will” and even the “impulses” of “the people”, will be enough to prevent rights abuses? Going back to the Holocaust, the impotence of the judiciary and the Reichstag to challenge the ultimate power of the executive was another reason why Nazi policies, which are now used as a byword for the worst kind of injustices, were left unchallenged."

Hardly dismissing "all mention of the Holocaust".

I'm not sure we are that far apart on the main issues, although I find your argument connecting the ECHR and war crimes prosecutions a little difficult to follow. Surely the ECHR is part of a wider system which includes the war crimes prosecutions apparatus, but the ECHR wasn't designed for that purpose, so it is odd to conflate them. The same applies in the first article to your conflation of the UN 'human rights' committee (which is something of a joke) and the ECtHR (which is not). Despite their shared origins, they are fundamentally and structurally separate from each other and should not therefore be tarred with the same brush.

Of course the rights system is only as good as its results, and Jews in some countries are indeed feeling more than uncomfortable. But is it right or fair to blame the Strasbourg court for those issues? You don't explain why that should be - when has the Strasbourg court attacked a Jewish practice, or turned down a claim which would have helped Jews avoid persecution in a European state? I disagree that there is any real threat from the European Court of Human Rights on circumcision based upon the passing remark Jonathan Fisher QC picked up on - see - it may be that things change in the future, but we can only work on the evidence of threat to Jewish practices we have at the moment, which is scanty.
    Michael Pinto-Duschinsky on January 2, 2013 at 5:10 am (Reply)
    Adam Wagner misdirects readers and fails to address the piece in which he wrote that "the human rights debate has its own version ‘Goodwin’s Law‘." (sic) This served as a critique of Jonathan Fisher QC's article in The Jewish Chronicle (

    "Godwin's Law" mocks references in general to the Nazis and Hitler. By citing this jokey "law", Wagner trivialised the serious concerns expressed by Fisher, a highly respected and senior lawyer, about "law fare" against core Jewish religious practices in Europe. On his same blog, Wagner hosted needlessly unpleasant personal remarks. Neither Fisher's reference to the Holocaust in the Jewish Chronicle piece nor mine in the Daily Mail (12 March 2012) were gratuitous. Nor did they serve to foreclose rational discussion about the European Court of Human Rights, as Wagner suggested.

    For confirmation that the threat in Europe to Milah and Shechitah needs to be addressed with determination and that European Jewry is well-advised to avoid apathy, readers should see The Jewish Chronicle of 27 December 2012 ("Determination will beat threat to rituals" by Shimon Cohen,
charles hoffman on December 31, 2012 at 6:24 pm (Reply)
The failure here is the failure of realism in expectations; expecting Europe to rid itself of the anti-semite chromosome in one or two generations is as unrealistic as expecting circus elephants to compete in steeplechase races.

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