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.
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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