American Association of Jewish Lawyers and Jurists - 2011 Pursuit of Justice Award –

December 7, 2011

  Acceptance Speech by Judge Thomas Buergenthal

 Thank you, Professor Steinhardt, for this more than generous introduction. You always discover such nice things to say about me, and when they cannot be found, you find them anyway. It is wonderful to have such a good friend and distinguished colleague.

 President Greenwald, dear Colleagues.

I am profoundly honored to be deemed worthy to receive your Pursuit of Justice Award. But when I look at the list of distinguished Jewish lawyers and judges who preceded me as your honorees, I feel at once moved and humbled to be deemed to belong on that list. These judges and lawyers are all individuals whom we, not only as lawyers but also as Jews, respect and are proud of. After all, they are all sons and daughters whose Jewish mothers did not have to apologize because these, their children, did not become doctors. It should not surprise you therefore that I feel deeply honored to be included in that group. I am also delighted to be receiving this honor with Jack Olender, a great lawyer-humanitarian, an individual who has helped so many with his outstanding lawyering and philanthropic work.

We lawyers are often asked why we became the lawyers we are. I became an international lawyer because, somewhat naively, I believed that as an international lawyer, I would be able to prevent future Holocaust, future genocides. Of course, I know better now, but I continue to believe ever more fervently that genocides can be prevented, and that, without a commitment to fight for a genocide-free world, we will never achieve it.  

My life’s motto has been, “one has to do what one has to do.”  Nothing very original, but it explains why I am always surprised when people ask me why I, after all the suffering I have seen in  Nazi camps, chose to work in the international human rights field rather than practice in an area of the law that would not invariably bring back memories of my past. One has to do what one has to do, and I felt an obligation to devote myself as a lawyer to help prevent human rights violations and to contribute to the development of international law and international human rights law in order to achieve that goal. That is what my father, who died in Buchenwald, would have wanted me to do, that is what the tattoo on my left arm tells me to do. It is not an obsession, but a belief that since I survived the camps, I owe it to those who did not, to use my professional skills to help in the struggle to prevent other human beings from being subjected to the suffering Nazi Germany visited on us Jews. It is as simple as that.

When I asked Steve Greenwald, what you would want to hear from me on this occasion, he said that I should speak about my past professional activities. Well, what lawyers do not want to reminisce about that subject, provided, of course, they are allowed to focus only on their successes.

I started fulltime teaching in 1962. Except for the period between 2000 and 2011, when I served as the American judge on the International Court of Justice, I never left the university. While teaching, I also served for twelve years as judge, and for period, as President, of the Inter-American Court of Human Rights, which was a part-time court.  At different times of my career, I was vice chairman of the Claims Resolution Tribunal for Dormant Accounts in Switzerland, member of the UN Truth Commission for El Salvador and member of the UN Human Rights Committee.  In the 1970s, as chairman of the human rights committee of the US National Commission for UNESCO, I represented the US from time to time at UNESCO meetings dealing with human rights issues. 

In the early 1980s, I served for a two-year period as chairman of the ABA Human Rights Committee. At different times, too, I was and now continue again to be a member of the Blaustein Institute for Human Rights of the American Jewish Committee. For while I was also member of an informal committee of Jewish international lawyers that advised the World Jewish Congress on international law and human rights issues of relevance to Jewish concerns. This was a very useful committee, but it stopped meeting when the WJC supposedly ran out of money to bring us to London.  Finally, until I was elected to the ICJ, I was a member of the US Holocaust Memorial Council and the first fulltime chairman of its Committee of Conscience.

In 1973, together with Professor Louis Sohn of the Harvard Law School, I published the first American law school casebook on the International Protection of Human Rights. Professor Steinhardt’s new human rights casebook is a most worthy successor to that book. Now, back from the International Court of Justice, I have returned to the GWU Law School where I again teach international law, human rights and humanitarian law, and enjoying every minute of it. 

As you can see, I have kept busy over the years.  Of  my many past activities, in addition to teaching, I have found my work on the Inter-American Court of Human Rights, the International Court of Justice,  the UN Truth Commission for El Salvador, and the Tribunal for Dormant Accounts particularly gratifying and challenging.

In 1979, I was elected to the Inter-American Court of Human Rights, a judicial organ of the Organization of American States, and served on this court until 1991. My six colleagues and I were the first judges to comprise this newly established court. I was elected to the court on the nomination of Costa Rica. The US had not ratified the American Convention on Human Rights and consequently could not nominate judges to it. The Court was created at a time when many Latin American countries were ruled by dictatorial regimes of the left or the right. They ratified the Convention for propaganda purposes to show the world that they believed in human rights, and we, the judges, decided to hold them to it. Our task was made easier by the fact that four of the seven judges had at one time or another been imprisoned for political or religious reasons. It also helped that for much of the time we had the support of the US government. Of the judgments we rendered during my tenure on the Court, the most important ones dealt with disappearance cases, a practice common in the region at the time. Our judgments on this subject were the first ever to be rendered by an international court. These cases and others dealing with freedom of the press, due process of law, habeas corpus and emergency legislation constituted major contributions to the development of international human rights law in the Americas. Over the years they have had important practical consequences in helping Latin American civil society in the struggle to legitimate democracy and the rule of law in their region.

In 1991, the Government of El Salvador and the insurgents signed a peace agreement under UN auspices, authorizing the UN Secretary- General  to establish a three-member Truth Commission to investigate the most serious violations of human rights, including the killing of Archbishop Romero, that had been committed in that country during its 11-year civil war. The Secretary- General named a former President of Colombia, a former Foreign Minister of Venezuela and me to this Commission. Working with a staff of some 25 young lawyers, we completed our report in 1993. It described the major human rights violations committed in El Salvador by both sides to the conflict, named names, and made various recommendations.

 No other human rights assignment affected me more than the Salvador experience. When interviewing the sole survivor of a terrible massacre, for example, her testimony brought back visions of my own camp experiences. The same was true of some other cases we were investigating. It is frightening to be forced to recognize that the terrible crimes to which human beings are subjected in different parts of the world never really differ in their similarity and brutality. From the Holocaust to the Gulag, to Cambodia, Rwanda, Darfur, and so on.  It is always the same, only the names of the places and of the victims change. That also explains the universality of humanity’s yearning for basic human rights and the reasons why the commitment to universality of the human rights effort must guide its implementation.

As the vice chairman of the Tribunal for Dormant Swiss Accounts, I had to deal with Swiss banks which had profited over a sixty-year period from money European Jews deposited with them on the eve of the Holocaust where most of them perished.  By the time we inspected the accounts, we found that almost all had been totally or to a very large extent depleted by the banks for non-payment of fees and other charges. Of course, the banks knew very well that most of the account holders had died in the camps. Hardest for me to take was to track the cat and mouse games the banks had been playing with the heirs of these account holders, many of whom were also Holocaust survivors. Reading some of the letters from these heirs in which they detailed the fate of their loved ones, reminded me in graphic terms of the hopeless efforts of my own grandparents and other relatives to leave Germany. Only a few made it out, the others died in Treblinka.

I think of my decade-long service on the International Court of Justice as a break with or vacation from my prior human rights work. The Court, principal judicial organ of the UN, decides disputes between states and renders advisory opinions at the request of UN organs. Its judgments, while not lawmaking in theory, are lawmaking in practice as far as the development of modern international law is concerned. The 15 judges who compose the ICJ tend to be former government legal advisers, national court judges, law professors, and one or two former ministers of foreign affairs, all from different countries and regions of the world. The ICJ is the closest institution the international community of states has to a world supreme court. That no doubt explains why it is also known as the World Court. The Court’s decisions are widely cited by international, regional and national courts; they are studied by legal advisers to governments and by international lawyers around the world.

The Court, which was established in 1946, did not have much business during the Cold War period. When I joined the Court in 2000, the Cold War was no more, and the Court’s the role changed significantly as a result.  Not only were more cases coming to the Court, they also dealt with a broad range of international law subjects, including territorial and maritime delimitation issues, human rights, humanitarian law, diplomatic and consular rights, international environmental law, self-determination, armed conflicts, illegal exploitation of natural resources, the law of international organizations,  etc. During my time on the Court, it also issued the advisory opinion on the legality under international law of the Wall or Fence Israel is constructing on Palestinian territory. As some of you may know, I dissented from that opinion.

Most of the disputes between states that come to the ICJ are not major political or military conflicts that occupy the attention of the world’s media. The Court tends to deal with lesser controversies, which affect friendly relations between the states concerned and, if not settled, may ripen into serious international conflicts. In that sense, the Court performs a very useful peacekeeping role. I consider it a great honor to have had the opportunity to serve on the Court. It was a wonderful experience to work with some truly great international lawyers and to have the opportunity to participate in the development of modern international law.

On the 4^th of December of this year, I celebrated the 60^th anniversary of my arrival in the US as a17- year old immigrant. As you can see, much has happened in my life since then. In my memoir, I described a recurrent dream I had in the early months of 1945 while lying in the infirmary of the Sachsenhausen concentration camp where some of my toes had been amputated after the horrendous death march out of Auschwitz in January of that year. In these last months of the war, British and American bombers flew over our camp on the way to bomb Berlin, which was only some 25 miles away. Whenever I heard the roar of these planes overhead, I imagined that one of them would drop a long rope with a big hook and lift up our barrack  and fly me to the US or Britain for a happier life. Well, it did not happen quite that way, but I certainly have lived a happy and exciting life since I arrived in the US.

Thank you again for honoring me with the Pursuit of Justice Award.

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