CommentaryEvery December 10th, international lawyers, governments, and advocacy groups commemorate Human Rights Day. This marks the day in 1948 when, improbably, the Universal Declaration of Human Rights was adopted in Paris by a nascent United Nations General Assembly under the leadership of Eleanor Roosevelt. This year, as the Declaration turned 75, I found myself in Ukraine on that historic day, listening to former Secretary of State Hillary Clinton speak about the importance of human rights as a legal bulwark against Russian aggression.
The American Society of International Law arranged for 75 international attorneys to meet with 75 Ukrainian attorneys for a bilateral summit entitled ‘“Stand Tall for the Rule of Law‘ in the western Ukrainian city of L’viv. After landing from all directions and rallying in Warsaw, our group received a security briefing from the team that would be moving us around, albeit in the quiet part of an active war zone. We then boarded coaches bound for the Polish-Ukrainian border, where we were met by police escorts and shuttled into L’viv. There, at the conclusion of three long days of meetings covering everything from prosecuting war criminals to seizing frozen assets, Secretary Clinton joined us via satellite to commemorate this historic day in a place where human rights violations are committed daily by Putin’s forces in his quixotic quest to reassert Russian dominance within the old Soviet sphere. We were indeed standing tall for the rule of law.
Why is the rule of law so important for Ukraine? Democracies are rule of law nations, and Ukraine has aspired, with fits and starts, since independence in 1991 to be both. Since the Russian invasion of February 2022, and its prior illegal annexation of Crimea in 2015, Ukraine has more firmly ensconced itself in this camp. In doing so, Ukraine offers an example to the Russian people just next door of how differently they can live and govern themselves – an example Vladimir Putin is eager to quash. In the last two years, the government of Volodymyr Zelensky has taken a rule of law approach to litigating against Russia in a wide array of international courts, including the International Court of Justice, the European Court of Human Rights, and the Permanent Court of Arbitration. Moreover, the International Criminal Court intervened with an arrest warrant issued against the Russian leader. If the rule of law means anything, it means standing up to authoritarian oppressors such as Russia.
Collectively, we made our stand at the Ivan Franko National University Law School in L’viv – a site heavy with symbolism of its own. Nearly a century ago, this law school produced two of the most influential international legal thinkers of the modern age. Focusing on the protection of individuals, Hersch Lauterpacht conceived of crimes against humanity as an international crime, designed to systematically degrade and mistreat people as part of a policy of repression. Focusing on the protection of groups, Raphael Lemkin conceived of genocide as an international crime, designed to exterminate entire populations based on race, religion, nationality, or ethnicity. Lemkin was, in essence, describing the Holocaust before it happened. These two Jewish legal scholars knew of which they wrote – having suffered depredations and discrimination themselves and having lived in a part of Eastern Europe where pogroms against Jews were not uncommon. These concepts were profound gifts to international criminal justice and to the world.
But in 1942, the Great Hall in which we met hosted the Nazi Governor-General of Poland, Hans Frank, who delivered a ‘final solution’ speech calling for the liquidation of the Jews. Menacingly, Janowska concentration camp stood on the outskirts of the city and was filling up as he spoke. Already a place of extreme cruelty, the camp commandant made it more so by notoriously ordering Jewish musicians from L’viv’s Municipal Theatre to play Tango of Death during executions. As Allied forces were approaching, on the eve of liberation, Janowska’s camp musicians were forced to form a circle and begin playing. Their conductor was executed first – followed in turn by each musician – made to come to the center of the circle of music individually, place their instrument on the ground, strip naked, and then be shot in the head. Subsequently, in a twist of legal irony, Hans Frank was convicted of crimes against humanity by the International Military Tribunal at Nuremberg in 1946 – a triumph of law over evil, with the idea of this law originating in the very place it was so vigorously repressed.
Of all the Ukrainian dignitaries we met, perhaps the Mayor of L’viv made the biggest impression. He was passionate about having doubled the size of the city’s old hospital and repurposing it to focus on prosthetic fittings, therapy, and recovery with a special emphasis on prosthetics for kids who survived Russian airstrikes but lost limbs. Until the age of 18, a child needs a new leg each year as she grows. And a bionic arm with articulate fingers costs $20,000. We later toured the hospital and witnessed the good work being done, all with the aid of foreign assistance – especially from the US. I reflected that if our Congressional politicians could just be reminded that our aid goes for so much more than bullets, perhaps they’d be motivated to act faster. But House Republicans continue to stall American aid to Ukraine, threatening to drag this war on much longer and ensure these hospital beds remain full.
Perhaps fittingly, as former Yale Law School dean Harold Koh was finishing his keynote speech on Human Rights Day, bringing our summit to a close, air raid sirens went off. A Russian Mig-31 had taken flight and triggered the alarms. Our security team ensured that we were safe, and we all fumbled our cell phones to turn off the alarms which were programmed into an app that mapped out bomb shelters. Koh, who had delivered the closing argument on behalf of Ukraine at the International Court of Justice in the case concerning Russian allegations of genocide, remained stoic. And Gregory Shaffer, ASIL’s president, determined not to let Russia have the last word, bound to the podium to receive from a Ukrainian attendee a battle flag from a unit on the Eastern front – signed by his brother and fellow soldiers and presented to our delegation in appreciation for our work and our visit.
This flag returned with ASIL to Washington D.C. where it will be proudly displayed at Tillar House headquarters on Massachusetts Avenue. Organizationally, ASIL deserves immense credit for bringing our delegation safely there and back, bonding us with our Ukrainian counterparts in this important common purpose, and reminding us of the difference we can make. Sometimes such differences are not readily apparent – both Lauterpacht and Lemkin did not see the full flower of differences they made and continue to make in the 21st century. But they were made, and profoundly so. The difference this summit made ‘standing tall for the rule of law’ will be felt as well. The L’viv Principles that emerged from this meeting, recognizing the central place of human rights in our international legal order, reinforce that and reflect our determination to confront authoritarianism together wherever we can.
The wind blew fiercely against the coaches as we departed Ukraine bound for the European Union. Outside, Ukraine’s vast whiteness blurred against grey skies. Across the centuries, locals had seen a broad array of invading forces emerge from this same snow-blanketed horizon. Ukraine is starkly beautiful in winter, and I was equally impressed with the strength and resilience of its people. I won’t spend another Human Rights Day in such company and in such a place. Yet I won’t long forget this one.
Michael J. Kelly is the Senator Allen A. Sekt Endowed Chair in Law at Creighton University School of Law in Omaha, Nebraska.
