The Only American – and Jew – On the International Court of Justice at The Hague

Michael Handelzalts reports: Last week the world commemorated the Holocaust, on a date set by the United Nations – January 27, the day on which, 65 years ago, Soviet troops liberated the Auschwitz concentration camp and found some 7,000 emaciated survivors there. About 10 days before that, the Nazis started to evacuate the camp, ordering almost 60,000 prisoners to embark on what were to become known as the death marches: They were forced to walk in formation to another camp in Silesia. One of the few who survived three grueling days of walking, under constant threat of being beaten or shot if one paused for even a moment, was Thomas Buergenthal. He was not even 11 years old at the time.Today, at 75, Buergenthal is the only American among the 15 judges serving on the International Court of Justice in The Hague, established by the UN in 1946 to settle international legal disputes. In 2007 his book, “A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy” was published in German translation, in Germany; only last year was it published in its original English (by Little, Brown in the U.S. and by Profile Books in the UK).

In the opening lines of the book, Judge Buergenthal agrees that it should have been written years ago, while the events were still fresh in his mind – “but my other life intervened”: “Had I written the book in the mid-1950s … this memoir would have conveyed a greater sense of immediacy to the events I describe … Time and the life I have lived since then dulled those [painful] feelings and emotions … I am convinced that if these feelings and emotions had not lost some of the intensity over the years I would have found it difficult, if not impossible, to overcome my past without serious psychological scarring.”

In a phone conversation from his house in Chevy Chase, Maryland (where he lives for the brief periods when he is not needed on the bench in The Hague), Buergenthal is asked if the intensity of feelings that were aroused in him prevented him from writing the book earlier.

“It’s a good question,” he says. “When I was in my last year of law school, which was ’59-’60, I had already written a chapter or two, and my sponsor, a judge in New York, submitted it to a publisher at the time. They said, let him submit the whole thing and then we’re going to see whether we’re going to publish it. I never submitted it after that, because I went from there to Harvard and no longer had any time … I don’t really think it was an emotional reason for not writing. I’m not sure. Sometimes when it comes to my emotions I have trouble remembering how I felt.”

Being a jurist, accustomed to culling facts from fiction, Buergenthal hastens to warn the reader at the outset that his recollections of events that took place decades previously “are colored by the tricks that the passage of time and old age play on memory: forgotten or inaccurate names of people; muddled facts and dates of events that took place either earlier or later than recounted; and references to events that did not happen quite as I describe them or that I believe I witnessed, but may have only heard about.”

Meanwhile, a young German woman named Gerda Silbergleit, from Gottingen, Germany, was sent on to Lubochna by her parents, in the hope that she would forget a non-Jewish man who wanted to marry her. She did: She met and married Mundek Buergenthal and their son Thomas was born in 1934.

Kielce and Auschwitz

Around the end of 1938, Thomas Buergenthal writes in his book, his family was forced to give up its comfortable life in the hotel; eventually they decided to leave Czechoslovakia and move to Poland. They spent quite a few days in the no-man’s-land between Czechoslovakia and Poland, being shuttled between officials on both sides of the border, who sent them away again and again, until German soldiers who arrived on the scene ordered the Polish border guards to let them in.

The Buergenthals settled in Katowice, where Mundek eventually obtained visas to England. They boarded a train that was supposed to carry them west, to freedom, on September 1, 1939, but it was strafed along with other trains by the Nazis, and the family fled on foot and ended up in Kielce.

Thomas, who was five at the time, apparently enjoyed himself, even though the circumstances were difficult for his family. As the Buergenthals were not observant Jews, he performed the role of Shabbos goy for religious families, which often meant a decent meal for him. He lived from day to day, while conditions became increasingly harsh for the Jews, with Nazi roundups and deportations, and beatings and shootings on the streets.

In March 1941, the Nazis established the Kielce ghetto. Mundek was put in charge of one of the workshops where various artisans produced goods for the gestapo. His presence of mind and initiative saved his family, his workers and their families, from a succession of deportations.

After the liquidation of the ghetto, the family managed to survive in a small labor camp in Kielce until 1943; they also took in two children from families who had been deported, thus providing Thomas with new playmates. When he was eight, however, the Nazis announced a “selection” – the brutal separation of the camp’s children from the adults – and the foster siblings were taken away.

Buergenthal writes about approaching the Nazi commandant of the city with his father and, possibly with prodding from Mundek, saying in German to the man: “Herr Hauptmann, ich kann arbeiten” (“Captain, I can work”). Whether because of his German, or his blond hair, the youngster was spared and subsequently hired as an errand boy in the workshop where his father was employed.

Day in and day out, the young Buergenthal witnessed atrocities (such as public hangings of camp inmates who had attempted to escape, by their fellow prisoners). Then in July 1944, the family was taken to a freight depot and pushed onto trains. They were told they were being taken to a factory in Germany, but Mundek Buergenthal realized they were on their way to Auschwitz.

Years later, when asked about life in the camp, Thomas Buergenthal writes in his book: “I would reply that I was lucky to get into Auschwitz. This response would invariably produce a shocked look on the face of the persons who asked the question. But I really meant what I said. Most people who arrived at the Birkenau rail platform had to undergo a so-called selection. The elderly and the invalids were separated from the rest of the people in the transport and taken directly to the gas chambers. Our group was spared the selection process … Had there been a selection, I would have been killed before even making it into the camp. That is what I meant by my flippant remark about being lucky to get into Auschwitz.”

Upon their arrival, the boy and his father were separated from his mother; they had numbers tattooed on their forearms and were sent to the Gypsy camp. There the youngster witnessed for the first time the cruelty of the kapos, some of them familiar from Kielce, who beat new arrivals to death.

“Beside testing the morality of those who became neither informers nor kapos, the concentration camps were laboratories for the survival of the brutish … Had they not ended up in the camps, they probably would have remained decent human beings,” according to his book.

Buergenthal stayed with his father for some months; thanks to a kapo who had known them in Kielce, they were assigned to a barrack where prisoners’ clothes were sorted out. His father also devised a survival strategy for Thomas: He would stand as far back as possible during the roll call, but sneak back into the barrack before the beginning of the selection process that followed. This worked until one day in October 1944, when he was sent to one side during a selection – and his father to another.

Norwegian Encounter

According to his book, Buergenthal was sure he was doomed, since he had been relegated to a barrack with sick people and others unfit for work, but they were not sent to the gas chambers. He tried to escape three times, but was caught by guards who had been alerted by his fellow inmates. But, thanks to the intervention of a doctor, he was later transferred to a children’s barrack run by a political prisoner, who convinced the camp authorities that the youngsters could work by collecting trash. While out working one day with two friends he had found from Kielce, the youngster caught a glimpse of his mother in the women’s part of the camp.

On the death march the children were supposed to lead the column of marchers. Thomas and his two friends – he calls them Janek and Michael in the book, but admits he is not sure those were their real names – would hang back and rest, letting everyone pass by, and then run to the front to catch up with the other children. On one such occasion, while they were at the back, the guards killed the youngsters at the front as they had been slowing the procession down.

Those who survived the harsh three-day march were loaded onto a train traveling to Germany; the bodies of prisoners who died en route were thrown out. While passing through Czechoslovakia, Buergenthal recalls, people on bridges above the tracks would throw loaves of bread to them in the train.

When the train stopped at the Oranienburg station, he had two conflicting experiences, almost simultaneously. He remembers a German woman screaming: “It stinks of Jews again” – and, shortly thereafter, how a guard offered him his cup of coffee. “I have never been able to reconcile these two events to my own satisfaction,” Buergenthal writes.

Eventually, in February 1945, Buergenthal ended up in the Sachsenhausen camp, where the toes on one of his feet were amputated; that was also where he saw his friends Janek and Michael for the last time. While recovering, he struck up an acquaintance with a political prisoner from Norway, who came to the infirmary to visit him. His name was Odd Nansen – the son of polar explorer Fridtjof Nansen.

Says Buergenthal on the phone: “Basically, he first wanted to know where I came from, because I’d arrived from the death march … It was sort of an introductory conversation. He also brought me food, cookies, things like this, which was very special. And he also tried to teach me to write; he brought me a pencil and some paper.”

Upon being released, Nansen did not manage to take Buergenthal with him, but he bribed the guards to treat the youngster well. After the war, the Norwegian published a book about his imprisonment, entitled “From Day to Day,” where he wrote at length about the Jewish child he met in Sachsenhausen. He also drew a picture of Buergenthal as an angel in the book.

With the Soviet army approaching, the camp’s prisoners were evacuated, but Buergenthal and others who were unable to walk remained behind. One day, he noticed that the watch towers were deserted, and saw Russian soldiers arriving in jeeps and announcing the liberation of the camp. At first, according to his book, he thought it was a trick – that “[the German guards] had staged this liberation … I had never really thought of liberation as such. My sole concern had been surviving from one day to the next.”

For Buergenthal, now 11, this was just the beginning of yet another journey. He was “adopted” by a Polish artillery unit that was stationed in Germany, as a sort of mascot. They had a small uniform made for him, and even gave him a small hand gun, he remembers.

All this time he assumed his parents had also survived and would somehow find him. Meanwhile, the Polish army unit was ordered to return to Poland and he accompanied them; one of the soldiers, a Jew, found a place for him in an orphanage in Otwock, near Warsaw, run by the Bund (a socialist, anti-Zionist Jewish organization). With time, Buergenthal became resigned to the fact that his parents did not survive, and when a representative of the Hashomer Hatzair Zionist movement, who “infiltrated” the staff at the orphanage tried to convince children to “escape” to Palestine, he agreed to be put on the list. Since he had achieved some notoriety after being interviewed by the Polish press as “the child who had survived Auschwitz,” he was told he would be the last to leave.

This was a lucky turn of events: Buergenthal’s mother had survived and returned to Kielce, where the family had last been together. When she discovered that her husband had died (after the publication of his book, Buergenthal found out that his father had been in Sachsenhausen up until a few days before his own arrival, but had then been sent to Buchenwald, where he died shortly before the end of the war), she returned to her home town of Gottingen. She made various inquiries about the whereabouts of her son, and a Jewish Agency representative in Palestine remembered seeing his name on a Hashomer Hatzair list from Otwock. Thus, almost two years after they parted, Thomas was reunited with his mother in Gottingen.

Slowly the Buergenthals pieced their lives together; with the help of a tutor, Thomas prepared himself for studies in a regular school. He recalls standing on the balcony of the apartment in Gottingen, imagining himself taking revenge by shooting the Germans strolling in the streets below.

One day he saw a story in a German paper about a memoir written by a Norwegian prisoner in Sachsenhausen – which had been published in Germany – including a story about a Jewish boy who had been in the camp. He wrote a letter to “O. Nansen, Norway,” introducing himself. The answer arrived in the form of a huge parcel of sweets and an invitation to visit Nansen’s family in Norway. It turned out that Nansen had been looking for him since the end of the war, and since the Norwegian had dedicated “From Day to Day” to “the little angel from the camp,” Buergenthal was famous in Norway.

Later Buergenthal learned that Nansen donated the proceeds from the sale of his book in Germany to a fund that helped German refugees. That act, together with a long conversation with Nansen about their experiences during the war, “taught me to empathize with human beings in need, regardless of their nationality.”

Human Rights Activist

In 1951, Buergenthal parted again from his mother: “I went to the U.S. to stay with my uncle, for one year,” he explains in the interview. “I thought I would come back [afterward to Germany]. And at that point I still thought of going to Israel. As a matter of fact, during my college period I wrote a paper – which I don’t think I have anymore – on Zionist groups in the United States. I was interested to see how U.S. support for Israel was developing. It was still very much on my mind. I think that, had I returned to Germany, I would have gone on to Israel, without the slightest doubt.”

But Buergenthal opted instead to study law: “First of all, my father had studied it and my mother always talked about it. The second thing was that, in Europe [at the time], if you were not interested in science and didn’t know exactly what you wanted to do – you studied law … And as soon as I got into my studies, I realized I didn’t want to become a typical lawyer. I wanted to deal with international issues, where I thought I could make a contribution and where I thought I would also be better than other people.”

You say “international” law, and not “human rights.”

Buergenthal: “In those days, international human rights, which is my specialty, was not taught in the U.S. As a matter of fact, Prof. [Louis B.] Sohn and I wrote the first American textbook for law schools on international human rights only in 1973.”

Buergenthal studied law at New York University and at Harvard, where he met Israel’s former Supreme Court president, Aharon Barak. “I’m a great admirer of his opinions – of how he approaches problems,” says Buergenthal today.

Among other posts, Buergenthal has served on a number of human rights forums and was on the bench and served as president of the Inter-American Court of Human Rights (1979-1991); he was a member of the UN Truth Commission for El Salvador (1992-1993) and of the UN’s Human Rights Committee (1995-1999); a member of the Claims Resolution Tribunal for Dormant Accounts in Switzerland; and a member of the U.S. Holocaust Memorial Council (1996-2000) and chairman of its Committee on Conscience (1997-2000).

Although he today represents the United States in various international human rights-related agencies, the country did not ratify many of the treaties and mandates that constituted the basis for establishing some of those agencies.

“At first when the UN charter was signed and ratified by the United States [in 1945], there was an assumption that the Americans would ratify other treaties – for example, the one concerning genocide – but there was a lot of opposition in the southern states … [because people] opposed any sort of international legal involvement by the United States. The genocide convention was not ratified by the United States until 29 years later.”

At the International Court of Justice, Judge Buergenthal represents the United States even though it did not ratify the Rome Statute (which was adopted in 1998, and established the permanent international tribunal to try individuals suspected of committing genocide and other serious crimes). As of October 2009, 110 countries have ratified or acceded to the statute; 38 have signed, but not formally ratified it. Three of these states – Israel, Sudan and the United States – have “unsigned,” indicating that they no longer intend to become a party to the document and declaring they therefore have no legal obligations to it. “I believe that the U.S. should ratify it,” writes Buergenthal in his book.

Asked how he was appointed to his post, he explains: “You have to be nominated by your country. In a formal sense you’re nominated by a committee … but in reality it’s the State Department that nominates you. [The nomination is] also cleared nowadays by the White House, but it’s not something that demands confirmation by the Senate; it’s done by the executive branch. They send your name to the UN, and you have to be approved by both the General Assembly and the Security Council.”

What is your opinion about the claim that it is necessary to reconsider some aspects of military law, due to situations in which regular armies fight against paramilitary organizations that find shelter among civilians?

“I’d rather not deal with that issue. It’s a hot issue, it’s been proposed by Israel and others … Also the issues raised as the result of the Goldstone commission – this is not something I want to get into. The reason I don’t want to get into it … I wrote a dissenting opinion on the separation fence, and I don’t want to have to recuse myself when the next case comes up.”

He already recused himself once on the bench in The Hague. “In the genocide case involving the Bosnians in Serbia, at the international court, I recused myself because I was the chairman of the Holocaust Committee [on Conscience] and we had taken some very strong positions on the subject and I didn’t think it was appropriate for me to participate. I don’t want to be in that same position.”

Furthermore, when he served on the UN Human Rights Committee, together with Israel’s Prof. David Kretzmer, Holocaust denier Robert Faurisson – who had been convicted in France, where Holocaust denial is a criminal offense – appealed his conviction before the UN panel. Buergenthal recused himself, declaring: “As a survivor of the concentration camps of Auschwitz and Sachsenhausen whose father, maternal grandparents and many other family members were killed in the Nazi Holocaust, I have no choice but to recuse myself from participating in the decision of this case.”

On the whole, however, the judge thinks people should not take Holocaust deniers too seriously: “I think we give them too much exposure … I find these people, most of them, so insignificant; they only get press because of the opposition to what they have to say, so I think we overdo it. They don’t deserve it.”

Dissenting Opinion

On July 9, 2004 the International Court of Justice issued a nonbinding opinion, declaring that construction of the separation fence in Palestinian territories is illegal, and demanding that Israel dismantle it. In Buergenthal’s dissenting opinion, he wrote that the court should not have given an advisory opinion, although the construction raises some hard questions vis-a-vis international law. The judge felt it incumbent upon him to vote against the position taken by the court, since he said it did not have sufficient information to make such sweeping conclusions. He stressed that the absence of evidence regarding the security-related imperative of building the barrier, and about the terror attacks against Israel, did not enable an appropriate opinion to be formed and would also prevent the court from winning the public’s confidence in the matter.

When Israel’s High Court of Justice, under Aharon Barak, handed down in 2004 two decisions about the necessity of constructing the separation fence and also about changing its route in cases where it caused suffering among the Palestinians, it cited the International Court of Justice’s view as well as the dissenting opinion of Judge Buergenthal.

“I was very much impressed with Barak’s decisions relating to the wall,” he says now. “There have been a number of decisions, and I suppose in part it is due to sheer egotism, or pride, that [I am happy that] my dissent was used by the court to support its decision. I’m aware of that, of course. But I must say that I’m not an expert on the Arab-Israeli dispute.”

“You know, your hypothetical [example] assumes that we began the whole inquiry when the Nazis were already in power, and that a decision had been made to exterminate the Jews. It was [in fact] a long process: If there had been, for example, opposition to the Anschluss, if there had been strong international opposition, if there had been strong opposition to Germany taking back parts of the territory of France – then Hitler might have stepped back. We don’t know. I think that if there had existed such procedures or treaties, and action had been taken early enough, a lot could have been prevented. I’m incidentally not the only person to say this. The European Convention on Human Rights was adopted on that theory – that if such things had existed, it would have made a difference. You had Kristallnacht, you had Jews being deprived of their nationalities, not allowed to study – all of this could have been brought to the attention of an international organization if it had existed.”

The Holocaust was more than 60 years ago and still, all over the world, we face many instances of genocides or attempts at genocide.

“Yes, well, first of all I think one doesn’t usually report on genocide that has not yet happened in the world. Point number two: I strongly believe that a lot has been achieved, [but] we haven’t solved all the problems. We had Bosnia. There’s no question about it – there’s a long way to go … [However,] we are forgetting the good things. The end of the Soviet Union, the end of apartheid. We’re forgetting a lot of things. If you’d asked me 30 years ago whether they could happen, I would say you’re crazy. These things have happened. You’ve got, on the whole now in Latin America, democratic regimes. When I came there in ’79 you could count them; there were three. Now, you may not like some of them, but a lot has been achieved. It’s not that nothing has been done.”

In another context you mentioned that one of the nations that learned a lesson from the Holocaust in a very profound way is Germany, of all nations.

“Incidentally, I believe very strongly that what you’ve seen in Germany over the last 60 years is the impact of education and the democratization of education, and [the results of] wrestling with the past in a way that I don’t think any other country has achieved. I think, for example, that today the German youth, on the whole, is much more European than [the younger generations in] any other country in Europe. That gives me faith in the fact that education, proper education in tolerance, can make an impact.

“I must say that, before I wrote my book, it never occurred to me that Germans would be interested in [it]. Like, for example, I still don’t think the book is something that would be published in Israel. And I naively assumed that in other countries, it would be published … It seems to me that Israel, unlike the United States or England, is the one country where there’s no need for my book.”

Although Buergenthal has served on a committee of the Holocaust Memorial Museum in Washington, he has never visited it – nor does he read books by other survivors. “It’s emotional when you see some TV programs [on the subject],” he explains. “I can’t take it. I have sort of objectivized my own story, emotionally.”

Given your experience as a Holocaust survivor and as a person who sees evidence of infringements of human rights in the extreme, almost on a day-to-day basis, and who is an indefatigable activist when it comes to safeguarding human rights, would you say humanity has learned any lessons from the atrocities of the Holocaust?

“Humanity is a slow learner, no doubt about that. But I think that we are making some progress, more so in some parts of the world than in others. Some people will look at contemporary events and conc lude that the glass is half empty. I prefer to see it as half full because I believe that progress, albeit small and slow, and sometimes imperceptible, is nevertheless progress.”

{Haaretz/Matzav.com Newscenter}