Address to Jessup Competitors
After war began in 1939, the techniques became harsher. The next step was the elimination of the Jews in Germany. They lost their citizenship, then were themselves removed. The administra- tion was efficient and detailed. They had to pack up all their belongings, clean their homes, turn off the lights, empty the rubbish and deliver the keys in a sturdy envelope, unsealed but prop- erly labelled, to officials in the town hall, before being herded onto railway wagons for “resettle- ment”. Their files at the town hall were stamped “Evacuation to the East”.
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This was the evil world into which Helmuth James arrived from London as a young lawyer. His field was the law of nations, and he was good at it. As you well know, there are many legal rules on the law of war, going back 1,500 years to the early Christian church. St. Augus- tine wrote on Just War. Princes had to be just in going to war and just in conducting the war (ius ad bellum, ius in bello). So there was a job to do. Von Moltke was a public international lawyer in a unit whose function was to advise the OKW (Oberkommando der Wehrmacht), the High Command of the Armed Forces, on the law of war. The task of the unit was to issue written opinions. Lawyers are routinely admired for clar- ity, not for obfuscation. Von Moltke wrote con- vincingly. He had to attend meetings of senior officers for whom the opinions were prepared. Sometimes (not always), the effect of his polite clarity was to shame them into following his lead. Senior officers did not like what he said, but because of his knowledge and his capacity to explain clearly, they knew he was right. Here is an example: how to treat prisoners of war on the Russian front? Now, the Soviet Union was not party to the Geneva Conventions which ex- tended rights to prisoners. Would it be accept- able to kill Soviet prisoners, then? No, wrote Helmuth James:
“The legal position is as follows. The Ge- neva Convention on Prisoners of War is not
in force between Germany and the Soviet Union. Therefore it is the rules of interna- tional law concerning the treatment of pris- oners of war which are in force. These have established since the 18th century, that captivity is neither revenge nor punishment, but essentially a security measure whose sole purpose is to prevent the prisoners from taking any further part in the war. This approach has arisen from the view, held by all armies, that it was contrary to military conceptions to kill or harm the unarmed. It further is consonant with the interests of each combatant nation to save its own solders from harm when in captivity.”
On another occasion, it was Polish soldiers who joined the British Army: if captured by the Ger- many Army, were they to be treated as civilians bearing arms (and therefore to be shot) or were they soldiers who were now prisoners of war? He used his legal and persuasive skills to per- suade his superiors that maltreatment of enemy prisoners is both against the law and against self-interest. He won that argument – Polish prisoners were to be deemed soldiers – and wrote to Freya with glee that “…many non-Ger- man women have your husband to thank for the continued existence of their husbands”.
He was a junior officer and those whom he was counselling were much more senior. At times we lawyers are under a duty to lead clients, not just to follow them and deliver the advice they want. Yes of course, we have a duty to serve the clients’ interests and yes, we are paid for our advice. But we are paid to think and to ad- vise even if that advice is unwelcome. Some- times we can set the tone which some others will follow once the key issues have been iden- tified. There will be times in your professional lives when your readiness to assert that which is just may be of much greater significance than you then realise.
ILSA Quarterly » volume 20 » issue 4 » May 2012
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