THE EXTERMINATION OF PEACEFUL SOVIET CITIZENS: ARON TRAININ AND INTERNATIONAL LAW by MICHELLE JEAN PENN B.A., Cornell College, 2008 J.D., Washington University in St. Louis, 2011 A dissertation submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirement for the degree of Doctor of Philosophy Department of History 2017 i This dissertation entitled: The Extermination of Peaceful Soviet Citizens: Aron Trainin and International Law written by Michelle Jean Penn has been approved for the Department of History ____________________________________ David Shneer ____________________________________ David Ciarlo ______________ Date The final copy of this dissertation has been examined by the signatories, and we find that both the content and the form meet acceptable presentation standards of scholarly work in the above mentioned discipline. ii Penn, Michelle Jean (Ph.D., History) The Extermination of Peaceful Soviet Citizens: Aron Trainin and International Law Dissertation directed by Professor David Shneer This dissertation examines the life and work of Soviet Jewish lawyer Aron Trainin, placing him in conversation with his better-known contemporaries, the founder of the concept of genocide Raphael Lemkin, and human rights advocate Hersch Lauterpacht. Together these three legal minds—who differed widely in temperament and approaches to law but possessed similar backgrounds as Jewish lawyers from the eastern European borderlands, developed concepts foundations to the Nuremberg Tribunal and, subsequently, modern international criminal law. By situating Trainin’s work with Lemkin’s and Lauterpacht’s, this dissertation acknowledges the central role Trainin played in the development of international criminal law on the international stage. Trainin’s work also played a significant role in how the events of the Holocaust were conceptualized and portrayed in the Soviet Union. Trainin’s concept of “crimes against peace” was instrumental in portraying the crimes of the Nazis and their accomplices as crimes against “peaceful Soviet citizens.” Finally, this dissertation reveals that rather than rejecting international law, the Soviet Union provided critiques and an alternative approach to international law. iii Table of Contents Introduction . .1 Chapter 1: A Brief History of International Legal Thought, or, a Brief History of Christian Europe’s Imperial International Legal Thought . .13 Chapter 2: Three Eastern European Jews from the Russian Borderlands Who Defined International Law . 37 Chapter 3: Soviet Law, Trainin, and the Moscow “Show Trials” . 78 Chapter 4: ‘For Which There is No Name in Any Human Language:’ Hitlerite Responsibility Under Criminal Law. 111 Chapter 5: The Struggle of the Progressive Forces: The 1948 Genocide Convention. 167 Chapter 6: When the Genocide Convention Meets the Cold War: The Last Years of Trainin, Lemkin, and Lauterpacht. 200 Epilogue: The Russian Federation, the United States, and International Law Today. .244 Bibliography . .257 iv Introduction Late summer, 1945. The end of the war was in sight for the Allied powers. Representatives for the United States, the Soviet Union, Great Britain and France met in London to discuss how to bring the Axis powers to justice when the war ended. These negotiations culminated in the London Agreement signed on August 8, 1945, and the subsequent creation of the Nuremberg Tribunal. The Soviet government sent Aron Trainin, a well-known legal academic, to London to represent the Soviet government’s position on how the international legal order should prosecute the unprecedented crimes that had just taken place. Hersch Lauterpacht, an émigré professor in nearby Cambridge, advised the United States representative, Supreme Court Justice Robert H. Jackson, on how the Agreement should approach international law. Raphael Lemkin, a Polish lawyer who had tried unsuccessfully to join Jackson’s team, also joined the lawyers in London with the goal of persuading the representatives of the victorious powers to include his newly coined concept of “genocide” in the London Agreement. Together these three legal minds—who differed widely in temperament and legal writing styles but possessed similar backgrounds as Jewish lawyers from the eastern European borderlands, or after World War II, “bloodlands” according to one strand of current historiography1—would develop concepts foundational to the Nuremberg Tribunal and, subsequently, modern international criminal law. While all three men were instrumental in shaping post-war international law, they all approached this peculiar field of law from very different theoretical perspectives and they have been “remembered” differently. While Raphael Lemkin has been remembered for his role in creating the concept of genocide, and Hersch Lauterpacht has been lionized among Western international lawyers (the legal scholar Phillipe 1 See Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin, (New York: Basic Books, 2010). 1 Sands calls Lauterpacht his “legal hero”2), the third in this crucial triumvirate of legal minds in London, Aron Trainin, has largely been forgotten. The forgetting of Trainin is not accidental. To overlook Trainin’s role in the development of international criminal law conveniently ignores the central role the Soviet Union played in developing the concepts of aggressive war, genocide, and human rights. In the process, it reinforces the narrative that international law was made by Western European lawyers (and their North American descendants). Trainin has been largely forgotten, I argue, because most scholarship on Soviet legal history dismisses Soviet criminal law as itself ipso facto political, mere propaganda produced by the Soviet government, and thus does not actively “study” Soviet law as law.3 The dismissive attitude to Soviet law has its origins in Cold War scholarship, of course. And it might well trace back to the fact, observed by Sheila Fitzpatrick, that “some readers may think that nothing but sustained outrage is appropriate for writing about a great evildoer like Stalin.”4 However, as Fitzpatrick reasons, “the historian’s job is different from that of prosecutor, or, for that matter, counsel for the defense.”5 Instead, the historian’s job is to help illuminate and understand the past. As a Soviet lawyer, Trainin’s job was different: to 2 Phillipe Sands, “My Legal Hero: Hersch Lauterpacht,” The Guardian, Nov. 10, 2010 https://www.theguardian.com/law/2010/nov/10/my-legal-hero-hersch-lauterpacht (last accessed January 10, 2017). 3 See e.g., Victor Vasilyevich Nikulin, “Criminal Law Policy and Penalty Institution in the Criminal Law of the Soviet Russia in the 1920s,” Society, Politics, Economics, Law (Sept. 1, 2013), David R. Shearer, Policing Stalin’s Socialism: Repression and Social Order in the Soviet Union, 1924-1953, (New Haven: Yale University Press, 2009). Some contemporaries of the Soviet Union applied a legal perspective to Soviet law, Harold Berman , William E. Butler, Richard J. Erickson, and F.J.M Feldbrugge are the most prominent Western examples (see, e.g. F.J.M. Feldbrugge, Encyclopedia of Soviet Law, (Leiden: A.W. Sijthoff, 1973), Richard J. Erickson, International Law and the Revolutionary State, (Leiden: A.W. Sijthoff, 1972)), and as to be expected, numerous Soviet scholars, such as A.N. Trainin, Evgenii Aleksandrovich Korovin, and Grigorii I. Tunkin. V.M. Kuritsyn’s Sovetskaia istoriko- pravovaia nauka: ocherki stanovleniia i razvitiia, (Moskva : Nauka, 1978), is one fairly well-known example of a Soviet legal history, though Soviet legal history as such does not appear to be a popular area of study for many historians, Russian or not. A G Zviagintsev; Iurii Grigorʹevich Orlov, Prigovorennye vremenem: rossiiskie i sovetskie prokurory: XX vek, 1937-1953 (Moskva : ROSSPĖ N, 2001) and George Ginsburgs, “The Jurisdictional Scope of Soviet Law,” Europe-Asia Studies, (Vol.45, Issue 4, Jan. 1993), are exceptions to this. 4 Sheila Fitzpatrick, On Stalin’s Team: The Years of Living Dangerously in Soviet Politics, (Princeton and Oxford: Princeton University Press, 2015), 10. 5 Fitzpatrick, 10. 2 argue for, and justify the Soviet Union’s positions regardless of their morality or immorality, in the same way that John Yoo used legal argument to justify the United States’ legitimization of torture under George Bush.6 Peter Solomon’s Soviet Criminal Justice under Stalin represents the most formidable work regarding Soviet legal history as legal history, rather than as simply political history.7 Solomon argues that while the regime often used criminal justice as a political tool, one also sees public life operating largely according to the law.8 Ordinary criminals were acquitted at levels similar to Western European countries and the rule of law appears to have been largely respected for non-political prisoners.9 In the sphere of international legal history, Francine Hirsch represents one of the more innovative voices in acknowledging and reconstructing the Soviet influence in the creation of international criminal law at Nuremberg.10 Rather than dismissing the influence of the Soviet Union in international law as simply an imposition of the will of the dictator Stalin, Hirsch examines why certain Soviet arguments were accepted as legally desirable by British, French, and American government lawyers. This approach is more helpful in understanding the development of international criminal law, rather than dismissing the Soviet 6 See, e.g. Deputy Assistant