(25) Human Rights: Past and Present

US under fire at the UN for its human rights record

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Rudolf Laun and the Human Rights of Germans in Occupied and Early West Germany

What are human rights? The technical answer is that they are norms of international law that are formulated in abstract, universally applicable terms. For example, Article 3 of the Universal Declaration of Human Rights reads: “Everyone has the right to life, liberty, and security of person.” Such a norm contains no reference to any context or circumstances that might justify limiting those rights - and therein lies the power of human rights language.

When lawyers or activists attach a particular situation to a human rights norm, they seek to persuade others to see that situation in isolation from its historical context and usual justifications, as a violation. Human rights norms are ahistorical and decontextualized, and that is the point of invoking them.

After the Second World War, activists around the world hoped that people would think ever more in terms of human rights norms, and the Allies encouraged that hope. However, the use of the ahistorical language of human rights in occupied and West Germany - the subject of this essay - was difficult and inevitably controversial. In practice, the language of human rights in West

Germany highlighted the tension between the Federal Republic’s most prized moral claims: to have enshrined timeless, universal human rights, and to have accepted the specific historical responsibility of Nazism. While the former asks listeners to set aside context, the latter depends on a specifi c context for its significance.

There was and is no single, typical West German “take” on human rights. Rather, West Germans have applied a range of opinions and approaches. However, there have been certain highly typical confrontations among West Germans concerning human rights. One such confrontation emerged already under occupation in the second half of the 1940s, and it still animates human rights debate today in the Federal Republic. On one side stood those who wished to sharpen West Germans’ awareness of human rights by emphasizing Germans’ violations of others’ human rights under Nazism. These “others” were non-Germans and German minorities targeted according to racial, political, or sexual criteria. Informing the West German public about theNazi past and critically analyzing postwar Germany in light of that past were to be central to any discussion of human rights. On the other side of the confrontation stood those who attached human rights language to those Germans who, while not targeted under Nazism, had suffered under the Allied occupation. It was possible, but not technically necessary, to include the context of the Nazi past in order to defi ne the norms violated here. As it happened, however, criticism of the Nazi past usually was absent on this side. This lack of a critical approach to the Nazi past provoked the irritation of the former side.

In the immediate postwar period, those Germans who claimed that the Allies had violated their or other Germans’ human rights were dominant in this confrontation, and not just on the right. They cited aerial bombardment, arbitrary seizure of property, extended detention for prisoners of war, and the expulsion of ethnic Germans from Poland, Czechoslovakia, and other points in Eastern Europe. During the Allied occupation, organizations representing the expellees were banned; the Allies feared their far-right political potential. After the creation of the Federal Republic in 1949, the Basic Law guaranteed the right of such groups to form, and they quickly grew. German international lawyers worked with these groups, applying their professional skills to defi ning occupation and expellee issues as human rights violations. The tension between the Federal Republic’s two moral claims, to universal human rights and to the historical responsibility for Nazism, emerged most sharply in these claims that the Allies had violated Germans’ human rights.

This essay focuses on one actor in this confrontation, the international lawyer Rudolf Laun (1882-1975). Laun, a professor of law and legal philosophy at the University of Hamburg, was the earliest of the German international lawyers to criticize the Allies for violating Germans’ human rights. His insistence on applying concepts consistently, in spite of their different political meanings in different contexts, exemplifi es the confrontation described above. Yet Laun’s case is more than merely illustrative, for his arguments allow us to connect that typical West German confrontation to larger themes in the twentieth century history of human rights. Laun’s case certainly shows us that human rights functioned as a political language, allowing Germans to cast themselvesas victims and to suggest that Germans’ own earlier heinous actions had been balanced out. Yet his human rights concepts also had a specifi cally legal significance. Laun helped to import discussions about self-determination and peace from Habsburg Austria and from the Western European progressive international law movement into the postwar West German international law field. The problems that Laun foregrounded continue to be important and controversial today. Germans’ claims against the Allies fed into the larger question of whether individuals and non-state groups (such as ethnic groups) could be subjects of international law with standing in international institutions. The German expellees’ claims also raised the question of whether such groups had a right to self-determination, including, by right of indigeneity, a right not to just any homeland, but to a specifi c and irreplaceable homeland.

These discussions are part of the history of those globally resonant concepts. This may not be well known to historians, but it ought to be familiar to West German international lawyers working today on minority and indigenous peoples’ rights. Politically, by the end of Laun’s career in the late 1950s, the expellee issue had become associated with the right, yet the human rights concepts with which he worked are associated today with the left. Such divergent disciplinary and political histories, with their mutual antagonisms and borrowings, belong in a more comprehensive narrative of human rights in the twentieth century.

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