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In April 1951, Hersch Lauterpacht (1897–1960), a Jewish lawyer who at that time held the prestigious Whewell Chair in International Law at Cambridge University, wrote his legal opinion on a somewhat peculiar matter. He was responding to Mordechai Shenavi (1900–1983), one of the founders of Hashomer Hatzair, a socialist Zionist youth movement established in the 1910s, and the initiator of Yad Vashem, which came into official existence in 1953. Shenavi had asked Lauterpacht what he thought of his idea to posthumously grant Israeli citizenship to victims of the Holocaust.

Shenavi had already drafted a bill to this effect as early as May 1950. Ideologically, as a staunch Zionist, he believed the loss of millions of lives was a direct loss for the State of Israel since they were supposed to have become citizens of the future Jewish state. As a man dedicated to the memory of the Holocaust, he reasoned that conferring a postmortem citizenship was the best way to commemorate the murdered Jews, restore their dignity, and condemn the Nazi atrocities. Politically, Shenavi concluded that the law could moreover assist in Israeli negotiations for the restitution of Jewish heirless property in Europe. Thus, the Israeli claim would not be that the Jewish state was heir to the Jewish victims, but rather that it lawfully represented its deceased citizens. Practically, Shenavi assumed that once the law was passed, the state would finally and formally nominate Yad Vashem as the institution dedicated to conferring this postmortem citizenship. He therefore sought the legal opinion of prominent Jewish lawyers, chiefly Lauterpacht’s, hoping to convince the Israeli officials to move forward with the proposed law despite its exceptional nature.

The proposed law never passed – Israeli Foreign Ministry officials strongly objected to using it as leverage in negotiations with West Germany. Nevertheless, Shenavi’s idea found its way as a clause, that exists to this day, in the »Martyrs’ and Heroes Remembrance (Yad Vashem) Law – 1953.« This states that it is in Yad Vashem’s power to »confer upon the members of the Jewish people who perished in the days of the Disaster and the Resistance the commemorative citizenship of the State of Israel, as a token of their having been gathered to their people.« However, many Jewish communities in the diaspora refused to participate in this action. The most critical were Jews from the United States. Their anxiety of being accused of »dual loyalty« towards the Jewish state – an accusation leveled against Jewish communities time and again in history well before a Jewish state came into being, especially after legal emancipation – made them the staunchest objectors to the initiative. Without their support, the clause became a dead letter.

Still, Shenavi’s idea constituted a startling innovation in the relationship between national and international law. Lauterpacht’s assessment can also be located in this conflicting situation of interests. Perhaps the most important and repeated turn of phrase in Lauterpacht’s letter is how extraordinary the suggestion was, how contrary it was to the purposes of international law, and how unprecedented such an act would be in its history. Yet, as Lauterpacht explained, its unprecedented nature was only a response to the unprecedented nature of the crime of murdering six million Jews, a crime incomparable to prior acts of violence against citizens. He inferred that international law had not done enough, and perhaps could not do enough, regarding the recent destruction of European Jewry, as the problem was not merely legal, but moral, perhaps even religious: Neither mankind in its entirety nor Germany specifically had shown regret for the crimes committed. Lauterpacht’s understanding of the destruction of European Jewry went hand in hand with other efforts by Jewish international lawyers at the time to introduce new legal categories into international law, such as Raphael Lemkin’s (1900–1959) concept of genocide, which was incorporated in the »Convention on the Prevention and Punishment of the Crime of Genocide« adopted by the United Nations in 1948.

Of course, legislating a law conferring postmortem Israeli citizenship onto the Jewish victims of the Holocaust, quite a particular approach in comparison to the Genocide Convention, could have had wide-ranging international, political, and legal consequences. The first point in Lauterpacht’s letter alluded, in direct opposition to Shenavi’s intention, to the fact that Israel should not use the proposed law as a leverage in future negotiations on reparations.

Furthermore, he pointed out that the proposal was not in line with the basic demands of nationality in international law. The prerequisites of granting citizenship are usually twofold: first, a request by the person wishing to become a citizen, and second, being located inside the boundaries of the state conferring the citizenship. Both prerequisites were unfulfilled in this case. The victims of the Holocaust were actually citizens of various European nations before their deaths and were not alive when Israel was established in 1948, so they could not ask for its citizenship.

In view of these considerations, Lauterpacht presented his ambivalent approach to international law in his short letter. On the one hand, he pointed out that Shenavi’s suggestion contradicted international law. The Jewish state could not just proclaim ex post facto that the victims of the Holocaust were Israeli citizens, and that Israel therefore had a legal standing on their behalf. On the other hand, he explained that the posthumous conferment of nationality onto the dead did not in itself oppose international law. This contradiction lay at the heart of Lauterpacht’s interpretation: how can international law, based on established rules and precedents, rise to the challenge of the unprecedented?

Tom Eshed is a PhD candidate at the Department of Jewish History and Contemporary Jewry at the Hebrew University of Jerusalem. In his project he explores Israeli Holocaust memory based on cultural diplomacy from 1953 to 2005 | tom.eshed1(at)mail.huji.ac.il

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