In his best-selling memoir, A Lucky Child, Tom Buergenthal reflected on how his experience as a child caught up in the horrors of the Holocaust influenced his later career as a preeminent scholar and practitioner in the field of human rights, carrying him all the way to a seat on the International Court of Justice (ICJ). He said that his past “equipped me to be a better human rights lawyer, if only because I understood, not only intellectually but also emotionally, what it is like to be a victim of human rights violations. I could, after all, feel it in my bones.”Footnote 1
In his bones indeed. Born in Lubochna (then Czechoslovakia) on May 11, 1934, Tom began his life at a small hotel run by his father Mundek, a Polish Jew, and mother Gerda, a German Jew. In 1938, the local fascist party confiscated the hotel, prompting the family to flee to Poland. Although they acquired visas to emigrate to England as political refugees, Germany invaded Poland on the day they were scheduled to depart, cutting off the family's escape. Tom spent the next few years confined to the Jewish ghetto of Kielce in Poland, where he witnessed severe overcrowding, massacres, hunger, and disease. In August 1942, the ghetto was liquidated: those unable to move were shot; some 20,000 were transported to and massacred at Treblinka; all others, including the Buergenthals, were placed in work camps. Tom and his parents spent two years in such camps before being transported to Auschwitz.
Ironically, Tom often said he was lucky to get into Auschwitz. Normally, groups were screened upon arrival and children (as well as the elderly and disabled) were “selected” to be sent immediately to the gas chambers. But because Tom's train was coming from a work camp, it was assumed that all were able-bodied, and there was no selection. At Auschwitz, however, Tom was separated from his mother; he and his father were tattooed (Tom was B-2930) and placed in barracks, sometimes located near the gas chambers, where Tom could hear screams and pleas for help. In October 1944, Tom's father was taken during a “selection,” later to perish at Buchenwald.
In January 1945, Auschwitz was evacuated as the Soviet army approached, with the prisoners forced on a three-day, forty-four-mile “death march” over roads covered with snow and ice. Those who could not endure were shot by SS guards and left in roadside ditches; Tom was just one of three children to survive. The prisoners were then placed in open freight cars for a ten-day journey to Sachsenhausen concentration camp in Germany. Again, Tom survived, but with such severe frostbite that two of his toes had to be amputated. In April 1945, Sachsenhausen was liberated by Polish and Soviet troops. After a brief stint as a “mascot” for a Polish army company, Tom was placed in a Jewish orphanage,Footnote 2 where a year later he was tracked down by his mother, who had survived the war. They were reunited in December 1946 and settled in Gerda's hometown of Göttingen, Germany.
Finding that he was not comfortable living in Germany, Tom emigrated to the United States in December 1951, at the age of seventeen, knowing little English. Living with an aunt and uncle as he finished high school in New Jersey, he attended Bethany College in West Virginia (B.A., 1957), New York University Law School (J.D., 1960), and Harvard Law School (LL.M., 1961 and S.J.D., 1968).
At Harvard, Tom studied international law under Professors Richard Baxter and Louis Sohn, who turned the youthful victim of human rights atrocities toward being a scholar. Tom completed his S.J.D. thesis under Baxter's supervisionFootnote 3 and then crafted with Sohn the first ever casebook on human rights,Footnote 4 which dramatically increased awareness and interest in the field for an emerging generation of human rights lawyers.
Tom served on the faculties of SUNY/Buffalo (1962–1975), Texas (1975–1980), and Emory (1985–1989)Footnote 5 law schools, and as Dean of the American University Washington College of Law (1980–1985), before finishing his academic career at George Washington University (1989–2000 and 2010–2015). He taught and mentored countless students, authored or co-authored numerous law review articles and a dozen books, and became viewed as one of the architects of the post-war human rights regime. When this Journal commissioned articles for its 100th anniversary, it was natural to turn to Tom to explain the system of human rights.Footnote 6 Likewise, when the UN audiovisual library sought a lecture on the history of human rights law, it turned to Tom.Footnote 7
The scholar doubled as a practitioner. Tom was nominated by Costa Rica to serve as one of the first seven judges of the Inter-American Court of Human Rights, founded in 1979. The only U.S. judge ever elected to the Court (and its president from 1985 to 1986), he served for two six-year terms (1979–1991) during the Court's emergence as a force for protecting human rights in the Western Hemisphere. Recalling novel doctrines developed in cases such as Velasquez-Rodriquez,Footnote 8 Tom once remarked that the Court's initial judges felt a bit like they were John Marshall. Moreover, demonstrating a fierce commitment to protection of the vulnerable, Tom did not hold back during his time on the Court from criticizing the U.S. government's support for autocratic regimes in the region.
From 1992 to 1993, Tom served as one of three commissioners of the UN Truth Commission for El Salvador, issuing a report that recounted in depth the large-scale human rights atrocities during that country's twelve-year civil war, including the assassination of Archbishop Oscar Romero.Footnote 9 From 1995 to 1999, he was the first U.S. national to serve as a member of the UN Human Rights Committee. From 1997 to 2000, he was an arbitrator and vice chairman of the Claims Resolution Tribunal for Dormant Accounts in Switzerland, which was established to identify and help return some $1 billion to the owners or heirs of unclaimed Holocaust-era accounts.
As the capstone to such practice, Tom was elected and re-elected to the ICJ,Footnote 10 serving from 2000 until 2010 and participating in thirty-eight substantive decisions. Whether voting with the majority in a case against his own government,Footnote 11 crafting a stirring and influential concurring opinion on universal jurisdiction,Footnote 12 or casting lone “against” votes in an advisory opinion concerning Israel,Footnote 13 Tom was widely admired for his independence, integrity, and commitment to the rule of law.Footnote 14 Even so, he and his wife Peggy left The Hague before Tom's second term had expired, desiring to spend more time in the United States with their children and nine grandchildren.
Tom received many awards and honorary doctorates throughout his life, including the American Society of International Law (ASIL)'s Goler T. Butcher Medal (1997) for outstanding contributions to the field of human rights; ASIL's Manley O. Hudson Medal (2002) (its highest honor); the Gruber Foundation International Justice Prize (2008); and the United States Holocaust Memorial Museum's Elie Wiesel Award (2015) (a co-recipient with Benjamin Ferencz). The last of these institutions in 2018 produced a documentary on Tom's life entitled Peace Through Justice. This Journal and ASIL benefited greatly from Tom's energy, knowledge, and enthusiasm; he served on the Journal's Board of Editors for many years, was a vice-president and honorary president of ASIL, and served on ASIL's executive council.
Tom Buergenthal—a Holocaust survivor; a ground-breaking scholar, teacher, and mentor; and a practitioner who scaled the heights of his profession—died at his home in Miami on May 29, 2023.Footnote 15 To his end, Tom well understood that despite great progress in the field of human rights, much remained to be done, and that sadly many atrocities continued across the globe. Yet he urged others to turn away from cynicism. “The task ahead is to strengthen these tools, not to despair, and to never believe that mankind is incapable of creating a world in which our grandchildren and their descendants can live in peace and enjoy the human rights that were denied to so many of my generation.”Footnote 16 Through his extraordinary accomplishments, Tom Buergenthal played his part in creating such a world.
