Thomas Buergenthal, who said his survival in a Nazi death camp when he was 10 years old equipped him to become a human rights lawyer and venerable judge on the World Court, died on Monday at his home in Miami. He was 89.
His death was confirmed by his son Alan Buergenthal.
Judge Buergenthal and his parents were transported from a Jewish ghetto in occupied Poland to Auschwitz, where Tommy, as he was called, was believed to be among the youngest survivors. He also survived a three-day death march to Sachsenhausen, Germany, where he was liberated by Soviet troops months later.
His father and grandparents died in the Holocaust.
The ordeal, he wrote in “A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy” (2007), prepared him “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,” he added.
Judge Buergenthal, who settled in the United States after the war, was nominated by Costa Rica for a judgeship on the Inter-American Court of Human Rights, where he became an outspoken critic of Washington’s complicity in the so-called “dirty wars” against leftist guerrillas and their sympathizers in Honduras, El Salvador and Guatemala.
He served on that seven-member tribunal, established under the Inter-American Convention on Human Rights, from 1979 to 1991 and was its president from 1989 to 1994.
During his tenure, the court investigated military juntas accused of killing thousands of civilian dissidents. In 1993, he was one of three members of a United Nations commission that held Salvadoran military officers responsible for some of the most notorious crimes of the country’s dirty war, including the assassination of Archbishop Oscar Romero of San Salvador in 1980, the rape and murder of four American churchwomen in 1980, and the killing of six Jesuit priests in 1989.
Judge Buergenthal helped devise a novel legal premise for prosecuting cases involving the disappearance of thousands of political dissidents. The court ruled that if an individual who had vanished matched the profile of other persons who had disappeared, then the burden of proof was on local governments to prove that they were not responsible.
From 2000 to 2010, he represented the United States on the 15-member International Court of Justice in The Hague, the top judicial body of the United Nations. There he notably cast the lone dissenting vote when his colleagues declared in an advisory opinion in 2004 that the parts of the Israeli separation barrier that crossed into the occupied West Bank violated international law and should be razed.
He wrote that the court should have rejected the case because it was too politically fraught, and later said that the court should have evaluated each segment of the wall to determine which parts were or were not justified for defensive purposes.
“The way I would have looked at the case, was to look at different segments of the wall and see whether this segment is one which Israel has a right to have a wall, or some protection against missiles,” he said in a 2015 interview published by the Working Group on Human Rights in the 20th Century. “Or when there was no basis other than just to take land away from the Palestinians.”
His decision, he added, did not reflect a lack of concern for the rights of Palestinians.
“I come out and I say that the settlements are illegal,” he said in the interview. “I point out that the suffering of the Palestinian people is something that is connected to the settlements.”
In his memoir, Judge Buergenthal wrote that “my Holocaust experience has had a very substantial impact on the human being I have become.”
“I always believed that a part of my human rights work was motivated one way or another in believing that the law could have been used to prevent what happened to us in the ’30s,” he said. “We have an obligation as survivors and we owe it to the people who died to make sure that these things don’t happen in other places.”
Menachem Z. Rosensaft, general counsel and associate executive vice president of the World Jewish Congress, characterized Judge Buergenthal as “fearless in standing up for the human and civil rights of all victims of persecution, oppression and crimes against humanity across the globe, and in doing everything in his power to provide them with at least a modicum of justice.”
Thomas Buergenthal was born on May 11, 1934, in Lubochna, Czechoslovakia, to Mundek and Gerda (Silbergleit) Buergenthal. As Jews they had fled Germany the year before and ran a hotel. His father, who was born in Poland, was trained as a lawyer and had worked as a banker.
After Germany dismantled Czechoslovakia, the family fled to Poland, hoping to emigrate to Britain, but were trapped when war broke out and herded into a ghetto in Kielce. They were shipped to Auschwitz in August 1944.
Tommy was a lucky child, Elie Wiesel wrote in a foreword to the memoir, because he had avoided the scrutiny of Josef Mengele, the notorious Nazi doctor who selected victims for the gas chambers, and because he had escaped from another group of children marked for death when he boldly announced in German to a commandant that he was strong enough to work.
“I saw the fact that I survived as a victory, that we had won over them,” Judge Buergenthal told the U.S. Holocaust Memorial Museum in 2001.
As the Soviets advanced, Tommy and other inmates were marched west to Sachsenhausen, where he was liberated in April 1945. His father was killed in the Buchenwald concentration camp.
Tommy was looked after by Polish soldiers and then placed in a Polish orphanage, which, in arranging to send him to Palestine, miraculously reconnected him with his mother. He was smuggled out of Eastern Europe and reunited with her in her hometown, Gottingen, Germany, in December 1946.
In late 1951, when he was 17, his mother sent him to join his aunt, uncle and cousin in New Jersey. He completed high school in Paterson, and, to his surprise, because it was affiliated with a Christian denomination, was offered a scholarship to Bethany College in West Virginia.
After graduating from Bethany in 1957, where he was recommended for a Rhodes Scholarship and became an American citizen, he earned a law degree from New York University in 1960 and a doctorate and a master’s of law degree from Harvard Law School.
Judge Buergenthal wrote foundational books on international law; was president of the American Bar Association’s Human Rights Committee from 1972 to 1974; dean of Washington College of Law of American University in Washington from 1980 to 1985; held endowed professorships at the University of Texas, Austin, the State University of New York in Buffalo and Emory University in Atlanta, where he was also director of the Human Rights Program of the Carter Center.
Judge Buergenthal served on the United Nations Truth Commission on El Salvador from 1992 to 1993, was a member of the United Nations Human Rights Committee and the Ethics Commission of the International Olympic Committee, and was vice chairman of the Claims Resolution Tribunal for Dormant Accounts, which returned funds to Holocaust victims from banks accounts that had been seized by the Nazis.
He received numerous honorary degrees and awards, including, in 2016, the Grand Cross of the Order of Merit, the German Federal Republic’s highest tribute to an individual.
“To me,” his son Alan said, “this was Germany’s apology, which he wholeheartedly accepted.”
In addition to Alan, he is survived by his wife, Marjorie (Bell) Buergenthal; two other sons, Robert and John; his stepchildren, Cristina De las Casas and Sebastian Dibos; and nine grandchildren.
Time can hide the past, if not completely heal pain. Judge Buergenthal said he had mellowed toward Germans since the war. That “abstract hatred becomes transformed into the fact that they’re human beings,” he said. He also reminisced in the 2015 interview about returning to the extermination camp in 1991 for the first time.
“It was not the place I remembered, because there was grass, there were birds flying,” he recalled. “In Auschwitz during my time, the smoke from crematoriums was such that no bird would fly there. And no grass, it was mud. Never ending. And the air was filled with the stench of burning human bodies.”
“This is how the world covers up everything,” he added. “The grass grows again, and the flowers grow. Who cares whatever happened on that ground?”
In 2005, when he joined other survivors at Sachsenhausen to mark the 60th anniversary of their liberation, he recited a litany of massacres that had occurred since then, in Rwanda, Cambodia and Darfur.
“Today,” he said, “ ‘never again’ often means ‘never again, until the next time.’”