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Photo: Juan Manuel Herrera/OAS

Remembering a human rights pioneer with UB ties

Judge Thomas Buergenthal, a creative pioneer in international human rights and a former UB School of Law professor, died May 29 at his home in Miami. He was 89 years old.

Buergenthal taught international law in Buffalo from 1964 to 1975. Among his initiatives at the law school, he created a six-week summer session at the University of Brussels, in Belgium, at which five UB Law professors and five host professors taught a comparative course in Anglo-American common law and European civil law.

Shortly after leaving UB, Buergenthal became a judge on the Inter-American Court of Human Rights, which was established under the Inter-American Convention on Human Rights. He served on that tribunal from 1979 to 1991, including five years as its president. His tenure on the nascent court was notable for its investigation of “dirty wars” conducted by El Salvador, Honduras and Guatemala against leftist guerrillas.

He also served as dean of the Washington College of Law of the American University from 1980 to 1985. Subsequently, while on the faculty at Emory University Law School, Buergenthal founded the Carter Center's Human Rights Program in 1986 where he served as director until 1989. 

In 2000, Buergenthal was awarded an honorary doctor of law degree in recognition of his service to humanity at the UB School of Law Commencement Ceremony, where he gave the keynote address. From 2000 to 2010, he represented the United States on the International Court of Justice in The Hague, adjudicating cases brought through the United Nations.

His work was informed by his personal history; his father and grandparents died in the Holocaust, and Buergenthal was among the youngest survivors of the notorious Auschwitz death camp. He wrote about that history in a memoir, A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy. “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 wrote. “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.”

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Professor Paul Linden-Retek

“Judge Buergenthal, by virtue of his biography, was particularly attuned to the vulnerability and frailty of human life before the power of the state,” says UB Law Professor Paul Linden-Retek, whose scholarship focuses on international human rights. “He understood that the consequence of that should be both to limit the power of the state, but also to impose obligations on the state to act.”

UB Law Professor Tara J. Melish, a scholar of the Inter-American human rights system, underscores the point. “Judge Buergenthal’s unmatched contribution to the field of international human rights law,” she says, “is defined in large part by his transformation of the idea of a duty to prevent into enforceable legal doctrine.” Judge Buergenthal, Melish explains, was exceptional not only in being the first and only U.S. judge to sit on the Inter-American Court of Human Rights, but in that “he penned that body’s very first decision, still one of the most important and influential in all of human rights law.” State responsibility, it said, could be imputed to a government not only for the direct acts of its agents, but—ultimately much more importantly—for the institutional and structural failures of public power in organizing itself in ways that could effectively prevent and appropriately respond to such harms. “What is decisive, the Buergenthal decision said, is whether the state has allowed an act to take place without taking reasonable measures to prevent it.” This essential early insight and doctrinal precedent, Melish stresses, lies at the heart of all human rights law today.

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Professor Tara J. Melish

Linden-Retek pointed to another innovation by Buergenthal during his service on the Inter-American Court of Human Rights: a shifting of the burden of proof onto governments accused of “disappearing” political opponents, rather than requiring that the dissidents’ families prove the government was responsible. “It was an artful legal solution,” he says, “and it shows that he thought carefully of the individual litigants, their circumstances, and the demands of fairness, and then devised an elegant reform to procedural and evidentiary rules to make the difficult pursuit of justice possible.”

The Buffalo Human Rights Center is planning a 75th anniversary commemoration this fall for the Universal Declaration of Human Rights, and Linden-Retek says a major theme of the event will be an appreciation of Buergenthal’s life and work.

Buergenthal came to the United States at age 17, in 1951, and earned degrees from Bethany College in West Virginia, New York University Law School and Harvard University. In addition to his teaching at UB Law, he held law professorships at the University of Texas and American University. He was the author of more than a dozen books, including his memoir, and numerous articles in scholarly journals.

His commitment to international human rights never waned. In the 1990s, Buergenthal helped establish the United States Holocaust Memorial Museum, where he helped to found the genocide prevention program. In remembering his own imperiled childhood, he lamented that the world had not stopped more modern genocides from happening in Cambodia, Bosnia and Rwanda.  

“There is something terrible about the uniformity of human cruelty that always strikes me,” he said. “And that’s why I feel drawn to trying to prevent this from happening elsewhere. I believe in keeping the past alive, but only if it serves the purpose of preventing future suffering of this type.”

Judge Buergenthal’s survivors include his wife, Marjorie; three sons, Robert, John and Alan; two stepchildren; and nine grandchildren.