In conversation with Philippe Sands: “It is a personal story for me, although I had not expected it to be one"
An international law expert on his personal connection with Ukraine and why we need a new international tribunal to prosecute the crime of aggression perpetrated by Russia.
Credit: Christian Andre Strand
When I conducted my interview with Professor Philippe Sands on Zoom, he had just left London for a teaching stint at Harvard. When he appears on my screen he looks calm, collected and focused.
I wanted to learn more about his involvement in plans to set up an international court which could address the war crimes, particularly the crime of aggression currently being perpetrated by Russia in Ukraine.
He is currently a Professor of Law and Director of the Centre on International Courts and Tribunals in the Faculty of Laws at University College London, and a key member of staff in the Centre for Law and the Environment. His areas of expertise include public international law and the settlement of international disputes. Sands is a Queen’s Counsel. As a barrister, he has litigated cases before the International Court of Justice, the International Tribunal for the Law of the Sea, and the European Court of Justice.
After attending a talk by the UCL Faculty of Laws on Russia’s Invasion of Ukraine, International Law and Human Rights, I set up the interview. The penal was chaired by Professor Piet Eeckhout, the Dean of Laws at UCL. In the discussion organised under the auspices of the UCL Institute for Human Rights, experts from the UCL Faculty of Laws discussed in short interventions the legal developments and implications of the situation in Ukraine.
Philippe Sands has a highly personal connection to Ukraine. Back in October 2010, he was invited to give a lecture in Lviv on ‘crimes against humanity’ and ‘genocide’, two crimes invented in 1945 for the famous Nuremberg Trials, where Nazi leaders were tried as war criminals. He accepted the invitation to Lviv — a city in west Ukraine — after he realised that it was previously called Lemberg and was the birthplace of his grandfather when the city was part of the Austro-Hungarian Empire.
When he finally visited, his further research revealed that the city was the place of origin for the concepts of crimes against humanity and genocide. Since then, he returns once or twice a year. He has many friends and contacts who live in Lviv and is in touch with them on a daily basis.
In 2014, he published ‘East West Street,' a book about the origins of genocide and crimes against humanity. His work combines an account of wartime history and elements of a family memoir. In the book, we follow the lives of his family and two Lviv-trained lawyers, Raphael Lemkin and Hersch Lauterpacht, who assisted the Nuremberg prosecution and laid the foundations of international human rights law. The events explored in the book are deeply tied up with the events which unfolded at the time. Both Lauterpracht and Lemkin lost their family in the Holocaust.
“It is a personal story for me, although I had not expected it to be one", he remarked in a pensive, but determined tone. The duty and responsibility to act remains the key component of his narrative.
International law is heavily reliant on the consensus between states regarding which actions are legitimate and which aren’t and, as a result, should be penalised. Political will is inextricably linked to the willingness to penalise certain actions by specific actors as opposed to others. As a result, international law often has an enforcement issue. There are currently three main proceedings being brought in international courts against Russia’s actions; the International Criminal Court, the European Court of Human Rights and the International Court of Justice. The question is why there is a need for different international tribunals when such proceedings are already being brought under the established international law courts.
Putin’s use of military force is a crime of aggression, meaning waging an illegal war. The idea originated at Nuremberg as “crimes against peace”. The International Criminal Court — which evolved out of the Nuremberg Tribunal — has jurisdiction over international crimes such as war crimes and crimes against humanity committed on the territory of Ukraine. Russia is subject to its jurisdiction because it ratified these statutes. Thus, Putin, as president, does not enjoy immunity. This is why Karim Khan, the ICC prosecutor, can open a formal investigation and, if it is supported by evidence and authorised by the judge, can proceed to indict and prosecute. However, the ICC cannot investigate the crime of aggression against Russia because it never ratified the statute.
Sands is quick to point out his concern that in three or four years there will be trials in The Hague for crimes against humanity and war crimes, but they will involve mid-ranking military officials.
“The main responsibility for what has happened [..], for this horror, is a small group of people up at the top. [..] I think it's far from clear that war crimes and crimes against humanity will reach the very top. [..] It would be most unfortunate to end up in a situation in which those who are most responsible for these horrors don't get subjected to accountability, whereas others who've been sent in under apparently appalling conditions face the full wrath of the criminal justice system.”
Crimes against humanity and war crimes require proof of a direct causal connection between the act that amounts to the crime, and the perpetrator. Russian soldiers who shoot civilians could be tried for war crimes. Commanding officers could be indicted for authorising such acts. But establishing a direct connection between the acts which are being committed in Ukraine and senior individuals is likely to fail because of evidential uncertainty. Therefore, to prosecute individuals at the very top, a tribunal that could prosecute the crime of aggression may be significantly better suited to avoid an outcome where top officials can escape liability. Sands and other experts are now working at the explicit request of President Zelenskyy and Foreign Minister Dmytro Kuleba. While an international court is global in its reach, tribunals are temporary and have a limited geographical scope, which is specific to the conflict they are addressing.
The crime of aggression forms part of customary international law and is incorporated into the domestic penal codes of Ukraine, Germany and Russia itself. At the domestic level, proceedings will be brought against Russia. But so far not in international law. The method of how a tribunal is established, Sands points out, is now open to discussion. A jurisdictional basis has to be found and a new institution, i.e. tribunal, created. Additionally, an agreement or a treaty has to be put in place. While this involves challenges, it has been achieved before. Ultimately, it depends on the political will to take forward such actions. Generally speaking, the tribunal will likely be part of a framework involving a treaty either between Ukraine and an international organisation or a treaty between Ukraine and a small number of states.
At the panel discussion I attended, some students in the audience expressed discontent with the fact that there seems to be a disproportionately high political will to act against Russia, contrary to many other conflicts in the past. Additionally, some political actors who were themselves involved in questionable activities in those very conflicts, are openly condemning Russia’s actions. Many commentators are quick to point out that the current political will to act involves elements of hypocrisy.
Sands' clear answer to this was that his involvement is a response to an explicit request by the Ukrainian government for assistance in internationalising the response to the aggression that just happened. Not taking up Ukraine’s government on the request would have been absurd for Sands.
“I think we have a responsibility in the face of the horrors that we are seeing unfolding to respond in whatever way we can to bring this to an early end.”
Of course, any illegal war, whether it be in Congo, Slavia, Syria, or anywhere else should be examined and subjected to the same conditions, but the fact that they haven't been isn't a reason for not addressing crimes in Ukraine. Within international law, which is often reliant on the political will of key actors, difficult circumstances often lead to situations which are at best a compromise.
Acknowledging this, Sands agrees, is necessary, but it does not delegitimise the swift and purposeful reaction to Russia’s actions. “I am fully committed to doing justice in any war, but this is the one of today and there seems to be a political will to move on it. So let's set a new precedent.”
The conflict, Sands says, has unleashed a new set of forces. Within this framework, countries that were unwilling to work together, or in the case of the United States were unwilling to support the International Criminal Court, all of a sudden have found a new common purpose. One could be cynical about why that is happening, but Sands takes a different angle.
“We have to deal with the world, as it is.” He recognises that there is a discrepancy. He was actively involved with issues pertaining to the war in Iraq, which he considered illegal and also a crime of aggression, but there was no political will.
We also talk about some commentators who contextualise the current situation in the narrative of World War Two. Sands generally dislikes comparisons, both when Putin refers to Ukrainians as Nazis and when people mention Adolf Hitler in the same breath as Putin. He stresses that Ukraine has to be understood in a historical context. One of the reasons, he points out, why such comparisons have resonated so powerfully with so many people is that the region in and around Ukraine is where so many of the crimes of the Second World War were perpetrated. “It is an area that knows the full force of these horrors.”
Nevertheless, the conflict needs to be placed within its larger geopolitical context. This does not mean legitimising Putin’s actions in any way. But to bring an end to the conflict, a detailed understanding of the context is crucial. Undoubtedly, Putin felt provoked by NATO’s expansion eastwards. Sands states that it is necessary to be sensitive to Russia's legitimate concerns of not wanting to become surrounded by an alliance of countries that it perceives as threatening. But it does not in any way justify what Russia has done. A sensitivity to these long-standing historical and complex matters in the region is necessary if an end to the conflict is to be found.
In 2008 Sands was counsel as part of the legal team for Georgia in a case brought to the International Court on allegations of violations relating to racial discrimination and equal treatment of the Convention on the Elimination of Racial Discrimination 1969. In those circumstances, the ICC rejected that it had jurisdiction to rule on this. Sands describes it as the worst decision he ever received from any international court. Such a decision also sends a signal to Russia that the Court is not going to get involved.
The West has turned a blind eye in other instances too. For example, the UK has almost unquestioningly accepted vast sums of oligarchy money i.e. in property investments, so much so that it is sometimes nicknamed “Londongrad”. Sands acknowledges that there is deep hypocrisy in countries like the United Kingdom turning around and saying that something needs to be done about this.
Still, that is not a reason to become cynical about the situation or to refuse to get involved in setting up a tribunal at all. Millions of people have been displaced by the war in Ukraine, a scale of unrest that Europe has not seen for a long time. For now, any efforts have to be concentrated on ending this war by any lawful means possible, may they be diplomatic, economic, legal or military. An important part of that may be establishing a mechanism that can penalise top Russian officials. Time will tell.