Philippe Sands, jurist and writer: “Let Putin reap what he sowed; let him face the legacy of Nuremberg”

Sometimes the tools to do justice are not enough or are obsolete. Sometimes, certain episodes awaken the conscience of lawyers and force them to design new legal devices. The invasion and war in Ukraine seem to be one of those key moments in international law. A renowned group of jurists, intellectuals and politicians from around the world have already signed the so-called Justice for Ukraine, a call to form a special international tribunal to try Russian President Vladimir Putin for the crime of aggression. The text reads as follows:

The act of invasion is in itself a crime against the Ukrainian people. President Putin and those who planned the attack have committed a crime of aggression. The International Criminal Court (ICC) is currently investigating war crimes committed as a result of the attack. However, there is a gap: the ICC cannot investigate the crime of aggression unless it is referred by the UN Security Council. Russia, as a member of the UN, has the right of veto on this, which, of course, it would exercise immediately. We are therefore calling for an international tribunal to try President Putin for the crime of aggression. This is not a new idea: 80 years ago, world leaders met in London to create a legal framework to prosecute World War II criminals. This legal framework resulted in the Nuremberg trials, in which 161 war criminals were convicted.

The proposal (can be read on this site: https://justice-for-ukraine.com/) has more than 100 major signatures, including that of former British Prime Minister Gordon Brown and other former heads of government and presidents such as Brazil's Fernando Henrique Cardoso, the writers Siri Hustvedt and Paul Auster, former Nuremberg Military Court prosecutor Benjamin Ferencz, academic and writer Timothy Garton Ash and Sir Nicolas Bratza, former President of the European Court of Human Rights, among others. The one behind this project is renowned British jurist and writer Philippe Sands (London, 1960), professor of international law and advisor to the queen, author of the celebrated books East-West Street and Escape Route. It is precisely Calle East-West that is the book to be aimed at these days, a hybrid genre book in which Sands narrates the way in which two legal concepts — “crimes against humanity” and “genocide” — were coined and how these ideas, that philosophy and the lives of its authors intersected with the life of his grandfather himself.

In his book, Sands - who acted in prominent international trials at the Court of Justice of the European Union and the International Criminal Court in The Hague, including the cases of Pinochet, the war in the former Yugoslavia, the genocide in Rwanda, the invasion of Iraq, Guantánamo and Georgia - tells how jurists Hersch Lauterpacht and Raphael Lemkin created these concepts when they were professors of law in the city that was first Lemberg, then Lwów and now it is Lviv. Behind this history of ideas, there is a complex and fascinating legal dispute that reoriented the fate of the Nuremberg trials and, also, what would become international law from then on.

Infobae interviewed Philippe Sands, who answered a questionnaire by email. He did so with the usual cordiality, the same one he showed during his visit to Buenos Aires in 2019, when he spent a few days in this city during the FILBA literary festival, shortly after the release of his book in Spanish.

- Were you surprised by the invasion of Ukraine on February 24?

-It is true that the matter has been going on for a long time, but the scale and brutality did surprise me. This is not the first time that Russia has invaded these territories: in September 1914 it occupied Lviv, which caused tens of thousands to flee, including my grandfather; the Soviet Union returned in September 1939 for a second bite, then again in the summer of 1944, maintaining control until Ukraine gained independence in 1991. The generation that lived through those wars in Europe almost no longer exists and Europeans who have lived for three generations without experiencing military actions of this magnitude are now shocked because they are alien to personal experience of what war means. But history doesn't just disappear and war is just around the corner.

-While the International Criminal Court (ICC) in The Hague has already launched an investigation into war crimes and crimes against humanity, you insist on the need to establish a special court by Ukraine and accuse Russia of a “crime of aggression”. Why?

-Along with ICC investigations, proceedings are also taking place at the European Court of Human Rights in Strasbourg and the International Court of Justice in The Hague. But there is a vacuum in these international affairs: none have jurisdiction to investigate and prosecute the “crime of aggression” being perpetrated on the territory of Ukraine, and that is why we need a special international criminal court. From 1939 onwards, there was basically one type of international crime relevant, and it was war crimes. In 1945, in London, those who drafted what would be the Nuremberg statute analyzed why they were going to prosecute and prosecute the Nazis. There were no crimes typified for what had happened, so they basically had to invent them. They called them crimes against humanity, genocide and what they then called crimes against peace, which today is the crime of aggression: specifically, waging a war that is manifestly illegal. I believe that sanctions and financial measures alone cannot address this serious challenge. More is needed. There are now clear rules in place, drawn up after the Second War to protect us. They are reflected in the Charter of the United Nations, the closest thing we have to an international constitution. It is the most significant commitments in the charter that Putin has shredded, along with other commitments, such as the 1994 Budapest Memorandum on Security Assurances, through which Ukraine sold its nuclear capabilities in exchange for commitments on independence, respect for territorial integrity and non-compliance use of force.

-If a special court were created, could Putin be condemned? Can the leader of a country that did not sign the agreement for the formation of such a court be condemned?

-The ICC has jurisdiction over war crimes, crimes against humanity and aggression: it has coverage over Russians who commit any of these crimes on the territory of Ukraine, including Mr. Putin. A new special criminal court would be needed to internationalize Ukraine's own crime of aggression.

- I was just talking about “manifestly illegal wars.” Are there legal wars?

-This war cannot be justified as self-defense and has not been authorized by the United Nations Security Council. The ICJ (International Court of Justice) has ordered Russia to stop and withdraw. Russia's failure to comply with that legally binding order is a clear violation of international law.

-If we think about the issue of the formation of international tribunals, is it good news that the president of the United States is someone like Joe Biden?

- It's definitely better than Trump!

-Both Biden and Zelensky, and other political figures, have been heard calling Putin a war criminal. Is that correct in legal terms?

I don't think it's wise to refer to Putin as a war criminal. All indications are that war crimes have been committed, as well as crimes against humanity, but proving individual responsibility for such crimes is a matter of evidence. Ironically, it was a Soviet jurist, Aron Trainin, who did much of the groundwork to introduce into international law “crimes against peace” (now called the “crime of aggression”), so it was largely his ideas that persuaded Americans and the British to include 'crimes of aggression' against peace' in the Nuremberg Statute. Putin knows everything about Nuremberg: his older brother died at the siege of Leningrad at the age of two and he himself has been a defender of the famous 1946 sentence that found Goring, Hess and Von Ribbentrop guilty of 'crimes against peace', among others. Let Putin reap what he has sown. Let him face the legacy of Nuremberg and be personally investigated for this heinous aggression.

-Lviv became the center of much of the international press and, therefore, in the Ukrainian city that much of the world was observing in the early days of the war, when the wave of refugees began. How did he experience those images of the city where his grandfather was born and lived and about which you wrote his famous book East-West Street?

-The war feels more personal because it happens in the city of my grandfather, a place that I have come to know well and where I have many friends. I was there for the first time in October 2010 to give a lecture on “crimes against humanity” and “genocide”, two crimes coined in 1945 for the famous Nuremberg Trials, in which former Nazi hierarchs were accused and tried as war criminals by an international military tribunal. As an academic and lawyer, international crime is my specialty. At that time I decided to accept the invitation to Lviv, a city in western Ukraine, after realizing that it was once called Lemberg and it was there that my grandfather Leon was born, when the city belonged to the Austro-Hungarian Empire.

I found the house where he was born and learned that he had fled the city in September 1914 at the age of ten, with his mother and two sisters, refugees from the Russian occupation forces who had already murdered his brother. In recent weeks, thousands of refugees have returned to the Lviv railway station from which Leon headed west, again trying to escape the Russian attack. Surprisingly, I also discovered that the inventors of those two legal terms 'crimes against humanity' and 'genocide' had studied at the same university that had invited me to give my lecture.

- What do we owe Lauterpacht and Lemkin? Both focused differently, one favoring the figure of individuals on the concept of crimes against humanity and the other, on groups and the possibility of their extermination, with the concept of genocide. If we pay attention to what is happening in Ukraine, should our eyes be on the people or groups affected?

-We are all individuals and members of many groups: Lauterpacht and Lemkin teach us that.

-The jurists who coined the terms “genocide” and “crimes against humanity” were born in Lviv and today finds Ukraine once again a scene of barbarism. How can this cruel paradox be explained?

“I think the paradox is difficult to explain, but it offers a way of understanding why President Zelensky has evoked those ancient international crimes in support of his effort to mobilize his people and his country. In a very real way, in a back-and-forth sense, crimes against humanity and genocide are close to the heart of Ukraine.

-Putin justified the invasion in the arguments of “denazification” and “demilitarization” of Ukraine but also in what he called genocide in the East. Zelensky is also now talking about genocide, especially after the Bucha massacre. Is it appropriate to use that category?

“It is clear to me that war crimes and crimes against humanity seem to be taking place, but the threshold to qualify as genocide in the law today is high, and in principle it does not seem to me that it has been crossed. My own vision is that genocide should have a broad definition, we must constantly evolve, change. In '33, if we had been talking, can you imagine that someone who worked for the state and implemented an order to kill a large number of people would be responsible for an international crime? No, people would laugh. It was thought that the State could kill. The job of the new generations is to tell us what we are wrong about, what needs to change. That's what we have to aim for. I have children, you have children; my children tell me “you are very conservative, why can't you be this other way”. For example, the issue of transgenders or transsexuals; my parents were from a generation in which homosexuals were seen differently. But transsexuals are completely normal for my children. The same goes with the concept of genocide.

-Many people in our Latin American countries are wary of the usefulness of international tribunals because they argue that the leaders of the prosperous West are never condemned. What could I answer them?

-This is the time to show that international criminal law applies to everyone, even the most powerful. But yes, there is a double standard: I always thought that the Iraq war was also manifestly illegal and I militated for that.

-Russia seems to be withdrawing and, just as it is difficult to explain why the invasion started, there are doubts about the next actions. How do you imagine the war will end?

I fear that it will go over the East, that what is to come will be brutal and long, and that the world will be bored... We must not allow that to happen, nor should impunity dominate.

- Do you think that there will finally be condemnation for Vladimir Putin and those who accompany him from the government in this war or will soldiers and minor officials simply pay in justice?

-History shows that anything is possible.

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