The International Rule of Law: The New Battleground

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EVENT TRANSCRIPT: The International Rule of Law: The New Battleground

DATE: 20 September, 3:00pm – 4:00pm

VENUE: Online

SPEAKERS: Phillipe Sands QC

EVENT MODERATOR: Isabel Sawkins

 

Isabel Sawkins 02:16

Okay, we are going to get going. So, welcome to today’s event. It’s entitled ‘The International Rule of Law: The New Battleground’. My name is Isabel Sawkins, and I’m a research fellow at the Henry Jackson Society. It is my honour to welcome you to today’s timely discussion.

Even 75 years after the Nuremberg trials, crimes against humanity and genocide continue to be a persistent stain on global society. We promised never again. And yet human rights abuses continued from Chagos – so, the British Indian Ocean territory – and Rwanda to the former Yugoslavia and China. These instances indicate that the rule of law and justice remain elusive. Today’s conversation will focus on this topic, assessing what can be done by the global community to enhance the application of the rule of law to the prevention and ending of serious violations of human rights and international crimes.

I’m delighted to be joined for today’s discussion by Professor Phillipe Sands QC.

On a very personal level, it is an honour to have Phillipe here today. I was fortunate enough to listen to him talk about his award-winning book East West Street: On the Origins of Genocide and Crimes Against Humanity when I was an undergraduate, and this was one of the foundational moments that actually encouraged me to pursue a PhD in Holocaust memory.

Phillipe is a renowned British-French lawyer. As well as being a professor at University College London, Phillipe has participated in several major global trials, including many at the International Court of Justice. Phillipe is also the author of several prize-winning publications, including the aforementioned East West Street, and its 2020 sequel, The Ratline: Love, Lies and Justice on the Trail of a Nazi Fugitive.

So, for today’s discussion, Phillipe and I will have a conversation for about 35 to 40 minutes, at which point we will break into a Q&A with our audience. I invite you all to put your questions in the Q&A and we will go from there.

Phillipe, we’re going to start right back at the very beginning. How did you end up venturing into this world of law and human rights and genocide?

Phillipe Sands 05:04

Thank you first, Issy and the Henry Jackson Society, for inviting me. I was particularly pleased to accept. I’m a very firm believer in these kinds of events and open engagement and I know that this society in particular has been attached to certain approaches and so I welcome the opportunity to be involved.

I became an international lawyer in the early 1980s. So, 40 years ago. I had a wonderful teacher at university, Robert Jennings and (inaudible) – two teachers – and I fell in love with international law and very much formed the impression which I held for many years that Britain punched above its weight in those issues, and that it was a force for good, a serious player at the UN, at the International Court of Justice there always been British judge, there have been basically British judges at all the institutions. And I was very fortunate to have wonderful teachers and colleagues who encouraged me also to get involved through bar practice. My original world actually started off working on a project with a large impact on state contracts the circumstances in which a state expropriates or interferes with property rights of foreign investors. And from that, I moved – accidentally, because of Chernobyl – into the environment, worked on that for about 10 years. And then in 1998, a very singular year, a number of things happened. The Rome Statute for the International Criminal Court was negotiated. I participated on a group of small Pacific Island state delegations negotiating that with various colleagues, and then Slobodan Milošević was arrested or indicted (the indictment was secret). And then famously, of course, very significantly, Augusto Pinochet was arrested in London, and charged with crimes against humanity and genocide. In that year, unexpectedly, a new world opened, and I got very immersed in those issues, almost accidentally, but perhaps not – who knows why these things happen? And I got more and more involved. And then in 2010, having done a number of cases, been involved in a number of cases, at the International Criminal Court, at the International Court of Justice, I got an invitation from this obscure university in Ukraine and that led to East West Street and really immersing myself in the origins of these two international crimes in which the UK and the US played an absolutely pivotal and central role. 1945 was a revolutionary moment, and one in which Britain and the US lead the world. An extraordinary moment.

Isabel Sawkins 07:58

Yeah, absolutely. And as we said, if we hark back to 1945 and the British role in this all, from the very beginning of, I guess, Nuremberg, and crimes against humanity and genocide, we’ve played an integral role. How have things changed to now? Are we still continuing to play that important role?

Phillipe Sands 08:21

You know, one of the things that was so fascinating as I deep dived into the origins of Nuremberg was to understand that Britain’s commitment to international rules was not party political. In the summer of 1945, there was a general election and, unexpectedly, Churchill lost – the Tories lost, Labour took over, a new Attorney General, Hartley Shawcross. And the first thing he does is bring the former Attorney General David Maxwell Fife – a Tory – into his Nuremberg team and they argue it together. And I think that was very, very telling. They both played an absolutely central role in the trial, as famously, you know, the cross examination of Herman Goering, but also the drafting of the statute. And Maxwell-Fyfe, it’s very interesting that David Maxwell-Fyfe find and replace, a former Tory Attorney General and a later Tory Home Secretary, is the person who did so much to bring genocide into international law. He cross examined Von Neurath, and that really changed things. It’s not been an easy road. Suez was plainly a catastrophe. In 1956, the Attorney General was side-lined and overridden, and I think ever since then, Britain has done a better job – up to a point, and we will come to Chagos and colonialism and decolonization in due course – but at least lip service and far more was paid to the idea that the rule of law in international relations matters. And I think that was ruptured in 2003. Again, I think it should be pretty clear. Our conversation here, I think, is in no way party political. It was a Labour government that was responsible for the catastrophe that was Iraq, and which we now see as Afghanistan. But Iraq in particular, I think, ruptured trust and it was a singular moment for me to go on those marches in early March 2003 and see hundreds of thousands of people carrying banners with Article 2.4 written on it. And that was interesting to me, because it signalled that somehow this international law thing was a broader interest than the small community of international lawyers. And I think there’s been just an unbroken seamless line: loss of trust in the Iraq context is what led to Brexit and is what has led now to the most unfortunate situation of Britain turning its back on the International Court of Justice, and not giving effect to a decision of the International Court of Justice and advisory opinion that its occupation of the Chagos Archipelago – British Indian Ocean territory – is illegal. I go back to the days when I was a student of international law with extraordinary teachers, Robby Jennings, Derek Bauer, (inaudible). The idea that Britain would stick two fingers up to a decision of the International Court just seemed incredible and I still have trouble understanding how it could be that that has happened, and that the UK has moved into that position. But it has. That’s the new situation and we have to accept it as it is. It’s regrettable. I think there are people across the political spectrum who are deeply concerned about it. It’s accompanied, incidentally, by a loss of authority internationally, the loss of our international judges. You’ll know that four years ago, the British lost an election for a judgeship at the International Court of Justice, a very strong candidate, Christopher Greenwood, up for renewal and didn’t get re-elected. And that’s the first time in 100 years, that Britain has no judge at the International Court of the Permanent Court of International Justice. So, there’s been an extraordinary and far-reaching loss of international authority. Maybe it’s forever. I hope not. But it’s a very different world from the world I was taught about 40 years ago.

Isabel Sawkins 12:46

Yeah, absolutely. And do tell us more about this new draft convention of crimes against humanity. So, from what I understand, the UK isn’t necessarily supporting what is going on. Could you explain to us a little bit more what the new draft convention says and why the UK might not be quite so supportive of it?

Phillipe Sands 13:10

As you will know, 1945 is a singular year. There had been up until that moment only one recognised international crime and that that was war crimes as you know. And then in 1945, essentially, three new crimes were invented: what is now the crime of aggression, waging illegal war, crimes against humanity, and genocide. Those three crimes were very strongly supported, certainly, by 1948 when the Genocide Convention was adopted, after the end of the Nuremberg Trial. The Americans did not support genocide at Nuremberg. And at the beginning of the trial, the British didn’t either, I think, most likely in support of the United States position. The US was concerned that the concept of genocide will be used in southern American states in relation to black Americans and mistreatment and discrimination, and also indigenous Indian populations in the United States. But the UK came on board. It negotiated actively on the Genocide Convention, ratified it pretty soon. The United States did not, as you know. It took 40 years for the United States to ratify the Genocide Convention and the UK then played an absolutely pivotal and central role in the negotiation of the statute of the International Criminal Court, an immensely positive role. I saw that for myself first-hand, brokering deals coming up with ideas. And British diplomats Foreign Office, and British lawyers at the Foreign Office are immensely skilled and did an extraordinary job. That was just over 20 years ago. How sad it is that now in 2021, the International Law Commission has a draft convention on the prevention and punishment of crimes against humanity but it’s not being supported by the United Kingdom at the General Assembly. Now, I don’t know exactly why that is but it may not be entirely unconnected to the issues with Chagos and the removal of the entire population illegally, as it now turns out, between 1968 and 1973. That population, much of it, wishes to return. And it’s now established in the practice of jurisprudence of International Criminal Court that refusing to allow a population to return to their homes, having been forcibly removed, is capable of being a crime against humanity under Article 7 of the ICC statute, that’s the Bangladesh-Myanmar situation. I don’t know whether that is the reason, but the upshot is the British and the Americans are not supporting a convention on crimes against humanity at the United Nations, and that reflects the change that has taken place. And this, of course, is interesting or problematic on the one hand. Rightly, Britain in the US come down on China in relation to its failure to give effect to the South China Seas arbitration from five years ago. I was counsel for the Philippines in that case, so I lived through it, saw it first-hand, and saw the Chinese stick two fingers up to that arbitral award, and of course, have lived through delegations in relation to the treatment of the Uighur population, and perhaps turning a blind eye to the allegations of genocide of the Rohingya population by its allies in Myanmar. But of course, the reality is that Britain and the United States, having essentially done the same thing as China on the South China Seas in relation to Chagos (or what the British called the British Indian Ocean Territory) are simply not in a position to critique what China is doing or what it is not doing. And this causes a problem. This gives rise, I think, to the topic that we’re talking about today: what is, really and honestly, the place of the rule of law in international relations? In essence, to get to the heart of it, I think the reality is that for the large powers, it’s a sort of a la carte acceptance. We take the bits of international law we like, and those we don’t like we walk away from. So, for example, it is not the case that China is against all international law. It is very actively engaged now in WTO, developments and cases at the World Trade Organisation. It has just this week, in the context of what’s happened with the Australia, US and UK pact, indicated it wants to sign an Asian Indo-Pacific Free Trade Agreement. And it’s only in relation to what it calls political issues – human rights issues – that it turns against. But equally for the United States and the United Kingdom, although they like international law for others, when it comes to its application to them, there is a bigger problem. And I’m worried about that, because that really blunts the force of any critique of China, and I think China is a real issue. And so, on the fifth anniversary of the South China Seas award, the Secretary of State of the United States Anthony Blinken put out a strongly worded statement – a well-worded statement, frankly – calling on China to comply with its obligations under the Law of the Sea. And China just responded by saying you can’t lecture us, you’re not complying with your obligations under the Law of the Sea. See the Chagos case. So, it’s a sort of tit for tat that we’ve got ourselves into.

[Long pause]

Isabel Sawkins 23:08

Apologies for that slight technological difficulty. So my question was, to what extent can that be taken back to what happened in Nuremberg, where one of the main criticisms was the fact that Allied nations, so France or the UK or the US, or the Soviet Union, weren’t always held accountable for some of the crimes that they themselves committed. So, is this part of a longer trajectory that we’re seeing where only certain countries are being held accountable for these crimes?

Phillipe Sands 23:49

It’s a really interesting question Issy and I’m actually thinking about this quite a lot. I’m just making a

BBC Radio Four programme on the 75th anniversary of the Nuremberg Trial, which as you know, is about to be upon us on the first of October. And I’ve been asking that question to a really wide range of people: why have we got to the point that we have now? I think one of the things that’s happened, of course, is that international criminal law is a relatively recent development. I mean, it’s only 75 years old. And it takes a lot of time for these things to bed in. Nuremberg was lopsided. Warts and all, I’m a big fan of the Nuremberg process and the judgement, but the reality is it only caught one side. Ensnared in the web of international criminal laws were the vanquished. I think what that may have done is set in place a system of permanent lop-sidedness in which international criminal law is applied to the weak and used by the powerful. I think there’s been an attempt to move away from that with the International Criminal Court, but we do see on the International Criminal Court, if you go onto the website today of the ICC statute, you’ll notice many things. But one thing you’ll notice is that every single person who has been indicted is black and African. And blacks and Africans don’t have a monopoly on international crime. And what has happened I think, unwittingly – is that this lop-sidedness has been taken forward. Now, over time, as various folk have sought to hold to account others by reference to international criminal laws (the more powerful countries and the more powerful individuals) there’s been a resistance to that. We lived through that post the terrible events of September 11 and the question of the application of international criminal laws, to the prosecution of the so-called war on terror. And that continues to generate a very lively debate. Whenever I think about this, I think about a writing by the French writer Balzac, who said all laws are like a spiderweb. They catch the little insects, but the bigger, stronger insects somehow are able to pass through or escape. International criminal law is still like that. today.

Of course, what is changing is the question of who’s big and who’s strong and who’s weak and who’s not. And I think that will engender some interesting changes going forward. But I think it is the case that after, you know, the important period from 1998, for about 10 years, where there was strong support for the idea of international criminal law, there is a high degree of resistance. What I tell my students is that it’s a long game. You can’t change the world in the revolutionary way that happened in 1945, and suddenly expect everything to change. We have laws on murder, manslaughter, rape, and other terrible domestic crimes, and it hasn’t stopped terrible things from taking place. Equally, in public consciousness, the concept of crimes against humanity and genocide are very active in people’s consciousness and very often addressed in the media. So there seems to be interest and support in it, but its application is uneven, shall we say?

Isabel Sawkins 27:33

Yeah. And when it comes to – I know this is something you and I have spoken about in the past – crimes against humanity and genocide, there seems to be a hierarchy that we see in this, that genocide is the worst. Can you talk us through some of the issues with this?

Phillipe Sands 28:04

Yeah. Well, it’s a really important issue. One of the things that has happened, of course, is there is a convention on the prevention and punishment of genocide. There is no equivalent convention yet in force on the prevention and punishment of crimes against humanity. So that has given genocide an advantage. There’s a second thing. Both concepts came into being in 1945. Genocide is concerned with the destruction of groups and crimes against humanity on the destruction of individuals. There is a different emphasis. It may be that, for some reason, the focus on group destructions seems more awful. On the other hand, for my part, if you kill 100,000 people, whether that is characterised as a crime against humanity or genocide, to my mind makes no difference. There’s a third element. It’s the word. Genocide, somehow has a magical quality. It conjures up in our minds, in our imagination, real pictures of horror, whereas crimes against humanity is more of a technical concept. It seems legalistic. It’s certainly the case that if an American president says a genocide is taking place and this or that country, everyone tunes in and it’s on page one of our newspapers. If an American president says it’s a crime against humanity, if it makes it into newspapers at all, it’ll be at page 15 and no one pays much attention. And that’s come to a head on the question of the Uighurs. You know, there’s been a lot of debate, a lot of allegation that what’s happening to the Uighurs is a genocide. I don’t know if it’s a genocide or not. I’m not privy to enough of the evidence. But I’m concerned about squeezing allegations into the paradigm of genocide. Why is that happening? It’s happening because there’s a convention on genocide to which China is a party, whereas there isn’t for crimes against humanity. And, secondly, because as I mentioned, if you call something a genocide, people are alerted and deeply interested in the way that they just aren’t for a crime against humanity. And to label something as genocide really gets people’s backs up. I mean, I noticed that I was very involved in many of the cases in the former Yugoslavia and of course, the International Criminal Tribunal for Yugoslavia found a genocide in relation to Srebrenica on the Bosnian territory, but on (inaudible), “only”, quote unquote, a crime against humanity. And that disparate approach, I think, is going to cause trouble over time. Many people in Croatia are deeply upset that they “only” got a crime against humanity, whereas Bosnia got a genocide. And I think that indicates the significance of further difficulties to come down the line. It’s an interesting issue, but it’s also a very problematic issue. At the end of the day, what does it matter what you call what’s going on in China in relation to the treatment of the Uighurs. Whether it’s a crime against humanity or genocide, the evidence that we do have is that terrible things are happening. Same in relation to the Rohingya. I’m involved with counsel for the Gambia in the case against Myanmar at the International Court. The only crime we could go with to the International Court was genocide. But indeed, in that case, the various UN investigators have gone very far in characterising what had happened as an act of genocide so that seemed a little easier on the basis of the evidence that was available. But it’s a very important issue. It’s another example of lop-sidedness.

Isabel Sawkins 32:12

Yeah, absolutely. I can’t help but think back to a few months ago when Biden came out and claimed that what had happened in Armenia back in 1915, was a genocide. And that was world news for a few days. So, what’s the point of having these conversations, then, between genocide and crimes against humanity? Should we even be making the distinctions between them? I know this comes into the Lauterbach and Lemkin debate, but is it worth it?

Phillipe Sands 32:47

I think that’s part of a bigger issue, really, which is the theme of this conversation: what’s the place of the rule of law in international relations? I went to law school, I studied international law, I had all these wonderful teachers who told me that international law is important. It’s a real thing. It works. It has consequences. And of course, it very largely does function. Very often there is focus on the failures of international law, whether it’s Iraq or the Uighurs or whatever but much of international law works extraordinary effectively, and no one ever talks about it. In relation to telecommunications in relation to transport, to a certain extent in relation to health issues, although COVID, I think, has shown some of the weaknesses. A lot of our daily life is the consequence of the operation of treaties. And again, one of the things I think that has been a bit of a wake-up call for people in the United Kingdom – and I’m not making a point here for or against Brexit or whatever – simply that when you take a treaty and international legal arrangements out of daily life, there will be consequences. You know, I happen to spend a lot of time in Devon, and the fishermen and the people who fish in Devon, now find themselves, because of the new treaty arrangements, unable to sell fish in Devon. So, what does that show? It shows that for many years, the treaty arrangements had consequences. And when you change the treaty arrangements – I’m not saying they’re better or worse, but that has consequences and it takes time for those to filter through. The point that I’m making is that I think 99% of international laws and treaties work pretty well. And the focus is on those where matters of vital national interest come into play. Whether it is China’s treatment of protesters in Hong Kong, China will say that’s a national security issue, butt out, we don’t care what international law says. And Britain’s done exactly the same thing in relation to Chagos and the British Indian Ocean territory as it calls it. It’s basically said no, we’re not going to follow the ICJ and the General Assembly and the International Tribunal for the Law of the Sea, we’re not going to give effect to these things because our vital national security is at stake. And that trumps everything. I’ll leave it to the audience to form a view as to whether either of those views has any merit in it but the arguments are essentially the same. States accord to themselves the belief that some things are so important that they’re not willing to go with the international rules. And of course, that came up in Britain in a way that, for me – and I think, for many people, many members of the legal community – was very surprising last autumn when, in relation to the Northern Ireland protocol on the Brexit withdrawal agreement, the British government put before Parliament legislation which was on its face inconsistent with its treaty obligations. And that was a first. That had never happened before. And I think that was very problematic for a lot of people, certainly problematic for people in my community, because Britain really does punch above its weight on issues in international negotiations, on treaty relations. And I got, after that and in the course of that, many communications from legal advisors of countries around the world, “what’s going on in Britain, what’s happening, we hold Britain up to this standard, that it really underscores its support for the idea of the sanctity of treaties of the principle of practice and surrender”. And so, this is a very significant change. And, again, it’s for others to form a view as to whether it’s sensible or not. But a price is paid for that. And in deciding whether to open that door and go down that route, I think the consequences of that have to be taken into account. So, countries which routinely disrespect their international treaty obligations obviously achieve something of a pariah status. I don’t want the UK to be in that situation and I want the UK to continue to be strongly committed to the idea of the rule of law. If you don’t like a treaty, you don’t break it, you withdraw from the treaty. That’s what you do. I mean, I don’t like the fact that the UK doesn’t want to support a convention on the prevention and punishment of crimes against humanity, but it is the right of the United Kingdom to decide to do that and it cannot be criticised in legal terms for doing that. The problem is once you’ve ratified something and are bound by it, if you don’t honour it, you will expose yourself to pretty strong critique, and that has consequences.

Isabel Sawkins 37:59

Yeah, absolutely. And if we’re talking about, I guess, recent developments that have been happening, I know you’ve been very active in introducing the question of ecocide into these conversations. Could you tell the audience a little bit more about that process and your role in it?

Phillipe Sands 38:13

Sure. Well, I mean, ecocide is a word that’s been around, it turns out, for a very long time. In 1972, at the famous First United Nations Conference on the Human Environment held in Stockholm, the Swedish prime minister Olof Palme actually evoked the concept of ecocide. And for 50 years, it’s been bandied about pretty low grade, intended to fill a gap left by the existence of the four international crimes that we have, understandably, with the protection of human beings, individuals in the case of crimes against humanity, genocide in the case of groups. In recent years, as the subject of protection of the environment has come to the fore, we’ve had more environmental treaties, we’ve had the International Court of Justice rule, as 25 years ago in 1996, that the protection of the environment was part of the corpus of rules of international law. But international criminal law has remained stuck, if you like. And an English barrister, Polly Higgins, is the one who really pushed the idea starting about a decade ago, a voice in the wilderness. To be honest, I didn’t pay a huge amount of attention to that. I thought it was premature. I didn’t think there was much support for it, but it has gone up the political ladder, so to speak. And last November, I was asked whether I would be willing to co-chair a working group to try to come up with a reasonable definition of ecocide. No one had actually really tried to do that and I was part of a group – 12 people – a very disparate group of characters from very conservative-type lawyers to very progressive-type lawyers and a whole raft of people, in between myself included, and I hope that we might reach consensus. Interestingly, my original instinct was that using international criminal law to protect the environment might best sit under the context of crimes against humanity. There was a reason for not doing that. Crimes against humanity, you have to prove harm to human beings on a massive scale. And I think the point was made that some environmental harms are to be avoided as an end in itself, not just to protect human beings. But there was another issue that I thought was very interesting and comes back to an earlier point of our conversation. The Stop Ecocide Foundation did a bit of market research, polling public opinion, getting into the street asking people what they thought. It was pretty fascinating. When you ask people whether they think environment should be protected by international criminal law as crimes against humanity, apparently people responded rather blankly, and not very favourably. But if you ask them, do you support the concept of ecocide? Oh, yes, absolutely. We’re in favour of that we totally want to do that, we want to stop. And so words, it turns out, really matter. And it comes back to the question you posed about genocide and why that captures the public imagination in ways the crimes against humanity doesn’t. And so we’ve gone with ecocide. But we’ve basically taken in our definition, a definition which is drawn more from the legal texts of crimes against humanity than genocide, for a very simple reason. To prove the act of genocide, you have to prove an intention on the perpetrator, to want to destroy a group in whole or in part. If you apply that to the environment, you’ll fail on every occasion because nobody intends to destroy the environment in whole or in part. The destruction of the environment is always an inadvertent unintended consequence of some other act. And so, we’ve more gone with the standards of recklessness and doing things without asking yourself what the consequences will be in relation to the crime. It’s been very positively received. Many states have now said they supported. The Pope, amazingly, has joined the team of supporters. And within a week of coming up with a definition, the Secretary General of the United Nations said yes, indeed, the statute of the International Criminal Court needs to be amended to take into account a new crime of ecocide. So, I expect this will begin to happen. It’s not a question of if, it’s a question of when. The wheels of justice turn slowly, as you know, so well, Issy, in international legal order. So, I wouldn’t hold your breath. I don’t think it’s going to happen tomorrow. Although there is quite a lot of talk around COP26 negotiations now that that seems destined for a poor outcome and a number of countries are saying to themselves, could we somehow sneak if ecocide into it as a way of making it look as though we’ve acted and done something? That’s beyond my paygrade. I have no idea what will happen. But I think a proposal to amend the ICC statute will come in the context of the assembly of state parties. Again, I’m sorry to say that the British government publicly has not expressed support, although I can tell you that privately, the relevant British ministers are totally supportive. And that gives me a sense. What I hope for is that Britain will play a leadership role on these issues as it did back in 1945. I very much hope that might happen.

Isabel Sawkins 44:06

Yes, harks back to those important days. Right. So, Phillipe, we have quite a few questions coming in from our audience and I will move on to some of those. So, our first question is from Euan Grant. Euan, you are unmuted, please ask your question to Phillipe.

Phillipe Sands 44:44

I’m looking forward to hearing from you Euan, as and when.

Isabel Sawkins 44:47

Okay, it seems like I might have to ask the question then, because Euan is still on mute. So, the question is, what are the strengths weaknesses of the International Criminal Court, especially regarding China, as Mr. Sands has stressed, and internal governance weakness: allegations in the Times by Sean O’Neill brought in 2020 on sexual harassment claims. Do we need a democracies-only alternative?

Phillipe Sands 45:30

I was a very big supporter of the idea of an International Criminal Court back in 1998. More recently, I have started to ask myself the question: have we created an International Criminal Court prematurely? I don’t think it should be for only limited numbers of countries if we’re going to have an International Criminal Court, and I still believe we ought to have one. It’s one of the legacies of Nuremberg. It needs to be in theory open to everybody. But of course, some pretty important countries are not parties to the ICC statute: the United States, Russia, China, amongst them. About 125 states party. So, it’s about two thirds of the countries in the world but missing some important actors. And that, of course, does undermine the International Criminal Court. But it doesn’t, I think, bring the project to an end. There is the problem that I mentioned about lop-sidedness. I think there are reasons to explain why Africa has been addressed, as it has. I don’t think that those reasons are particularly compelling. It’s a very unfortunate situation. It’s created a backlash, because it allows people to say that international criminal law is a new form of colonialism. I don’t think it is, and I don’t think it should be. But that has been one of the weaknesses of the International Criminal Court. I’ll give you one example that is very particular, I was very involved with members of the Yazidi community of northern Iraq and Syria who had been targeted by ISIS. And I came to know some of the younger women who were adopted, mistreated, horribly raped, I mean, just on the most appalling scale imaginable. I went with the cases of a number of them who had identified their perpetrators to the International Criminal Court two or three years back to try to persuade a prosecutor to open a file. And they refused. They said, “well, yeah, in theory, it does fall within our jurisdiction, but we don’t want to go for the low-grade perpetrators. We’re not interested in the actual rapists. We want the people who ordered the rape”. And I think that is a mistake. I think that you begin by getting the low hanging fruit as the Americans call it, and you build up a dossier of success. And I think that was a missed opportunity. What has happened as a consequence, is it’s gone to the national level, and people will be surprised, again, given the Nuremberg precedent: which is the country that is prosecuting ISIS perpetrators for genocide and other international crimes, including the genocide or crime of rape? It is Germany that is taking a leadership role in prosecuting, so I think the ICC has missed a trick there. I think there have been internal governance issues. I think those are pretty much sorted out now. There is a new prosecutor. I am just interviewing him actually for Radio Four 75th anniversary programme. I think he’s an excellent prosecutor. And I’m hopeful that going forward, there will be, you know, a new brush sweeping things clean. But of course, there are political realities. What does an ICC prosecutor do? If he identifies crimes perpetrated by the United Kingdom? Or, amazingly people forget this, Afghanistan is a party to the statute of the International Criminal Court. So, all of the allegations of crimes, torture and other acts at Bagram that took place perpetrated by the Americans, allegedly, perhaps with some British support, none of those have yet been fully investigated, although a file has now been opened. But as things stand, the Taliban are subject to the ICC statute and also could be investigated. And I mean, I think it could be argued that some of the discriminatory acts against women that have now been outlined in the last few weeks would fall within the category of crimes against humanity: the mistreatment of individuals and mistreatment of groups. I’ve got to say, it would be problematic in the least from my perspective that for 20 years, nothing happened in relation to allegations of mistreatment at Bagram and other places, whilst the US and other countries occupied and then all of a sudden when the Taliban are there, we now start investigating. So, this is the kind of challenge that a prosecutor finds.

Isabel Sawkins 50:34

Absolutely. Brilliant. Thank you for that. Right, our next question is going to be from Dr. Natasha Kurt, who is based here in London. Natasha, you should be unmuted.

Dr Natasha Kurt 50:52

Hi. I suppose they were more comments but I just thought it was kind of ironic that the genocide is so tightly bound up with and identified with the Holocaust. I mean, rightly so, but crimes against humanity are not in the same way, even though crimes against humanity were on the statute at Nuremberg and genocide wasn’t. I’m not really sure if there’s an answer to that. But it just struck me as ironic, somehow. And then, on the question of talking about whether it matters whether it’s genocide or crimes against humanity. I mean, yeah, obviously, this whole idea of a hierarchy isn’t really right. But at the same time, it does seem to matter to the victim, or rather to maybe the relatives of the victims of these atrocities as to whether they are eventually designated genocide or crimes against humanity.

Phillipe Sands 52:07

Thank you, Natasha, for those comments and questions. You’re absolutely right. Genocide was not in the Nuremberg statute, but the individuals it was in the indictment, and many of the individual defendants were charged with genocide. People forget that the Nuremberg judgement, 30 September, 1 of October 1946, does not mention the word genocide, even though individuals were charged with it and even though it was argued, repeatedly – including the closing arguments are three of the four prosecutors. And I think it was not mentioned largely in the instance of the United States for the reason that I mentioned earlier. So curiously, yes, genocide is associated with the Holocaust, but the leading judgement on the Holocaust – the Nuremberg judgement – does not make any mention of that term. It’s very ironic and people forget that. In terms of hierarchy, you’re absolutely right, Natasha. Victims really care. If you go and speak to prosecutors at the various international courts and tribunals, they will say to you that victims, understandably, want their crime, the crime that has been perpetrated against them, to be treated as the worst imaginable crime. And inevitably, they think of that as genocide. And they get very upset if there isn’t an indictment for genocide. I have first-hand experience of that in relation to the former Yugoslavia conflict with many of the victims or survivors incensed if a perpetrator is charged only with war crimes, or crimes against humanity. Now, why this has happened? I don’t know. But the reality is that a hierarchy has been created, and we have to live with it. It’s one of the reasons I hope that the Convention on the Prevention of Punishment of Crimes Against Humanity will get off the ground. And I hope that this British government or a future British Government will see the need to run with that and we’ll support that. But so far, that’s not happening.

Isabel Sawkins 54:48

Thank you for that response, Phillipe. Right, I think we’re probably going to get to a final question now, which is from Sam Green. Sam, you should be unmuted.

Sam Green 55:00

Thank you. I’ve got a lot of responsibility having the final question. We talked about the legacy issues of the old regime at the ICC and my question is about one of those. Some of us find a troubling case, but leave that aside, what do you think is going to happen with the Israel case?

Phillipe Sands 55:19

Just to be clear, I’ve had no involvement in the Israel-Palestine case. It’s not just the Israel case. Remember, an investigation has been authorised of allegations of crimes committed by both sides. I did an event a few months back with Joshua Rosenberg, for the British Friends of Hebrew University, on what had been decided and I think that the conclusion is entirely plausible. At this point, the only thing that has been concluded is that three judges have authorised the prosecutor to investigate. There are no indictments, there are no allegations of fact, it’s nothing more than that. And I have to say on the basis of the materials in that decision, I don’t think that decision can really be attacked. It is not political, and it is not anti-Semitic. They’ve done their best in very difficult circumstances, and they’ve limited the investigations. What happens next is that the former prosecutor initiated the investigation. Some people criticise that and said that she should not have done that but left it to the new prosecutor, who’s only just started a couple of months ago, to decide how to take things forward. Well, new prosecutor Karim Khan was effectively presented with the fait accompli, but that of course, doesn’t tie him to any particular direction. He will now have to decide what direction to take going forward. What will happen? I don’t know. There will, I assume, be now that full investigation. It will take time. It will look at allegations on both sides. The investigators may conclude they can’t find plausible evidence of crimes on either side, or on one side, or they will find some on both sides. In which case, the prosecutor then has to present the evidence that supports the claim that crimes have taken place to the judges. And it will be for the judges to decide on the basis of that evidenc­­e whether to issue indictments in relation to any particular individuals. So, we’re at a very early stage of the proceedings. I thank you for asking this question because I think it’s important to understand this is not the targeting of Palestine or of Israel. There was another case which is extremely significant in this respect, and that is the case of Myanmar stroke Bangladesh, like Israel, Palestine, only one of those two c­ountries is a party to the ICC statute, and that is Bangladesh. So how, you say, can the ICC have jurisdiction on that case? Also in that case, the judges have decided there’s enough evidence to allow an investigation. It’s at the same stage. The reasoning of the three judges – and I’m paraphrasing – is as follows. Myanmar is not a party to the ICC statute. But many of the Rohingya who the targets of discriminatory and alleged criminal acts were fled in very large numbers – hundreds of thousands – to Bangladesh, where they remain in camps largely at Cox’s Bazar. Many of them want to return but cannot return because they fear that if they go back, they will be mistreated or perhaps even killed. And what the ICC has decided is that the action of Myanmar in failing to allow the conditions to be such as to allow the Rohingya to return to their homes is arguably a crime against humanity under Article 7 of the ICC statute. And that is the exact or analogous issue that applies in relation to Chagos: 2000 Chagossians removed without lawful reason between ‘68 and ’73; many of them wish to return and the United Kingdom now, despite the ICJ is decision despite the General Assembly Resolution despite the (inaudible) judgement, the Law of the Sea tribunal judgement, does not want them to go back. Question: does the refusal of United Kingdom to allow them to go back amount to a crime against humanity under Article 7 of the ICC statute? On its face, the facts look pretty similar (although the scale is different) to that of the Rohingya. And I think this is a sort of ‘watch your space’ argument. The fact that you’re not a party to the ICC statute does not preclude the possibility that actions in which a state are involved may nevertheless fall within the jurisdiction of the ICC statute. Why? The ICC doesn’t have jurisdiction over states. It only has jurisdiction over individuals. And if an individual is alleged to have committed a crime on the territory of a state party to the ICC statute, the ICC on its face has jurisdiction. And that was the principle applied by the three judges in the ICC case in relation to Palestine and Israel. Palestine-Israel is going to be significant. We need to watch it carefully. But, of course, it came on a referral from the Palestinian side and it’s going to cause tremendous difficulties for the Palestinian side because it will home in on the struggle between Fatah and Hamas, in which the government, if you like, on the West Bank has referred the matter, one suspects, partly as a way of ensnaring Hamas, which is the entity that is said to be firing rockets illegally, onto the territory of Israel. So, there is a multitude of complexities and just speaking personally, I would say that for the judges and for the prosecutors one’s got to have a degree of sympathy that this minefield has been thrown into their lives. It’s not that they’ve gone out and asked for it. It’s been sent to them, and they have no option other than to investigate, apply the facts, apply the law. So it’s a really tough burden on the judges and on the prosecutor’s office.

Isabel Sawkins 1:02:30

As Phillipe has said: watch this space, everybody. Anyway, that brings us to the end of our hour. As ever, I am so so grateful for Phillipe coming in and spending an hour in conversation with us today. It has been an absolute honour, as ever. Thank you so much to all of our audience members, some of whom asked questions and contributed towards a very thought-provoking topic. Our next HJS event will be next Wednesday, and it will be in commemoration of 80 years since the massacre that happened at Babyn Yar in 1941. We will send out information about that and it will be on social media shortly. Until then, thank you very much for attending and have a lovely day.

HJS



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