Professor Philippe Sands is assisting the Office of the President of Ukraine in creating a special court for the crime of aggression. His recently translated book is about the men who developed the concepts of genocide and crimes against humanity.
Always every now and then by Philippe Sands Ukrainian friends get frustrated with him.
No one disputes the Anglo-French law professor’s solidarity with Russia’s attack on Ukraine, after all, he is assisting the Ukrainian presidential office in creating a special court dealing with the crime of aggression.
However, Sands does not agree to say that Russia is committing genocide in Ukraine, even though that is exactly what Ukrainians hope for.
“I have to stick to the principles and what international criminal law says and how the courts apply it. I’m not going to use the term in a way that differs from my own understanding, education, and professional and intellectual beliefs,” says Sands.
He views the whole genocide, or mass extermination in legal language (in English genocide) to the concept critically. Since genocide is centered on a group, according to Sands, it has brought identity politics into international law.
Sands63, is a professor at University College London, director of its Center for International Courts and Special Tribunals, a lawyer specializing in international law and a noted commentator.
Now he is sitting talking about war crimes in a Helsinki cafe, because his most famous book East West Street has been published in Finnish. Teos publishing house has published it by Titia Schuurman as translated name Return to Lemberg.
There is an interesting community in Finland that thinks about international law, says Sands. He tells the academic Martti Koskenniemen influenced his thinking, even if he does not agree with everything.
Book explores the origin of the two central concepts of international law, i.e. crime against humanity and genocide. It tells their developers by Hersch Lauterpacht and by Rafael Lemkin personal history combined with Sands’ own family history. The link is one city, currently Lviv located in western Ukraine.
Lauterpacht and Lemkin were Jewish lawyers who completed their undergraduate degrees in the city and who prosecuted the Governor-General of Nazi-occupied Poland in Nuremberg Hans Frank the charges brought against him. It was only at the end of the trial that they found out that Frank was also guilty of the murders of their relatives back home.
Through Lauterpacht and Lemkin, Sands reminds us that people are actors in all administration of justice. People want change, people develop the concepts, people write the articles and people interpret them.
Jurisprudence is not a hard natural science of permanent facts, even if some legal scholars present it that way.
“The law is not a mechanical thing. The application of the law always comes back to the human factor. Always. It’s not science, it’s art.”
Book began when Lviv University invited Sands to lecture on his work in international law. He had been negotiating the Rome Statute that created the International Criminal Court, and after that he was involved in lawsuits concerning the former Yugoslavia and Rwanda, among others.
Sands agreed after realizing that during the Austro-Hungarian era, Lviv was Lemberg, where his grandfather had been born.
“That summer, I discovered by chance that the man who invented the concept of genocide and the man who invented the concept of crime against humanity had both studied at the university that invited me.”
Nuremberg the war crimes trial plays a significant role in Sands’ book. For that, the victorious countries agreed in London, what the Nazis are accused of and developed the articles.
“The book tells about a moment in human history in 1945. That moment was revolutionary, because with these two concepts – genocide and crime against humanity – for the first time in human history, it was stated that the power of the ruler is not unlimited. It is limited by international rules that give rights to individuals and groups.”
Today, there are four international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. The International Criminal Court is investigating Russia’s war crimes in Ukraine, but it is precisely to investigate the crime of aggression that a special court must be established, and Sands is helping Ukraine with that. In the crime of attack, it is relatively easy to prove that the top management is also guilty.
Sands says he is worried that some in the West also want to restore the old order. Sands describes his book as an attempt to defend the spirit of 1945, which is under serious threat.
Bad ones a lot of things are happening now, in addition to Ukraine, for example in the Middle East. However, Sands can’t really talk about them, because as a lawyer he is involved in lawsuits related to both Ukraine and the Palestinian right to self-determination.
“International law is like the glue that binds countries together. We argue about its application, which is relevant, but it is our only common language.”
This applies to states as well as to all other actors, he adds. And defending the spirit of 1945 doesn’t mean blocking all critical discussion. That’s why the criticism of the Geneva Refugee Convention that has strengthened in Europe does not necessarily mean that the critics want to completely get rid of the spirit of 1945.
“International law, like national legislation, must evolve with time, but the parts are never greater than the sum. The whole has its own life beyond the individual agreements.”
But principled attacks on the current model must be taken seriously.
of Lauterpacht central to his thinking was the individual, which is why he developed the concept of crime against humanity. In the thinking of Lemkin, who developed the concept of genocide, it was a group. So there is a contradiction between the concepts.
“Lauterpacht opposed the concept of genocide. His philosophical reasoning was that it replaces the tyranny of the state with the tyranny of the group. And that’s what happened to me.”
For Sands, the term has contributed to strengthening group identity, which is why it has increased rather than decreased group hatred. That’s why Sands considers the concept downright harmful.
To the beginning Lauterpacht’s concept was more successful, but since then the concept of genocide has received much more attention. It has become colloquially synonymous with the worst horrors, but at the same time its legal definition has narrowed. Courts have raised the sentencing threshold very high.
As a lawyer, Sands has to live by jurisprudence. That’s why he doesn’t want to call the crimes committed by Russia in Ukraine genocide. That is not to belittle them.
“These concepts have no hierarchy.”
When genocide has become synonymous with the darkest evil, declaring the situation a genocide gets attention.
“But genocide is not the Champions League of horror. Genocide, crimes against humanity and war crimes are all in the same category. They are all Champions League.”
Sands is therefore firmly in Lauterpacht’s camp.
“Intellectually, yes. But the most important section of the book is its last paragraph.”
At the end of the book, Sands walks to a remote mass grave of Jews shot by the Nazis in Ukraine, where there are both his own and Lauterpacht’s family.
“I am Jewish. If I had been in that city in March 1943, I would have ended up in that mass grave. Not because of anything I did, but simply because I happen to belong to a certain group,” says Sands.
“I didn’t end up on Lemkin’s side, but then I ended up understanding him.”
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