In his book East-West Street, Philippe Sands (London, 1960) delves into his family memory and history to talk about genocide and crimes against humanity. They are topics that he also deals with in his busy day to day, in which he also teaches classes on international courts at University College London – he is one of the leading experts on the subject – and participates in them as a lawyer. In recent weeks he has done so at the International Court of Justice in The Hague, in the hearings on the effects of the Palestinian occupation by Israel.
You have family origins in Lviv, Ukraine. His Jewish family suffered the Holocaust. But now in The Hague Israel is accused of committing genocide and there are hearings on the legal consequences of Israeli policy in the occupied territories, in which you take the stand on the Palestinian side. How do you live it?
Sorry, I won’t make any reference to that case precisely for that reason, but as a Jewish person, am I sad that Israel is not complying with international law in relation to the occupied territories? Yes. If my own country, the United Kingdom, does not comply with international law, that bothers me. In this case, the sadness is added to the history of the country, which includes a story for my family.
Many repeat that since the Jews suffered the Holocaust and many of them or their descendants are in Israel today, how can what happens in Gaza happen. What would you say to them?
That is a broad question. For every person who is the victim of an international crime, theirs is the worst in the world, whether it is the case of Rwanda, Yugoslavia, Kosovo, the Rohingya, the Yazidis, the Palestinians or the Israeli Jews on October 7. They are all terrible cases and we do not have a first division and a second division of horror. No community has a monopoly on being a victim, nor does any community have a monopoly on being a perpetrator.
Has the meaning of “genocide” evolved enough to apply to both the Holocaust and Israel in Gaza?
The word genocide was introduced in November 1944 by Raphael Lemkin with a very broad definition, but it was only adopted in 1948 after a convention promoted by the United Nations in which a very high threshold was set for its definition. Partly because several countries were worried about being the subject of accusations of genocide: the United Kingdom, the Soviet Union, the United States… And then for 50 years nothing happened, until the 90s with Yugoslavia and Rwanda. It is with them that genocide began to be defined in the International Court of Justice.
Which means that it is barely applicable or that it depends on who is accused and its relevance?
The critical issue is that the International Court of Justice has basically said that to prove it, a pattern of behavior must be inferred with a single reasonable conclusion: that there is motivation to destroy a group in whole or in part. And that’s a very difficult standard to meet, because there are often many different motivations. That’s where the difficulties arise.
To what extent is it practical then to accuse of genocide?
There is a very large gap between the current legal definition and the popular understanding of what genocide means and that is the root of many of the difficulties that are on the table at the moment. There are three relevant international crimes: war crimes, crimes against humanity and genocide. The only one of those that provides for access to the International Court of Justice under a treaty is genocide. And that tilts the debate toward accusations of genocide because that is the only way to reach the Court, while the courts are worried about setting the bar too low. All in all, I do not believe that genocide is worse than crimes against humanity or war crimes. That is a popular opinion, and international courts do not say so either.
Everyone looks at The Hague today, and yet, does it matter? That is, are these international courts capable of imposing their resolutions?
Yes, they matter. I am conducting several cases in the International Court on genocide and people pay a lot of attention to it. I think that answers the question. In every case, be it Bosnia, Croatia, Burma, South Africa or Israel now, every time someone says “genocide”, everyone pays attention and the number of journalists in court increases tenfold.
But in the case of the Middle East, as in others, it is expected that going to these instances will also be a way to save lives, not only to be able to apply justice. If the intention is that, is going to an international court the best way to achieve it?
Well, if you take as reference a case that I can talk about, the Rohingya, when the Gambia went to the Court against Burma to request provisional measures, the court went very far in ordering them, further than with Israel, and even imposed a requirement for the presentation very strict reporting. Burma has met these requirements and there has been a change on the ground. That was a positive experience.
Is this the pattern that States follow when faced with Court decisions?
Again, if you take a case that I can talk about and we go back to 1993, the Court ordered provisional measures in relation to Bosnia against Serbia and [the massacre of] Srebrenica occurred two years after those orders. Of course, the court ruled that it was genocide, but in this case the provisional measures did not put an end to it. Then we must also be aware that there is a problem with the concept of genocide: it reinforces group identity, it reinforces intergroup hatred, and there is at least an argument here that the invention of the concept of genocide has led to more genocide, not to less genocide.
From the examples he gives, international courts seem better suited to operate against poorer or less powerful countries than to apply, in general, to more powerful ones.
Well, in the case of Chagos and decolonization, it was Mauritius against the United Kingdom. And Mauricio won. And now there are negotiations between Mauritius and the United Kingdom for the first time in half a century. So there is already an example of a situation with a powerful country that is completely changed by the intervention of an international court. I don’t think you can have a general rule.
We cannot then speak of a general rule on the part of the States…
I also worked on the South China Sea case involving China. Beijing is not paying attention to the court’s ruling, but it may change. That’s why I don’t think there is a general rule. What can be said is that the arrival of international courts has introduced a new actor and has important consequences, because it changes people’s reactions and perhaps also changes their behavior.
There is an accumulation of wars in recent years, mercenaries are important again… Are we returning to a medieval era and The Hague is the exception? Are we returning to a world of wars outside of international legality?
There is a paradox here. On the one hand it is clear that support for the rules-based order created in 1945 is under attack and that support for that order is declining. But on the other hand we see that international courts and tribunals are busier than ever. The world of international law and international courts is a very long-term game. We are at the beginning. Things changed in 1945 and it is a multi-century project.
If this is just the beginning, should we expect many more crises on the scale of those now being discussed in The Hague in the future?
It’s going to be a roller coaster for the rest of our lives.
Also in the West?
In the West it is not a thing of the past either. The past is never dead and is not even the past; It keeps coming back in cycles. We try to improve ourselves as humans, then we collapse, and then we start again. I think that’s how it works.
Doesn’t international justice serve as a lesson to prevent the same dramas from happening again?
The human capacity to do evil is very great. We are seeing it now. What is so significant about the Russian war against Ukraine is that it is launched in a territory where the crimes of the 1930s and 1940s were committed. In this sense it seems that we are going backwards and that we are reopening doors that we thought and hoped were closed. But today’s world is not exactly the same as it was then. There are institutions, rules and courts. I think it is possible to show how the fact that they exist modifies the behavior of some people and actors in certain circumstances. So in the long term, I’m quite optimistic, even though this is a difficult time.
In the specific case of the Middle East, violence has long permeated the region and even internal divisions, for example between Palestinians and Israelis, do not seem to help any peace solution in the short-medium term.
Let me repeat what I said in The Hague: the only way forward is a recognized Palestinian state. I cited it driven in part by the desire that several countries that are close to recognizing the Palestinian state do so. And one of those is Spain. I think that once Europeans and North Americans recognize this, many things will change.
