In his book Calle Este-Oeste, Philippe Sands (London, 1960) dives into family memory to talk about genocide and crimes against humanity. These are topics that he also deals with in his busy day-to-day life, in which he lectures on international courts at University College London – he is one of the best experts in the field – or participates as a lawyer. In recent weeks he has participated in 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. Your 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 stage for the palestinian How do you live it?
I will not make any reference to this case precisely because of this, but as a Jewish person, am I saddened that Israel is not complying with international law in relation to the occupied territories? Yes. If my own country, the UK, doesn’t comply, that bothers me. In this case, the sadness is compounded by the history of the country, which includes a history for my family.
Many repeat that since the Jews suffered the Holocaust and there are many of them or their descendants in Israel today, how can what is happening in Gaza happen. What would you say to them?
For every person who is the victim of an international crime, theirs is the worst in the world, be it 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, and no community has a monopoly on being a perpetrator.
Has the meaning of “genocide” evolved so much that it can be applied both to the Holocaust and against Israel in Gaza?
The word genocide was introduced in November 1944 by Raphael Lemkin with a very broad definition, but it was adopted only in 1948 after a convention promoted by the United Nations in which a very high threshold was set in the definition. Partly because several countries were worried about being accused of genocide: the United Kingdom, the Soviet Union, the United States… And then for 50 years nothing happened, until the 1990s with Yugoslavia and Rwanda. It is with this that the International Court of Justice began to define genocide.
Does it mean that it is barely applicable or that it depends on who is being accused and how relevant it is?
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 the latter is a very difficult standard to meet, because there are often many different motivations. This is where the difficulties arise.
To what extent is it then practical to accuse of genocide?
There is a very large gap between the current legal definition and the popular understanding of what genocide means and this is the root of many of the difficulties on the table at the moment. There are three relevant international crimes: war crimes, crimes against humanity and genocide. The only one of the latter that provides for access to the International Court of Justice by virtue of a treaty is genocide. And that tilts the debate toward genocide charges, while the courts worry about setting the bar too low. All in all, I don’t think genocide is worse than crimes against humanity or war crimes.
Everyone is looking at The Hague today and yet does it matter? In other words, are these international courts able to impose their resolutions?
Yes, they matter. I’m doing several cases at the International Court on Genocide and people are paying a lot of attention. I think that answers the question. In all cases, every time someone says “genocide”, everyone focuses on it and the number of journalists increases tenfold.
But in the case of the Middle East, as in others, it is expected that going to these bodies is also a way to save lives, not only to be able to apply justice. If this is the intention, is going to an international court the best way to achieve it?
Well, if you take as a reference a case that I can talk about, the Rohingya, when Gambia went to the Court against Burma to request interim measures, the court went very far in ordering them, further than with Israel, and even and all imposed very strict reporting requirements. Burma has complied and there has been a change on the ground. This was a positive experience.
Is this the pattern that states follow before the decisions of the Court?
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 in] Srebrenica happened two years after those orders. Of course, the court ruled that it was genocide, but in this case the interim measures did not end 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 one argument here that the invention of the concept of genocide has led to more genocide, not to less genocide.
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 alien to international legality?
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 waning. 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. It is a project of several centuries.
If it is just the beginning, should we expect many more crises of the scale of those now being dealt with in The Hague in the future?
It will be a roller coaster for the rest of our lives.
Doesn’t international justice serve as a lesson to prevent the same dramas from repeating themselves?
The human capacity to do evil is very great. We are seeing it now. Russia’s war against Ukraine is being waged on a territory where the crimes of the 1930s and 1940s were committed. In this sense, we seem to be moving back and reopening doors we thought and hoped were closed. But today’s world is not the same as it was then. There are institutions, rules and courts. I think it is possible to show that being there modifies the behavior of some people and actors in certain circumstances. So, in the long run, I’m pretty optimistic, even though this is a tough time.
In the specific case of the Middle East, violence has permeated the region for a long time and even internal divisions, for example, between Palestinians and Israelis do not seem to help any way out of peace in the short-medium term.
Let me repeat what I said in The Hague: the only way forward is a recognized Palestinian State. I mentioned it driven in part by the desire that several countries that are close to recognizing the Palestinian State do so. And one of these countries is Spain. I think that once Europeans and Americans recognize it, many things will change.
