Philippe Sands knows a thing or two about international law. He was approached to argue for India in the Italian Marines case and against India, by Pakistan, in the Kulbhushan Jadhav case. Though he didn’t end up appearing in either, he has argued human rights cases from the Rwandan genocide to the Yugoslav conflict and against the Chilean dictator Augusto Pinochet. Matters like these fall in the ambit of international law, a nascent formulation that had its beginnings in the dying embers of the Second World War. It’s something Sands, as a practicing lawyer, is something of an expert on.
In his 2016 book, East West Street , UK-based Sands examined how the concepts “genocide” and “crimes against humanity” germinated in the post-war aftermath and laid the foundations for a new order. Two men, both of whom coincidentally studied in what is now the town of Lviv, Ukraine, were grappling with a legal vocabulary for what had happened. Sands writes of Hersch Lauterpacht, who proposed the term “crimes against humanity”, to prosecute those who had been responsible for the deaths of large numbers of individuals. And of Rafael Lemkin, who proposed a term with a different emphasis – “genocide” – to describe the persecution of a group particularly on the basis of their identity.
“So why do these two concepts exist in parallel?” asked Sands, on the sidelines of Tata Literature Live held last weekend. “They were invented at exactly the same moment as a response to terrible things happening in Europe, with the same end game but different ways of getting there.” Sands’ book engagingly narrates a personal history of his Jewish grandparents’ flight from Nazi- controlled Germany alongside a history of the foundation of human rights and international law.
Though the terms are related, “crimes against humanity” is a formulation that focuses on protecting individuals, genocide on protecting groups. Both terms have inhered, although the emotive power of genocide has resounded more powerfully. “For reasons that I’ve not understood, in general consciousness genocide has gone to the top, it’s the crime of crimes, it’s the horror of horrors,” he said. “Why has that happened? I don’t know. In part it’s the magic of the word. It conjures up horror. The other conjures up court rooms, law process.”
So which of these would apply to the persecution of the Rohingyas in Myanmar? Sands treaded cautiously. “On the basis of the evidence in the public domain it does appear at the very least that we are dealing with a crime against humanity,” said Sands, who is a professor at University College London. “But I’d ask a bigger question: what does it matter if we call it a crime against humanity or a genocide? The fact is human beings are being treated atrociously.”
But as nation states increasingly turn inwards, and renewed nationalist vigour finds expression everywhere, how effective can a transnational legal order be? Sands paused. “It’s where the rubber hits the road,” he said. “We are about to find out.”
Both the US, which plans to exit global agreements such as the Paris Pact and has already exited the Trans Pacific Partnership, and the UK, which is negotiating Brexit, were powers that promulgated the pillars of the international system post 1945. “The two countries… are essentially falling off their perches and turning their backs on the system they created,” he said. “We can sense the UK and US in full retreat from the commitment to the system they created in 1945. It might be a temporary blip or it might be something more permanent.”
Whatever it is, the global power of the UK at least, has been in remission. Sands pointed to the UN election for the International Court of Justice (ICJ), where the Indian judge Dalveer Bhandari edged out the British judge after 11 tight rounds of voting. The British judge eventually withdrew, but in any case, the race had been unprecedented. “It’s an amazing story, it’s a real moment of how power shifts,” said Sands, speaking before Bhandari was finally re-elected. “The UK has never not had a judge in the ICJ since 1922... I think that is not a reflection on the candidate but on Britain today, a reflection on Britain post-Brexit. It’s fallen off a cliff; its international influence has collapsed.”
Ultimately though, has the international legal order been successful? In some matters, it has, in others less so. Given that it’s barely 75 years old, it’s still early days. “It’s a long game,” said Sands. “One can’t hold international law to the same standards as domestic law, because domestic law has had hundreds of years to mutate and evolve and grow deeper roots. And the roots of international law are shallower and flimsier and it will take a longer time.”
