This special episode of Borderlines features influential educator, commentator, and litigator Philippe Sands discussing ground-breaking efforts to introduce ecocide – the crime of environmental destruction – into international legal arenas.
Philippe Sands QC is Professor of Law at University College London, Pisar Visiting Professor of Law at Harvard, and a barrister at Matrix Chambers. He practises as Counsel before international courts and tribunals. His teaching areas include public international law, the settlement of international disputes including arbitration, and environmental and natural resources law. Philippe is the author of many books, including East West Street: On the Origins of Crimes Against Humanity and Genocide (2016) and The Last Colony, forthcoming in September 2022.
Philippe recently co-chaired an independent expert panel which proposed in June 2021 that a new, fifth crime of ecocide be adopted into the Rome Statute of the International Criminal Court. In Episode Seven of Borderlines, listeners will learn about the relationship between ecocide and existing crimes, historic legal and political definitions of genocide being played out today, and the role of courts in enforcing awards and judgments against even Goliath polluters and aggressors.
Borderlines from Berkeley Law is a podcast about global problems in a world fragmented by national borders. Our host is Katerina Linos, Tragen Professor of International Law and co-director of the Miller Institute for Global Challenges and the Law. In each episode of Borderlines, Professor Linos invites experts to discuss cutting edge issues in international law.
Katerina Linos (00:01):
Welcome to Borderlines. I’m your host, Katerina Linos, Tragen Professor of International Law at UC Berkeley. It’s my distinct pleasure to have Philippe Sands QC with us today, the prominent French and English international lawyer, who has argued before more international tribunals than I can name, and who has worked at the intersection of international and environmental law for decades. Here at Berkeley Law, he recently gave a lecture titled From Genocide to Ecocide. His most recent project focuses on how a fifth crime can be added to the statute of the International Criminal Court, the crime of ecocide. His interest in international environmental law began shortly after Chernobyl in 1989, well before the Rio Conference, well before international environmental law existed as a field.
Katerina Linos (00:54):
I will start a while back, on how international environmental law entered his consciousness and, as a result of his advocacy and that of colleagues’, the field of international law.
Philippe Sands (01:10):
Thank you, Katerina. It’s incredibly nice to be here with you, and to be at Berkeley where my lovely daughter is a student.
Philippe Sands (01:17):
I was, in the mid-1980s, 25 years old, working with my mentor, Elihu Lauterpacht, the son of Hersch Lauterpacht, a research fellow at Cambridge University, working on what is today called investor state arbitration. And on April the 26th 1986, the Chernobyl accident happened, actually, curiously, on the territory of Ukraine. It spewed, we now know, large quantities of radiation across much of Europe and the rest of the parts of the world. Out of the blue, I got an invitation to give a paper in Washington, DC, on the legal aspects of Chernobyl. And so, my interest was tweaked.
Philippe Sands (02:00):
And I discovered that there was really nothing there. There was a 1941 arbitral award, the famous trail smelter case, and there was the 1972 Stockholm Conference and Principle 21 and transboundary pollution, but there weren’t any treaties. There wasn’t any real case law. I addressed that became my first book on Chernobyl published in ’88. And the publication of the book then brought me to Northern California. I was contacted by two lawyers from the Sierra Club Legal Defense Fund, who’d been doing cases in the US but wanted to internationalize: Durwood Zaelke and Wendy Dinner. We decided to set up something called the Center for International Environmental Law. These folks introduced me to worlds that I didn’t know, NGOs. They acted for Friends of the Earth, for Greenpeace. We started doing issues on the international aspect of wailing and fisheries conservation, and that was how it began.
Katerina Linos (02:57):
So talking about your early days, most parties comply with judgements and that’s true for domestic judgements here in the US. I don’t know that it’s true for domestic court judgements in every country in the world. And I think it’s true for international court judgements, but we don’t believe it without some illustrations that there is an adverse judgment and the party pays up, cleans up the mess, repairs the practices.
Philippe Sands (03:26):
It’s a really interesting question, and just as you’re asking it, I’m thinking back . . . I became a barrister in the late 1980s. I’ve done well over 100 international disputes cases before various international courts and tribunals. I’d say the instances of non-compliance — not giving effect to an award or judgment or decision or advisory opinion — is probably less than half a dozen. Let me give you an example that doesn’t get a lot of attention. The case of The Gambia versus Myanmar and council. The Gambia, very sensitive and delicate issue, allegations of genocide by Myanmar against the Rohingya community. The court makes provisional measures ordering in January 2020. And amongst the things it orders is that Myanmar shall report every six months on the steps it is taking to protect the Rohingya population.
Philippe Sands (04:19):
Myanmar complied with that before the coup, after the coup. It doesn’t get any publicity that as a consequence of that provisional measures order, the nature extent and scale of the horrors being perpetrated on the Rohingya community has changed. It has gone down. It has diminished. I want to give Myanmar credit for this. It has reported dutifully to the International Court of Justice. Every six months. Those reports are not made public. They stay with the court, but there is in broad terms, formally a very significant degree of compliance. That’s my experience. It is the outlier cases where major national interests are at stake, that there is noncompliance.
Katerina Linos (05:04):
To repeat what you said: One of the harshest military dictatorships that is perpetrating genocide against a despised minority that is isolated from the international community and has perhaps some ties with Japan, but we don’t have a lot of levers. We can’t cut a lot of trade because we don’t trade with Myanmar. That military regime is dutifully reporting to an international court. And so as to present more positive reports is committing fewer violations. Is that fair?
Philippe Sands (05:38):
One point. I’m very formalistic about these things. Because there’s no judgment, I stick to the line that it is a country that is alleged to be committing a genocide. There is no finding that it is or has committed a genocide, but yes, that is the case. There is formal compliance. There may be issues to raise about whether what they are reporting is accurate or complete.
Katerina Linos (06:02):
This brings me to defining some terms. Could you tell me what genocide is and what ecocide is and how they’re parallel and how they’re not parallel.
Philippe Sands (06:12):
Genocide first saw the light of day in November 1944 in a book published by a Polish jurist called Raphael Lemkin. It was funded by the Carnegie Endowment. Lemkin had fled Poland, had ended up at Duke University Law school where he was given academic refuge, which he was always immensely grateful for. He brought with him to America, suitcases filled with Nazi decrees, which he studied and drew out of his research the conclusion that there was a pattern of behavior, which he called genocide, a word that is a mix of Latin and Greek — “genos” and “-cide,” “group” and “kill” — and that word entered our legal lexicon. It’s a very recent invention. It then moved from a book into the indictment at Nuremberg. Again, people forget this. The Nuremberg judgment does not mention the word genocide. The Tribunal did not conclude that a genocide had been perpetrated against Jews or anyone else in that period.
Philippe Sands (07:15):
It was just too early. And the Americans were very nervous about the concept of genocide largely because Southern senators in the United States worried that it would be used against the United States in respect to the treatment of indigenous communities, African Americans, and so forth. But in 1948, Lemkin managed to get a convention adopted, the first modern human rights treaty on the prevention and punishment of genocide. That convention sets forth a definition which has been in force ever since. Essentially, genocide is about the protection of groups. The convention identifies four categories — nationality, race, religion, ethnicity — but excludes others. That is significant. It defines genocide as the intention to destroy one of these groups in whole or in part. It is that intentionality that is so complex. Genocide emerged at the same moment that crimes against humanity emerged in international law, also in 1945 — an idea that entered the statute of the Nuremberg tribunal at the instance of another former resident of the now Ukrainian city of Lviv, Hersch Lauterpacht, who is professor of international law at Cambridge.
Philippe Sands (08:36):
He suggested to Robert Jackson, chief prosecutor, that they insert into the Nuremberg statute crimes against humanity to focus on the protection of individual civilian. The difference between genocide and crimes against humanity is that you don’t, in crimes against humanity, have to prove what the motive or intention of the perpetrator is. And that’s a huge and significant difference. So you’ve got these two crimes operating side by side, along with war crimes and the crime of aggression — four international crimes that are focused on the protection of the human for very good and understandable reasons. Many people think there is a gap in the legal order, that it doesn’t act to protect our natural world, the environment. And starting in the 1970s, the international community began to legislate for environmental protection. Chernobyl was the catalytic moment on the development of international environmental law. And there is now a significant body of people who would like to create a fifth crime under international law.
Philippe Sands (09:44):
One that focused not on the protection of the human, but on the protection of the environment. And they would like to call it ecocide. Ecocide follows the terminology of genocide, but in the eyes of most people is more akin to crimes against humanity. If you have to prove an intention to destroy the environment in whole or in part, you’d never have an active ecocide because that’s not how it works. People engage in activity and one of the incidental consequences. . . so ecocide draws from both genocide and crimes against humanity by the focuses on the protection of the environment.
Katerina Linos (10:24):
President Biden said that genocide is happening in the Ukraine. President Macron did not see this kind of evidence. There have been allegations that the Chinese are perpetrating genocide against the Uighurs. That the Myanmar government, which you mentioned earlier is perpetrating genocide against the Rohingya. How would you apply this concept and its elements to each of these controversial situations?
Philippe Sands (10:53):
It’s a very real question right now. I believe it to be unfortunate, but somehow genocide has emerged in the eyes of many people as the crime of crimes. If an American president says that X or Y atrocity is a crime against humanity, frankly, it won’t get much if indeed any attention. But if an American president says what’s happening is a genocide, it will be on the front page of most newspapers of the world. Recent example, President Biden became the first American president to characterize the mistreatment of the Armenian community in 1915, as a genocide. That had been avoided for many, many years. The British government has not followed suit. The British government takes the position that something that happened in 1915 can’t be characterized as a genocide because the term had not yet been invented. I’m watching the reaction on your face to that argument.
Philippe Sands (11:48):
I had a class with my students at Harvard and we went back over the preamble to the genocide convention. I’d missed it, but there are only three preamble paragraphs. One of them says, “given that genocides have occurred over many centuries.” So it’s plain that in the eyes of the drafters, the concept of genocide in a sense predated 1948, and that of course was Lemkin’s view. To come back to your question, President Zelensky of Ukraine on the 9th of March, said what’s happening in Ukraine is a genocide. No one much followed him on that until the terrible images of Bucha and Mariupol and other places emerged. The horror was palpable. It does look like war crimes. It looks also like crimes against humanity. Is it a genocide? And the tension between President Biden who thinks it does and President Macron who thinks it doesn’t, I have to say is an internal tension for me also. I’ve argued a number of genocide cases at international courts and tribunals.
Philippe Sands (12:53):
I am acutely aware that courts set the bar very high. Proving intent to destroy a group in whole or in part as such is actually very difficult. Perpetrators tend not to leave bits of paper around saying, “I’m going to kill all these people in order to destroy the group in whole, in part.” So you are left to infer intent from a pattern of behavior, and that’s not an easy thing to do. And courts have been reluctant to draw the inference that a pattern of behavior amounts to an intent to destroy a group in whole and part, and have concluded — this is the Yugoslavia tribunal and the International Court of Justice — that you have to prove it’s the only reasonable inference. Of course, I have argued in court and failed. That’s almost an impossible standard to meet because there are often a multitude of intentions motivating humans to act in particular ways. Be that as it may, there is a disconnect between the strict legal definition of genocide, which sets the threshold very high, and the public’s broader view.
Philippe Sands (14:02):
What Presidents Zelensky and Biden have done in effect is focus on this political conception of genocide, not as strictly legal definition. President Biden made that clear. He made two statements. First, he said, he thought it looks like a genocide. Then he said, it’ll be for the lawyers before international courts to make those determinations. He’s recognizing there is a distinction between the two. My own view is I don’t believe there is a hierarchy of horror between crimes against humility and genocide. I serve on the academic advisory board of the Holocaust Day Memorial Trust in Britain, which each year commemorates not only the Holocaust of the Jews between ’33 and ’45, but also other mass atrocities. And I asked rather innocently at one of the early meetings, how do you choose the other horrors to mark? They said, “Oh, we’ve got a formula to do that. It comes from the Foreign Office. They’ve helped us.”
Philippe Sands (14:55):
“It’s got to have happened after 1945.” Okay. Got it. It conveniently excludes British colonialism, enslavement, the Turkish situation and lots of other horrors. “And secondly, there must have been a determination by an international court or tribunal that it is genocide.” Okay, I said, I get it. So you will mark the murder of 8,000 Bosnian Muslim men at Srebrenica, recognized by the ICTY [UN war crimes tribunal for the former Yugoslavia], as genocide. “Yes,” they said. But you will pass in silence on the apparent deaths, murders, of three million Congolese between 1998 and 2003, because that’s only been characterized as a crime against humanity or a war crime? “Correct.” Why is that a socially useful thing to do? Why do we put the terrible killing of 8,000 on a particular pedestal and passing silence on the killing of three million? And that is a question that does not admit of an easy answer, but it reflects our obsession with the genocide word. And there is a political component to it.
Philippe Sands (16:05):
Similarly, in relation to the Uighurs. I’ve written about this. I’m not there. The evidence is incomplete on what is going on. It looks very much like a crime against humanity. It may be a genocide, but note the outpouring of views that this is a genocide that’s going on. That is I think in part politically motivated because it’s a way of bashing China. From my perspective, I couldn’t care less, whether it’s crime against humanity or a genocide, it is terrible. It’s terrible. And it should stop.
Katerina Linos (16:41):
To me, there is an intuitive difference between an effort to eliminate a people, a language, a culture, to separate children from their families, and mass murder. Here in the US, our big debate has been about what it does to call something hate crime above and beyond whatever the underlying crime is. And there’s some consensus that if you are trying to target African Americans, Asian Americans, that should be much harsher and federal rather than punished at the local level for political and other reasons. In the case of the Ukrainians where I agree with you, I don’t believe a genocide is happening; on the Uighurs, I think we might disagree. What factual pattern would push you to say these practices, absent of piece of paper, seem to aim at the destruction of a people or of a part of a group.
Philippe Sands (17:40):
To be clear about my position on the Uighurs and what’s happening in Ukraine. The bottom line is, I don’t know. We don’t have evidence sufficient, I believe, on either case to know precisely what’s happening, and how to characterize it. But you’re raising a very important point. I’ve had numerous conversations with academic colleagues, particularly in the United States, on the hate crime issue. What is the moral distinction between two different situations? One person comes down the street, beats up another person randomly, and for no other reason. Situation two, person comes down the street and beats up another person because they appear to be Muslim, Jewish, Black, whatever. For the person who’s beaten up, it’s horrible. Doesn’t matter what you call it. But I would accept entirely that motive or intent behind the act is a factor to take into account. Is it a factor to take into account in the definition of the crime or in the punishment to be applied in relation to the crime?
Philippe Sands (18:57):
Let me go back to 1945. I don’t know about US domestic criminal law, but I do know about what happened in 1945 and the debate between Lauterpacht and Lemkin essentially mirrors this issue. Lauterpacht’s thesis was every living, breathing, human being as a human being is entitled to minimum protections under international law. It’s the origins of modern human rights law, it’s the origins of the concept of crime against humanity. Doesn’t matter who you are, what color you are, what nationality you are, what sexual orientation you are. You are entitled not to be beaten up, not to be killed, not to be mistreated as a single individual human being.
Philippe Sands (19:36):
Lemkin says, “Well, actually that’s not how life is. The reality is that people get mistreated because they happen to be a member of a group that is hated at a particular place at a particular moment in time.” Lemkin says, “The law must reflect that reality. We should protect groups in order to protect the individual members of that group.” It’s a completely logical position. “Well,” says Lauterpacht — and here I’m hypothesizing slightly because Lauterpacht didn’t actually say it, but I infer it in his writings, and in his attitude to the concept of genocide — “What you will do with your concept of genocide is reify and set in stone the protection and respect for group identity, and that will replace” — and Lauterpacht did write this– “the tyranny of the state with the tyranny of groups.” Over the past 75 years, the onward march of group identity has become more and more powerful in the eyes of some.
Philippe Sands (20:37):
The concept of genocide has given rise to the very conditions it was intended to prevent, namely intergroup identity and hatred. And Lemkin’s response is, that’s a price worth paying in order to protect groups. Instinctually, I am with Lauterpacht. I believe that we should focus on the wellbeing of individuals. But to argue against myself, the last paragraph in East West Street, my book that deals with the subject — I go to the mass grave outside the small town of Żółkiew where my grandfather’s family is from and where Lauterpacht’s family was from — ironically, they lived on the same street, East West Street. And standing at that mass grave, unmarked officially today, three and a half thousand people there, all there because they were Jews killed on a single day in March 1943. It is impossible for me not to recognize the power of Lemkin’s ideas and conception. We all feel a sense of kinship with groups. We are all a member of a number of different groups. I recognize absolutely the position that Lemkin has taken, but I worry that it sets us on the road to more intergroup hatred.
Katerina Linos (21:59):
Coming from Greece, where the Nazis committed a number of atrocities — crimes against humanity, mass graves, that’s all common — but they did not want to eliminate the Greek language and culture. In fact, they put that on the pedestal. I do see a real difference between groups that believe that their identity is to be destroyed. Their language is to be destroyed. And I also see some analogies to the punishment of crimes of terrorism here, where the person who launches a bomb or hijacks an airplane is treated extraordinarily differently under domestic law, under international law, because of the intent to terrorize, not a particular group in ethnic or religious terms, but an entire country. You are suggesting that we should focus on consequences, on the number of deaths. It does make the transition from genocide to ecocide, which is not an obvious transition, more fluid and easier to comprehend.
Katerina Linos (23:07):
But let me ask about using the criminal law to protect the environment. You must have tried dozens of other tools in the decades. You were involved in all kinds of negotiations, and this isn’t the obvious tool. The criminal law is supposed to distinguish the abhorrent from the merely annoying. It’s supposed to place the blame on individuals rather than on entities and on society at large. It’s there to punish, to express outrage. Whereas, with environmental law our slogan has been for decades: We have common but differentiated responsibilities. We’re all supposed to chip in. Is there some risk that as some journalists suggested — Mr. Bolsonaro is an écocider, the rest of us are not écociders and can go on taking our international flights, polluting, contributing to climate change and placing the blame on the worst of the worst.
Philippe Sands (24:17):
We know these are really complex issues. What you’re hearing from me is not that it’s simple. I struggle too about the role of the criminal law in this. What we are focused on is not the role of the criminal law in the domestic context. There are crimes pretty much in every country in the world that penalize, criminalize mistreatment of the environment or waters. We are grappling with, what is the purpose and function of criminalizing at the international level? That’s a long debate. You can go back to the 1930s and the extraordinary debates in the context of the League of Nations, in which Lemkin and others participated, move towards an international criminal law, as a means of signaling that certain forms of behavior are so egregious that the individual who engages in it will incur a criminal liability. That’s the logic of it. It’s premised, presumably on a supposed deterrent effect that somehow it’s a way of signaling some things are so horrible that if you do them, you will face sanctions anywhere in the world. It’s closely connected with the idea of universal jurisdiction.
Philippe Sands (25:32):
This too, I think inscribes itself in a conversation about the relationship between the collective of the group and the individual. In the speech that Lauterpacht wrote for Hartley Shawcross, the British prosecutor at Nuremberg, he put in a line which went into Shawcross’ speech and then went into the Nuremberg judgment. I’m paraphrasing him, but basically it says, “Atrocities are not committed by abstract entities. They’re committed by individual human beings.” And the question that arises is how do we create mechanisms to punish and to incentivize deterrents from certain forms of behavior. And just as in domestic law, we have the crime of murder and manslaughter, to environmental felonies. So the idea is at the international level, this is one additional tool to put the accent on preventing and punishing certain forms of horrible behavior.
Philippe Sands (26:39):
And I don’t have any problem with what Lauterpacht and Lemkin did in 1944, ’45. We’ve talked about their differences, but what they shared was that human beings need to be protected from the state and from particular horrors. There is a serious question as to whether individual criminal responsibility or liability for any of these acts has actually deterred anyone, and the jury, I think, is out on that. I do accept that the Nuremberg procedure, the judgment was a socially useful thing to do because it put the accent, not on the responsibility collectively of the whole of Germany, but on individual human beings. Why is that important? Because individual human beings walk along road and they come to a fork. They can act in one of two ways. They can act correctly, decently, humanely, or they can act incorrectly, indecently, and inhumanely. One of the factors that may be available to us to help nudge people in the right direction is the prospect that if they take the wrong fork in the road, they may feel a tap on the shoulder at some point in the future.
Philippe Sands (27:49):
That was the theory behind Lauterpacht and Lemkin. And I accept that it’s a plausible theory. So we should open the door to go that way. I’m also rather attracted to the idea of individual criminal responsibility. I’m anxious about the idea of collective responsibility. I generally don’t like the idea that someone is responsible because they’re a member of a group or association or that they are a national of a country. I’m uncomfortable to a certain extent with the idea that a state is responsible for committing acts of genocide or crime against humanity. Sure, the government that takes the decisions for those acts — Mr. Putin, right now in relation to the invasion of Ukraine — I think has a responsibility, but the whole of Russia, what does that mean in terms of Russians and so forth?
Katerina Linos (28:42):
I’m completely with you on that, to the extent someone is convicted of genocide or ecocide, it should be individual leaders rather than states or people. I still see a misfit between the strictures of the criminal code and ICC prosecutions in particular and the concept of ecocide. I see a way of reconciling them too, but first let me ask the hard framing. If the ICC is about the harshest crimes, crimes that are so heinous that they should never be unpunished, it takes the principle of complementary really seriously, that this should be done only if the domestic system is unable or unwilling. And it takes other principles fundamental to the criminal law into account — such as the idea that crimes need to be very specifically defined, such as the idea that we should not have expo facto crimes as was important in Nuremberg, as you say, is important to the position of the British government and why the Armenian genocide is not a genocide.
Katerina Linos (29:56):
How does that fit in with the idea that Mr. Bolsonaro or the CEO of Exxon or some other leader is within the boundaries of current law, destroying the environment in a catastrophic way? How would that criminal prosecution work?
Philippe Sands (30:21):
If you leave this room and go and pour a thousand gallons of some substance into a river in Oakland or Berkeley or San Francisco, you will be criminally prosecuted. No difference between that and you going out and beating someone up or killing someone. The criminal law is invoked. Exactly the same principle applies at the international level. You go off and destroy an ocean or a river or an entire species, or act in such a way as to create some massive transboundary air pollution into the atmosphere, which will deposit itself on the ocean and kill a species of fish or whatever. There’s no mechanism available today under international criminal law to address that. Ecocide is intended to fill that gap.
Philippe Sands (31:17):
I go back to the best law review article I’ve ever read: Christopher Stone, 1972, “Should Trees Have Standing?” which essentially posits the idea that we need to move away from an anthropocentric approach. The world is not just about humans. We have a natural environment. We use the law to protect it. Criminalizing certain forms of behavior is one instrument that we have. Ecocide as a concept under international and domestic law, because it can apply equally at the domestic level, is absolutely capable of being given the definitional particularities that allows it to be applied. I was part of a working group. There were 12 us who’ve come up with a definition. I don’t any mean to say it’s the perfect definition. It’s generated a lot of discussion. And some countries have now said, “Yes, we want the crime of ecocide in the statute of the International Criminal Court.”
Philippe Sands (32:11):
The Secretary General of the United Nations has said, this is a basis for a formal process. And I suspect within the next two or three years, there will be the start of a formal process to add a fifth crime to the statute of the International Criminal Court. It’s recognizing that the harm to the environment — so, the destruction of the Great Barrier Reef around Australia — is not actually going to harm human beings. Human beings will continue with their daily life, but it will destroy a significant environmental resource. Or, the Amazon, or an aquifer, or a species which is endangered. I’ve got no problem at all with using the force of the law at the international level and the criminal law to say, “This is not acceptable.” And I don’t for a moment imagine you put ecocide on the statute books, the next day, everyone starts to behave and be nice to the environment, anymore than you put genocide on the statute books and people stop mass killing, anymore than you put the crime of rape or murder on the statute, books and rape and murder stop. That’s not how it works.
Philippe Sands (33:12):
The law is a powerful instrument for changing consciousness. And that’s what this exercise of ecocide is principally about for me; it’s a nudge in a particular direction.
Katerina Linos (33:23):
I can see the idea that just as the Holocaust committee that you mentioned was looking for an international tribunal in order to make progress, just as every activist judge domestically wants some reference to hang his hat on, that if you put it in the statute, it will inspire social movements. It will inspire domestic decisions. Can you speak about successes you have seen over the last 30 years? You said you came to the US and NGOs that were able to use domestic sources suddenly wanted to get involved in international advocacy. How have you seen these linkages play out?
Philippe Sands (34:03):
I think actually there has been a transformation. When I was a law student, I remember having debates with a famous professor international law, Ian Brownlie, in the early 1990s. I’d say, “Why don’t you have a chapter on the protection of the environment in your famous book, Principles of Public International Law?” His answer was, “Because there isn’t any. Doesn’t exist. There isn’t any environmental international law.” So in 1996, I was part of the team that argued for four small Pacific island states on an advisory opinion matter before the International Court of Justice on the legality of the use of nuclear weapons. It was a pretty stupid question to put to the International Court in my view, but there you are. It was done. The four small island states were the only ones who argued that if you’re going to use nuclear weapons, you’ve got to look also not only on their effects on human beings, but their effects on the environment.
Philippe Sands (34:57):
Remarkably, the Court majority ran with that argument and they put into the advisory opinion, Paragraph 29, a provision which said the obligation to protect the environment is now part of the corpus of international law. That was a single moment of change obtained through advocacy. It caused Ian Brownlie to, in the next edition of his book, put in a chapter on the protection of the environment and the new generation of international law students around the world all of a sudden would have to engage with the environment. This happens in incremental ways. Protection of the environment is now part of our consciousness. If you go onto the Twittersphere and social media, you will see huge support for the protection of the environment, including through the concept of ecocide. It’s the 50th anniversary of the famous Stockholm Conference on the Human Environment, when the environment became part of the work of the United Nations. That conference, interestingly, was opened by Olaf Palme, the Swedish Prime Minister. And in his opening speech, he said, “One day there’ll be a concept called ecocide.” Remarkable, actually, that he put that in and he’s right.
Philippe Sands (36:09):
It hasn’t quite yet arrived, but it will arrive. To argue against ecocide today is, I would say, to be on the wrong side of history — just as the Southern senators who opposed the conceptions of genocide and crimes against humanity in 1945 at Nuremberg were shown to have been on the wrong side of history. How ironic one of those successor senators, Senator Lindsay Graham of South Carolina, is the one who puts before United States Senate a draft resolution to support the work of the International Criminal Court on investigating crimes that are being perpetrated on the territory of Ukraine. And that resolution passes unanimously. The way international works, as we know, is it takes single moments of horror and tension to force a sudden change. That’s what happened in ’45. There will be a moment on the ecocide debate. Some egregious horror will happen. States will put up their hands and will say, “We’ve got to do something about this. What’s available to us?” And they’ll go for ecocide That’s what will happen.
Katerina Linos (37:15):
And is the Ukraine crisis that moment for international law? Is it the moment when Article 54 is suddenly taken seriously, when all the sanctions tools are out of the box, when we start investing in NATO, investing in development. Are we at a watershed moment just as we were in 1945?
Philippe Sands (37:38):
It’s a really good question. I don’t know. I think the jury’s out. Three days after the war began, I was asked by the Financial Times newspaper in London to do an opinion piece on Ukraine and international law. I thought for a bit and then focused on one aspect that I thought needed attention. The gap was the fourth crime, the crime of aggression — waging a manifestly illegal war — which is been part of international law already for many decades, but is not within the jurisdiction of the International Criminal Court in this conflict for lots of complex, formal, technical reasons. Sure, aggression is within the ICC jurisdiction generally, but only for a very small number of countries. So I proposed the setting up of a special criminal tribunal to assist Ukraine in the investigation and prosecution of the crime of aggression. I thought, that needs to be done. Because to take the words of the Nuremberg tribunal in the Ukraine context, aggression is the supreme crime. But for the war, we wouldn’t have the war crimes, the crimes against humanity, or the allegations of genocide.
Philippe Sands (38:47):
It is also the only crime that takes you straight to the top table. It is the only crime, a leadership crime, in which Mr. Putin, Mr. Lavrov, the minister of defense, the intelligence folks, the military folks, the finances are in the frame. I don’t want a situation three or four years down the line where we’ve got a series of trials in The Hague or elsewhere of mid-ranking military types for the horrors they’ve perpetrated in Mariupol and in Bucha. I think that would be appalling. There will be a meeting in Lithuania for like-minded states to discuss how to take this idea forward. The crucial question for me will be what will the other three permanent members of the Security Council do? What will the US, the UK, and France do?
Philippe Sands (39:33):
They accept that the crime of aggression is in the frame. They accept that it’s possible to create a new international instance, but they hesitate for reasons of self-interest. Russia today, us tomorrow. It’s not a principled concern. If those three countries decide not to support such an initiative, they are in effect allowing Mr. Putin and his cohort off the hook. By putting the accent on war crimes and crimes against humanity, and even genocide, you are missing the main game in town: those who originated this war.
Katerina Linos (40:13):
When people were saying, why are you comparing what’s happening in the Ukraine to the Holocaust and to the Nazis? There was some argument that Hitler could not have committed the crime of aggression because it wasn’t as clearly defined at the time as it is now. That said, there does seem to be a principled response, which is selectivity versus universality. That we need international law to be universal. The crime of aggression almost by definition invites selectivity, political considerations. We’ve been selective in privileging Ukrainian refugees over refugees from Syria or Afghanistan. We’ve had the Ukraine on the front pages of US newspapers, and there have been coups happening in West Africa that don’t make the last page of our newspapers. Must international law be non-selective, universal, neutral politically?
Philippe Sands (41:05):
Yes. International law isn’t just for others. I think we have to recognize that there is a problem here. I accept that critique entirely and I have to interrogate myself. It’s inherent racism. That racism operates in a range of different ways. Let’s be absolutely straight about it and recognize it. I don’t need to interrogate myself so harshly when it comes to Iraq. I articulated it at the time. Iraq was a manifestly illegal war yet there’s been no comeback in relation to that particular horror, which many of us heard Mr. Putin refer to in his justification for what he was doing. One horror spawns another. This is what we learned. International law has to be applied equally.
Philippe Sands (41:54):
It was applied in a lopsided way at Nuremberg. It continues to be applied in a lopsided way in the consciousness of our countries. That’s why I hope that these countries are referred to earlier will recognize that to not engage with the crime of aggression today, in order to save themselves in the future, will further undermine the potential of the international legal order. That component of it, that we call international criminal law, it’s a powerful point. On the other hand, it’s not a reason for doing nothing right now.
Katerina Linos (42:37):
What happens after governments like Russia or the US or the UK gets an adverse judgment, and then goes ahead and changes laws and policies and manuals and so on?
Philippe Sands (42:49):
Let’s take one case at the International Court of Justice. In the 1980s, Nicaragua brought a case against the United States for illegal use of force, blockading ports, mining, harbors, and Nicaragua won. The case then went on to the next phase, which was reparation. The case was settled before it got to the reparations phase. But in effect, the United States recognized that it had been found to have done wrong and entered into an arrangement with Nicaragua, which recognized the wrong that had been done. South China Seas case involving China. I was council for the Philippines in that case. There are a couple of ways in which, below the radar, China has slightly changed its policy and accommodated in relation to one island and fishing activities of Philippines communities, a right to engage in certain activity. My prediction is that over time, with a face-saving way out, that award will change behavior.
Philippe Sands (44:00):
And let me just end with a case. And that concerns a place called the Chagos Archipelago. It was a British colony, part of Mauritius from 1814 to 1968, until the British dismembered the Chagos Archipelago — cut it away from Mauritius and created a new colony, the British Indian Ocean Territory, entered into an agreement with the United States, gave one of the 58 islands, Diego Garcia, to the Americans as a military base and removed the entire population, about 2,000 Black people, formally descendants, most of them, of enslaved plantation workers in the Chagos Archipelago, and dispersed them to the winds of Mauritius, Seychelles, the United Kingdom. Mauritius went to the various courts. There’ve been three international awards, judgements, advisory opinions — now, I’m council for Mauritius, so again, I’m not independent — and got an advisory opinion more or less unanimous from the ICJ that the United Kingdom had to leave. That Chagos is part of Mauritius.
Philippe Sands (45:04):
The United Kingdom is having trouble recognizing the consequence. It has not left. The General Assembly ordered it to leave by November 2019. But just two months ago, I went on a boat with 25 other people, including five Chagossians, to the Chagos Archipelago. It was the first time ever that Mauritius had been able to go to its own territory without a British escort. But for those three decisions — an arbitral award of 2015, an advisory opinion from the ICJ of 2019 and a binding judgment of ITLOS, the tribunal for the law of the sea, of 2021 — We would not have been on the boat. We would’ve not have set foot on the Chagos Archipelago. If you talk honestly with the British, now they will tell you they feel the ground shifting under their feet. Chagos will become once again treated by Britain as part of Mauritius. It’s not a question of whether, it’s a question of when. The United Kingdom will comply with these decisions.
Philippe Sands (46:13):
So that, I think, is in the process of becoming one of your good news stories. A permanent member of the Security Council, recognizing that its commitment to the rule of law means that it must deal with these unhappy decisions (from its perspective) and give effect to them. It’s not done yet, but it’s plainly on its way to being done. I’m a cup half-full type of person. I often mention the advice of a former colleague of mine at Cambridge University, John Baker, distinguished professor of English legal history. When he would ask me the kind of things that I was working on, he would say, “Well, Philippe, we had a similar problem in English law in 1472. It took 278 years to sort it out.” And that’s how international law is. We’re not going to change everything overnight with that moment of 1945, or the moment of 2022. These things take time to bed down. It’s a long game. That’s why I think in particular for future generations of international lawyers, there is wonderful work to be done.
Katerina Linos (47:24):
What a wonderful note to end on. Thank you so much.
Philippe Sands (47:26):
Thank you so much.
Katerina Linos (47:31):
I hope you enjoyed this episode of Borderlines. One thing I will retain is that the decisions of international tribunals can influence even the most isolated and recalcitrant of states, such as when the government of Myanmar is forced by the ICJ’s reporting requirement to soften its persecution of Rohingya Muslims. If you want to hear more from prominent scholars and practitioners of international law, please subscribe to Borderlines.