Alona Ferber, senior editor: Philippe, you’re heading to Chile tomorrow where your book [38 Londres Street] has already caused a bit of a stir. Why did you want to write this book?
Philippe Sands: Well, I’d written two books that deal with related issues. The first was East West Street, which looked at the origins of crimes against humanity and genocide, which was premised really on my relationship with my grandfather, who was born in the city of today, Lviv in Ukraine. I followed that up with a book called The Rat Line, which was about an Austrian SS guy called Otto Wächter, who had tried to flee to South America, but failed. And this is effectively the third in what is a trilogy.
Impunity is the word of the moment. Whether you’re talking about Mr Trump in relation to crimes committed while he was former president, or about Mr Putin or Mr Netanyahu or what’s going on in Sudan, everyone’s talking about impunity. Can the most powerful or the infamous escape the law?
Ellen Halliday, deputy editor: Given the span of your work in thinking about impunity, how effective would you say the international legal system has been in holding people to account?
Philippe: I’m not starry-eyed about international law and I often say it’s a long game. It’s better than nothing, but it falls far short of what those who put the system in place in 1945 imagined or hoped for. But don’t forget that before 1945, there was literally nothing. There was no accountability. So, the revolutionary moment was 1945, when rules were put in place at the international level, which said human beings have rights as individuals and as members of a group. That’s expressed in these two concepts, crimes against humanity and genocide.
Ellen: The time span that you’ve talked about there is so brief. You, however, seem to feel that the system will endure beyond what feels like a moment of particular impunity in international politics. Is that correct?
Philippe: The arc of justice is you construct rules, then there’s war, they’re destroyed, they rebuild, but they always rebuild from what came before. I think we are probably approaching a moment of destruction.
You’ve got now three of the five permanent members [of the Security Council] solidly against many of these kinds of rules. [But] we’re not, as John Bew says, entering a rules-free world. Ninety-nine per cent of our rules work perfectly well. Ultimately, over the long term, I’ve got no doubt we need rules. We occupy a single tiny space in the planetary systems and we need to find ways to get on.
For students in particular in my classes, I don’t want to be overly negative and overly gloomy. It’s really a tough time now. I’m very worried about the next few years. But in the longer run, there is work to do.
Alona: You represented Palestine at the ICJ in a case against the Israeli occupation. In July last year, the court issued an opinion that the occupation is unlawful and that Israel is obligated to end it. You said that “the right of self-determination... requires that UN member states bring Israel’s occupation to an immediate end. No aid, no assistance, no complicity, no contribution to forcible actions, no money, no arms, no trade. No nothing”. Beyond vindicating Palestinian rights, what impact do you think that ICJ case has had in practice for the Palestinians and regarding Israel’s position internationally?
Philippe: Well, what the advisory opinion did was strengthen the commitment and persistence of those who do believe in a rules-based system. The vast majority of countries of the world now do support the idea of a Palestinian state. Those who don’t are diminishing very rapidly. For the first time, we have some EU member states who have now recognised Palestinian statehood: Spain, Ireland and [Slovenia].
My own hope is that the British government recognises Palestinian statehood. I don’t see why the state of Palestine being recognised should be something that Israel should have any say on whatsoever. When Israeli statehood was determined nearly 80 years ago, it was a decision of the General Assembly and it was imposed on the world and… on the population of Palestinians. So why not have the same approach now?
And in a curious sense, the advisory opinion has the effect of providing and buttressing support for Israeli statehood because it is premised on the International Court’s recognition of Israeli statehood. So, these things are complex.
Alona: You have spoken fairly recently about how genocide may not be such a useful legal term any longer. Why is that?
Philippe: I don’t have a hierarchy between war crimes, crimes against humanity, and genocide. For me, they are all equally awful. But in the court of public opinion, for reasons that are complex, genocide is seen as the crime of crimes. In my view, it is not the crime of crimes and we should not fetishise genocide.
War crimes are as bad, crimes against humanity as bad, and killing millions of Congolese in the 1990s as war crimes or crimes against humanity is not a less serious crime than the act of genocide in Srebrenica, for example. We’ve really got ourselves into a mess on these labels.
Alona: This system that you say you have faith in, that’s only really been working for the past 30 years, also relies on private individuals putting effort and investment into trying to achieve justice. Do you think that’s something that characterises the system and is perhaps a weakness of it?
Philippe: It’s a weakness of the system, but it’s a theme of all of my writing that at the end of the day, it’s not only states that matter, it’s individuals.
Many societies have challenges dealing with wrongdoing that has occurred on their doorstep. It’s the unwillingness of Britain really to engage with its colonial history, really to engage with its responsibilities for enslavement and the continuing consequences of that. I didn’t learn about it at school. My kids didn’t learn about it at school, really, 30 years later.
A common feature of many societies is the challenge of talking about crimes of the past. The thing that I’ve learned is wherever they occur, they do not go away, and we have to find a way to address them.
What is the role of literature in contributing to our sense of justice and injustice? At the end of the day, if I have to choose between a single judgment of a court that’ll be read by nine people and one dog, and a work of literature that will be read by tens or hundreds of thousands of people on the same issues, what do I choose? My writer friends will say, “no, I want the judgment”. But I’m really beginning to wonder whether a judgment alone is enough.
You need literature, you need culture, you need songs, you need poetry, you need music, you need other ways of telling stories. I mean, as humans, that’s really what it’s about. And a courtroom and a judgment is about telling a story. It’s a form of literature.
Ellen: When we look at America, we’re looking at an administration which is curtailing freedom of speech. I’m thinking of Mahmoud Khalil, or the detention of Tufts University PhD student Rümeysa Öztürk, who was taken in broad daylight. How well is America upholding international justice?
Philippe: Warning signs are flashing very strong and long and bright. I’ve just come back from a couple of weeks in the US, and it’s extremely worrisome. The playbook is very, very familiar. And the logical question one has to ask is when will people start being disappeared off the street? And it’s happening.
The crucial institution in the United States is the courts. At this point, I think the judges are acting very independently. Ultimately, it will go to the Supreme Court.
Last July, the Supreme Court gave a ruling on immunity for the acts of a former president. I’ve got to assume the idea of a president the United States going to the president of the Supreme Court and saying, “this is what you’re going to do, is not going to happen”. But who knows, they would have said the same thing in Germany in 1933 and everything changed. So, we need to be extremely alert.
The culture of fear has taken root in the United States. And once that takes place, it’s much easier for the forces of darkness to wreak havoc. How courageous are we going to be in speaking out and calling a spade a spade?
Americans are extremely concerned about where this is going, because they have a sense of history. They know that a constitution is essentially a piece of paper supported by political will. And when that political will evaporates or disintegrates or is shredded, what is left? What is the value and the weight of the United States Constitution?
We’ve got to hope that the Constitution of the United States is robust, that the judges are robust, and that the principles I care about are robust.
We’ve just got to deal with the reality of the situation and not pretend it’s not happening. It is happening.
This is an excerpt of a longer interview that has been edited for clarity and length. The full interview can be heard here on the Prospect Podcast.
