“I see signs of genocidal rhetoric against Ukrainians” – Lawyer Philippe Sands – Kyiv Post
Philip Sands, a renowned British lawyer, is the author of East West Street: on the origins of genocide and crimes against humanitya book that tells how modern international law regarding genocide was born in Lviv.
Sands has extensive experience working at the United Nations International Court of Justice and the European Court of Human Rights. The lawyer is currently advising the Ukrainian government on the creation of an international tribunal for Russia. He has supported Ukraine since the first days of the war.
Kyiv Post spoke with Philip Sands at the Lviv BookForum-2022 Russia Tribunal, what the British think about the war in Ukraine and whether ordinary Russians can be considered criminals for supporting the war in Ukraine.
Why did you decide to help Ukraine?
Well, I have been coming to Ukraine for 12 years. I first came in 2010 to give a lecture at Lviv University, Ivan Franko University, to talk about the cases I handled on genocide and crimes against humanity. I started doing this research and wrote a book that came out in 2016 called East-West Street. And I built a close relationship with the city of Lviv, where I now have very dear friends. I feel a sense of togetherness.
I came to the BookForum because I want to give my support, show my support for the city and the struggle of the Ukrainian people in this terrible illegal war. I want to show my support for my friends who live in town. So when I was invited to talk about my books, I said, “Yes, I’d be happy to come.
You are helping Ukraine create the international tribunal against Russian leaders. Do you believe that Vladimir Putin, Sergei Lavrov, Sergei Shoigu will be punished for the crime of aggression against Ukraine?
Just to be very clear, I’m a university professor and a writer, my job is to generate ideas. I write and hope the ideas resonate. So one of the ideas that I put in an article – “Putin’s use of military force is a crime of aggression” in the FinancialTimes of February 27 of this year – to propose the idea of a special criminal court for the crime of aggression, because for me what happened is illegal, an act of aggression – and I noticed that there was a gap in the architecture of international law, and I felt that the void needed to be filled. I proposed an institution to hold individuals accountable for the crime of aggression.
What about Putin, Shoigu and Lavrov? Will they be punished?
First, you must create a court, a court with a prosecutor and judges, and it will be up to them to decide who should be investigated for the crime of aggression. So there are a lot of possibilities, but aggression is a crime of leadership, one that leads directly to the top table. In fact, it is the only way to be certain of reaching the top, of reaching those who are most responsible for the decision to start this war and to continue it. These people must therefore be investigated.
But are we talking only about the war after February 24 or about the actions that began in the spring of 2014 when Russia annexed the Crimean peninsula and sent in armed forces, which managed to occupy parts of the industrial region of Donbass in Ukraine?
When I wrote my article for the FinancialTimes, I was thinking 2022. But I know there are people who think we have to go back to 2014, and others who want to look at 2008, Georgia, and other situations. It will be a political decision on what actions to investigate. If there is a tribunal, the jurisdiction of that tribunal in terms of time will have to be decided on this point.
Tell me, please, what has already been done for the start of the court. What else is needed?
The government of Ukraine has proposed the establishment of a tribunal, and it is now supported by a number of countries. They will have to build political will to develop support for the idea, and that is what is happening right now. President Zelensky and the Ukrainian government seek to support this idea.
Is the world helping with the political will to create this tribunal?
I don’t know if the whole world will have the political will, but maybe Europe will.
And Europe has? What do you think? Maybe you need to talk to those people who make the decisions?
When I wrote my article on February 27, did I think this would happen? Not really. But six months later, or more, the idea hasn’t gone away, it’s still working its magic. Once a decent idea is thrown around, I guess, there’s no letting go! More and more people are talking about it. And so I’m starting to think that maybe there could be a political will in the European context for this tribunal, it’s possible, yes.
Can Putin change the minds of European leaders?
Well, anyone can try to change their mind, but I think he might not be in a strong position, so I’d be surprised if he could convince a lot of people.
Oh good? But do they support Ukraine? Do they understand Ukraine?
Yes, almost all countries in Europe support Ukraine.
But they can’t help us…
Many countries help, they help with money, with military weapons, with training, with strategy. And I think a lot of European countries, and the United States, Canada, Australia, New Zealand and other countries are providing a lot of support. This, combined with the extraordinary will of the Ukrainian people, certainly contributes to a marked military success.
Can this winter change anything?
I’m just a lawyer and a writer, this is a question for military strategists! I don’t know if winter is more useful for defenders or attackers…
And I don’t really know which is more useful: mud, snow, rain or ice and cold. I think it’s much more difficult for the soldiers and the army in the winter.
There is also the problem of gas in Europe: Russia has said that Europe cannot survive without Russian gas.
Europe can survive without Russian gas. I mean that the consequence of not having Russian gas is that the prices there increase considerably. And because the prices are going up, some people say, “Why are we fighting this war, why are we supporting Ukraine, is this going to continue? But it’s a minority, not a majority. In Britain, of course, it’s a minority.
Is it possible to prove acts of genocide committed by Russians against Ukrainians?
I am not aware of the evidence. I see signs of genocidal rhetoric, but proving genocide in law, under the 1948 Convention, is difficult. I think there is evidence of war crimes and crimes against humanity which, in my opinion, are no less serious than genocide. On a purely legal definition of genocide, it does not immediately appear to me that acts of genocide are perpetrated. But I don’t have all the evidence, I’m not here, and I don’t have all the details. So I can’t give an exact opinion.
Do you agree that Russian citizens are guilty or responsible for the authorities who started the war in Ukraine?
I’m really nervous about calling an entire country, and all of its people, criminals. In international law, crime is an individual act, to be proven in each case. Responsible persons are those who order the acts or support the acts through active involvement. But the general population – I’m opposed to the idea of a person being criminally liable just because they’re a national of a country. Guilt by association or by identity is undesirable. You have to look at people and identify who is ordering, who is killing, who is torturing, who is complicit, and who investigators should focus on.
But other Russians support the idea of killing Ukrainians.
This does not make them criminally liable. In law, it is necessary – more than supporting an idea – to be actively involved and it is necessary to contribute to the act. Simply being united – if they are – without doing more is not enough. We had the same problem in Germany between 1939 and 1945, when many Germans supported the idea of Nazism. Does that make them criminals? No. Germany occupied large parts of the territory of Ukraine, many Ukrainians supported Nazism. Does that make them criminals, nothing more? I do not think so. I think we need more than general support – you need active involvement. And simply supporting does not make you a criminal under international law. These are very complex questions.