Philip Sands, a renowned British lawyer, is the author of the East West Street: On the Origins of Genocide and Crimes Against Humanity, a book that tells the story of how modern international law regarding genocide was born in Lviv.
Sands has extensive work experience at the UN 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 during the Lviv BookForum-2022 about the tribunal on Russia, how the British people feel 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’ve been coming to Ukraine for 12 years. I first came in 2010 to give a lecture at the University of Lviv, Ivan Franko University, to talk about cases that I’ve done on genocide and crimes against humanity. I started doing that research and wrote a book that came out in 2016, called East West Street. And I’ve built a close relationship with the city of Lviv, where I now have some very dear friends. I feel a sense of solidarity.
I’ve come to the BookForum because I want to be supportive, to show my support for the city and the struggle of the Ukrainian people in this terrible, illegal war. I want to show support for my friends living in the city. So, when I was invited to talk about my books, I said, “Yes, I’ll be pleased to come.”
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You are helping Ukraine create the international tribunal against the Russian leadership. 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 am a university professor and a writer, my work is to generate ideas. I write and hope that the ideas resonate. So, one of the ideas I put in an article – “Putin’s use of military force is a crime of aggression” in the Financial Times of Feb. 27 of this year – to propose the idea of a special criminal tribunal for the crime of aggression, because for me what has happened is illegal, an act of aggression – and I noticed there was a gap in the architecture of international law, and I felt that the gap should be filled. An institution to hold individuals to account for the crime of aggression is what I proposed.
What about Putin, Shoigu, and Lavrov? Will they be punished?
First, you have to create a tribunal, one with a prosecutor and judges, and it will be for them to decide who should be investigated for the crime of aggression. So, there are a lot of possibilities, but aggression is a leadership crime, one that leads straight to the top table. In fact, it is the only way you can be certain to reach the top table, to reach those who are most responsible for the decision to start this war and to continue it. So, those people should be investigated.
But do we talk only about the war after Feb. 24 or about actions that started in spring 2014 when Russia annexed the Crimean peninsula and sent armed forces, which managed to occupy parts of Ukraine’s Donbas industrial region?
When I wrote my article for the Financial Times, I was thinking about 2022. But I know there are some people who think that you should go back to 2014, and others who want to look at 2008, Georgia, and other situations. This will be a political decision on what actions to investigate. If there is a tribunal, the competence of that tribunal in terms of time will have to be decided on that point.
Tell me, please, about what has already been done for the start of the tribunal. What else is needed?
The government of Ukraine has proposed the creation of a tribunal, and it is now supported by a number of countries. They will have to build a political will to develop support for the idea, and that’s what is happening right now. President Zelensky and the government of Ukraine are seeking support for this idea.
Is the world helping with the political will to create this tribunal?
It is not clear to me if the whole world will have the political will, but perhaps Europe will.
And Europe has? What do you think? Maybe you have to speak with these people who make decisions?
When I wrote my article on Feb. 27, did I think that it would happen? No, not really. But six months later, or more, the idea has not gone away, it continues to work its magic. Once a decent idea is off the ground, I suppose, there is no putting it down! More and more people are talking about it. And so I am beginning to think that perhaps there could be political will in the European context for this tribunal, it’s possible, yes.
Can Putin change the mind of European leaders?
Well, everyone can try to change people’s minds, but I think he is perhaps not in a very strong position, so I would be surprised if he could persuade many people.
Really? But do they support Ukraine? Do they understand Ukraine?
Yes, almost all countries of Europe support Ukraine.
But they can’t help us…
A lot of countries are helping, they are helping 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. Surely that – together with the extraordinary will of the Ukrainian people – is contributing to a marked military success.
Can this winter change anything?
I am just a lawyer and a writer, that is a question for military strategists! I don’t know whether winter is more helpful for defenders or attackers…
And I don’t know actually what’s more helpful: mud, snow, rain, or ice and cold. I think it’s much more difficult for the soldiers and the army in winter.
There is also the gas problem in Europe: Russia has said Europe can’t survive without Russian gas.
Europe can survive without Russian gas. I mean the consequence of not having Russian gas is the prices going up there significantly. And because the prices are going up, some people are saying, ‘Why are we doing this war, why are we supporting Ukraine, will this continue?’ But it’s a minority, it’s not a majority. In Britain, to be sure, it’s a minority.
Is it possible to prove acts of genocide committed by Russians against Ukrainians?
I’m not privy to the evidence. I see signs of genocidal rhetoric, but proving genocide in law, under the 1948 Convention, is tough. I think there is evidence of war crimes, and of crimes against humanity, which to my mind are no less grave than genocide. On a purely legal definition of genocide, it’s not immediately apparent to me that acts of genocide are being perpetrated. But I don’t have all of the evidence, I’m not there, and I don’t have all the details. So, I can’t give a definite view.
Do you agree that Russian citizens are guilty or responsible for the authorities that started the war in Ukraine?
I’m really nervous about labeling an entire country, and all of its people, as being criminal. In international law, criminality is an individual act, one to be proved in each case. The people responsible are those who order the acts or support the acts by active involvement. But the general population – I am opposed to the idea that a person is criminally liable merely for being a national of a country. Guilt by association, or by identity, is not desirable. You do need to look at people and identify who orders, who does the killing, who does the torturing, who is complicit, and who are those people the investigators must focus on.
But other Russians support the idea of killing Ukrainians.
That does not make them criminally responsible. In law, you need – more than supporting an idea – to be actively involved and you have to contribute to the act. Merely being supportive – if they are supportive – without doing more is not enough. We had the same issue in Germany between 1939-1945, when many Germans supported the idea of Nazism. Does that make all of them criminals? No, it does not. Germany occupied large parts of the territory of Ukraine, many Ukrainians supported Nazism. Does that make them criminals, without more? I don’t think so. I think we need more than general support – you need active involvement. And just supporting does not as such make you a criminal under international law. These are very complex issues.
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