Frequently appearing before the International Criminal Court in The Hague some of his most high profile cases include bringing the infamous Chilean dictator Augusto Pinochet to justice and tirelessly working to invalidate the US invasion of Iraq. For over 30 years he has been actively trying to keep the conscience of the world in check. But it was his 2016 bestselling novel East West Street documenting the early beginnings of international human rights law post-world War II, that became a rallying call for readers around the world. Reminding us all of the importance behind securing the international order of peace.
Today it’s our polarised societies and deep political rifts that causes him much concern, he sees many consistencies to the turbulence of yesteryear. As he warns us in this chilling interview, it was only decades ago that the world experienced atrocities on an unimaginable scale and it might take another to remind us of the fragile gift of peace we have today.
We seem to be facing a dilemma at the moment, well-documented and recognised war crimes are on the increase, be it the persecution of the Rohingya people, Syrian people or the people of Yemen, but nothing can be done about it at the scale of international criminal law. Do you think these institutions are under threat at the moment because of a resurgence in nationalism and sovereignty?
There was a fascinating piece in The Observer recently on exactly this issue. My take on this is that it tends to be cyclical. For thousands of years, there was no such thing as international criminal law, no limit to the sovereignty of the state, and that all changed at a single moment in 1945. This was spearheaded in part by the ideas of Lauterpacht and Lemkin [the founders of the international criminal court] but by no means exclusively by them because states came on board with the change. 70 years on, there’s a fatigue that has set in and we are seeing an anti-international law, anti-globalisation and anti-multilateralism. We are seeing it in Trump’s speeches, in Brexit, so it’s not difficult to find where to see it. Plainly the settlement of 1945 is under threat and challenge.
But as I said, I think these things go in cycles and what we learn from history – whether it’s 1815, 1919 or 1945 – what has been set does not disappear entirely, it becomes the basis for what comes next. So right now I think we are in a period of retrenchment and, as I say to my students at UCL, it doesn’t mean that the whole idea of international law is going to collapse, although it could collapse. The political will to engage with it at the moment has just dissipated and I do think that it will take the next great conflict to come along for us to then build on what we have now.
It’s a case of two steps forward, one step sideways then backwards. That’s just the way these things work so I’m not overly concerned that the whole thing is going to collapse suddenly, I worry that the challenges it faces are because people have not thought through the full consequences. The resurgence of nationalism, including in Britain and the US, the two countries who did more than any to put the system in 1945 into place, is extremely worrisome.
A lot of the commentary that I have seen surrounding this topic agree that there is a problem that politicians at the moment are not thinking of long-term solutions to problems – they are putting policies in place for short-term gain or band-aid solutions. That there as some would put it seems to be a collective loss of historical memory. Do you think this is a danger?
Yes absolutely, people have forgotten what we are capable of doing to each other. They think it can’t happen again and that the changes that have happened over the last 70 years in Europe are irreversible. They’re wrong.
When I hear people like Boris Johnson and Liam Fox talk in such a cavalier fashion about the achievements back then and how easy it is to negotiate trade agreements and put X, Y and Z into place, they are entirely ahistorical; they have no conception at all of how challenging and complex these issues are.
Theresa May is out there trying to convince the EU to agree to a bespoke trade agreement that will incorporate something for the financial services sector, why on Earth does our government think that in the space of two years the EU and the UK can come up with the world’s first ever financial services free trade agreement? I can guarantee you it’s not going to happen.
"People have forgotten what we are capable of doing to each other."
I think this points to a more significant issue that international criminal law needs to adapt to reflect the way the world is in 2018. When you look at the UN Security Council, the countries with these incredible powers of veto are those that were the dominant world powers in 1945, but do they still have legitimacy? It seems strange that Russia should be able to veto every single decision regarding intervention in the Syrian conflict.
It’s legitimate in so far as it is what we have in international law but is it legitimate in the eyes of public opinion? Absolutely not, and it will have to change. But it will not change by negotiation. What will cause a change is the next global contraversion, and only then will there be a shift in the decision-making structures of our international organisations to reflect the actual holding of power in the world more accurately.
It sounds so negative, so do you think it is inevitable that it will have to reach the point of another major global war for this change to happen?
I do, yes just as I think that the only thing that will finally get states to act on climate change is an inevitable actual catastrophe.
I think the lesson you learn when you are in the world of international law is that, with very few exceptions, states are unable to act pre-emptively to make the changes that are needed. We lurch from one crisis to another, whether it’s in financial services or the environment. Only when we reach the edge of the abyss, do we start to take draconian steps.
It’s a really interesting time because the world is changing so dramatically that the realm of crimes against humanity is changing with it – for example, the International Criminal Court has now recognised environmental atrocities as crimes against humanity. So is there room for adapting the law in other ways?
Yes, there is. That’s what courts do the whole time. There were critical judgements in the 1990s for example that recognised for the first time that rape could be an act of genocide. States have never legislated that but judges interpreted it and now you have the ICC deciding that long-term environmental harm is capable of being a crime against humanity and certainly also a war crime and could even be genocide I suppose.
Judges interpreting an existing treaty or rule is one thing but states legislating new rules is a different thing and we’re not very good at running ourselves. We’ve got to be pretty worried that the writing is on the wall with our existing settlement and mayhem is the only that’s going to change it, which often means war.
The whole concept of international law is quite dubious in the sense that a country can only be brought to account in an international court if it has already agreed to be subject to it, so, for example, the US can’t be held to account in the ICC because it doesn’t want to be. Do you think there is a future where international law will be directly applicable to all countries?
You can’t imagine that the world will change on its axis post-1945, ratify new limits on sovereignty, recognise these new concepts like crimes against humanity and genocide and then suddenly all the horror will stop. It won’t – it’s going to take centuries. International law is a 500-year project, and when you begin to look at it like that I think you can feel a little bit more optimistic about it.
Philippe Sands pictured in middle stands at a memorial of Raphael Lemkin, Polish-Jewish lawyer who is best known for initiating the Genocide Convention.
So you are currently in the process of writing A Death In The Vatican, which is a follow up to the phenomenal best-seller East West Street. It’s another fascinating story about one of the leading Nazis Otto von Wächter; maybe you could elaborate a bit more on this for us?
Well, he is one of the characters from East West Street, and his son plays a role in the Storyville film I made called My Nazi Legacy. The story, of the book, started as part of a BBC 10-part podcast which we wrapped up at the end of last year, and it is the story of what happened to him after the war ended. He escaped and went into hiding in the Austrian Alps for three years. He then came down in late 1948, made his way to the Vatican where he was taken in by a bishop, and he hoped to move on to Argentina on what was called the ‘rat line’. In July 1949 he had lunch with a former comrade, fell ill and then died a week later.
I have access to the underlying private family archive, and so we are reconstituting what happened – did he die of an illness, was he poisoned? If so, who are the possible candidates?
"I think the lesson you learn when you are in the world of international law is that, with very few exceptions, states are unable to act pre-emptively to make the changes that are needed."
And no one has looked into this story before?
It was looked into before because this was a massive scandal in Italy in 1949. It’s a fascinating story that has taken me entirely unexpectedly into the worlds of espionage, the Soviets, the Americans, the Vatican and neofascists. It’s entirely different for East West Street and having started looking into it and becoming so fascinated by it my publisher told me I had to write a book about it.
There must be no shortage of stories you have come across in your research that you want to explore?
Oh god, it’s the greatest thing. A lot of people have asked me if I want to stop being a lawyer and become a full-time writer, but my very good friend who is also a writer said that I absolutely mustn’t because I derive all my energy and my sources from my exposure to these remarkable stories and characters.
It’s true because one of the greatest things about being a lawyer, in the world I am in, is that you really do come across the most extraordinary people. One of the other things I do is sit on the Court of Arbitration for Sport and I know already that the last book I ever write will by my ‘My Life in Sport’, with this amazing catalogue of stories from the sporting world – the things people do to win and the extraordinary things they do to each other, it’s pretty incredible.
Coming back to the story of Otto von Wächter, it reminds me a lot of the story of a sociologist called Saskia Sassen, who we did an event with a couple of years ago. She grew up in Argentina and found out that her father was a Nazi in exile and had regular meetings at their house with Adolf Eichmann. Have you heard of her?
Oh absolutely, I know the story about her father. Saskia is a remarkable person because to grow up with that story is very tough. I’ve never talked to her about it.
It makes you wonder how many other families, even today, have secret histories that they don’t know anything about. Do you think there are many?
Absolutely. If you take East West Street as an example: I get an invitation out of the blue to give this lecture at a university in a town I’d never heard of called Lviv, in modern Ukraine, and look what I uncovered? I had no idea, it was bizarre and it still goes on. I did a diary piece in the Financial Times recently because I received a letter from some random person in LA who had read the book and seen that I referred to his grandfather, and from that, we learn that this guy is my second cousin. His dad had survived the war and has lived the rest of his life hoping to find someone else from his family and until now had never seen anyone, never knew that my granddad was also alive. It’s so sad.
All the conflicts I get involved in, everywhere from Iraq and Afghanistan to Syria and the Congo, every one of these places will have stories like this.
"This is a 500-year project and we are just foot soldiers right at the beginning of it, with many bumps and crevasses along the way."
Do you think there is a natural link between being a barrister and being an author? There is a storytelling element to being in court that translates so well to what you are doing in your writing.
Definitely. Who would have thought that a book about that kind of story would sell hundreds of thousands of copies and be translated into 20 languages? It’s bonkers, but it’s because I had a great editor who helped me transform my legal skills, where it’s all about details, into a more accessible style.
I think it’s uplifting that there are a lot of smart people out there who aren’t lawyers but are interested in this stuff. I get 3 or 4 letters a day from ordinary people who are overwhelmingly interested in the idea you began with: this difference between the individual and the group. I must admit that when I started the book I didn’t think that was particularly interesting but somehow I have stumbled across a topic that touches people. It has got people thinking about who they are and how they relate to the community around them, which of course is the issue of the moment in a lot of ways.
The issue of human rights is of general interest; there is just this feeling of apathy that has developed from seeing atrocities occur every day and not having the means to do anything about it. I saw an article recently arguing that it is more difficult to bring war criminals to justice now than it was in 1945. I think that’s an awful attitude to have but what are your thoughts on this?
I’m not sure that’s right. I do think that public consciousness has changed. I don’t believe that there is more horror taking place today than there was 100 years ago, it’s just that back then we didn’t know what has happening whereas now with the Internet there’s no getting away from it.
It’s a pitifully small number but if you look at international criminal proceedings it is definitely on an upward trend, so it’s not like it is disappearing or the idea of impunity is suddenly acceptable. But I’m not starry-eyed about it either. Like I said earlier, this is a 500-year project and we are just foot soldiers right at the beginning of it, with many bumps and crevasses along the way.