In a remarkable book, with worldwide success, Back to Lemberg (Albin Michel, 2017), Philippe Sands recounted the exceptional journey of two jurists who played an eminent role in the Nuremberg trial: Hersch Lauterpacht, the inventor of the “crime against humanity”, and Raphael Lemkin, to whom we owe the concept of “genocide”. Both studied law in Lviv (Lemberg, then Austrian, until 1918), the city where Sands’ grandfather, Leon Buchholz, grew up. Born around 1900, the three men have other common points of having been Jewish, of Polish citizenship during the interwar period, and experienced the assassination of their families by the Nazis.
A renowned international lawyer, Philippe Sands therefore knows Ukraine well. He investigated there to write his masterpiece and goes there regularly. Today, he pleads for the establishment of a special court able to try Russian leaders for the illegal invasion of Ukraine, the source of thousands of war crimes and crimes against humanity. Maintenance.
L’Express: Why is it essential to try Vladimir Putin?
Philip Sands: Those who commit great crimes must be held accountable for their actions. This is the central idea of the Nuremberg trials [contre les principaux responsables du régime nazi]. As far as Ukraine is concerned, war crimes and crimes against humanity stem from war. It is important to judge them. But the first crime is that of aggression, committed in this case by Vladimir Putin and his entourage. From a historical perspective, his trial would set a precedent. For the first time, a leader of a permanent country of the Security Council of the United Nations would be subject to prosecution.
What can the International Criminal Court (ICC) in The Hague do to prosecute Putin?
It has jurisdiction over three crimes: war crimes, crimes against humanity and crimes of genocide. In theory, Vladimir Putin can be indicted for one of them, if the ICC prosecutor can prove a direct link between him and what happened for example in Izyoum, Bucha and Mariupol [trois villes où ont eu lieu des assassinats de civils, NDLR]. However, I am not sure that we manage to find orders from him, as the chains of command can be complex. I therefore fear that, in the event of a trial, in three or four years, in The Hague or elsewhere, the proceedings will only concern people who, unlike Vladimir Putin, Russian Foreign Minister Sergei Lavrov, senior officials military, FSB and others, were not at the big table. And so let them not be judged.
Philippe Sands, during the commemoration of the 75th anniversary of the Nuremberg trial, November 20, 2020.
AFP/Daniel Karmann
Is that why you defend the creation of a special tribunal, like the Prosecutor General of Ukraine, Andrei Kostine?
For me, the most important thing is not to create a special court in itself, but to have the possibility of judging those responsible for this illegal war. The ICC does not have jurisdiction over the crime of aggression, when committed by states that have not ratified its statutes, such as Russia. However, this is the only crime that leads directly to the Russian leaders. For 75 years, no international trial for this crime, called a “crime against peace” when used in Nuremberg and Tokyo, has taken place. This is the result, I believe, of the building of the global system by five UN Security Council countries wishing to escape such prosecution.
Why is this still a problem?
In current discussions, there is a big elephant in the room: the US and UK military intervention in Iraq in 2003 – patently illegal. Countries like the United States, a little less the United Kingdom – I know that they are open to the special tribunal in London – fear a precedent that can be used against them in the future. To my great regret, France is also opposed to this idea, which I defend with former British Prime Ministers, such as Gordon Brown, and the support of hundreds of former leaders from all over the world, but not a single one from France. , with the exception of the former Minister of Justice, Robert Badinter.
Why not wait until the end of the war to launch this special tribunal?
I come back again to the Second World War. The idea of trying senior Nazi officials dates back to 1941 and the Declaration of St. James’s Palace, signed in London by the Allied powers, and one of the main participants of which was Charles de Gaulle. This initiative leads to Yalta, in February 1945, where Stalin and Roosevelt convince Churchill to create an international tribunal. Immediately afterwards, Nazi leaders made contact with the Americans to negotiate a cooperation agreement. Himmler’s ex-number 2, then military commander of Italy, General Karl Wolff, thanks to an agreement with Allen Dulles [un des maîtres espions de Washington, NDLR], thus obtained, against his surrender, not to be tried at Nuremberg. This controversial decision made it possible to end the war more quickly in southern Europe. Today, a special court where their names are likely to appear could encourage senior Russian officials, in the entourage of Vladimir Putin, to collaborate and consider the future differently.
As incredible as it may seem, this crime of aggression appears in the Russian Criminal Code, but also in that of Ukraine…
Absolutely. Its integration into the statutes of the Nuremberg tribunal is the work of a Soviet jurist, Aron Trainin, representing the USSR during negotiations with the Americans, the British and the French, who were against it originally. Once the trial was completed, three Soviet republics incorporated this “crime against peace” into their criminal codes: that of Russia, Belarus and Ukraine. It is still there. Today, we are studying the possibility of establishing a special court by internationalizing this element of Ukrainian law in a mechanism that would be created in The Hague and where Ukrainian and foreign prosecutors and judges would sit. This has already been done with the Special Tribunal for Kosovo. A dozen countries support this idea, as well as the European Parliament and the Council of Europe.
A crime of aggression invented by Russia and then used against it, how ironic…
It is wrong to say that the Russians have always been against the rules of international law. The Tsar’s Russia was the initiative of the Hague Conference of 1899, itself the origin of the creation, for the first time, of an international tribunal, the Permanent Court of Arbitration. We owe a Russian, Frédéric Fromhold de Martens, the idea that war must respect certain humanitarian norms. In terms of irony, we could go even further: among the pleadings of the Nuremberg trial, we find remarkable texts, where Soviet prosecutors accuse the Nazis of having, in Mariupol, destroyed all the schools, hospitals, etc
Ukrainian authorities have identified tens of thousands of war crimes. How would the ICC complement Ukrainian justice?
Ukrainians will want to try the crimes where they have jurisdiction: those of aggression, genocide, crimes against humanity and war crimes. On which cases will the International Criminal Court exercise its jurisdiction? It’s not yet clear. She could exercise it for what is happening in Crimea, that is to say the territory occupied after 2014. But there are tensions between the ICC and the leaders of Ukrainian justice, because between 2014 and February 24, 2022 , it already had jurisdiction over the Crimea, but did nothing, which leaves a bitter taste in the Ukrainians.
Isn’t the war in Ukraine an opportunity for the ICC to establish its legitimacy?
The ICC is not in a very robust situation. All over the world, in Africa, in South America, in Asia, it is perceived as being under the control of Western countries, because almost all the individuals it has indicted are black and come from Africa. To establish its legitimacy, it must start charging white people.
Orthodox priest Andriy Golovin recites a prayer over the graves of unidentified civilians, during their funeral at a cemetery in the city of Boutcha, Kyiv region, August 11, 2022.
afp.com/Sergei SUPINSKY
Boutcha massacres, deportation of children, denial of a Ukrainian culture and the very existence of a Ukrainian group… Do you agree with Joe Biden, who accused Russia of committing genocide in Ukraine? ?
Yes, some genocidal rhetoric is employed. But there is a distinction to be made between the use of the term genocide in its political sense, very widely used, including by Joe Biden, and in its legal sense. It is very difficult to prove in law the intention to destroy a population group, partially or totally, because the Convention for the Prevention and Punishment of the Crime of Genocide of 1948 has set the bar high. I don’t see that kind of evidence in the papers yet.
In Back to Lemberg, you explain that there is an opposition between crimes against humanity and genocide. How to overcome this antagonism?
The International Court of Justice (ICJ) has ruled that genocidal intent must be the only one – this is a big mistake, as very often there are a variety of motivations behind mass killings. The Srebrenica massacre, during the war in the former Yugoslavia, was recognized as a genocide. But not that of Vukovar, a case in which I represented Croatia. Yet they were the same acts and the same perpetrators. I plead for a form of fusion between crimes against humanity and genocide by changing the definition of motivation.
After the 2008 war, you advised Georgia in its complaint against Russia before the ICJ. The latter finally declared itself incompetent. How did this decision have a significant impact?
It was a big mistake. Because it sent a signal to a big country like Russia that it can act as it wants without fear of the International Court of Justice looking into its actions.
Questions of international law accompany this war permanently…
I have the impression that it is different from the others: I had never seen a war where the law played a role from day one. Ukraine used it – and I’m not using the word pejoratively – to legitimize its resistance. Seized by kyiv, the ICJ ruled in March that Vladimir Putin could not allege that there was an ongoing genocide in eastern Ukraine to justify his military operation and that his army should therefore withdraw.
You just posted The Last Colony, on the deportation by the United Kingdom of the inhabitants of Chagos, the islands belonging to Mauritius. The deportation has been considered a crime against humanity since Nuremberg. How is this situation harmful for Westerners, in the context of the war in Ukraine?
Until very recently, the UK was unwilling to abide by a 2019 ICJ ruling explaining that its administration of these islands there is unlawful, that they are part of the territory of Mauritius and that it must leave the Chagossians return to live at home. But last week, the British government decided to change direction and negotiate with Mauritius. However, the Chagos affair is special: it is the first time in the history of the United Nations that the 54 African countries have voted together. When the British and the Americans go to see them and ask them why they don’t react more to the illegal occupation of part of Ukraine, they refer them to the illegal occupation of the Chagos and reproach them for this double standard , I was told.
Interview by Clément Daniez