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Philippe Sands is Professor of Public Understanding of Law at UCL, visiting professor at Harvard Law School and a practicing barrister. He is the author of Lawless World, Torture Team, the award-winning East West Street, The Ratline and The Last Colony. He has served as President of English PEN and is a member of the board of the Hay Festival. He wrote the BBC Storyville documentary film My Nazi Legacy: What Our Fathers Did and co-wrote the podcast The Ratline.
The interview was conducted during the Odesa Literature Festival, 2024, Bucharest.
VERIDICA: I will start with a quote from the film My Nazi Legacy: “Imagine what it must be like to grow up as the child of a mass murderer”. This is the first sentence spoken. Your work talks about memory and justice, about the victims and the executioners. A part of your grandfather's family was murdered by the parents of these very children, along with hundreds of thousands of other Jews. In the books, as in the film, there is not only your extraordinary determination to document the crimes and lives of the Nazi fathers, but also your empathy for their children, who are victims too. Have you imagined what it must be like to grow up as the child of a mass murderer, even if your grandfather's family was killed in the Holocaust?
PHILIPPE SANDS: So, to give a little bit of context and background. I grew up in a household in London in a place called Camden, which is still my home and which I love, with a father who was a local English boy, a dentist, and a mum who was born in Vienna and left at the age of one, when the Nazis took over after the Anschluss, and ended up in Paris, saved by a group of Catholic families. She lived just outside Paris, and then met the man who became my dad and moved to England. So, I grew up in a household where there was this past on my mum's side that no one talked about. We knew that it was there, we knew things had happened. But like many families (and I know now on both sides of the story and on all sides of all these stories), there was silence. I was very close to my grandfather, who lived in Paris. He was the one who encouraged me to become a lawyer. I didn't know any lawyers. We knew no lawyers. I met my first lawyer when I went to university. And then I got into this world of international law that was what I was interested in. And I'm quite convinced that the reason I went for international law was this part of the family background, the secret family background.
Fast forward 30 years, in April 2010, completely out of the blue, I receive an invitation to give a lecture at the University of Lviv. I had no idea where Lviv is, to be honest. I never heard of Lviv. I wrote back and googled it and saw it was in Ukraine. And then I worked out that Lviv was the same place as Lemberg, and as Lvov, and as Leopolis, and as Lwów. It's all the same place. I thought they were all different places. I mean, you're used to that in Romania, with a single town having many different names. That's not what in England we're quite so used to. And so, I decided to go because my grandfather was born in Lemberg, but he never once talked about it. I knew him until I was 38 years old. He never once talked about what had happened. I went to the University of Lviv. They asked me to give a lecture about the cases that I do in international courts, on crimes against humanity and genocide. I went not because I wanted to give a lecture, but because I wanted to find the house where my grandfather was born. One thing led to another. I prepared my lecture. In writing the lecture, I discovered that the man who invented the concept of genocide, Raphael Lemkin, had been a student at that university and they didn't know it. I thought “Great, I'll turn up and I'll have all this new information”. And then I discovered that the man who invented the concept of crimes against humanity, Hersch Lauterpacht, had also been at the same university. And I thought “This is incredible. I do cases on crimes against humanity and genocide, and I'm going to tell them that the origin is this university, this remarkable University of Lviv”. I had a wonderful trip to Lviv, I loved it, I love that city. It's really become part of my heart and soul. It's a dark place, but I feel at home there.
So, I started writing a book about three men: my grandfather, Lauterpacht (the inventor of “crimes against humanity”) and Lemkin (the inventor of “genocide”). And then into the story comes a fourth man – and finally getting round to your question. His name is Hans Frank. Who is Hans Frank? Hans Frank was Adolf Hitler's personal lawyer from 1928 to 1933, so not just anybody. And he then gets various appointments – Minister of Justice in Bavaria and in 1939 is appointed Governor-general of Nazi-occupied Poland – he oversees the implementation of the mass killings of Poles, of Jews, of homosexuals, of Roma and of many other people. And I made him the fourth character in the book. When I do research for a book, it's like preparing for a case: you leave no stone unturned. You have a research assistant who speaks German, another one who speaks Russian, another one who speaks Italian. And you just find everything that's been written about Hans Frank. And I find a book that has been published in German called Der Vater, ‘The Father’, by his son, Niklas. I tracked him down and I met him in Hamburg, where I'm doing a case as a guest of the International Tribunal for the Law of the Sea in 2011. And he says “Come, we'll have a drink. I go into the terrace overlooking the river and he says, “Hello, I'm Niklas Frank, the son of Hans Frank”. And the next thing he does, he puts his hand in his pocket, and he takes out a photograph of his dead father which, for an English person, is a strange thing to do. Maybe German people do this, I don't know, but I was a bit surprised. He said “I keep this photograph with me. My father was a mass murderer. I am against the death penalty in every case except my father. And I look at this photograph every day to make sure that he is dead”. And with those words began a very close friendship. And I can say, it's very strange 75 years on, after the terrible events, we are dear friends. I love him, he loves me, and we are sort of living proof of what is possible in terms of reconciliation in a relatively short period of time.
VERIDICA: I know you don't believe in coincidences.
PHILIPPE SANDS: I do. My wife doesn't.
VERIDICA: Okay, that's great! So, it is a coincidence that Hersch Lauterpacht and Raphael Lemkin, those who invented the concepts of crimes against humanity and genocide, had the same teachers at the same Law school in Lemberg. It's a coincidence that your grandfather, Leon, was born in Lemberg. Then, Otto Wächter, the character of the second book, The Ratline, and Lauterbach entered the law school in Vienna, both in October 1909, another coincidence. It's a coincidence that Hans Frank gave a speech and Otto Wechtor was in the audience in the same room where you would deliver a lecture 70 years later in Lvov. Another coincidence is that in 1982 you took a course on International Law taught by Eli Lauterpacht, the son of Hersch Lauterpacht. And maybe the strangest one is that Hans Frank, Otto Wector, Hersch Lauterpacht, and Raphael Lemkin are lawyers, just like you. So, are those coincidences or, as Jung put it, is it synchronicity, a meaningful coincidence?
PHILIPPE SANDS: There's one more that I thought you were going to mention. Eli Lauterpacht was my teacher of International law. He was the only child of Hersch Lauterpacht, inventor of the concept of crimes against humanity, who was born in Lviv, moved to Vienna in 1919. He moves to London in 1923, becomes professor at the London School of Economics and then in 1937 professor at Cambridge University, and then, even more remarkably, in 1954, the British judge at the International Court of Justice. And I remember when I went to Lviv and gave that first seminar in October 2010, there were about 40 law students from the University of Lviv. And I began by saying “Could any of you imagine in 40 years’ time, being the British judge at the International Court of Justice?” And they looked at me like I was a totally crazy person. But that's what happened. And it's, in a sense, a real tribute to Britain, that you can have a situation where someone who is a refugee in that way is elevated in that context.
So, Eli was my teacher in 1982 and then again in 1983. I then went off and spent a year in the United States, and while I was there, Eli Lauterpacht wrote to me and said, I'm creating a new research centre for International law at Cambridge University. Would you like to be one of the people to apply? I applied, I got the position and so began my career in international law as a research fellow at Cambridge University, working with Elie Lauterpacht. Eli and I worked together for another 35 years; he died 3 or 4 years ago. (Sir Eli Lauterpacht, 1928-2017, e.n.) He was my mentor. He was my friend. I loved him deeply. I learned so much from him. I'm hugely grateful to him. But imagine his reaction when in 2014, on my sort of crazy quest for research on the origins of my grandfather's life in Lviv, I discover that my grandfather's mother, my great grandmother, was born in a small town just outside Lviv, which in the Polish period was called Zółkiew. Today is called Zhovkva. It's basically a town with two streets. There's one street that goes north-south, and there's another street that goes east-west. I discover, unbelievably, that Hersch Lauterpacht was born and lived on the same street as my great grandmother. He lived in Zhovkva for the first 15 years of his life. So, imagine when I come to see Eli in Cambridge and I say, “You're not going to believe this, Eli, but we can trace our connections to a single street in a place thousands of kilometers away!”
VERIDICA: A word stayed with me after I read your books: Decent. “Decent man”. Hans Frank's son, Niklas, as you said, believed that his father was a war criminal. Otto Wächter's son, Horst, believed that his father was a “decent man”. Both fathers were proven war criminals. Did memory work differently for each of them?
PHILIPPE SANDS: Again, for people who haven't read the books, just a little bit of context. So, I get to know Nick (Niklas Frank, e.n.), and Nick despises his father. I mean, it’s an understatement, it's beyond despising. There's no word that adequately describes his feelings of bitter hatred towards his father. One day, Nick says to me, “Ah, Philippe, you're interested in Lemberg, Lviv. Would you like to meet the son of the governor of Lemberg, Lviv district, Galicia? His name was Otto Wächter's”. I said “Oh, yeah, I know that name!” And he said “Well, his son is a very nice man, and I know him. We're all friends!” Pause, square brackets: one of the unknown things is that the children and grandchildren of senior Nazis are all in touch with each other. There's like this informal network, not of political solidarity, but this sense of connection. They all know each other. So, he said “I'll introduce you to Horst. You will like him, but you will not like his views!” So, we go off to this tiny little town called Hagenberg, where Horst, who is a child of the 1960s, a sort of psychedelic kind of person, lives in this castle that he bought for 25,000 Austrian schillings in the mid-1980s. It is enormous. It has 105 rooms and it's 700 years old. And he lives in two rooms with his wife Jacqueline, who is a Swedish socialist and can't stand Horst's family. In fact, so much can Jacqueline not stand Horst's mother that she divorces Horst, because Horst is so dependent on his mother, that he will have two dinners every evening: first, he has dinner with his mother and then he goes and has dinner with Jacqueline. That was how it used to be then. Then the mother, Charlotte Wächter, dies, long after her husband Otto, governor of the District Galicia, who is the subject of The Ratline, who dies in mysterious circumstances in Rome in 1949. And the day after Charlotte, the widow of Otto Wächter, "dies, Jacqueline tells Horst she's ready to marry him again. So, they get remarried. And by the time I come on the scene, they're living together, but in separate rooms and barely talking to each other.
The point is the first thing Horst says is “I'm not like Nick. I think my father was a great man. He did great things, and if there were excesses, he was not involved in them”. That's his position and he's wrong. But he has an infatuation for his father that is, I think, not so much to do with the love of the father, but the love of his mother is a sort of transferred love that he loves his mother so very much. And because his mother loved the father, so he has transferred the love. It's a very complex relationship. I'm still in touch with both. Whenever I do an event in Austria, the organisers receive a communication from Horst, who's now 86 years old, but pretty fit to say that although he likes Sands personally, Sands has completely misunderstood his father and he wishes to have an opportunity to set the record straight by sharing with the audience all the good things about his father that Sands left out of his book. So, it's a complicated relationship.
VERIDICA: You had a unique access to one of the most important private Nazi archives, that of the Wächters: documents, diaries, letters, photographs, I think over 10,000 pages. Probably this is the most important archive that is documenting the daily life for decades of a family at the top of the Nazi hierarchy. Why did Horst give you access to this archive?
PHILIPPE SANDS: He knows the answer to the question. It was a particularly fabulous moment that took place just outside a town called Brody in Ukraine, the birthplace of Joseph Horst, actually. And every year, in a field outside Brody, there is a commemoration of a military division that was created by Otto Wächter in 1943. The division is called the Waffen SS Galicia Division, and it's famous because it was the first Waffen SS division made up wholly of non-Germans, all Ukrainians. It's actually the root of much of Vladimir Putin's claim that Ukraine is full of Nazis. It's not full of Nazis. But like every country, including Romania, including Britain, there are Nazis, and there are Nazis in Ukraine. And once a year they gather to celebrate the Waffen SS Galicia division. And when we were filming My Nazi Legacy, Horst said, “I'll go with you to Lviv, but we have to go at the same time as the commemoration of my father's Waffen SS division, because you will enjoy it, 14th of July”.
Just pause for a moment, lest you think this is old history with no relevance today: some of you may remember that extraordinary moment in Ottawa, a few weeks ago, when President Zelenskyy went to Canada, addressed the Canadian Parliament, and the Speaker of the Parliament invited and honored a Canadian-Ukrainian guest. The man stood; every parliamentarian stood up. Hundreds of people applauded this guy and it then turned out he was a member of Otto Wechtor's Waffen SS Galicia division. And of course, the thing went viral in Russia – “It just proves that they love Nazis!”. And the Speaker resigned from his position because of the embarrassment. So, these are not mere historical things.
Anyway, we're there, an appalling day with hundreds of people dressed up in Waffen SS uniforms, celebrating the heroics of that division. Niklas was devastated. I mean, he was really upset by it. We were there, the three of us, with a film crew from the BBC, David Evans, my friend from university, was the director (he also directed Downton Abbey, in case you like those kinds of programs). And at a certain moment, Horst really got very comfortable with these characters. I interviewed Niklas afterwards and he said, “You know, Philippe, I think that Horst actually is a Nazi, a new kind of Nazi”. I said, “I disagree”, I said on camera, “I don't think he is. I just think it's this sort of infatuation of his mother and father. I don't think he's a Nazi.” But that made its way into the film.
And Horst saw the film and was very upset and asked me, Philippe, how can I prove that I'm not a Nazi? Now, if there are any lawyers, diplomats, or journalists in the room, you'll know that proving a negative is actually not so easy. You know that. How do you prove you're not a Nazi? So, I thought about this question, and I said, “Well, you've shown me 1 or 2 pages from this extraordinary archive of your mother and father – every single letter they wrote to each other back and forth, both sides, between 1929 when they met, and 1949 when he died in Rome in a Vatican hospital. So, you've got the entire life of a top table Nazi couple, their diaries, their photographs. I'd seen a little bit of it, and I said, “Well, why don't you give that to a museum? Because Nazis don't give that kind of material to a museum”. Fantastic idea! Four archivists from the United States Holocaust Memorial Museum in Washington come over and digitize absolutely everything. You can just go onto the Washington Museum website and just type in ‘Wächter Archive’, and you can look at the documents themselves. The documents are unbelievable. I mean, unbelievable. And that was the story that became The Ratline, which is the first book, I think, because of the archive, that gets you the hard original information on how between 1945 and 1949, the top Nazis organised their escapes to South America. And it was fantastic material.
And so, I'm intensely grateful to Horst. Horst, I think sort of regrets it. His nephews are not thrilled that all this stuff is now publicly available. And when I wrote The Ratline, which is now translated here in Romanian, which I'm incredibly pleased about, we did a BBC podcast at the same time, which is free on the BBC. And you can hear John le Carré and Horst Wecther and lots of interesting people. And when episode 10 finally went out, I got an email from Horst Wächter’s only child, Magdalena just saying “I've listened to the whole podcast, and I've changed my mind. And I now agree with your interpretation of history about my grandparents, not my father's interpretation”. And the email came out of the blue - we'd met once, 7 or 8 years earlier. I didn't have a relationship with her, and she then posted on Facebook the simple words “My grandfather was a mass murderer!” And the consequence of that was dramatic: Horst completely disinherited her. And she says “Well, okay, that's the price that I pay for saying what I believe, but that's what I believe.” She's become very close to Niklas. One of the themes that emerges if you take the two books together is the question of the legacy for future generations of these kinds of traumas.
Coming back to your very first question, I had grown up only knowing the legacy of trauma on the victim’s side. So, suddenly, I'm confronted with these two very lovely, special men who were not responsible in any way for what their fathers did, who I like personally. And I see that they are completely traumatized by having to live with the burden of a dad who murdered a million people, or 3 million people, or 4 million people. You can't imagine what that's like to live with. And it goes on to the next generations. It goes on to the grandchildren and the great grandchildren. It's overwhelming. And I had never thought about that. There's a lot of empathy from me towards them because, in a sense, we're carriers of emotions and passions and reactions of things that we're not responsible for, but we've inherited.
VERIDICA: Well, the podcast is great. I mean, you must listen to it. It was broadcast before you published the book, and that's very interesting. You can hear Charlotte, who is the, I think the main character of the book, the strong one, not Otto. She's a “decent” lady for her neighbors. So, speaking about the domestic front during World War Two, how guilty is Charlotte? Was she complicit in her husband's crimes?
PHILIPPE SANDS: Well, she wasn't physically complicit, but she loved everything that he did. For those of us who are in relationships which are close relationships, we understand that very often, when we take a decision, we go to the person that we are closest to, if we have doubts about what we're doing or not, and we seek their advice. I do that the whole time. In the case of Otto and Charlotte, it's captured in a particular moment on the 15th of March 1938, I think is the exact day, when Adolf Hitler comes to Vienna, and there are massive crowds in the audience. And he speaks on a balcony of the Hofburg, overlooking the Heldenplatz. And on the balcony are Charlotte and Otto, two meters from him, because they're that close to Hitler. It's what happens next that is so fascinating and it's in their documents and their correspondence. They go into the building, they walk down the big marble staircase, at the bottom they stop, and Otto says to Charlotte “I need your advice. I have a choice: I can remain in my job as a commercial lawyer, and have a very comfortable, even wealthy life under the new regime, or I can accept the offer of our friend. Seyss-Inquart [Arthur Seyss-Inquart, Nazi leader, Chancellor of Austria after the Anschluss, tried and executed as a war criminal at Nuremberg] to become a state secretary in the new administration. What should I do?” And she is like, “Take the job in government!” You know, she wants the apartments, the villas that they're going to get, the Mercedes Benzes, the adulation, the baubles - that's what she wants. And she pushes him, and she knows everything that he does.
His very first job from early 1939, as state secretary, is removing every single Jew from public office. So, he removes 16,897 people from public office. These are senior judges, ministers, the prosecutor general, a postman, and everyone in-between gets a letter. What's not in the book (because it happened afterwards - the book came out in German in September 2021), on Christmas Day, the 25th of December 2021, I received an email from a lady that I didn't know in Vienna, a historian. And she wrote to say “At page 37, or whatever it was of the German edition of your book, you mention my grandfather, and I was surprised to find a reference to him. He was the Minister of Justice in the pre-Nazi government, and he was removed from his post eventually. And we've got the letter in the family that removed him from his job, which has a signature which is not eligible. But it doesn't have the name of the person who signed it. So, we have never known who the person was responsible for removing him from his post. Now, with your book, I learn that it is Otto Wächter, but that's not why I'm writing to you. I'm writing to you because I live in the house of my grandfather and my next-door neighbor and best friend is the granddaughter of Otto Wächter”. So, you know, these secrets that then come out many, many years later emerge in very complex ways, these are very complex stories. You know, Faulkner said “The past is never dead. It's not even past”. I don't know Romania well, but from the literature that I've read of Romania, this is something you will understand incredibly well.
One of the books, incidentally, that, for me, was an important source of material about Hans Frank and Otto Wächter, is a remarkable book called Kaputt, published in 1944 by an Italian called Curzio Malaparte. And you may want to read it. It tells several different stories. I focused on the Krakow stories in which Frank and Wächter appear, but there is a Romanian story also with Iași, and I've never really focused on that. And now being here, I want to know more about that part of the story. What's so fascinating for me is the book is as a novel. But in fact, Malaparte was the correspondent of Corriere della sera, and he spent time in Krakow with Hans Frank and a friend of mine at Corriere della sera found the original four articles that Malaparte sent for publication from Krakow, and I then compared the newspaper articles from 1942 with the book that was published in 1944, and you can see a slight change of direction. The 42 journalist articles are just full of adulation about the remarkable, handsome, gorgeous piano-playing Hans Frank. By the time you get to 1944, the tide has turned. Frank isn't quite as gorgeous as he was, and it's fascinating to trace that relationship. I mean, I have a complex relationship with Malaparte because I really don't like his politics, but he is a fantastic writer.
VERIDICA: Another coincidence: in the same very room where Malaparte talked to Hans Frank years after, in 1990, Nicklas Frank went for an interview to Lech Wałęsa.
PHILIPPE SANDS: Nick Frank is himself a very distinguished journalist for Stern magazine. When the changes took place in the late 80s and the early 90s, he was sent to Poland. He went to Belvedere Castle in Warsaw to interview Lech Wałęsa. And immediately he came into the room, he recognized it. It had been his father's office in Warsaw, with still the same round table, around which his father had chased him playing games on one occasion. And I asked Nick, “Did you tell Wałęsa you knew this room?” And he said, “I didn't think that would be a good idea…” He's got a fantastic sense of humor, Nick.
VERIDICA: Well, let's take to the justice matter. At Nuremberg, Robert Jackson, the Chief United States Prosecutor quoted Kipling: “Leave to live by no man’s leave, underneath the Law”. This poem, The Old Issue, defines the qualities of a good man for his son to aspire to. That’s a strange coincidence for our talk; I assume you don't often hear quotes from poetry in war crimes courts. Does the Law help us to understand what is evil, as literature does? Do you believe in such a thing as evil?
PHILIPPE SANDS: So, I’d never call Hans Frank or Otto Wächter evil people. They’re people who did evil and terrible things, but they were also capable of acts of humanity and love and warmth and affection. And that's the complexity of life, things are not binary. And I often imagine having dinner with Hans Frank, a highly intelligent, highly cultivated man. And I think we would probably have had a pretty good dinner; it would have been interesting. I think he was more interesting than Wächter, who was a sort of ambitious ideologue, who was very firmly committed to what he did. So, my take on it is that every person, in principle, can do terrible things. I mean, I ask myself, are there circumstances in which I might do terrible things? And the answer must be one can't exclude that possibility, you just don't know in what situation you would find yourself. But I've always been a big reader. And I’m married to a woman who comes from a big literature family in both France and the United States. So, books and literature and reading are a very big part of our life. I teach at the university, I'm a professor, and I make all my students read novels and fiction to basically understand more about the being of a lawyer.
If you take the Nuremberg trial and look at the best writing about it, some of it is nonfiction and some of it is fiction. Interestingly the best writing about Nuremberg is by women. The women who sat in the courtroom and watched what was going on were able to see things that the men, mostly journalists, rather novelists, did not see going on in the room. It's really fascinating. I'm thinking of three writers in particular who are remarkable raconteurs, both as novelists and as nonfiction writers - Rebecca West, Martha Gellhorn and one who has fallen, if you like, off the pedestal and is generally not known (I'd be surprised if anyone knows her name), Janet Flanner. Janet Flanner was the Europe correspondent of The New Yorker magazine, and, you know, with each week's edition of The New Yorker came a Letter from Europe. And she did quite a few Letters from Nuremberg. And they're just rich and fantastic in ways that the male writing of that trial does not capture. They spot little exchanges: the raising of an eyebrow, the raising of a voice, the way Hermann Göring is described as looking like the madam in a brothel. And ever since I've read that, I've never been able to get it out of my mind – that was what he looked like.
I think that literature and art painting help us understand these processes and these proceedings. This is a big issue in my next book I'm just finishing right now, the third book. It's going to be a trilogy. It's East West Street, The Ratline and the third one takes the story of two men, Augusto Pinochet and a man called Walter Rauff. Walter Rauff was the man who invented and operated the mobile gas vans before they had Treblinka and Sobibor and Belsen and all these places. They had little vans which would go around the countryside, gathering people in groups of 50 and gassing them to death. And so that's Walter Rauff's project. Walter Rauff was a close friend of Otto Wächter. They worked together in Berlin in ‘38 and then in Milan in ‘43 and ‘44. And I came across Rauff's name in a letter in the archive, the famous archive sent to Otto Wächter in May 1949 from Damascus, Syria, to where Rauff has fled, telling Wächter “Don't go to the Arab world. It's not a good place for Germans. They don't work very hard; they're disorganized, blah blah blah.” Not ideal, not politically correct language today, but that it's a long-typed letter, quite well written.
And I noticed this letter and I asked myself “Who is this person, Walter Rauff? I know I've never heard of him”. But it rang a sort of vague bell, so I followed his trajectory. He leaves Damascus in ‘49 and goes to South America and he ends up in Quito, Ecuador, with his wife and two children. While in Quito, they make new friends, they make a new life. He and his wife, Edith, meet a wonderful Chilean couple who say, “You're in the wrong country. You should be in Chile, because we have lots of Germans in Chile, and we like people who are like you. We feel warm towards you.” So, the family moves to Chile, all the way to the south of Chile, to a town called Punta Arenas in Patagonia. And they make a new life there, there are ups and there are downs. And Rauff becomes the manager of a king crab cannery, putting the flesh of crabs into tins for export to South America and Europe. And life continues. And then, on the September the 11th, 1973 (the other September the 11th) miracle of miracles: Rauff's friend from Ecuador becomes president of Chile. It's Augusto Pinochet. They've been friends for all this time. And all the rumors in Chile are that Rauff then went to work for Pinochet's secret intelligence service, the DINA. But there was no evidence at all. So, I've spent a lot of the last seven years looking for the evidence, if any, of what Ralph did with Pinochet. And that's what the next book will be about, the lives of the two men, which then moves into the arrest of Augusto Pinochet in London, in a case that I was involved in on the question of whether he had immunity.
VERIDICA: Let's finish with another “decent” man, Vladimir Vladimirovich Putin. At Nuremberg, it was the first time in human history that the leaders of the state were put on trial before an international court for crimes against humanity and genocide – the two new crimes that Lauterpacht and Lemkin coined. 50 years after Nuremberg, the International Criminal Court was founded. You worked at the preamble, and you've been involved in many significant international cases - Pinochet, Congo, Yugoslavia, Rwanda, Guantanamo, Rohingya, etc. In 1999, the Serbian President, Slobodan Milosevic, was the first serving head of state to be indicted for crimes against humanity. In March last year, ICC judges issued arrest warrants against Vladimir Putin, allegedly responsible for the war crime of unlawful deportation of population from occupied areas of Ukraine. You said that proving the crime of genocide is difficult. We don't expect Putin to come in the court soon, at least. But why is it so difficult to prove those crimes?
PHILIPPE SANDS: It's not difficult to prove all the crimes. Before June 1945, at a meeting in London, where the four Allied powers came together, there was only one international crime: war crimes, which had emerged in the middle of the 19th century from Russia. The first instrument is the Declaration of Saint Petersburg of 1868, ironically enough. In the 1890s and the 1900s, the Tsars were very supportive of developing war crimes law. But when the Allied powers negotiated and drafted the Statute of Nuremberg, they needed more crimes, war crimes were not enough. So, they basically invented and then retrofitted these three new international crimes, which we still have today - crimes against humanity, which is basically about harm to individuals, invented by Lauterpacht; genocide, which is about the destruction of groups, invented by Lemkin; and what in 1945 was called crimes against peace, today, the crime of aggression. And the International Criminal Court has jurisdiction for three crimes that may be committed on the territory of Ukraine: war crimes, crimes against humanity and genocide. And it's clear that war crimes have been perpetrated. I'm confident also that crimes against humanity have been committed as well. I don't think you can describe Putin's actions as genocide. There's been some genocidal rhetoric “They don't exist as a people”, “There's no such thing as a Ukrainian”, but no acts of genocide as such. In the legal sense, that's very difficult to prove, because of a series of cases which have set a very high threshold for proving the intention to destroy a group in whole or in part, which is how you prove genocide.
But when Putin launched his war on Ukraine two days later, The Financial Times got in touch with me. And again, this is, I suppose, a story of how literature and writing (I mean, I don't write fiction, I write what in Germany is called “literary nonfiction”), but how writing changes subsequent developments. So, two days after the war begins, the editors of The Financial Times get in touch with me and say, could I write 700 words on Ukraine and international law? Why did they choose me? Because I'm an international lawyer, and because I've written about Ukraine, because I've spent a lot of time in Lviv, because the book East West Street deals with Ukraine. So, I say, “Yes, I will do that.” And I think for about a day on what to write, and I end up focusing on the gap in the jurisdiction of the International Criminal Court. They can deal with war crimes; they can deal with crimes against humanity. If genocide happens, they can deal with that. They can't deal with the crime of aggression. As with Nuremberg, the crime of aggression, for me, is the most significant of all the crimes, because if he hadn't invaded, none of the other crimes would have happened. The second significant reason is it's a leadership crime, the crime of aggression. It's the only crime that goes straight to the top table. And there's going to be no difficulty putting questions of immunity on one side, establishing the responsibility for the crime of aggression of Mr. Putin, Mr. Lavrov, Mr. Shoygu, probably 3 or 4 top military types, 3 or 4 top FSB types, and maybe some of the people who've provided the finance to make this happen. The problem with war crimes and crimes against humanity is proving the role of a head of state is very, very difficult. And I proposed creating a special criminal tribunal for the crime of aggression, which had not happened since 1945. And it's not happened because the big powers have a common interest in keeping the crime of aggression off the table for various reasons.
So, you know what it's like much better than me: you write an article, and over the next 24 hours, a small number, in my case, a very small number of people get in touch and say “Terrific!” or “Terrible!” or “I disagree!” or whatever. This was completely different. Within 24 hours, I'd had hundreds of emails and not just from people I knew, or academics from all over the world, and from former heads of government and heads of state, including two in the United Kingdom, led by former prime minister Gordon Brown, from Australia, from Canada, from Georgia, from Norway. I mean, it was really an avalanche. And amongst the contacts was one from the Ukrainian Foreign Minister whom I didn't know, Dmytro Kuleba, who had read East West Street, and he had someone to phone me and that person said, “We want to run with this idea!”. That was how it began, it happened within 48 hours. And so, one thing led to another, led largely by Gordon Brown, because it turns out that, just as children of former Nazis have fantastic address books, former prime ministers have fantastic address books. And for the next two weeks, there were regular every 2 or 3 days Zoom calls with these former heads of state from across Europe and other parts of the world. And the issue ran and ran.
And now there is a core group of 40 countries that support the creation of a special criminal tribunal for the crime of aggression. But they've got stuck not on whether to create a special court, but what sort of a special court to create. So, there's a larger group of countries, but they're smaller countries led by Ukraine, the Baltics, Poland, I can't remember what Romania's position is on it, they want a full international tribunal. And then there's the UK, the US and France who are nervous about a full international tribunal because they say, “Well, if you can create a full international criminal tribunal for one permanent member of the Security Council today, why can't you do it tomorrow in relation to us?” And the elephant in the room for Britain and the United States is Iraq, of course. So, they want a lower-grade international special tribunal for the crime of aggression, which isn't a full-on international one, but what they call a hybrid, possibly with an international element seated in The Hague. And right now, the negotiations are about building a bridge between those two models. So, it's interesting. I would never have predicted it would get as far as it does. I sort of now hope that it happens, because I think that there is an important political need for solidarity amongst that core group of countries, and the division between them basically only helps one side. And right now, I think, is a very difficult moment for Ukraine militarily, politically, they've got the law on their side. And so, I'm hoping that there'll be a sort of coming together now, to try to find a compromise which everyone can live with. But if you had asked me the day the article came out on the 26th of February 2022, could I imagine that there would be a special criminal tribunal, I would have said it's less than 0.00001%, so it's come a long way. It's quite interesting.
