“I AM today going to publicly thank Liz Truss for having the courage to start the negotiations.” This was not a sentence that I was expecting to hear.
The international human-rights lawyer Philippe Sands is talking to me, just before he delivers this year’s Christian Aid lecture, held in St Martin-in-the-Fields on 14 October. He is referring to Britain’s recent handover of the Chagos Islands.
The Chagos had been part of the British Empire since 1814. After the Second World War, the British obtained them from the then self-governing colony of Mauritius and created the British Indian Ocean Territory (BIOT). Over the next five years, we forcibly deported and resettled about 2000 Chagossians.
Some newspapers described the handover as “Keir Starmer’s shock decision”, but Mr Sands knows better. It was Ms Truss who “broke the ice within a few days of taking office” by meeting her Mauritian counterpart and agreeing to start negotiations, he tells me.
The whole episode exemplifies much in the world of international human rights. It is a world in which Mr Sands is both highly respected and well-known. His public fame was achieved by his prizewinning book East West Street (Books, 6 October 2017).
It tells the story of two Jewish lawyers, Hersch Lauterpacht and Raphael Lemkin, students in the city of Lviv in the early 20th century, who were responsible for the legal concepts of “crimes against humanity” and “genocide”. Lviv changed name and nation several times during the century. It is now in Ukraine, where many crimes are now being committed. Whether they amount to genocide is debatable, however.
The problem, Mr Sands explains in his lecture, is that, unlike crimes against humanity, for genocide you must prove that there exists an intent to destroy the group. Moreover, “the case law requires you to show pretty much that it is the only intent, [and so] if it is coupled with another intent, for example, the intent to act in self-defence . . . it’s going to be very hard, if not impossible, to prove genocide.”
HEREIN lies the problem in Gaza. Last December, South Africa brought a case of genocide against Israel at the International Court of Justice, gathering some horrific evidence in the process. The problem, however, Mr Sands reasons, is that, even if Israel could be shown to have had the intent to destroy the Palestinian people, it could argue that it was acting in self-defence, which it “plainly had the right to do after 7 October”.
That being so, it becomes essentially impossible for South Africa to win its case. In short, the law sets the bar for genocide extremely high, and makes a prosecutor’s job almost impossibly difficult. “I’ve tried on numerous occasions unsuccessfully,” Mr Sands tells his audience.
This does not render the term “genocide” useless, simply narrow — too narrow in Mr Sands’s opinion. But does this narrowness really matter? After all, “genocide” or “crimes against humanity” — they’re both horrific. Does it really matter which label we attach to an atrocity? Isn’t this a matter of angels or, rather, devils on pins?
His answer surprises me. “If an American President makes an allegation [of] . . . crimes against humanity . . . it basically doesn’t get reported or it gets reported on page 27. [But if he] makes an allegation of genocide, it’s on the front page of every newspaper in the world.”
THE phrase “human-rights lawyer” has been much associated with words such as “trendy”, “lefty”, and “do-gooding” over recent years. There is a great deal of cheap politics in the slurs, but also a serious debate concerning, for example, the tension between international law and national sovereignty, or problems of judicial overreach. Lord Sumption, a former Justice of the Supreme Court, has raised this latter point. I put to Mr Sands that the judge is on to something.
Christian AidPhilippe Sands delivers the Christian Aid annual lecture at St Martin-in-the-Fields, on 14 October
He agrees. “I sit as an international judge, and so very often I’m called upon to interpret agreements [and] treaties. . . Often, I’ll have my own belief system and my own instincts, and you have to resist those, and you have to ask yourself . . . ‘What did the drafters actually do?’
“I do not think it is my role as an adjudicator to substitute my views for the views of the legislator . . . [but the problem] in international law [is] the views of the legislature are often opaque [and] ambiguous.”
International law is complex, incomplete, and, in some instances, toothless. He is not starry-eyed — a point that he makes to me several times. Returning to Israel/Palestine in the lecture, he acknowledges that the existence of international law has done precious little to prevent the violence. “But”, he asks his audience, “ask yourselves, what’s the alternative? . . . Going back to a pre-1945 world in which there were literally no rules? In which a state was free, under international law, to divide the world into two and to say, ‘Tomorrow, everyone on this side of the room is going to be exterminated.’”
I put it to him that, even post-1945, we face similar problems, and not just in obvious conflict zones such as Ukraine and Palestine. One of the objections that people level against international human-rights law is that the West — albeit often reluctantly — does acknowledge its authority, whereas countries such as China are less inclined to do so.
He is not persuaded. “Chinese initiatives [are] all underpinned by rules of international law. China needs international law more than anybody. All of their foreign investments, all of their trade, is premised on a system of rules. They are compliant with 99.9 per cent.”
Really? I push back. Hong Kong? Xinjiang? Taiwan? He concedes the point, but counters that it’s hardly just China that is open to the accusation of hypocrisy here. The Iraq War did huge damage to the West’s much-vaunted commitment to international law.
Even the reaction to the Chagos deal — the Mail, Express, Telegraph, Economist, and Times all railed against the handover, although “not a single one [of the 28 international judges] expressed support for Britain’s claim” — shows that many of us are quite prepared to ignore international law if it doesn’t suit us. Paraphrasing the famous “long telegram” sent to Washington by the diplomat George Kennan at the start of the Cold War, Sands tells me: “The greatest danger we face is that we adopt positions they do.”
NOT perfect, then. Sometimes ignored. Often open to abuse. But incalculably better than what preceded it. And getting better every year. It strikes me that there is an almost providentialist commitment to it in what Mr Sands says: a belief that the arc of legal history may be long, but it tends towards justice.
He (kind of) agrees. It’s “not just providentialism”, he says. It’s “the only language we have in common”. Every country, every leader, even those, like Vladimir Putin, who flagrantly abuse it, “use international law to justify [what they do]. . . It’s the only language that binds every personal earth in exactly the same way and equally . . . It has a quasi-religious aspect to it.”
Not just quasi-religious. In his book An International Bill of the Rights of Man, for which Mr Sands wrote a foreword, Hersch Lauterpacht explained how he derived his ideas of minimum international human rights “from religious writings across different communities”. Recognising that he “had to ground his thesis that every human being has minimal rights” under international law “in some origin”, he adopted natural law. The “authorities that he cites are religious authorities”.
I put to Mr Sands that, for many people, there is a kind of supersessionism going on here: international human-rights law is now replacing its metaphysical predecessor. We don’t now need any deep metaphysical roots to maintain these beliefs, precisely because we have the International Court of Justice. “You’d agree with that, presumably?” I ask him.
It is the one time in our conversation when something really makes him pause. “It’s a really complex question,” he says. “I don’t know whether I’d agree with it. I’d have to think about it.”
Nick Spencer is Senior Fellow at Theos, and hosts the Reading our Times podcast.