Philippe Sands (3:14)

Sure. A few months after the start of the Nuremberg trial was decided, there should also be a trial of crimes perpetrated by Japan. And so the Tokyo International Military Tribunal set up shop a few months after Nuremberg worked in parallel, essentially applied the same crimes to crimes committed in the sort of Japanese sphere of influence. And the Japanese theater.

Dave Musgrove (3:43)

Was that supposed to be basically the equivalent to Nuremberg, the same model?

Philippe Sands (3:47)

It was essentially a parallel process. It tried high ranking Japanese officials. It was lopsided and victor's justice in the same way as Nuremberg, but with the same elements in the eyes of many, of legitimacy. Interestingly, it didn't prosecute the person at the very highest level. The Emperor of Japan decided not to go against that person. And I suppose that was a political decision to allow Japan to recover from its loss.

Dave Musgrove (4:21)

And then beyond the international trials you mentioned the last episode, there were basically national trials that occurred.

Dave Musgrove (4:29)

Throughout the territories. How long did they go on for?

Philippe Sands (4:32)

They went on for years and in some cases they're still continuing. Some of them are very famous trials. I've just finished reading a book about the trial of Marshal Petain in France, who cut a deal with Adolf Hitler to avoid France, if you like, being overtaken by war, and he was then put on trial. There were trials all across Europe, hundreds, thousands of trials, often involving collaborators or Germans who had been caught. There were trials in the Soviet Union, there were trials in Poland, there were trials in Yugoslavia, across the whole of Europe. A massive sort of judicial outburst of activity. I can't claim to have read all of the judgments and all of the decisions. It's almost overwhelming. But the trials actually still go on. In Germany, we have trials going on right now for very ancient, very elderly former camp guards or former accountants or individuals who were involved. But that is now really very much winding down. The people who are said to be perpetrators during the Nazi period have essentially reached the end of their lives. And so we're now in truly the post Nazi period for dealing with international justice.

Dave Musgrove (5:53)

Yeah. And then in the last episode, you talked a bit about how the conversation proceeded in the 1940s in terms of the aftermath of Nuremberg and trying to establish these rules of international criminality. I wonder, as you move into the 1950s and we start to have a very different geopolitical dynamic and there's a lot of concern about communism certainly in the west, and I guess less interest in thinking about Nazism as the threat. What happens in terms of the conversation about international law?

Philippe Sands (6:26)

Well, there's a Lot of discussion and rather less action.

Philippe Sands (6:32)

There are negotiations within the framework of the United nations at the regional level, within a body called the International Law Commission, for example, to negotiate the creation of a permanent international court that would have global jurisdiction over everything. But in short, notwithstanding the conflicts that take place, the wars that take place, whether it's Suez, whether it's Vietnam or other things, nothing happens. There are no developments. There are diminishing numbers of criminal proceedings in relation to the war years across Europe and elsewhere. And the big change really only comes in the 1990s. What happens in the 1990s is, is we have horrendous conflicts in amongst other places, the former Yugoslavia and in Rwanda, and mass killings occur in both places. In Rwanda, I mean, 800,000 people are, or more million people are killed in the space of just a few weeks, few months, and the former Yugoslavia collapses into large scale civil war, and tens of thousands of people are killed in conflict between essentially the Serbs, the Croats and the Bosnians. Against that background, and with a thaw in the Cold War, with the collapse of the Soviet Union and its replacement by the Russian Federation, the Security Council at the United nations votes to create two international Criminal tribunals. And these are the first two international tribunals since Nuremberg and Tokyo, one for Rwanda, one for Yugoslavia. And those international criminal tribunals will judge the crimes perpetrated in Rwanda and on the territory of the former Yugoslavia, irrespective of who committed them. So this is a move away, if you like, from Victor's justice, from lopsided justice. And the tribunals take as their basis for jurisdiction essentially the crimes that were adopted at Nuremberg, war crimes, crimes against humanity and genocide. There's no jurisdiction over the crime of aggression because it's not considered to be relevant or politically useful. And so those two international tribunals become operational in the mid-1990s, and they begin to deliver judgments at the end of the 1990s. We get, for example, the first judgment convicting anyone for the crime of genocide by an international criminal tribunal. We get the first judgment against a female perpetrator of a crime against humanity. Dozens and dozens of judgments get handed down at the same time, and I think catalyzed by these developments in relation to Rwanda and Yugoslavia, these are ad hoc tribunals created after the fact to deal with particular events. Efforts have continued at the United Nations International Law Commission. And in 1994, the International Law Commission produces a draft statute for an international Criminal Court. And that becomes the basis of a negotiation which concludes at a conference in rome held in July 1998, at which is adopted on the 17th day of that month, the Statute of the International Criminal Court. At this point, I mean, I, of course, born in 1960, had no involvement in Nuremberg or Tokyo tribunals, but I was present in Rome for the creation of the International Criminal Court Statute. And that was a big moment. And you really felt this was the logical outcome of the Nuremberg moment.

Dave Musgrove (10:34)

I just wonder, just going back to Rwanda and former Yugoslavia, a cynic might say that those trials occurred because there was no specific involvement from permanent members of the UN Security Council. So they were. Aside from having people be involved in, was there any logic there or was it the horror of the events that really drove them?

Philippe Sands (10:57)

I think it was the horror of the events and it was the sense of responsibility, the failure to have stopped these terrible acts of killing. But in fact, there was Western involvement in both conflicts. In relation to Rwanda, there's been a long simmering issue as to what France knew and when and whether it could have done more. In relation to the former Yugoslavia, there is the question of the assistance given by the United States to Croat forces against Serbian forces in Eastern Slavonia. These things have been indirectly looked at, but have never really been picked up. So although this wasn't Victor's justice, it was justice delivered in a form in which the roles and responsibilities of the great powers need not be addressed, need not be looked at.

Dave Musgrove (11:46)

Sorry for that little diversion. Let's go back to Rome. So you were there. What was that like? How did that feel? Like a big moment?

Philippe Sands (11:52)

Yeah, it was a five week negotiation. I was there for a group of Pacific island countries. I was on the delegation of Solomon Islands and we participated in the negotiation and with my dear friend Andrew Clapham, the Pacific Island State were asked to draft the preamble to the statute. This is normally considered not to be a very significant part of any treaty. So we give it to the sort of less significant countries. And Andrew and I thought, well, okay, well, we'll put what we think ought to go into the preamble. And one of the lines that we included in the preamble was the duty of every state to investigate or prosecute any person alleged to have committed an international crime is found within their jurisdiction. We expected that line to be cut out, but it wasn't. And so you now have in that text a commitment, really that could be potentially very far reaching. But the ICC statute creates a permanent tribunal with 18 judges who have jurisdiction over four international crimes, war crimes, crimes against humanity, genocide, and the crime of aggression. And it sets up the procedures and rules of evidence and the basis for the operation of the Tribunal. It will come into force when 60 countries have ratified. And that happens in 2002. And as of today, there are about 125 states that are parties to the Rome Statute. There are some countries that are important that are not parties to the Rome Statute. The United Kingdom and France are parties, but Russia, China and the United States, the other permanent members of the Security Council, are not. Israel is not a party, but Palestine has joined the statute of the International Criminal Court. The way the ICC works is it basically has jurisdiction in at least two fundamental ways. First, it has jurisdiction over any person who has the nationality of a party to the ICC statute. So if you commit an act of genocide, assuming you're a British national, you are subject to the jurisdictions, and that's irrespective of where you commit the act of genocide. So you go to the United States and you act in a genocidal way in the United States. The fact the US is not a party to the ICC statute is not here nor there. You, as a British national are subject to the jurisdiction of the icc. And the second way in which the ICC has jurisdiction is if any crime within the jurisdiction of the statute is committed on the territory of a party to the icc. If you are an American who commits the crime of genocide on the territory of the United Kingdom, you are in theory subject to the jurisdiction of the icc. The ICC operates also with other principles providing for jurisdiction. The Security Council can vote to determine that it has given jurisdiction of the ICC to a non state party. And the other important aspect, or one other important aspect to know about the ICC is it has a principle of complementarity built into it. What does complementarity mean? Complementarity means that the ICC statute is premised on the idea that it's first and foremost for the countries where the crime were committed to exercise jurisdiction. So it's only if that country does not or cannot or will not exercise jurisdiction that the ICC can exercise jurisdiction. In other words, it's premised on trials for international crimes taking place in national jurisdictions first and foremost. And international proceedings before the ICC are a long stop if those don't happen.

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Dave Musgrove (17:32)

Tell me a bit more about genocide. So as you said, the concept coined by Lemkin back before Nuremberg, how difficult is that as a term nowadays? And is the legacy of Nuremberg still pulling through there in kind of establishing that crime and making it meaningful?

Philippe Sands (17:53)

So the concept of genocide was invented by Raphael Lemkin in a book he published in November 1944, Axis Rule, and it describes a crime as being any act which is intended to destroy a group in whole or in part. Lenkin originally with his conception, set the bar very low. And for him it was not a numbers game. If you had a small village with a dozen people, three people from group one and three from group two, and three from group three and three from group four. If three of the groups gang up on the fourth group and kill the three people, for Lemkin, that would be a genocide. So the bar was low. States took his idea and adopted a treaty in 1948, and that set the bar a bit higher. The intention to destroy a group in whole or in part as such. And what's happened since Rwanda and Yugoslavia and the ICC and the practice of the International Court of Justice in interpreting and applying the Convention is that the bar has got even higher. As states, I think, worry that if the bar is too low, they may be caught by the tag of genocide. And now you have to essentially show that where there's a pattern of Conduct that is said to be genocidal. The court will only determine that it is genocidal within the meaning of the Convention of 1948 if the only reasonable inference to be drawn from a pattern of conduct is that it was intended to destroy a group in whole or in part. And that leaves the possibility that if you have multiple intentions, self defense, counterterrorism and destroying a group in whole or in part, it may not be ruled to be genocide. So there's an interesting debate right now as to what genocide is going to mean in practice.

Dave Musgrove (19:39)

And pulling further on the threads of the legacy of Nuremberg. If I was up in the ICC and I'd been accused of a crime and I went for a defensive I didn't know, or I was only obeying orders, would you advise me that that's not going to work in the sense that the Nuremberg Trials sort of prove that that wasn't a tenable defence?

Philippe Sands (20:00)

Well, following orders is never going to be a defence if it's an international crime. I mean, questions of knowledge and intent are mixed. Questions of fact and law that would have to be proved on a case by case basis. So if you sort of unwittingly get involved in something and are completely unaware that your acts are having these nefarious consequences, then it might be difficult to prove that you've committed a crime. Often that's not the case. People have or should have known. Turning a blind eye is often not going to be an answer in response to an allegation, only obeying orders, that.

Dave Musgrove (20:39)

Won'T get you anywhere.

Philippe Sands (20:41)

Obeying orders, I mean, it depends on the nature of the order. But the reverse of command responsibility. I was told by my commandant to kill all those people in the field. You are deemed to know when such an act of killing crosses a line into international criminality. And equally, the flip side of that is if your subordinates commit a crime and you're responsible for their conduct, you can be responsible even if you did not direct or were directly involved in that conduct. If you should have exercised responsibility, that can be sufficient.

Dave Musgrove (21:16)

So how far has all of this and the existence of the icc, with its background in Nuremberg, changed or not at all the conduct of war, I.

Philippe Sands (21:25)

Think that we're seeing right now a period in which the rules on the conduct of war are largely being ignored by important states. We're seeing that in Russia in relation to Ukraine, and we're seeing that with Israel in relation to what's happening in Gaza. But we're also seeing it in relation to what Hamas did on the territory of Israel on October 7, 2023. And these are all acts that cross lines into criminality. The question that remains open, and it'll be for courts and judges to decide, is what label you put on the crimes that are being committed. The International Criminal Court has indicted President Putin of Russia for war crimes in relation to the deportation of children, and has indicted Prime Minister Netanyahu of Israel for war crimes and crimes against humanity, along with Hamas operatives in relation to crimes committed in the case of Netanyahu on the territory of Gaza. Now, both those indictments raise legal questions. Russia is not a party of the ICC statute, but Ukraine has extended the application of the ICC Statute to its territory. And so if a Russian commits a crime on the territory of Ukraine, that Russian is in principle subject to the jurisdiction of the icc. Question that arises is whether a head of state of Russia is immune from the jurisdiction of the icc. And this is an interesting and complex question. The ICC statute itself says no one can claim immunity, not even a serving head of state. But the Russian argument is it is not a party to the ICC statute, and so it has not exceeded to given its consent to the idea that its head of state would lose immunity. The ICC judges have ruled that, that there is no head of state immunity, even for the head of state of a country that's not a party to the ICC statute. And that is controversial, and that is challenged by many people. The same thing happens in relation to Israel. An army operative who commits a crime on the territory of Gaza, which is part of Palestine, which is a part of the ICC statute, will be subject to the jurisdiction of the icc. Well, what about the head of government Benjamin Netanyahu would say, under general international law, he has an immunity from the jurisdiction of the ICC and from any courts as a serving head of government. And Israel would say that immunity has not been removed and cannot be removed by a treaty to which Israel is not a party. And that is a colorable argument. And so we're now in the domain 80 years after Nuremberg, in which we've got new levels of complexity that are coming up. But one issue that remains, I think very problematic, and it finds its roots in the Nuremberg experience, is this idea of lopsided justice. Until recently, every person who had been indicted by the International Criminal Court, which came into force the statute in 2002, was African or black. And Africans don't have a monopoly on international criminality. So there is a problem. Afghanistan was a party to the ICC statute in 2002, but there were no indictments. Issued in relation to American crimes committed, for example, allegedly at Bagram, the United Kingdom, as part of the ICC statute. No indictments in relation to alleged crimes committed on the territory of Iraq following the Iraq war. Acts of torture, allegedly. And this has left this lopsidedness in the eyes of many people from the global South, a sense that the imbalance that was set in stone by Nuremberg continues to apply today.

Dave Musgrove (25:33)

So that is Nuremberg's legacy in a way that it's not been able to create something which feels like a fair system of international justice for all.

Philippe Sands (25:41)

I think one of the legacies of Nuremberg is to allow it to be easier to have a playing field which is not level, which to take. You know, the lines of the French writer Balzac. The law is like a spider's web in which the smaller flies get caught, but the larger flies are able to get through. And there is a sense of that with the system of international criminal justice. And it's a sense which has given rise to concern and increasing concern and which needs attention. And I suspect it's partly for that reason that the ICC prosecutor will have been so interested in looking for ways to touch Mr. Putin or to touch Mr. Netanyahu, because if he doesn't address those individuals, he'll be subjected to the critique that he's perpetuating, the system of lopsided justice.

Dave Musgrove (26:37)

So in the admittedly unlikely scenario that President Putin came to Britain and was.

Dave Musgrove (26:44)

Taken into custody, would he end up in the ICC Germany?

Philippe Sands (26:48)

Well, I mean, the position in law is that if President Putin were to travel to Britain, Britain, as a member of the ICC statute, would be under an obligation of the ICC statute to arrest him and transfer him to the Hague. Yes. I mean, there may be a question as to the way in which the implementing rules in the United Kingdom to give effect to the ICC statute connect to other rules of international law in the English legal order, which say a serving head of state has absolute immunity unless that immunity has been removed by that country's participation in international treaty. I don't know how that will be addressed. These are levels of complexity for future judges and future courts, but it's not free from doubt.

Dave Musgrove (27:40)

Finally, the law that may come into play in terms of international criminality is ecocide. What's happening with that, and how does that fit into the Nuremberg conversation, if at all?

Philippe Sands (27:51)

So it's very interesting that if you start with Nuremberg and then go through Yugoslavia, Rwanda, the International Criminal Court, and all the other international and internationalized courts that have been created for Cambodia, for Kosovo, For Sierra Leone, for Syria and so on and so forth. You find that all of the crimes are what we might call anthropocentric. They're focused on harm done, they're about the protection of the human. I understand that. I don't criticize that. Whether it's aggression, war crimes, crimes, intervention, inside, it's the protection of the human. The gap is what about crimes against the natural world, what about crimes against the environment? Now there's a little bit in relation to war crimes and a little bit in relation to crimes against humanity, but not very much. And the notion that harm to the environment can cross a line into criminality is reflected in this new concept of ecocidism. It's been around for six decades. It first emerged group of American sociologists in relation to the Vietnam War and the use of Agent Orange as a defoliant. And it has picked up ever since. Most recently, an English barrister called Polly Higgins put a huge amount of energy and effort into developing broader support for the addition of a fifth international crime to the existing four, one that focuses on the protection of the environment and called ecocide. And a couple of years ago I co chaired a working group which was established to propose a definition for a fifth international crime to be introduced into an amended ICC statute. And last December a group of countries formally proposed the amendment of the ICC statute to include the crime of ecocide. So the process is beginning, but it's going to be a long game. And one of the things that is so interesting about it, and one of the reasons I'm involved in it, is that it is a crime that energizes younger people. So my own kids are very interested in the environment, very interested in the crime of ecocide. I recently did, at the beginning of this academic year, opening year, talks for groups of students in Paris and in London. And amongst the questions that I've got, a significant number of questions concerned ecocide and the environment. So I think this is a generational thing and I think that as we move forward, I've got no doubt that in due course the crime of ecocide will become part of the international legal order. But it's going to take a little while.

Dave Musgrove (30:33)

But it won't necessarily be linked to conflict because you know, in the second World War obviously there's all manner of environmental damage and depredation caused. But ecocide as a new concept that might just be something that is, you know, of daily life rather than.

Philippe Sands (30:47)

Absolutely, at all times, if you have acted with intent or recklessly in relation to the harm to the environment, whether it's biodiversity or the climate system or air pollution or particular habitats, or so on and so forth. The idea is that at all times you have a duty, backed by the International Criminal Legal Order, to be respectful of the environment.

Dave Musgrove (31:14)

Let's wrap up. Just. If you could give me some concluding thoughts on. On basically why we should care about the Nuremberg war trials. I mean, we've just done four episodes, two hours, so hopefully listeners care about it because it's a fascinating story of which you have told us a brilliant account. But why should we care? Why does it matter today?

Philippe Sands (31:33)

So Nuremberg was a revolutionary moment. It was the first time in human history that countries came together and said, the power of the state, the sovereign, the king, president, prime minister, is not absolute. You cannot anymore treat your own nationals or the nationals of other countries as you wish. You can't kill and disappear individuals, you can't kill and disappear groups. You're subject to constraints not imposed by your own legal order, but by international law. And so this was a sea change from what came before. If you go back to the time in the 1930s when Lemkin and Lauterpacht were students or young teachers, the position was that if a state wanted to kill half its population, there was no rule of international law which said you couldn't do that. With Nuremberg, all of that has changed. And the Nuremberg principles and the ideas and the rules that were adopted have been carried forward, not just at the international level, in terms of treaties like the Genocide Convention, the Convention Against Torture, and the new convention that's being negotiated now on crimes against humanity, not just with the creation of other international tribunals for Yugoslavia, for Rwanda or the International Criminal Court or others, but with the idea that national courts can also exercise jurisdiction over international crimes. It's called universal jurisdiction. And the most famous case is the Pinochet case, in which Augusto Pinochet, the former head of state of Chile, arrives in London in October 1998, and on the 16th day of that month is arrested on a warrant issued by a Spanish judge, Baltazar Garzon, alleging genocide, crimes against humanity, torture, disappearance, and the House of Lords. Then the highest court in England rules in a revolutionary judgment, which sits alongside Nuremberg, that a former head of state who commits torture has no immunity under international law if his country is a party to that treaty. And so this is an extension of the Nuremberg principles. Look, 80 years have passed. We look out at the world today. It is an imperfect world. Crimes are being committed all over the place. There are allegations of war Crimes, crimes of aggression, genocide, crimes against humanity, and impunity seems to reign. But I'd conclude with this thought, international law is a long game. When I was a young academic in the 1980s, I taught up at Cambridge University, and one of my colleagues was the professor of English legal history, Sir John Baker. And he would sometimes invite me for lunch and ask me what I was working on. I'd tell him and he'd look at me and he'd say, ah, yes, Philippe. We had a similar problem in English law And it took 275 years to sort it out. And I think that's where we are. We're at the beginning of a very long process. It's not going to work its magic overnight. We don't give up on it tomorrow because it hasn't immediately produced all the things that we want. We just keep going and we stick to the right principles, which are the power of the sovereign is not absolute. You can't kill and maim and disappear with impunity. That's the message I want to leave people with. That's why Nuremberg were so important.

Dave Musgrove (34:59)

Brilliant. Before we finish, one question. I imagine you get asked this quite a lot. You just mentioned the Pinochet case, where you famously didn't act on his behalf. Because I think your wife said that wasn't a good idea.

Philippe Sands (35:09)

She said she divorced me.

Dave Musgrove (35:11)

That's not a good idea.

Philippe Sands (35:12)

And I was able to rely on one of the exceptions, the Cabran Principle.

Dave Musgrove (35:15)

Had you have been a German lawyer in 1945, would you have defended the Nazis?

Philippe Sands (35:21)

I hope so. I mean, there are particular reasons in the Pinochet matter, but I'm a believer that everyone is entitled to have their lawyer to defend their rights and their interests, irrespective of who they are or what they've done. I've acted for many people or states whose views I do not support. I don't share. And I think that's part of our social function as lawyers. So I hope I might have. But I am pausing because to have defended someone like Hans Frank, charged with the murder of 4 million human beings, is a tough thing to imagine. But he was entitled to his lawyers, so I hope the answer might be yes.

Dave Musgrove (36:06)

That concludes our fourth investigation to the story of the Nuremberg war trials and it's legacy. I've really enjoyed hearing about it. It's very obviously a dark and difficult subject in many respects, but you've thrown a lot of light on it and helped us to understand how we've got to where we are today. So thank you very much. And to remind listeners, your books East West street, the Rat Line, and 38 Laundry Street. That's right, all worth a read and are available in all good bookshops. So Philippe, thank you very much for your time.

Philippe Sands (36:33)

Pleasure. Thank you so much for asking me.

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