Law and Identity: In Conversation with Philippe Sands QC

Laura Ryan 25 January 2021
Image Credits: Philippe Sands

As I sit in my solitary Zoom session, I’m acutely aware that the interviewee who’s about to join the call is a very heavy hitter. Professor Philippe Sands QC is a Franco-British barrister and academic who tackles high-profile international cases concerning genocide, torture, trade disputes, and the environment. He is also the author of several popular books, including the acclaimed East West Street: On the Origins of Genocide and Crimes Against Humanity. Much of Sands’ recent writing and broadcasting has centred around the Nuremberg trials and the Holocaust, which claimed the lives of many of his relatives. After addressing the Cambridge University Law Society on the 19th of January, Professor Sands spent a very generous amount of time virtually chatting with me. We cover a lot of ground – including some of the most topical issues in British politics, his literary career, questions of identity, and lockdown book recommendations.

In 2011, Sands served on a commission for the coalition government, tasked with investigating the creation of a UK Bill of Rights. The Conservatives were in favour of scrapping the Human Rights Act (HRA), and replacing it with a UK Bill of Rights, while the Liberal Democrats were strong supporters of the HRA. Sands and his colleague Baroness Kennedy published their dissenting opinion in the London Review of Books, expressing concerns that the motivation behind the proposed Bill was a desire to withdraw from the European Convention on Human Rights. The opinion characterises the Commission as comprised of “some for whom a Bill of Rights may be little more than a re-branding exercise”, and others “for whom it offered a convenient means to reduce rights, and to cast off Europe and return to the delusional idyll of an earlier age of sovereign authority”. These comments seem to foreshadow later criticisms of Brexiteers, so I begin by asking Sands if, at the time, he had any premonitions of what was to occur in the next decade in British politics.

“It’s not that a referendum or leaving the EU was in the air. Some of the people plainly wanted to leave … They just wanted somehow to be sovereign again, whatever the price. And it became very clear when they couldn’t think of a way to untangle the Human Rights Act from the devolved legislation, giving devolution to Scotland, Wales, and Northern Ireland. And they weren’t smart enough, frankly, to think of a way of doing that. But they didn’t care. They just wanted to hack, they just hated it. And I think that’s what we’re seeing now. We’re seeing the consequences of it now in a real world for these little firms. It was intellectually in the air. So they’ve just had this agenda and they’ve triumphed, but the triumph is going to be very short-lived. I think they’re going to be disappointed.”

In their 2017 manifesto, the Conservatives pledged that they wouldn’t replace the HRA while the Brexit process was underway. I’m interested in what might happen now that the UK has left.

“Well, there is a provision in the EU/UK free trade agreement. It has a slight ambiguity to it, but it essentially commits the United Kingdom to staying in the European Convention. Now that doesn’t mean that these folks won’t try to get Britain out, and they may well try to, or they may conclude they’ve achieved their main objective. I always thought the ECHR was a stalking horse for the European Union. And Michael Gove said as much to me. In 2015, I met with him and he said, ‘We’re going to fail with the European Union. We won’t leave. So we’ll then have to focus on the European Convention on Human Rights’. Now that they’ve succeeded on the European Union… it’s an interesting question as to whether they will proceed on the ECHR.”

As we speak, Sands checks the news to find that the trade bill amendment (the ‘genocide amendment’) has been voted down in the House of Commons. The amendment was intended to prevent the government from entering into free trade deals with countries that UK courts determined were guilty of genocide. A common argument amongst those who opposed the amendment is that these decisions should lie in the hands of international courts.

“The foreign secretary  – who makes that argument – is a deeply hypocritical individual. Because he is on the receiving end of a decision of the International Court of Justice from February 2019, saying the United Kingdom has no rights right to occupy the Chagos Archipelago. And he has two fingers up at International Court of Justice. So he is a hypocrite. He applies double standards. He has no commitment to the rule of law. And his words are utterly meaningless.”

The mention of this ruling prompts me to ask Professor Sands to recount some of the high points of his legal career. Unsurprisingly, he has some trouble choosing a single case. He mentions a revolutionary judgement of 1999, where the House of Lords found that Chilean dictator Augusto Pinochet was not entitled to immunity, as a result of torture conventions. Also in the running is the advisory opinion on the Chagos archipelago, where the International Court of Justice ruled that the United Kingdom had violated international law in detaching Chagos from Mauritius in 1965, and that the Chagos archipelago remained part of Mauritius.

“The reason I care so much about that case, is because it’s about the legacy of colonialism, and the mistreatment by the United Kingdom of communities, in this case in Mauritius. And I think a lot of what’s going on in Britain today is a legacy of the failure to acknowledge where excesses were committed. And whether it’s racism, or slavery, or the treatment of foreigners, and immigrants, I think it all has its roots in this hubristic sense of entitlement that Britain somehow is still deserving of empire status. That case burst the bubble.”

And I think a lot of what’s going on in Britain today is a legacy of the failure to acknowledge where excesses were committed. And whether it’s racism, or slavery, or the treatment of foreigners, and immigrants, I think it all has its roots in this hubristic sense of entitlement that Britain somehow is still deserving of empire status.

But it is the third case that we discuss, that of the Rohingya community, that is the most personally significant for Sands. In 2019 Sands – on behalf of The Gambia – initiated a case at the International Court of Justice, accusing Myanmar of violating the Genocide Convention. In 2020, the Court unanimously ordered provisional measures in relation to Myanmar’s treatment of the Rohingya.

“And of course, because it relates to genocide, and because I met those members of the Rohingya community who came to the Hague, including extraordinary women who had been serially raped and abused … it just reminded me of my own great-grandmother in another era being abused and mistreated. And to sit next to Aung San Suu Kyi for days, literally within two or three meters of her, and hear her defending the indefensible and then have the court do what it did was professionally very, very satisfying. But also, on a human level – one of my favourite photographs is of people in a camp in Cox’s Bazar. Members of the Rohingya community holding up placards. Dozens of them just saying, “Thank you, The Gambia.”

We move on to cases that have been particularly disappointing.

“I suppose it’s a decision of 2011, the International Court of Justice, when the Court ruled that it did not have jurisdiction to entertain a claim from Georgia for allegations of racial discrimination by Russia, against people in South Ossetia and Abkhazia. I thought the decision was wrong. I thought it was excessively formalistic, and I thought it set back the cause of the Court and human rights, but subsequently, the Court changed direction. I don’t mind losing cases for decent reasons. I’ve lost plenty of cases for decent reasons. I do mind losing cases for bad reasons.”

I don’t mind losing cases for decent reasons. I’ve lost plenty of cases for decent reasons. I do mind losing cases for bad reasons.

But his impressive legal practice is by no means the extent of Professor Sands’ career. We discuss what it was like to make the switch from legalistic writing to writing historical non-fiction books for a popular audience.

“[It was] a gradual process. It started with Lawless World and Torture Team … they’re obviously very different from the academic books that I’ve published. In the academic books, you don’t express opinions, and you keep yourself out of it. In Lawless World and Torture Chamber I expressed opinions, but I still kept myself out of it. The most difficult change was in 2016 with East West Street, because my editor … said ‘the reader wants to know about you – wants to know how you did what you did, why you did certain things, how you feel’. And that was difficult because I’d had thirty years in an academic context … and in a law context … extinguishing the self from the scholarship, or the lawyering. And that was very, very difficult.”

Identity is a central theme in Sands’ most famous book, East West Street – half family memoir, half engrossing history of the two Jewish minds (Lauterpacht and Lemkin) who laid the groundwork for our modern conception of human rights law. I put it to Sands that in previous interviews, he has professed a wish to be taken as an individual, and not thought of as Sands the Jew, the Brit, or the European. But it’s clear from his recent work that he has a strong connection to the Jewish community and feels the gravitational pull of the cities of his ancestors.

“It’s a tension and it’s a contradiction, and I think they feed off each other. East West Street is a book of inner struggle, in a sense, of which one I’m with. Am I with Lauterpacht – who professes favourably for the individual, or Lemkin – who says, “no, we must focus on the group”, and I can see the merit of both their arguments. I’m inwardly torn. And East-West Street captures that because, although I’m intellectually with Lauterpacht all the way through, right at the end of the book you are at a mass grave where your grandfathers, uncles, and aunts are. I think most human beings would feel a degree of connection with that that is irresistible, that’s just overwhelming. And that’s the big question. Where does that come from? And what dangers does it create?”

Sands is reminded of a much-loved play that helped him to reconcile with this internal tension. The play is Copenhagen by Michael Frayn – the tale of a meeting between Werner Heisenberg and Niels Bohr. It’s a story of particle physics, human motivation, and the construction of the atomic bomb.

“It was that play that made me understand that it was okay to have inner contradiction. I love the play. We’re all contradictory. I think there’s a distinction between someone who has contradictions and someone who has double standards … so I’m not revoking my critique of the Foreign Secretary!”

Before we say goodbye, I ask Professor Sands for his best lockdown book recommendations. His top pick is Becky Cooper’s We Keep the Dead Close.

“It’s a non-fiction account of the murder of a PhD student in the anthropology department at Harvard in 1969. And the reason it’s a fantastic book is firstly, it’s beautifully written. Secondly, it is totally fascinating to go inside a university department in 1969 and meet all the characters. Thirdly, the gender aspect of it is unbelievable. How a male-dominated department treated women, and fourthly the anthropology parts of it are completely riveting. I’m going to say it’s my book of 2020. Absolutely could not put it down.”