[73] Philippe Sands — There is a global law

Blomcast. Turning points in history. Welcome to the Blomcast, the podcast that looks at turning points in history, and we're back after a long time, even in English. This absence was due to the fact that I had a little book to write. It has now appeared, so I now have the time again to do this podcast now with the monthly magazine Datum.

So far, alas, only in German, but still a great little magazine that does old-fashioned research journalism that is going out more and more. I'm really thrilled to welcome as my guest for this episode Philipp Sands, a friend of the house, as it were, also a great writer, a great author, and the newest recipient of the Friedenspreis des Deutschen Buchhandels, the Peace Prize of the German Booksellers Association, which is a little German Peace Prize, and there's always a great kafuffle around it.

The awardees are the great and the good. There are some very great names for those in the English-speaking world who may not be so familiar with it. And Philippe is the latest in a very distinguished row of recipients. Philippe, first of all, congratulations.

Thank you. Thank you. It's very lovely to be with you. And uh I think this may be my first conversation since the little sojourn three days in Frankfurt, which were utterly fascinating.

Exactly. I wanted to ask you about that. I must I must um admit a little bit of um background information. I used to be part of the jury that gave the prize some years ago. Um, and I had my own little insight in how fascinating these discussions can be. But you saw the other side, as it were, of this great story playing out, because you gave a speech which you must have known would have raised a few eyebrows here and there, but you got a reaction that was a little bit more than that.

I was not as familiar with the prize as you are, Philip, and when the email arrived at some point in June, um my immediate reaction, having seen who the previous recipients were said to be, was to assume this was a practical joke from my children. Um so I did a little bit of a check and realized it was not uh either a practical joke or if it turned out a mistake.

So I was quite honored, I must confess. And it's a very well-organized prize, as you know, um, and incredibly well um curated. Uh the organizers came to visit in France to plan what would be done. And one of the obligations is to deliver a 23-minute acceptance speech in the presence of various German dignitaries and including the German president.

The president, President Steinmeier, which is broadcast live on national television. I was left it was left entirely to me to decide what I was going to address. And I suppose the central theme was my relationship with Germany and the German world. Having grown up originally as a child in which nothing German was permitted to exist in our household, and over the course of six and a half decades, of course, there's been a total change.

And I'm surrounded by things, people, objects German, which are a huge part of my life.

Just to un unlock that a little moment for people who may not be familiar with your biography. Um you are Jewish, you grew up in you were born in Paris and grew up in London by and large, and your families had experience in the Holocaust, and therefore German things were banned from your childhood.

Indeed. My mother was born in July 1938 in Vienna, and as a one-year-old child was whisked to safety by a remarkable evangelical missionary named Miss Tilney, about whom I wrote in my book Rücker Nach Lemberg, East West Street, and was hidden just outside Paris for most of the war and survived, as did her parents, who managed to escape from Vienna to Paris and somehow survive.

And so that experience, which I knew about as a child growing up, we never really talked about. And so the details were never known to me until in 2010, in my 50th year, I received an invitation to give a lecture in the city of Lviv on the cases I have been involved in on crimes against humanity and genocide.

And at that point I asked my mother for the first time, are there any documents? And she gave me two big bulging bags of documents. And from this I learned a great deal, which I then set out in a more literary way in my books. But but the upshot was the relationship with Germany as a starting point was not a warm and cosy one, shall we say.

But it has become a warm and cosy one today, in the sense that Germany is a big part of my life in a very positive sense. By Germany, I include, of course, also Austria. Let's say the German-speaking world. And which is what I intended to say. And I um thought that given my background and the path that I have followed, I could address something that troubled me, which was German silence.

I called my acceptance speech the albatross of silence. And I focused in particular, I could have focused on other things, but I focused on German silence in relation to the Israel-Palestine-Gaza conflict. And in particular, the failure really to engage with acts of wrongdoing by Israel. And I knew this would be delicate, and I wanted to do it in a very courteous and respectful way to understand the connections between Germany's history in the period 33 to 45, which has created a context in which addressing issues of wrongdoing by the State of Israel, or on behalf of the State of Israel, are very complex.

And I did I do understand that and I made that very clear. But nevertheless, the main point was it is when your friends and your dearest ones cross lines that you are bound to speak. And the other motivation that I had, to be very frank, although I this is really between the lines, I did not think it was for me to arrive in Germany and talk about domestic German party political issues and what's happening in Germany in terms of the rise of the far right.

But I'm certainly of the view that Germany's silence in relation to issues in the Middle East creates an environment in which groups like the AFD can prosper because it reflects a double standard. If you're not going to hold one group of bigots to account, um, how can you possibly not hold another group of bigots to account?

And that double standard creates a space in which nasty things fester. Of course, it's not the only reason that things develop, but that was in part what I wanted to address. And I did address it, and I noted as I was delivering my words, uh, which were accompanied with music, which apparently was a first, um, that there was applause at various points, and I was very intrigued.

Tickled pink is what we would say in the English language, um, by the newspaper accounts, which watched uh the president's hand movements at various points of my acceptance speech. Um was he clapping enthusiastically, less enthusiastically, or with bare enthusiasm, or not at all. Um, and of course, clapping, as you will know very well, Philip, has become an indicator of issues on which people can have great opprobrium heaped upon them.

Um so the experience was remarkable, but the reaction too was remarkable because um I mean I think the speech was covered in actually was covered in every single German newspaper, and there was not a heavily critical response. Um I it seems that I touched some sort of a chord. Um, and from the correspondence and invitations I've had subsequently, it it may be that it's created an opening which allows certain conversations to take place more easily than they um took place before.

I mean, I don't want to overstate the impact anything I say might have, but I was surprised in a positive way by the reaction and the desire to engage and talk. Of course, there were also some people who wrote to me to object or who uh removed themselves, so in one case, from an event I was am due to do with them uh in November, and no longer seeing me as a person fit to share a platform with.

That's quite an honour, isn't it? I sort of loved it. Um what was particularly interesting was that this individual, who is a pretty well-known journalist, um, didn't have the courtesy uh to write to me and say this, but simply to tell the organizers. And so our previous correspondence and communications just came to an end.

And of course, one of the things that I think is important in life is that if you have been corresponding with someone and you change position all of a sudden because of something your uh correspondent has has said or done, actually the right thing to do is to get in touch with them and say, this bothers me, and I hope you'll understand that in the circumstances I no longer feel able to do X, Y, or Z.

There was none of that. I was just told this person will no longer be able to present you. And I I found that both interesting and sort of entertaining. I mean, I'm I'm quite a thick-skinned person.

You need to be in your profession.

Yeah. But it's been a very, very positive experience, I have to say, and I'm sort of on a on a little cloud still.

Well, that's uh that that's actually wonderful to hear because um uh I got the impression that you also got quite uh quite a lot of criticism and you were a little bit surprised also by how how live the issue was in Germany.

No, no, I I I knew, Philip, I knew I knew how live the issue was, and I went into it with my eyes very much open. What I've been surprised about is the lack of criticism, actually, and um I don't think I've been shielded from it because I've been sent most of the stuff that that is being written, and it does seem that even at the upper echelons of intellectual, diplomatic, and political society, there is a recognition that there is a problem in Germany dealing with this issue, and it needs to be addressed in some proper, reasonable way.

And talking is always the best way. So, no, I mean, even those uh, you know, I've had some people who have written to me and said, you know, I found this a little bit difficult, or this, that, or the other, or why is he only criticizing silence in relation to Israel, not in relation to China or other things?

And of course, the bottom line is you've got 21 minutes, so there's a limit to what you can address.

Let me try this on you, because this is always very I mean, this is such a live issue, and it's such a tragic issue at the moment, also at the level of simply civilized debate, because it becomes impossible to talk about anything that involves Israel and Palestine without creating deep enmities with people, and uh it becomes almost impossible to speak even.

Um I want to try out this idea because it's often it's it's often said that we're measuring with two different kinds of measure, and Israel has to behave in a different way from and nobody's looking to Sudan or to Iran or to other places where terrible things are happening, and nobody is worrying about that.

Now, to some extent that's true. You don't see a lot of students on the street or other people in support of the Rohingya Hinja in Myanmar or against Chinese policies. Um you don't see that, but you see it it's it's a lot easier obviously with Israel. And there is no doubt some anti-Semitism in that.

On the other hand, Israel is a democracy. And Israel's appeal to its allies has always been we are the only democracy out there. We are observing human rights, we have free courts, we are um we are a state that is deserving support on that ground as well. Isn't it right to hold that kind of a state to a different standard than Sudan or Iran?

Well, I think we're very much on the same page, Philip. Um Israel gets a disproportionately large amount of opprobrium. I I don't see the kinds of critique that are heaped on Israel being heaped. For example, on Iran, we don't know how many tens of thousands of people were killed in January and February, but it was by any reasonable estimate a very large number.

Pretty much total silence in relation to that, quickly forgotten. I've done cases thinking of the Congo, three million people killed in the space of three or four years. Um no one knows about it. So one does ask oneself the question, what is it about Israel that causes so much opprobrium to be heaped upon it?

Now, one aspect, I think exactly as you say, is that it places itself in the community of quote-unquote democratic countries, and therefore people would hold it to the same account as they would hold the United States or Britain or Austria or France or Germany or whatever. And that is certainly right.

But there's no question, it's very clear to me that there is also within it a particular desire to bash Israel, and some of that desire is motivated by blatant anti-Semitism. And I have encountered it, I have ended a couple of friendships when confronted with that, and one needs to um, you know uh tweak out from reactions of people that which is well motivated and decent, and there's plenty of that, and that which is not well motivated uh and decent.

And I see this in particular in the conversations about whether about the label to place on any crimes that are being committed in Israel on October the 7th and in Gaza subsequently.

In other words, genocide.

Yeah, is it war crimes, is it crimes against humanity, is it genocide? And the rush to label it as genocide is notable. Now, here again, I think the way you framed it is very helpful. Um I I have no problem with South Africa bringing a case against Israel on genocide. If they wish to do that, that is their sovereign right to do it.

It is not anti-Semitic to do it, it is not a blood libel to do it. I'm counsel for the Gambia against Myanmar, and my involvement in that case is not an assault on Myanmar as an entity. Um but equally, um, and one has to understand that one of the reasons South Africa has had to raise the G-word in the case is that the only way you can get to the International Court of Justice is for a case alleging genocide.

There is no jurisdiction at the International Court of Justice for war crimes and crimes against humanity. On the other hand, there is another court in The Hague, the International Criminal Court, which does have jurisdiction to label things war crimes, crimes against humanity, or genocide. What have they done at this point?

They've issued indictments in relation to what happened in Israel on October the 7th, terrible, and what has happened in Gaza subsequently, terrible, as war crimes and crimes against humanity, but not genocide. And this is often not noted in the media and social, you know, certainly not on the social media.

And so you really have to ask yourself the question, what motivates this outpouring of desire in relation to the G-word? I I, as I explained in the lecture, and I've explained on many occasions, I I have refrained from expressing a view as to what label to put on either October the 7th or what has happened subsequently, because uh because I'm involved in the in the case involving the Rohingya, and the judges don't like it when lawyers in cases before them are sort of mouthing off their views on various uh you know uh other horrors that may be taking place.

The only thing that I have said in a long interview with the Ezra Klein podcast about a year ago was that if Raphael Lemkin had been alive now, using his definition, which sets a much lower standard than that in the 1948 convention, there's no need to prove a special intent to destroy a group in whole or in part, which is what the 1948 convention and the courts have determined.

He would have said, I think, what happened in Israel on October the 7th, on his definition was genocidal, and he would say that what has happened in Gaza subsequently is genocidal. But the 1948 Convention on the Prevention and Punishment of Genocide, as interpreted and applied by the courts, does not take Lemkin's standard.

It sets the bar much higher. And so we're just gonna have to wait and see. There is also, it is clear, a big gap between what regular intelligent folk think of as genocide, the killing of large numbers of people, on the one hand, and what judges applying the law characterize as genocide. So this gap creates a space which I think has been very unhelpful.

Also, the whole semantic debate about genocide or various kinds of crimes, collective crimes, is a beautiful distraction from the debate itself, or indeed from any political action that is to follow it. I mean, we can talk about the car until the cows come home about whether the fact this is whether this is there is genocidal intent, whether it's by enough people in the army, whether it's by um it is not helpful.

The fact is there are people dying there.

I agree. I said the same thing exactly in the Frankfurt uh lecture. I I'm really not overly interested in labels that are placed on acts of horror. There is no hierarchy in international law. War crimes, crimes against humanity, and genocide are equally terrible. I can give you an example. The killing of 8,000 human beings at Schrebrenica characterized as a genocide.

Is that worse than the killing of three million people in the Democratic Republic of Congo as a mere war crime or crime against humanity? Of course it's not.

No. I mean also from the perspective of the victims, they're equally dead. Trevor Burrus, Jr.

It's horrible. But but the fact is that genocide has attracted a particular sense of passions. And I've I've long wondered about what it is. It's partly, I think, the magic of the word that Lemkin invented. It evokes a horror that is less technical and less legalistic than war crimes or crimes against humanity.

But it does something else. And I have to say, in in I'm acutely aware of this personally, it's the only one of the crimes that focuses on group identity and which recognizes the right of a group to exist as a group. And right at the end of East West Street, Hoyke nach Lemberg, I confront this because all along in this debate between Lauterpath, Crimes Against Humanity, but the protection of the individual, and Lemkin, genocide, the protection of the group, I'm intellectually with Lauterpak.

But right at the end of the book, I reach a place not far from the city of Lviv, a small town called Zhulkiev, where there is today a mass grave unmarked, three and a half thousand people, all executed on a single day, all Jewish, the entire Jewish community from that town. It includes Lauterpak's family, includes my grandfather's family.

And being there, it did undoubtedly inspire in me a sort of epiphany moment of understanding what Lemkin was doing. We all have a sense of connection with the various groups of which we happen to be members, whether it's nationality, religion, your football team, whatever it may be, we all understand this almost biological sense of connection.

Isn't that interesting? Because I wonder whether there's a connection here that in our societies where At the moment in our democracies, bewailing a draining away of these connections, of trust in one another, of trust in political parties and institutions. That seems to be a great societal problem at the moment that has to do with social media, etc., blah, blah.

But at the same time, there is in the debate around Palestine and Israel this feeling that there are visceral connections that very often mean that people can no longer talk. That the connections are so strong that they form an imperative of thinking. And if I'm standing in this corner or I believe I'm standing in this corner, then I need to think of this way.

Is this a compensation that we find such strong connections in these group identities?

I mean it's a form of tribalism. And it's one which intellectually I have tried to resist in relation to myself. But I have to confess that at times I find it hard to resist it. You're standing on the edge of a mass grave, unmarked, three and a half thousand corpses there still today, and there I would be but for the grace of God or whatever.

And it makes you feel a sense of connection. I've noticed that sense of connection when preparing arguments for cases about genocide, unlike war crimes, unlike crimes against humanity. When you're dealing with a case about genocide, the need to focus on the group, the need to focus on this particular mental intent has the tendency of reinforcing a sense of group identity and reinforcing the sense of hatred of the other, the hatred of the perpetrator for having done this to us, and then the hatred on the side of the alleged perpetrators for the victims for now turning around and blaming us collectively for what we are doing.

So these instinctual reactions, which I think we all have to be honest and understand, lay just below the surface for each and every one of us, how we deal with this a very personal thing and a different thing, but it's undoubtedly there. When Lemkin was inventing his concept of genocide, Lauterpatch was implacably opposed.

He said that by focusing on this sort of, he called it a biological element, you will reinforce group identity and you will replace the tyranny of the state with the tyranny of the group. And I think that's right. I think that is what is happening. And you feel that in many places, whether it's in a football stadium or on the battlefield, you sense this group identity passion driving people into a direction which is not positive.

No, no, it is not positive. But I mean, I'm I'm often grappling with this question because we come to a we come from a place where the state was that. Where the state gave you that group identity. That was connected to nationalism, it was also connected to industrial capitalism, but wherever you look, you got your identity very much in a state-like context.

And, you know, even people in private service were uniforms, so the the logic of the army and the state and the corporate society was very strong. Now that didn't go so well in many ways. That also, you know, led to national socialism, to the Nazi state, that also led to a Stalinist Russia. Um we've gone away from that.

But the problem is, I wonder whether there isn't such a strong longing to belong to something. That if the state if the state in a modern society where you know God no longer gives us that, the state has sort of abdicated also because of a pretty ghastly historical experience. Who is now going to capture that longing?

Well, I think we're seeing who captures that longing and where it heads, but but but I think there's a there's a question precedent. What is it that gives rise to that sense of desire for belonging? And my sense of it is that that is catalyzed by senses of fear and senses of deprivation. And I I do wonder whether at the heart of this issue right now is essentially one of economic inequalities, that as the inequalities become wider and bigger and deeper, people both become more hurt, their aspirations are undermined as they see others going forward, and they start to point the finger of blame as to who is making their lives less good than it may be.

And the easy answer is often the other in some way. And we've seen this since time immemorial. So it may be, um, you know, as the biologist Io Wilson posits, this is inherent in the human condition. I I I have doubts about that. I I I mean I I tend to the view that it's sort of societally ingrained in us rather than something um we are born with.

I I noticed this, you know.

Biologically.

I mean, I just noticed this with my own children, for example, that when they went to school and they would say, I'm bringing a friend home. They were blind to the gender, to the identity, to the colour of the skin, to the religion. It didn't mean anything to them. And and and they'd turn up with someone and you'd think, oh, okay, we notice it, they didn't notice it.

So I so my instinct is that it comes later, but certainly at a certain point, um it is it is it is there in pretty much every community that we know about. And that's one of the issues that the International Legal Order now struggles with. How to deal with these instincts, whether they are biological or societal or psychological or whatever they're caused by, in a world which is interconnected and in which we need a system of rules to make things operate as smoothly as they can.

And those rules, right now, particularly the rules that were born in that 1945 moment, protecting the dignity of the individual, protecting the group, positing that boundaries are not to be violated, that you know, territory and uh the integrity of a territory is to be respected. Those rules are back up for play right now in some sectors.

It's not that the whole of international law, it's not that the whole of international law isn't working, it's that aspects of international law are under real threat.

This is actually really interesting because your whole your whole career was in a time when international law was a booming thing. Indeed, you were involved in developing several aspects of it yourself, also which not a lot of people are aware of, environmental international law. Um but it was only about 10 years ago that this boom of the international order of international law began to hit a barrier.

How are you experiencing this fact that the world in which you had your entire professional life is now crumbling under your feet or is threatening to crumble under your feet?

Well, I do so rather wistful I deal with this rather wistfully and with a slight smile on my face because actually I don't think it's crumbling. Yes, there are parts of the international legal order which are under assault. But the vast majority of rules operate perfectly brilliantly. I mean, the fact that you and I are having this conversation, the fact that we can see each other, is premised on a raft of international treaties that work brilliantly, that are not an issue, that no one's complaining about.

So all of that works fine. It is a long game. If you want an example uh in our times that indicates the complexity of the moment, we've had let me give you an example. Greenland. The current American president has a view that Greenland should belong to the United States, and he has made a fuss about this for about a year.

And very recently, an agreement has been signed between Denmark and the United States, uh, in which the American president has announced very publicly that uh America has got everything that it wanted and it now effectively controls Greenland. Really. The treaty is publicly available. It's just four or five pages.

Your listeners can Google it and read it themselves. What will they read when they look at this treaty? Has the United States gained control of Greenland? Well, it's a treaty governed by international law. Point one, Denmark has sovereignty over Greenland. Point two, the territorial integrity of Denmark shall be respected.

Point three, the Greenlanders have the right of self-determination. Point four, if the United States wants to develop any of its bases beyond what they originally do, what they do now, that should be by mutual consent of the parties going forward. So it's a Borg standard, as we would say, international law agreement.

And so in the midst of the mayhem, you're back to the basics of international law. And that is what's going to happen. It is under assault. Absolutely. There are parts of the community. I mean, this is best described by Giuliano da Empoli's remarkable book, The Hour of the Predator. It's a coming together of the populists and the tech moguls, a variation on the Shakespearean theme, kill all the lawyers, get rid of the rules, get rid of the courts, and so on and so forth.

But in fact, when you look at the detail of what's actually happening on the ground, there is a reversion back to classical treaties to sort out all these issues and problems. They don't do enough, they're too slow, they don't do this, they don't do that, they could be better. Of course, all those things are right.

I'm not starry-eyed about international law. But the path that is being followed is the same path that was followed with domestic legal orders. You know, when I was, I've said this many times, so please forgive me, but when I was a starting academic at the University of Cambridge, I had a colleague, professor of English legal history, and he'd sometimes invite me for lunch, Sir John Baker, you know, the world's leading historian of English law.

And he'd ask me what I was working on, and I'd tell him what I was working on, and he'd say, ah yes, yes, we we we we we we we had a similar problem in English law in 1472, and it took 275 years to sort it out. And that is how it's going to be. When I argued the Rohingya case, when it began in December 2019, I found myself at the International Court of Justice in The Hague, in the Great Hall of Justice, sitting just a few feet from Anne Sang Sushi, my opponent in the case.

I didn't like much of what she said that day, but one of the things she said resonated. She said to the judges, international law may be the only global value system that we have. And I think she's right. And so, yes, there is a certain fraying of some of the rules, but no. It's fraying in part, but it has always frayed in part, and it will come back.

What you're describing is that the you know, that the pieces that we need to oil the machine to keep the reels running, um, those contracts are still working just fine. Um when it comes to criminal cases, which you yourself plead, it's a very different story.

There is a tendency towards simplicity, and I'm not accusing you of this, but in the media, in social media.

Oh, we all have it.

At the very same moment that the administration of Mr. Trump is attacking the International Criminal Court, it is prosecuting in the federal courts of California a gentleman from Syria who is alleged to have committed a crime against humanity by engaging in torture. And on the theory of universal jurisdiction, that gentleman has been prosecuted, tried, and very recently convicted.

So that possibility is a direct result of the precedent established in the case of Augusta Pinochet in the English courts in 1998, holding four universal jurisdiction. And and the Pinochet case in turn is premised on the Nuremberg moment. So it it's a much more complex picture. Uh and you even get that in relation to the International Criminal Court.

You know, the United people forget the United States Senate voted 100 to zero in 2023, led by Senator Lindsey Graham, to support the ICC's investigations of Russia for crimes committed in Ukraine. A year later, when the ICC changes direction and starts looking into a friend of the new US administration, oh my god, it's not acceptable.

I mean, you know, it's a much more complex picture, and one has to recognise it's one step forward, one step sideways, one step back, another step forward. It's a long game. In other words, you know, there's a very um famous English TV show that I grew up with called Dad's Army. I don't know whether you're familiar with it.

And one of one of the characters would always say to Captain Mannering, who is the leader of the little English squad, don't panic, don't panic, Captain Mannering, don't panic. And it's like that. There are terrible things happening with aspects of international law. I'm not denying that for a moment.

But let's not throw the baby out with bathwater.

But it's good to hear that from someone like you who is involved in this system, who knows the system well and who's also known to be critical, that yes, there are problems, but the system itself is still robust and functioning.

But one has to recognise, arguing against myself, which I love to do. Go ahead. For the folks who are in Ukraine or in Sudan or in Iran or in Venezuela or in Gaza or Israel on October the 7th, they are entitled to say, what did international law do for me? And there's no answer to that. That is remotely positive.

It's a long game isn't very helpful to people in that situation. And one has to recognise and accept that. It's not good enough. There is work to be done.

Let me just come back to this to this idea that we started with of German silence that you that you attacked in your speech or that you remarked on in your speech. German silence, namely in relation to Palestine, which you have been not silent about. In Germany, it is for very understandable reasons almost impossible to talk about this.

But it is also difficult, remarkably difficult in other countries, for instance in Britain. I mean, there is the fuss around the Palestine action as a terrorist group and thousands of people getting arrested. But there's also a huge uptick in anti-Semitism. Has that surprised you? Because it has surprised me, I must say.

I mean, I've I've started my life as a young academic researching on anti-Semitism and nationalism, and um I thought that I was surprised now in the last few years how readily available those figures of hatred, those stereotypes, those images were. It started a little bit with Auburn and George Shorosh.

Um but this seems to be a time when a lot of people take refuge in conspiracy theories. And all of a sudden, all of these tropes are back.

They are. And as I said earlier in our conversation, I'm personally aware of examples of anti-Semitic behavior. I mentioned I've ended two friendships because of that. So I'm acutely aware less people like me who are on the receiving end. But certain sections of the community, the Jewish community in Britain, are very fearful about what's happening.

On the other hand, it's not rampant. And there are many people who speak up very strongly when they see signs of it across the political spectrum. I did a debate, well, it wasn't really a debate, there was a radio programme a f a few months ago. You remember the terrible killings in in Sydney at Bondi on Bondi Beach.

And the day after there was um a radio conversation on the Today programme, which you're very familiar with, the morning flagship BBC program. And the first person to speak was the historian for whom you know I often have great respect for what he writes, Simon Sharmer, who said, as I recall on that radio programme, you know, the Jews of Britain have all got their suitcases ready uh to leave.

No, that is not what is happening in Britain. I certainly don't have mine, and none of my many Jewish friends have their suitcases ready uh to leave. So there is a tendency, I think, to overstate what is plainly an issue, but and this is the other thing, it's not isolated. There are other sections of the community that face equal or in some cases greater opprobria.

There is rampant Islamophobia in Britain. There is anti-gay, anti-trans, anti-this, anti-that. And I think one has to recognise as a decent human being that many individuals are under assault or feel themselves under assault, not because of anything they've done, but because they happen to be a member of a group that is hated by a certain section of society for reasons that have nothing to do with the individual.

And I I think it's really inc I feel it's incumbent upon me to be empathetic to others who find themselves on the receiving end of hatred and not to focus only on the particular group one happens to be a member of. So I happen to be Jewish, so I'm acutely conscious, and my radar in relation to anti-Semitism is tweaks very powerfully when I'm confronted with it, which happens occasionally, but actually not that often, I've got to say.

But I feel a real duty to be equally conscious of others who are on the receiving end. And my sort of antennae need to tweak with equal ferocity, and it's not good enough to simply focus on the group of which you happen to be a member. And I think what you're describing, I think very accurately, if there is a rampant rise in something, it is a focus on the other.

And the other is different between different communities. But but but the anti-Semitism that is resurgent today goes hand in hand with other things that are happening. Xenophobia, populism, nationalism, anti-this, anti-that. And it's part of a broader, it's part of a broader issue. And I think one has to be conscious of that as well.

When you mentioned that broader issue, we already touched upon it, or I tried to when I said there's a very widespread loss of social trust. And surely when you stop trusting people, you start othering them. You know, you trust your own people, you trust people to observe a common standard of behavior, perhaps.

Um when you stop doing that, they become part of a group. Why is trust draining away from our society so dramatically? I mean, this is yes, this is not a question just for you and me. Um but how can how is it possible to to confront this phenomenon which is so powerful in our societies at the moment?

I think the bonds of a decent society are afraid and and are tearing. And it really goes back, I think, to the question that I posed earlier, which is really not for a lawyer, but more for a psychologist, for an economist, for a psychiatrist, to understand what it is that is. Giving rise to a climate of fear that is causing people to retrench into particular groups and lash out, because that is what is happening.

There's nothing new about this. I mean, you, Philip, know as well as I do what happened in the period 1914 to 1945. And what I have ingrained in my mind is the situation of the city of Lviv, Lemberg, Lavouf, where I've spent a lot of time. I was there a month ago. I go every year. And is the subject, is in a sense the main character of my book, East Westread.

And I think back to the 1920s and 30s. Here was a booming multicultural society. Ruthenians, Ukrainians, Poles, Jews, Armenians, Catholics, Muslims. It was just a melting pot of society. And all that was blown away in the space of 15 years. And leaves it now as a sort of monocultural kind of society.

The Jews were all killed. The Poles, if they weren't killed, were expelled. And it is now an essentially Ukrainian society. I have no critique of any essentially Ukrainian society. I make the point only that the kinds of worlds you and I inhabit, I'm in London, an extraordinary city that I love deeply, and I love deeply for its diversity and its breadth.

It's not monocultural, and that's a wonderful thing. I love going to the Arsenal football stadium because around me are all sorts of people who are very often very different from me in terms of their backgrounds, their affiliations, their identities, and happen to come together. Lviv had the same thing.

And it was gone in an instant. And I often ask myself the question, what could make this go? There is nothing permanent about it.

Well, I mean Yugoslavia gave an answer to that. Rwanda gave an answer to that.

How quickly it can change. And nothing we take nothing for granted. The def default back to the othering of humans who don't necessarily share the same characteristics that the dominant community or the minority community may have, is goes back to time immemorial. But what causes a rupture at a particular moment is a key question.

And that's beyond my pay grade, I think. It's just mere speculation of the lawyer, and that's not worth much. But there are people who are thinking about that. What is it that causes a particular society? I think actually one thing in the European context, and this is not just a European issue, is that the disappearance now of the generation that lived through that period that culminated in 1945 is almost complete.

And with the disappearance of that generation comes the direct first-hand experience of what we are capable of. And with the disappearance of that firsthand experience, the door opens once more to the kinds of conditions which you and I know one thing leads to another, and we know to where we are heading right now, and it's not a good place.

In my defense, I didn't ask you that because I thought you were an expert for anything anyway, everything anyway, but because uh I enjoy your forensic input on those questions. But what you say about things becoming possible again, um I always think there's a very strong connection to be made to personal experience, to individual experience, and namely that collective trauma lasts as long as there's living memory of it.

If in a family someone was a child died, someone was raped, there was a bankruptcy or something like that, that will stay with the family for about three generations. I think collective traumas work the same way. And as soon as the people who can at least tell at first hand about what happened are gone.

Something very deep and atavistic in us seems to think now it's no longer a living concern. Now it's history, now it could be any period in history, it's just gone. And then, yes, things do seem to become possible again.

I'm also believing in collective trauma, but actually I go further. And I I my wife and I disagree very much about this. We have a lot of debates about lots of things, including whether something is a coincidence or driven by other factors. But uh the question of collective trauma. I'm also a sort of believer in epigenetics, that there are genetic changes that take place in human beings when they have been through a traumatic experience.

There's very good evidence for that now.

There is increasing evidence for that. And actually many geneticists now say it has been demonstrated in a physical and objective sense that your DNA is changed by trauma. And that is then taken forward, possibly not just three generations, but even more. And that has consequences that I think we don't fully and will not.

Trevor Burrus, Jr.

That has consequences that are so vast what that means for anything from debate to democracy. If we all come with an epigenetic baggage already that we may not be aware of, but we are carrying and that is forming us in ways that we cannot understand. Um the evidence of that is is, I mean, the the importance of that is really vast, and you can easily imagine what how that can also be misused.

On the other hand, to inject a more positive note, um one of the I was allowed ten honored guests at the Frankfurt event, and those ten would not only get to have the great happiness of hearing me speak, but would get to come to be invited to the luncheon after the uh after the ceremony. And one of my ten was Nicholas Frank, who is one of the children of Hans Frank, who had been Adolf Hitler's lawyer.

And Hans Frank, as readers of my book will know, and uh others will know anyway, was hanged at Nuremberg for the murder of four million human beings. And I think the fact that I have a deep friendship with the son of such a man, and would include him in my group of ten as an honored guest offers a different perspective about what is possible in the space of one or two generations, where there is genuinely a desire to engage with the facts and and and to uh address them in a respectful, courteous, and decent way.

So it's not only a one-way street, it is possible for there to be reconciliation amongst people who've been um on or whose forebears have been on very opposite sides um of the story. And I and I take I take refuge in that, and I take refuge in the fact that, you know, a number of people say to me, How can you be working on these issues of international law today?

You're working on eco-side, you've got a new book coming out on eco-side, when international law is falling apart. And my answer is it's exactly the opposite. This is the moment when you need to be developing the ideas that are going to come to the forefront when the current moment passes into the next moment, when we have to pick up the pieces, go through the crumbling brickwork and reconstruct.

And I go back to these two characters, Herschel Auterpacht and Raphael Lemkin, in 1943, in 1944, when the world was in a much worse state than it is now, certainly the European world, they could have crawled into a corner, wept and curled up and done nothing. And they didn't. They didn't. They had ideas, and they put their ideas on paper and they turned the paper into books, and the books were published, and those published books generated new ideas about human beings and how to protect them and look after them.

And it wasn't perfect, of course. But it wasn't nothing. And that is the difference, I think, between those who are inherently pessimistic and those who find in the human condition at least some grounds for imagining that a better world is possible. And we at least today have a world that didn't exist in the 1930s.

We have bits of paper called the Genocide Convention. We have international courts that can hear cases, we have countries like the Gambia, which bring cases to international courts concerning faraway horrors. And that produces memorable moments for me of thousands of people in a faraway place called Cox's Bazaar in Bangladesh, when the International Court of Justice hands down its order for provisional measures in relation to the Rohingya, and there they are watching the proceedings, the judgment being given, or the provisional measures order being given on screen, and then holding up pieces of paper which simply say, Thank you, Gambia.

That didn't exist before. It's not nothing. It's not perfect, but it's not nothing.

Philippe, this was um such a wonderful plea for the end that um I am now finding myself with the fact that I can no longer ask my last question.

You must ask your last question, you can always cut it out.

Um I think I I want to ask it because it's also a serious question for you. Um and you may not you may not want to answer it right now, but I'd like to I'd like to brief you on something, and I'd like to hire you for your professional services in a in another cause that I think will come to us very soon.

And that is the defense of being human. We are living in a society in which artificial agents will soon do most things better than humans, certainly most professional things, most productive things, most service uh things, and and so on. We will need to think of a decent defense of what human life is actually there for when it's no longer economically productive, why it is important, why these societies should still privilege humans with all their frailties over over other entities that can do these things better and that may, who knows, become conscious.

Um I think the defense of being human would be something that would need your that we could do with your final ego brain. How you just structure such a defense.

Well, I I mean I touched on this actually very indirectly in the Frankfurt lecture. Um, as you know, and you mentioned it at the beginning, and thank you for that. Um I've had a long interest in the protection of nature and the natural world. And uh I have a real concern that actually the most existential threat we have faced is the destruction of the climate system.

You couldn't really imagine inventing the human that actually goes about actively destroying the very conditions that give it the ability to exist. It sort of beggars belief. And as though that is not enough, we now uh invent something else, which is um technologies that have the capacity to destroy us.

And you really have to ask yourself questions about what the human is for and what really motivates the human. I I I mean I I've just attended a wonderful first wreath lecture by Robert McFarlane in London. They'll be broadcast, I think, at the end of November. Um and he's called his lectures um The Human Superiority Complex.

And um and it's a good title, and it it's it's it's accurate in the sense that it recognizes that we have surrounded ourselves with the belief that we are special and that we are above everything else and that we do control everything. Whereas in fact, we're now learning through the destruction of nature and through the creation of artificial intelligences, that that there is another possibility.

I worry about us. Um I I mean I think there's a decent argument to say that we are on the path to destruction, and it's actually self-destruction. Uh I mean, in my new book, which comes out next year, and I I've been inspired in part by by your own writings on this, um, my new book is called The Fifth Crime, and it looks at the possibility of creating a fifth crime alongside those which protect the human war crimes, crimes against humanity, genocide, aggression.

They're all about protecting the human. There's nothing about protecting nature and the environment, and we need that fifth crime. And into the book I've interwoven four particular experiences where I've faced a natural feature that has caused me to think about where we are going. And one of those is a state park in Utah in the United States called Gooseneck.

And you sit overlooking a remarkable river, the San Juan, which has flowed for more than three million years and which has cut these enormous canyons and meanders so that it travels five miles in order to move one mile. And as you look at the stratification of the canyons and you are confronted with nature over time, you realise that actually it's us who are fundamentally threatened.

It's not nature. We are not destroying nature, we're destroying ourselves. And that causes me to ask the question, what are we gonna do about it? Because at this point we're not doing a whole lot about it. And that I think answers your question. I think we need I think I think we need to ask ourselves what is our relationship with the other, with nature, and with the artifices that we are able to create, and we need a greater humility.

And I think Robert McFarlane has got it right by putting the accent on our um superiority complex, which is not leading to a good place. But but but but but but just to link that to the whole conversation, if we're going to address these issues, we will need to do so by common positions, and common positions require agreements, and the only agreements we have are governed by international law, whether it's climate change or artificial intelligence.

So if we don't have the agreements to deal with that, our fate is inevitable. And so, in a sense, in this way, international law becomes a bellwether for our ability to act in our own interests.

Do you foresee in our lifetime the in the insight on this part of the people powerful enough to do anything about this to come together in such a way and to respect those agreements as well?

At this moment, no. Um you ask yourself the question, which global leader today would you actually be excited to have dinner with tomorrow night? And it's pretty hard to come up with an answer. Most people, when you put that question to them in my circles, will say one person, Mark Carney of Canada. That's the one person you'd you'd want to you'd want to hang out with.

Yeah, that would be the person I would think of, yes.

But the rest of them, oh my word, we are really in trouble. We really are in trouble.

Mark Carney will soon collect his European of the year award, I think.

Okay, yeah. Or the human of the year.

Yes, he's certainly done a lot for Europe. Listen, Philippe, it's been an absolute pleasure talking to you.

Thank you so much for having me on your program.

And when you've got your book out, I'd love to talk about that with you and perhaps go a little bit deeper into the question of this defense of the human.

Yeah, let's let's do that.

That was another episode of the Blomcast, this time with Philippe Sands. I thank you for listening. Tell all your friends and your favorite enemies about this of this show. We need subscriptions. I want to become large. I want actually to rule the world. So please warn everyone of this terrible eventuality.

Thanks for listening and see you next time.

[73] Philippe Sands — There is a global law

Kapitelklicken springt direkt hin

Shownotes

Transkriptvom Podcast bereitgestellt · Zeitmarken springen hin