“You have to be obsessed”

an interview with Philippe Sands

Heroes (Issue II/2018)

Mr Sands, the 21st century has a troubled relationship with heroes. But some people still risk their own lives for others, such as the human rights and environmental activist Berta Cáceres in Honduras. Are they the true heroes of our global society?

To be a hero you have to sacrifice something. I don’t think a hero is just is a human rights activist. I think a hero is someone who does something beyond their own interests, paying a personal price for what they do to protect the dignity of the human being.

What do you need, in your opinion, to be a hero?

I immediately think of the German psychologist Jan Ilhan Kizilhan. He works in a clinic in Königsfeld in Baden-Wuerttemberg and has set up a program that has brought 1,100 Yazidi young women, who were abused and raped by fighters of the Islamic State (IS), to Germany. For the program he had to travel several times to northern Iraq. That was very dangerous and risky. This man is a hero to me.

In your book "East West Street: On the Origins of "Genocide" you write about Elsie Tilney, who saved her mother's life by taking her from Vienna to Paris in 1938. Who was Tilney?

The story of Elsie Tilney started with an old note with her name written on it, nothing more. My mother had stored it with other items which had belonged to my grandfather. Miss Tilney had saved the lives of many Jews and could have been imprisoned at any time. I love the fact that Miss Tilney, who was an evangelical missionary, saved people’s lives but never told anybody about what she had done. For me this is remarkable in the age of Facebook and Twitter where everyone repeats all the great things they did. I was interested in understanding her motivations. Was she saving people for ideological reasons? Was she saving Jews to bring them to Jesus? Or was she saving Jews as an act for humanity? ... To understand her motivations I had conversations with the novelist Jeanette Winterson whose mother was also an evangelical. And Jeanette just said: no she was motivated by deep humanity, not by ideology, not Christianity belief. At that point I really felt moved, because I understood the motivation was really pure, that it was not tainted by being part of another project.

Raphael Lemkin, who you also describe as a hero in your book, hails from Lemberg, as does your own family. He is a lawyer and developed the concept of genocide, which he repeatedly referred to in the Nuremberg trial against the main war criminals 1945-1946.

Lemkin was a nuisance. In the middle of the trial, Benjamin Ferencz,  a prosecutor of the Americans,  who is still alive today, described Lemkin as pest. Lemkin was obsessed with his idea of genocide, and he would just keep coming up and talking about it...But that is perhaps another indication of a hero that you have to be obsessive, and being an obsessive you drive people crazy. Lemkin is definitely a hero.

What about Hersch Lauterpacht, the legal scholar who developed the international law term "crime against humanity" for the Nuremberg Trial?

Lauterpacht is perhaps less attractive as a character than Lemkin, he was more principled and ambitious. And he was part of the establishment, he respected its rules. Raphael Lemkin, on the other hand, didn't care what impression he left as long as he could talk about his ideas of genocide.

Today, human rights are defended by institutions such as the UN Human Rights Council or the International Criminal Court. But to what extent are people who act beyond institutional norms important in order to expose "evil"?

I think the difference between 1945 and today is that in 1945 there was no institutional structure. So these people Lauterpacht and Lemkin were operating in a political vacuum, they were creating and promoting their own ideas. Today the room for manoeuvre is different: there are national and international laws, national and international institutions. But right now in Uganda, for example, to be a gay rights activist, you don't have support from national institutions; rather you’re basically in the same situation as Lemkin was in the thirties and forties. You are on your own.

In places like Russia too you know you are on your own, you’re persecuted, and you’re liable to be locked out.  So human rights defenders who work outside of the institutional context deserve credit for the risks they take. You know, I work with human rights in a legal context, it is completely safe for me to make arguments for human rights in an international court, in a national court in an English context, in a German context. What real risk do I take compared to these people?

What makes people prepared to take such risks?

Both Lemkin and Lauterpacht experienced discrimination at young age. Lemkin was in Berlin in 1921 during a trial about a killing that took place in Charlottenburg involving a young Armenian called Soghomon Tehlirian who killed the person he believed was responsible for killing his parents. That trial took place in Berlin and was covered by all the newspapers. He was eventually set free. Lemkin was at university in 1921 when it happened, he read about it and he talked about it with his teacher. So he was 20 years old, and already thinking about these ideas. For Lauterpacht it was the same. When he was 21 years old in November 1918 there was ethnic conflict in Lemberg, and he physically had to protect his parents house. He learned at that point: people kill each other, kill each other for religion, nationality.

One person I met through Kizilhan is a young woman, Jesidi, she is nineteen years old, she was kidnapped by ISIS she was raped more than 500 times. She wants to become a lawyer, to protect her group and Jan reached out to me as an expert on genocide, to help this young woman. Why? Because Jan believes that for one young woman or many young women who have been subjected to this terrible treatment, the possibility of justice is part of the recovery process.

What motivated you to be a human rights lawyer?

I must have had some instinct in working for the underdog. I have a deep sense there is inequality in the struggle for rights and bother me a lot. One of the things international law does is levelling out the playing field. I am doing a case right now for Mauritius against the United Kingdom in relation to a place called Diego Garcia which was long part of Mauritius.  When the United Kingdom granted independence to Mauritius in 1965 it removed every single person that lived on Diego Garcia, some 2000 people, and gave the island to the Americans as a military base. Those who were displaced want it back today. This is the kind of thing that really bothers me: When a powerful actor puts its own interest first and does not respect the rights of a less powerful actor, there are so many stories like this.

What kind of adversaries and obstacles do you encounter in your work as a lawyer?

Well, the law is conservative and so it is a constant struggle to persuade powerful people that they should take more account of the rights of the weaker or smaller person or states. I am not boasting but in the cases where I led small countries against big countries we had a really good success rate, for example, when I acted for someone detained in Guantánamo against the United Kingdom. Of course I don't win every case but there are enough successes to show that with decent arguments you can persuade people. I also believe in reason and in the power of ideas and the power of words. I think it is possible to change people’s minds.

Chief prosecutor Serge Bammertz of the UN tribunal against former Yugoslavia has stated that across the region war criminals are being considered to be war heroes again. Why does this happen?

I have to be really careful in what I am saying because I have been very involved in these cases. But the fact is how we see things changes over time.

To go back to Nuremberg, the prosecutors' idea was that all 24 defendants would die, and there is material showing that the idea that any of those Nazi defendants would not die would be a catastrophe. In the end only ten or eleven died. The rest were either imprisoned, or in the cases of three, they were acquitted completely. That fact strengthened the long-term reputation of the Nuremberg trial. Now, 70 years on there is a broad recognition of legitimacy of the Nurnberg trial.

We’ve seen, the ICTY (The International Criminal Tribunal for the former Yugoslavia) acquittals of Ante Gotovina, which are very troubling and to my mind undermine the legitimacy of the institutions. So one has to take a longer-term historical perspective I think and recognize that the functioning of the traditional institution at the international level is a complex thing: Our reaction today may not be the same as our reaction in seventy years time.

Which audacious ideas do we need today in order to make a step forward towards justice and humanity?

I think, that it is a continuation of the main theme of 1945 that is: to begin to understand that the state is part of the problem not part of the solution. Right now, when we see a move to make “America great again”, Brexit, the AfD, Le Pen, what’s going on in Poland or Hungary, we can clearly see that people have forgotten what we are capable of doing. So I am very sceptical of “America first” or “Taking back control.” I think they are very problematic and will end leading us to very dark places.

A very good friend of mine wrote a book in 1972 called “Should trees have standing?” and I would push for something like that: I would say that the idea is to diminish the rights of the human being, to start imagining rights for other entities. We need to act as we are just trashing our natural environment and that is really problematic.

The interview was conducted by Stephanie von Hayek

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