it's hardtalk with stephen sackur. welcome to hardtalk i'm stephen sackur. 75 years ago the first nuremberg trial of nazi war criminals came to an end. the groundbreaking international tribunal handed down 12 death sentences. in the years that followed, there were hopes that in evolving mechanism of internationaljustice would deter and punish further heinous acts of mass murder and genocide. my guest is international lawyer and author philippe sands. 75 years on from nuremberg, is the world any better at delivering justice for the worst of crimes? philippe sands, welcome to hardtalk. lovely to be with you. this notion of international justice, it seems to have sort of consumed you both professionally and personally for many years. is it possible to say which comes first, which driver is more important to you? which came first was professional. i got involved in these things in �*98, really when the statute of the international criminal court was being negotiated in rome and there after and started getting involved in many cases. but i suppose it's true to say there was a personal connection because my mother had been a refugee child from vienna and had been a hidden child in paris during the war, hidden by catholic families and so, this has always been part of my life i suspect. was it subconscious or conscious? did you consciously think to yourself, i'm an international lawyer and i want to dig deep into notions of accountability and justice? no, it didn't happen like that at all. i made the terrible mistake of doing law at university and i hated it apart from one teacher, a very lovely yorkshireman called robbiejennings, who went on to become the british judge at the world court in hague. and he taught a course on international law and i thought, "this is interesting. "this is what i want to do." and i just stuck with it, i stayed on, i did a masters, i had some great teachers and that was what develop my interest in international law. and with your academic hat on and as we look at the nuremberg trials 75 years on from the first set of verdicts, does it strike you that they should be seen as sort of extraordinary positive landmark or do you now focus on some of their shortcomings? no, it was a revolutionary moment. this had never happened before in human history — that the leaders of a state, germany vanquished — should be put on trial before an international tribunal — this was a completely new thing. and as part of that process, new crimes were invented — genocide, the killing of groups, crimes against humanity, the killing of individuals. there's a problem, of course — these crimes did not exist in 1939 01’1942 as such, and so they were applied retroactively. well, they weren't on the charge sheet — genocide was not on the charge sheet in 19115. genocide was a subheading of war crime, they sort of snuck it in. the guy who invented the concept in autumn of 19114, raphael lemkin, a rather wonderful character, was desperately upset that it wasn't on the list of crimes and so he flew himself to london to get it into the indictment, which is he succeeded in doing as a war crime but not as a crime on its own. some people looking at nuremberg today, they are deeply disturbed that not enough room and space was given to the experiences, and the stories and the testimonies of victims — in particular, jewish victims of the nazi holocaust. none was given. and still, when i go onto youtube and watch little extracts of witnesses being examined by prosecutors or by defence counsel, it's almost cringe—making. there is one guy in particular samuel rajzman — literally one of the only survivors of the extermination camps, gas chambers — and you see the way in which he's examined and you think "will you give this guy a break?" he's literally been liberated a few weeks earlier and they are coming down on him like a tonne of bricks. it's disconcerting. and that's a change of values. today, it would be done differently. here's a quote from claudia hyde — she works for the holocaust memorial day trust and she spends a lot of time thinking about the contemporary resonances of nuremberg, and she says this — "justice cannot be secured without truth and for survivors, thejudgement no judgement is the whole truth and nuremberg was like any other tribunal in that sense. it's a partial truth — it's what the judges decide. for example, the judges decided they couldn't look at anything that happened before 1939 because of the way the statute had been drafted. they didn't look up crimes that may have been committed by the allies. they only focused on these 2a defendants. so it was a snapshot of a much bigger picture. so i think that quote has truth to it but that doesn't undermine the whole. i want to bring you back to this point about genocide and you say it was snuck into the charge sheet as a subheading. but perhaps there is an argument to say crimes against humanity was a more powerful argument against the nazis. even then, genocide — in that the nazis wanted you, all of us, to see the world in terms of blood, ethnicity, tribe and the resistance to that, the response to that perhaps should be triumph. it is to say, "no, that is not the way to see human beings. "human beings should be seen each one of us "as an individual, not defined by our blood and our race "and therefore, we are going to pursue you for crimes "against humanity first, rather than for the heinous "racial crime that you committed too." you'll note that that resonates very powerfully with me. i've thought a lot about this. i've written a book about it, i've looked at the origins. you have these two crimes invented at the same time. crimes against humanity, basically driven by a cambridge professor — we must protect individuals because they are living, breathing, sentient beings as individuals. lemkin says "no". people get killed en masse, not because what they've done but, because they are a member of a group. the law must protect them as a group. no, he says, if you protect them as a group, you will replace the tyranny of the state with the tyranny of the group. and i think that has, to a certain extent, happened. because you, in a sense, fall into the trap that the nazis set. yes. when lemkin published his book in november 19114, he received an extraordinary letter from a friend of his that said, "look, i'm looking to make this public. "i don't want to criticise you, but by taking "the concept of genocide and wrapping it around "the group, you taking a biological approach "to the definition of the crime and you've taken the same path "that hitler took." that argument, i think, is a powerful one. when you say it resonates with you, with all respect, have you not, to a certain extent, fallen into the trap? you write very frankly, very honestly about the impact it has had on you going to visit the region — it's been variously polish and occupied german and russian and currently, i think the town where some of your families from is ukraine. you've been to this region, a troubled region, and went to the village where your grandmother was from and you then said... great—grandmother. "i was told about the mass grave in the village "where my grandmother is from, i visited and i realised "that we are defined by the community, the group, "the tribe of which we are a member." so, in essence, when you saw what happened to your own family, your response was tribal. i don't know if you read the whole book — it's a struggle. the book reflects many struggles and one of them is the inner struggle that i have. i'm with him intellectually. essentially, i think that every single human being — because they are a human being — has the right not to be subject to that sort of atrocity, killing, disappearance, torture and so on and so forth. but in the presence of a mass grave where members of my family lie still today, and his family co—mingle with my family, ifound it — i was overwhelmed. ifound it impossible not to feel a sense of kinship and connexion. and in that moment, it was a sort of epiphany. i understood what lemkin was doing — he was recognising the reality that people get murdered en masse because they happen to be a member of a group that is hated at a particular moment in time and place and the law needs to reflect that. the problem with genocide is, i fear, that it creates the very conditions that its intended to prevent. it reinforces group identity and group hatred. what you also do in the book, you refer to east west street, you weave in an extraordinary story which involves coming into close contact with the families of the senior nazis who, frankly, were responsible for the killing of many of your widerfamily. there are two key individuals — hans frank and otto wachter — whose sons you meet and become in one way or another very friendly with. you humanised the families of the killers. how difficult was that? i think it wasn't difficult because my dayjob is doing international cases and i come across these characters very often. and i don't buy into the argument that there are monsters and decent people. there are human beings. hans frank and otto wachter did monstrous things, criminal things, the most terrible things imaginable. the mass killing of thousands of people —. millions. hans frank was hanged for the murder of 4 million human beings, 3 million jews, 1,000,000 poles. it's almost impossible to conceive of the scale of the killing. but you go through their personal documents, their letters, their diaries and you see they are also capable of love and humanity and decency, and this is the fundamental problem. how did a highly intelligent, highly educated, highly cultured human beings get involved in mass murder? and it's notjust an issue for back then. a couple years ago, i stood in the international court ofjustice doing the case for gambia against myanmar and the treatment of their rohingya, allegations of genocide and sitting no further away from me and you are today with aung san suu kyi, than you are today was aung san suu kyi, and i sat there thinking, "how can you possibly defend this now?" this is a nobel peace prize winner ofjust a few years ago and now, she's standing up in court defending, effectively, mass killing. you are a highly educated man and you spent years, decades on this very question of how and why people who appear to be ordinary like you and me can become killers, mass murderers. have you found an answer? i asked myself very often, "could i do that?" and have to put my hand my heart say, "i hope not," but who knows? under circumstance, there is a common theme that runs through the historical work that i've done on nuremberg, but then the most recent cases of yugoslavia, rwanda, and the common theme is this, i don't know whether to answer your question. you're able to do this to human beings when you treat them as the other. when they are not treated as human being like you, the perpetrator — you — consider yourself to be — that's always a theme and the threat that runs through. so the act of othering — which begins with little things — attacks on migrants, attacks on people of a certain colour or certain sexual orientation — is the alarm bell for me because one thing invariably leads to another, and that i think is the heart of the issue. you in your dayjob, your professional life, you are a barrister and an academic lawyer of great repute. as a barrister, your professional commitment is to take whatever case comes your way. i think there is this phrase, the taxi rank, where you sit in chambers, you wait for the case to come along and then you take it. yeah. so over a long career in international law, i'm imagining that sometimes you take cases defending people who you have grave moral doubts about. absolutely, but i've also turned down a couple of things. because there is an exception to the cab rank rule — it doesn't apply to our international cases, it only applies to cases before the english courts for the privy council. and there are exceptions, and i was let off the hook once a few years ago in the case of a case not so far from here because actually, i come... former chilean leader sebastian pinera. former chilean president sebastian pinera and then senator rescued in london on the 16th of october 1998. a few days later, i get the call would i act for him? in the end, i did not act for him because i had been in a bbc studio on the sunday night before. the world service host, who asked me whether i thought he should be entitled to claim immunity and i said publicly on the radio no. my own personal view is if you've committed a mass crime, international crime, genocide, war crimes, no immunity for a former head of state, serving head of state would be different. and i was able to, if you like, use that to avoid professional embarrassment. that got you out of one hole but what you have done over many years as you've been an adviser, a consultant to many international tribunals and you've watched with great professional interest as the tribunal to consider the crimes in the former yugoslavia did its work and then there was the rwandan tribunal. we have had since 2,000 and do an active international criminal court. but there are many people who will look at this whole sort of mechanics of internationaljustice today and they think thatitis fundamentally failing, that it is failing to deliver proper true accountability and justice. it's failing to deliver the vision of 19115. you know, on the first day of that famous trial — possibly the most famous trial in human history — nuremberg, robertjackson, chief prosecutor stood up and said never again. we are going to set down the principles and set down the rules full clinic. —— down the rules. and that plainly hasn't happened. so if that is the standard, there is failure. but i don't think he would've imagined or any of the other prosecutors would've imagined that it would be in fact practically never again. the justice that has been delivered since 1945, it was a new invention, it was just 75 years old, is lopsided justice. it's essentially focused on the vanquished and the weak. and that is a problem, but i think it's going to be seen in the long run — and it's a long game — as the inevitable start of the system. but why is it a long game? why can you believe optimistically that there is an evolution in place here? because frankly, what we see is that all of the active current cases on the books of the icc involve poor countries in africa. well, it's even worse than that. if you go onto the website of the international criminal court now, switch it on on your desktop, you will see that every single person who is identified as a defendant is black and from africa. blacks and africans do not have a monopoly on international criminality. well, you've written extensively on what you regard as the illegality of american military action in iraq. and i'm sure you've also look at afghanistan too, but none of that gets anywhere near the icc and the truth is that the biggest powers in the world — a whole host of countries... britain. ..they don't accept the legitimacy of the icc. britain and france do, and i think we have to give britain and france credit. they are both parties to the statute. russia and china and us are not. court, interestingly, does not attach only to nationality, so it attaches to territory. amazingly, afghanistan is a party to the icc statute and therefore, all the acts which may or may not be criminal that occurred, for example at bagram airbase with the alleged torture chambers, those fell within the jurisdiction from 2002 they have not been investigated. that's a serious problem. you say it's a serious problem. if you accept the glaring sort of failing of the international justice framework at the moment, why on earth are you now seeking to push the notion of internationaljustice even further and take on the concept of what you are calling �*ecocide' — to have the international criminal system take on the notion that those responsible for the most egregious acts against the planet's welfare should be criminally prosecuted? it's not conceivably going to happen. let me separate— it is actually going to happen. but let me separate out the two issues. the first issue is internationaljustice generally — am i in favour of developing the systems, absolutely? it's a long game. you can't expect human rights to exist for millennia and then, in 1945, to create rules on bits of paper which say you can't commit genocide, you can't commit crimes against humanity, you create an international criminal court and everyone just keels over and says "0k, we're gonna behave from now on." it's not we're going to take notjust decades, it's going to take centuries. but your second point is an important one. since 1945, we've had four crimes. the old one, war crimes. 19th century then three invented at nuremberg — crime of aggression, waging illegal war, genocide, crimes against humanity. they're all focused on the protection of the human. there's a gap and we are facing that gap right now in the face of climate change, biodiversity, marine pollution, there's a gap in relation to the protection of the environment — it is not protected by the criminal law. and the proposalfor a new crime of ecocide — which, incidentally, is notjust supported by me but by the pope, secretary—general of the united nations, various countries around the world, and i think it will happen. it is fair to say it's supported by people rhetorically by people not having the deep legal knowledge that you have. and i would put it to you that if you pursue a legal action that in all sort of realistic scenarios is never going to bring a result, you're actually bringing the legal system into disrepute. there is a danger to pushing it as far as you want to push it because if it doesn't happen, people begin to think, you know what? international law is a waste of time. no, if that were the case i would agree with you 100%. i don't think that's the case. in 1996, the international court ofjustice in the hague, for the first time, said the protection of the environment is part of international law. so the next stage is to ask myself the question if we're going to use the law at the international level to stop evil mass killing, should we use international law — criminal law — to stop people from causing massive damage to the human — to the environment? so who's in your notional crosshairs? is it the chinese building a coal—fired stations, the president of brazil who continues to allow logging in the amazon rainforest? and how do you define that as a crime with intent? i get daily emails on those subjects and on other subjects. i've looked more at the historical type of things, to give the kinds of examples. for example, chernobyl. the failure of a country to notify neighbours that there is a massive radioactive cloud passing above them. there was a case involving a british company — in cote de ivoroire 15 or so years ago. 0bviously they're going to be issues with climate change, difficulty and the challenge and i accept that challenge is where you draw the line? am i in �*ecosider�* because i drive a car that's only partially electric or because i'm involved as lawyer doing cases on oil and gas exploitation. i absolutely accept that. but what i would say to you, stephen, is go back to that 1945 letter. hang on, we've discussed that and we decided that frankly, the great ambitions of �*45 haven't been realised. i'm going to end by quoting you somebody who i suspect you may know — michael carnavas. he's a defence attorney, involved in the tribunal on the former yugoslavia. he says i'm all for stopping ecocide. but please, let us be realistic. who have been and who are likely to remain the guiltiest in this? well, start with the permanent members of the un security council. again, it's about being realistic, not wasting your time. i think being realistic is using the power of the criminal law, including at the international level, to protect things we care about — to protect human beings and to protect the environment. exactly the same exact argument as the one you just recited to me were raised by reasonable people against rafael lemkin in 1945. they said it was a nonsense. prosecutors said "go away, don't bother us with your stupid genocide idea". two years ago, i stood the great hall ofjustice, peace house in the hague, next to aung sun kyu kii, she was there to defend. you could say it's not a system that works but for the folks who were in the camps at coxs bazaar, there were many images of them around television sets — two rohingya refugees who crossed the borderfrom may and march — sat in front of television and computers watching and thinking how astonishing that they are being held to account. you know, i had a conversation a week before that with the formerjudge of the international court ofjustice and a wonderful man who'd been a child at auschwitz who'd been in the care ofjoseph mengele. he survived and he went on to have a wonderful career. he said to me, "can you imagine if in 1944 for when i was in auschwitz there was a law called the prevention and punishment of genocide and it was an international court in which a faraway country would say "you can't do this?" it may not be everything, it may not be perfect, but it's a lot better than nothing. philippe sands, it's been a pleasure having you on hardtalk. thank you very much. thank you, stephen. hello. i fancy you'll be delving into different sections of your autumn wardrobe through the week ahead. certainly some waterproofs required during the first half — we're going to see spells of wet and windy weather, punctuated by some sunnier moments, but temperatures will be a big contrast as well. to start the week, with low pressure across the atlantic, we're actually going to drag our air up from the tropics — some unusually mild air coming ourway. but as that low pressure pushes its way eastwards, we may see the return of sunshine more widely, but there will be a brief shot ofarctic air coming in from the north. that's a long way off to begin with, though, and it's the mild air taking hold through monday, beginning pretty mild notes for many for many in the morning rush hour. coolest with single—figure temperatures across the midlands, east anglia, south—east. best of the sunshine here lasting longest through the day as well. rain through the morning rush hour in northern ireland, spreading in across wales, western england and scotland during the morning and into the afternoon. and a bit further eastwards, it's not arriving to the channel islands, east anglia, south—east until later in the afternoon, and for some maybe not even into the evening. brighter conditions to end the day in some western parts but still fairly cloudy. temperatures, though, above where we'd normally expect this stage in mid october. heavy rain to end the day, then. east anglia and south—east, that gradually clears away. some dry conditions for a time overnight. best of the clear weather to the north and east but more wet and increasingly windy weather starting to push in from the south—west. probably one of the mildest nights of the week, then, monday night into tuesday, with temperatures higher in the morning then we'd normally expect during the afternoon! and that's because we have still got that area of low pressure just to the west of us, dragging in southerly winds. the warmest of the airjust ahead of these weather fronts which are going to spread rain more extensively across the country on tuesday. some heavy bursts, fairly erratic, that movement, northwards and eastwards, some seeing higher rainfall totals than others. brightening up across ireland later on, adding some afternoon sunshine potentially in east anglia and the south—east — even if it's on the hazy side. we could see temperatures get up to around 21 degrees. this stage in october, your average temperatures are around 10—14 degrees across the country. and we could be probably around those values through night and into thursday morning. low pressure still around across the country through wednesday night, and we're going to see more in the area of low pressure systems spreading their way northwards and eastwards. this one will bring heavy rain at times through the central swathe of the country, brightening up on the southern flank of it before more wet and windy weather arrives. not a bad day through the northern half of scotland, and sunshine and showers later in northern ireland. but whilst we'll see temperatures 17 or 18 in the south and east, it's turning cold across the north. that cooling trend continues into thursday. this is bbc news. i'm samantha simmonds with the latest headlines for viewers in the uk and around the world. tributes and a minute's silence — borisjohnson and his fellow mp�*s to share memories of their colleague, sir david amess, when the house of common returns from recess later today. we have a special report from the afghan ministry for vice and virtue — what does the future hold women and girls under taliban rule? the earthshot for build a waste—free world goes to... ..the city of milan! the winners of prince william's million—pound earthshot environmental prize have been revealed at a star—studded event. britains�*s cameron norrie claims the biggest win of his career to collect indian wells tennis title.

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