International Affairs

Philippe Sands: Tales from the Legal Front Line

Would you bring a case against your own country to benefit the world at large?

Reflections from an event on March 21, 2024, sponsored by Columbia Law School, titled "Philippe Sands: Tales from the Legal Front Line in conversation with Monica Hakimi"

Monica Hakimi, the William S. Beinecke Professor of Law at Columbia University and Co-Editor-in-Chief of the American Journal of International Law in conversation with Philippe Sands, professor of law at University College London and a visiting professor at Harvard Law School + author of numerous books.

The World Stage

The world is governed by states. It is imperative that we acknowledge the people behind these states. Does world participation in international trials insinuate that rulings will reflect a generalized human opinion? People deciding these cases are charged with the moral authority to speak on behalf of, in a sense, the human race, yet we must take into account that there is an aesthetic moral judgment that has influence - the “textbook” version of international law differs greatly from the “real world” version. Each case is autonomous (different judges, different participants), yet cases don’t happen in isolation. We must be wary of the precedent that the outcomes of these trials set, as world participation influences legitimization - the outcomes of these trials have a reverberating effect and will inevitably influence international opinion. Those who use international law are the ones who shape it over time. It’s an international language that strives to be an equal-access project, yet do we have safeguards to prevent one-sided use of the law and to ensure international inclusivity? There have been concerns raised by critics that the International Criminal Court (est. 1998) is Eurocentric and has an exaggerated focus on Africa. 

Genocide versus Crimes Against Humanity

Both of these concepts address a Truth: every living human has minimum rights. Although the idea of “natural rights” has existed in the Western world for centuries, the policies to address genocide and crimes against humanity - amongst the most grievous offenses on the world stage - have only been in existence since 1945, following the atrocities of the second world war. Weighed against each other in the court of public opinion, genocide has a greater negative value than crimes against humanity. [This is reflected in international law]. Should there be a hierarchy? For a genocide conviction there is a requirement of proven intent to destroy a specific group, whereas crimes against humanity requires less specificity; the victim can be any civilian population. Because of the generalized nature of crimes against humanity, it is easier to identify. With genocide, the proven intent to destroy a specific group of people can be difficult to ascertain. The Rome Statute (adopted July 1998) defines these terms:

Genocide (defined in Article 6) is, “...acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group…” - there are five crimes that fall under this category.
Crimes Against Humanity (defined in Article 7) is, “... acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack…” - there are 16 crimes that are associated. 

The victims in these situations generally desire their perpetrator to be found guilty of genocide. The outcome of finding a party guilty of genocide, however, can set a dangerous precedent. It has the unintended consequence of reinforcing inter-group hatred by giving validity to the victim / perpetrator dynamic. This breeds rivalry and drives a wedge between people, perhaps irrevocably. Does holding accountability in this way create conditions for future conflict? It is important to have a system of rules that enables the criminalization of behavior, but do people have the ability to move past it, and are they obligated to? The potential negative consequences are not a reason to tear down the entire structure, but it’s imperative to think about the influence that these outcomes may have. It is important to understand who is being targeted in these investigations. Usually it is those in leadership, and these figureheads do not necessarily accurately represent an entire nation, yet if found guilty of genocide create the framework for lasting conflict. Narrative is of utmost importance.

The Environment

Climate change will make our current world's conflict look like “child’s play”. Law will have to play a role in addressing these issues. Holding parties accountable is a must. The current culture in the USA can be seen closed off from the influence of international law on a domestic level. We must hold ourselves accountable. Do you bring a case against your own country to benefit it and the world at large? When is it morally acceptable to withdraw from a case? It is okay to rule against / argue against your own country. Sometimes deciding against your own country is part of your legal obligation. How can we use the law to be simultaneously proactive and responsive?

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