‘It’s a slam dunk’: Philippe Sands on the case against Putin for the crime of aggression

"I really want to be in Lviv," says Philippe Sands, from his office in London. "It's my relationship with the people I know who are living there now. But it's also the place where my grandfather was born. He fled as a 10-year-old. The train station in Lviv is the same train station from which my grandfather fled from the Russians. History just goes round and round."

Shortly after Russia invaded Ukraine, Sands argued in the Financial Times that, while he supported the newly announced international criminal court investigations into war crimes and crimes against humanity, there should also be an immediate investigation for the crime of aggression.

Sands's proposal quickly gained steam, with the former UK prime minister Gordon Brown joining forces with Sands to propose setting up a special tribunal that could investigate the crime of aggression. Signatories to the plan include scores of leading figures in international politics and law as well as writers and public intellectuals.

I spoke with Sands to understand the origins of the crime of aggression and its significance to the war in Ukraine.

Can you explain why it's important to begin investigations and even bring prosecutions now, while bombs are still dropping, people are still dying and the war has no obvious end in sight? What is the urgency of a legal response? Nuremberg happened after the second world war was over.

Different communities do what they can. In such moments, the medical community is providing medical assistance, the artistic community is providing moral support, writers are writing petitions. So what can lawyers do? We're pretty useless but we have the law. That's what we know.

What is different from say, 1939, is there's a body of rules, there are courts: the European court of human rights, the international court of justice and the international criminal court. So the litigation of conflict is something that's been going up the agenda. But what does it achieve is the bigger question.

First, I think it provides hope to people who are on the receiving end of horror. I know from the messages that I'm receiving, from Kyiv, from Lviv, that it provides hope because people feel they're not alone.

Secondly, it provides a means for delegitimising behaviour.

Thirdly, in very practical, political terms: if the whole of Ukraine falls, there are proceedings under way, which the current, existing, lawful government of Ukraine will be able to take forward.

Fourth, at some point, there will be a deal to be done and it gives Ukraine a lot more leverage. You can't just make the ICC prosecutor stop investigating or prosecuting. You can't just tell the ICJ to put down tools and stop its case. So it becomes another factor in the process, and that delegitimises Putin.

The ICC is investigating crimes against humanity and war crimes, but you've argued that there needs to be a special tribunal set up to investigate for a third crime, the crime of aggression. Why is that so important and is there that much difference between the three crimes?

As of 1939, there was basically one relevant international crime, and that was war crimes.

Then in 1945, in London, the drafters of what became the Nuremberg statute, sat down and looked at what they were going to prosecute and indict the Nazis for. There weren't any crimes so they basically had to invent them. They called them crimes against humanity, genocide, and what they then called crimes against peace which today is the crime of aggression: waging a manifestly illegal war.

Since 1945, those have been the four crimes that we've had. (I've spent much of the last year working on a fifth crime, which is ecocide, but we can put that on one side for now.)

In theory, the ICC has jurisdiction over all four of them. However, when the ICC statute was adopted in 1998 a decision was taken not to give the ICC jurisdiction over the crime of aggression because certain large powers were worried: is it going to turn on us?

Five years later, we had the Iraq war. And so they decided not to give the ICC jurisdiction of the crime of aggression until they'd defined the crime of aggression and that took almost 20 years. They finally agree a definition in 2017 in Kampala and 43 countries have ratified it. But the definition says: you cannot exercise jurisdiction of the ICC in relation to the crime of aggression against a person who is a national of a country that's not a party to the ICC standard.

So for lay people's understanding: Karim Khan QC, the prosecutor for the ICC, can investigate war crimes, crimes against humanity, and genocide on the territory of Ukraine. But he cannot investigate the crime of aggression because Russia did not ratify the statute.

The difficulty with crimes against humanity and war crimes is that you have to show a direct connection between the act that amounts to the crime, and the perpetrator. For example, we've seen some horrific video footage apparently of individuals being shot. So the Russian soldier who shot the man who got out of his car with his hands up. That would appear to be a war crime, on its face. So who's in the frame? The Russian soldier, yes. His commanding officer probably, for authorising rules of engagement, which allowed that to happen.

But does it go all the way up to the generals? Does it go up to the civilian command? Does it go up to Putin? These are really complex questions.

By focusing on crimes against humanity and war crimes, you're going to end up in seven years' time with trials of mid-level folk. And the big issue, the waging of an illegal war, is never going to go to justice. That's why I wrote that war crimes and crimes against humanity investigations alone could end up as a means of letting the main man off the hook.

Were you expecting the article to lead to something more concrete?

I did not expect the consequences that followed from the article. But I'm pleased that the consequences have followed because, frankly, the crime of aggression is a slam dunk. We have made great progress. We're talking informally with a small group of countries about the possibility of establishing an interim office to investigate. We're talking with potential prosecutors with extensive experience.

The indictment writes itself. There's no difficulty of proof. There's no great difficulty in evidence. It's not only the decision to wage war, it's the decision to continue waging it now even after the international court of justice has said in a binding legal decision: stop, withdraw your troops. Every act, every attack, every bomb on a theatre with 1,000 people in it is a crime of aggression. I don't want to let these people off the hook.

Are there any barriers to getting such a tribunal set up?

The two governments I think will cause the most problem on this will be the British and the French. It's got nothing to do with principle. It's got everything to do with fear of precedent, and what might happen to them. We need to spend quite a lot of time encouraging the British and the French governments to reflect on whether they want to be the ones to effectively let Mr Putin off the hook because of their own fear of being hauled up before some tribunal in the future.

President Biden has called Putin a war criminal and Zelenskiy has invoked the word genocide to describe what's happening in Ukraine. Why are you uncomfortable with their language?I wondered how wise it was, for senior politicians to be characterising particular individuals as war criminals. I think one can say that Mr Putin has waged a war that is manifestly illegal. There's no conceivable defence or justification for it in law. But would I say that Mr Putin is a war criminal? No. I'm not sure that President Biden chose his words with particular care. Was he saying that he had violated the Geneva conventions? I'm not fully comfortable with those kinds of labels being pasted on particular individuals.

What about Zelenskiy, who said a 'genocide of Ukrainians is taking place'?

I think he's used it in a political sense. On the basis of what I've seen, there is no genocide of the Ukrainian population in its legal parlance, going on. I do not see an intention to destroy a group in whole or in part, within the meaning of the 1948 convention.

Are Ukrainians aware that these concepts originated in their country?

When I arrived for the first time in Lviv in October 2010, the people at the law faculty with only one exception, a very elderly professor, were not aware that the originators of the concepts of crimes against humanity and genocide had studied at their law faculty, and that you could trace the origins of those two crimes to that city, to that law faculty, to a single room. When I went back a year later, they had photographs of Lauterpacht and Lemkin and they've now got signs on their houses, busts in their villages and in the law faculty.

That must make you feel good.

It does make me feel warm. What's interesting about this is it's very complex, because [Lauterpacht and Lemkin] were Polish Jews, and the reality is that in the period 1941 to 1944, some Ukrainians were very active in supporting Germans. I've often talked about that complex history when I'm in Ukraine, and they want to engage with it. I am very troubled by Putin seizing on that to make the claim that Ukraine is a Nazi country. It's not.

But gradually, as the years pass, that information about Lauterpacht and Lemkin has been embraced.

Are there any reasons to be optimistic?

It's a wake-up call. I think we've become incredibly complacent in the west, imagining that war in Europe had ended forever.

The world changed in 1945. It was a revolutionary moment. For the first time, states agreed that they were not absolutely sovereign, that they could not kill individuals or destroy groups.

The 1945 legacy was under real attack from Britain and the United States. Now "make America great again" and Brexit have reminded us of the singular importance of that 1945 moment.

Who could have imagined one month ago that the US Senate would be presented with a resolution by Senator Lindsey Graham calling for total support for the investigation by the international criminal court? And that it would be passing unanimously. That is a sea change, and it's a really significant sea change.

You can't adopt a resolution saying the ICC has jurisdiction over Russian nationals, while saying it has no jurisdiction over Americans. So it's not another 1945 moment but with a bit of luck, it will reinforce the 1945 amendment and give it renewed life. And that is a good thing.

This interview has been edited for length and clarity.