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Tuesday, February 27, 2024

The Russian war against Ukraine is also a colonization project. Interview with Philippe Sands

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Philippe Sands is a lawyer specializing in international law. He is the author of the books East West Street (2016) and The Ratline (recently released by Old Lion (Stary Lev) Publishing). Philippe has strong connections with Ukraine: his grandfather, whose family perished during the Holocaust, was from Lviv.

In addition to his family ties, Mr Sands also has professional interests. His involvement in environmental law began with the Chornobyl disaster, on which he wrote his first book focusing on the legal aspects. He is also a member of a group working on the establishment of a special tribunal for the crime of aggression committed by Russia during its full-scale invasion.

As part of the series of conversations on the reconstruction of Ukraine, we spoke with Philippe Sands about the term “ecocide” and its application to the Russian sabotage of the Kakhovka Hydroelectric Power Plant. We discussed the decolonization of international law that this war is causing and the importance of engaging with the Global South.

Ukraine has already referred to the Russian sabotage of the Kakhovka dam as an “ecocide.” How would you comment on and classify this event? And what needs to be done to investigate and bring it to court?

On a personal level, I am shocked by this event. However, as a lawyer and educator, my reaction is to await official conclusions before making judgments. It seems quite evident who is responsible for the dam blowing up, but I still await the results of the investigation.

In international law, there are few rules regarding the protection of the environment during war and conflicts. And one of these few rules states that you cannot use the environment as a tool of warfare. But that is precisely what happened. We know that this was not an accident; it was a deliberate decision made, apparently, to gain a certain military advantage. And that is absolutely prohibited. Therefore, it is clear that those responsible for this action have participated in a crime.

This is an event of immense scale, and it clearly crosses the line set by the 1977 Geneva Conventions, which contain an article specifically addressing the environment and prohibiting such actions.

Returning to the question of whether this sabotage constitutes an act of ecocide, I can say that I was part of the working group that formulated the definition of ecocide and proposed it to the International Criminal Court. I believe that the sabotage of the Kakhovka dam can undoubtedly be considered an act of ecocide within the framework of our definition.


See also: Blowing up the Kakhovka Dam: Russia’s announced crime


That’s why it shocks me so much. I have been teaching environmental law for over 30 years, and I have never encountered anything like this. The idea that a group of people would come together and decide to do something like this is almost unfathomable to me. Everything possible must be done to identify those who are responsible.

What is the current situation with the term “ecocide” and its inclusion in the list of international crimes? And can the blowing up of the Kakhovka dam bring more visibility to this issue?

We submitted our report in the summer of 2021, and the process has been ongoing since then. Recently, the European Parliament adopted draft directives that will be applicable in various EU countries, including the crime of ecocide. This is significant. Additionally, Belgium has passed a national law recognizing ecocide as a crime.

This is a positive step towards recognizing ecocide as a crime at the international level. The question now is not whether it will happen, but rather when.

The situation in Ukraine plays a role here. On one hand, the war in Ukraine has drawn attention to human suffering. The events in Bucha, Irpin, Mariupol, and the deportations of children have made it a higher priority than environmental issues, and that is understandable. However, at the same time, the Ukrainian government continues to address the crimes of ecocide, particularly in relation to the threats of a nuclear catastrophe due to the Russian occupation of the Zaporizhzhia Nuclear Power Plant, destruction of the dam, and other factors. Therefore, I believe that in the long term, the war in Ukraine significantly contributes to the recognition of ecocide as a crime at the international level.

This is important to me on a personal level because I started working on environmental law because of Ukraine. In April 1986, immediately after the Chornobyl accident, I was asked to write an article on the legal aspects of the disaster. This catalyzed my interest in the environment. Chornobyl, by the way, was a turning point for environmental law: it showed that even if you think you are far away (from the epicenter of the disaster), you will feel the consequences.

How else can this war impact the field of international law apart from recognizing ecocide as a crime? In this series, we spoke with Nathaniel Raymond, for example, who mentioned that the cooperation between the United States and the International Criminal Court, happening against the backdrop of the war in Ukraine, is already unprecedented.

Indeed, the work of the United States with the International Criminal Court is driven by Ukraine, but can you imagine how countries in the Global South, for instance, may react to this? They see how much money is poured into this court, how much efforts are dedicated to addressing crimes in Europe, and how little attention is given to crimes in Syria, Africa, or other parts of the world.

Ukraine has filed a lawsuit against Russia for genocide at the International Criminal Court. Thirty countries, mostly European, have joined this lawsuit. For the Global South, it sends a signal that what is happening in Ukraine is solely a European problem and not something it should be concerned about. This concerns me.

I believe that in the past 20 years, we have moved further away from what I call the “1945 moment.” 1945 was revolutionary: modern international criminal law was established, terms such as “crimes against humanity” and “genocide” were formulated, and we progressed in understanding war crimes and included the crime of aggression in international law. Another catalyst for change was the Yugoslav War.

But then something changed again, and 1945 became a problem for many. Today, the year 1945 and its lessons are seen as exclusively a European experience. When the United Kingdom and the United States approach countries in the Global South, seeking their support for Ukraine by condemning Russia’s unlawful war, Africa, Latin America, and Asia raise the question: “Wait, what about 2003?” The UK and the US unleashed an unlawful war in Iraq in 2003, and now, 20 years later, they are attempting to establish a special tribunal for the crime of aggression and hold Russia accountable for its war against Ukraine. This is a double standard, as no one was held accountable for the war in Iraq. We are paying the price for it now. And Russia is taking advantage of this, using it as an opportunity to approach African countries and speak about the hypocrisy of the West.


See also: Environmental damage as a war crime — can Russia be punished for ecocide?


So, I would advise the Ukrainian government to make greater efforts to reach out to the Global South. I understand the challenges faced by the authorities in Ukraine, with the main focus on Europe and other Western allies. However, the Global South has always received little attention, and that is a problem. We can see the consequences of this now on many levels.

Is there currently any discussion in the UK about the year 2003 and its involvement in the Iraq War?

Yes, of course, there are discussions. Last week, I attended a wonderful literary event in Wales — the Hay Festival of Literature and Arts. One of the speakers was former Foreign Secretary David Miliband. In 2003, he led a different ministry — the Ministry of Education. On our panel, I heard from him for the first time an acknowledgment that Iraq was a terrible mistake. He feels a personal responsibility for it and understands the current consequences of that decision for Ukraine.

But the key person to have this conversation with will remain silent. That person is Tony Blair. He has not apologized, nor acknowledged the Iraq War as a mistake, and he never will for his own reasons. This is a significant problem.

Currently, I am working on a project to establish a special tribunal for the crime of aggression, and I am closely collaborating with another former British Prime Minister, Gordon Brown. He was second in command after Tony Blair in 2003 and voted in favor of the Iraq War. I face criticism for working with Gordon Brown because he supported that war. But what am I supposed to do? Currently, he feels a strong solidarity with Ukraine, and I believe he recognizes the problem with the Iraq War.

Of course, we need to engage in conversations with the Global South, and the Minister of Foreign Affairs, Dmytro Kuleba, has initiated this process through his tour of African countries, for example. However, at the same time, I believe that a significant part of this conversation should take place within Western countries themselves because we are in a complex position. On one hand, we need to have a broader discussion about former colonies and the decolonization process. On the other hand, the United States and the United Kingdom are our biggest allies, providing us with weapons. How can we openly talk with them about the mistakes they made twenty years ago? It doesn’t seem very diplomatic.

Let me tell you an interesting story in this regard. My new book, which I released last September, is called The Last Colony. It is about the last British colony in Africa. For 15 years, I served as Mauritius’ advocate in their case against the United Kingdom. In 2019, we won: the International Court of Justice ruled that Britain illegally occupied the Chagos Archipelago in 1965, which belonged to Mauritius. For three and a half years, Britain refused to accept the decision of the International Court of Justice. Then, in November 2022, their behavior changed.

I would like to think that this change was caused by my book, which was released two months earlier, but no, this change is due to Russia’s full-scale invasion of Ukraine. The British faced criticism when they started persuading African countries to stand against the Russian war in Ukraine. Many in Africa pointed out that Britain itself illegally occupied parts of Africa and essentially continues the colonization of Mauritius. I am confident that this reference to the double standards of Great Britain led to a change in their actions.

Russia’s war against Ukraine is also a colonization project. Resisting it should be approached as a fight against colonization.

What specifically changed in Britain’s stance towards Chagos? Did they return the territory?

No, they stated that they want to initiate negotiations with Mauritius based on international law. Since November 2022, they have been engaging in these negotiations, and the basis for this conversation is respect for the decision of the International Court.

This highlights the complex situation in which Ukraine finds itself. As you mentioned, Ukraine relies on financial and other forms of support from the United States and Britain, so it is unlikely that it can radically shift the conversation and accuse these countries of double standards.

But I can talk about these double standards. No one is an angel, that’s understood, and every country has skeletons in the closet, just like every individual, in the end. However, the best way, it seems to me, is to speak as honestly as possible: about the double standards in the behavior of the United States and Britain, and about the complex issues of Ukrainian history (let’s be frank, Ukraine does not have a good track record of acknowledging its complicated past, especially when it comes to the events of 1941-1945). And none of this diminishes the justice of the Ukrainian cause in this war or justifies Russia’s actions.

If we continue along this decolonial line of thought, do you think it can lead to structural changes in international law?

First and foremost, for me, it is crucial to emphasize and uphold the moment of 1945 and the particular agreement reached at that time. Because it was based on respect for fundamental things: human dignity, the protection of individuals, the protection of groups, and the non-use of military force for invading sovereign states.

Then we can discuss the adequacy of the legal framework; the axis formed by Russia and China; the fact that there are several countries in Africa that sympathize with Russia and China, having been in confrontation with European colonialism on their territories for decades. For example, South Africa considers supporting Russia as its “historic” obligation, as during the apartheid era, the British and Americans supported the white government, while the Soviet Union, which they equate with Russia, supported black South Africans.

Therefore, we should keep all these historical connections in mind.

Where will all this lead us? I don’t know. In 1940, nobody knew how the war would unfold, and it was a quite dramatic turn of events for Europe.

Perhaps there are significant changes ahead. We don’t know what will happen within Russia, we don’t know the long-term goals pursued by China, we don’t know what the future holds for China-US relations, and we don’t know what role important Southern countries like South Africa, Brazil, and India will ultimately play. What we can say with certainty is that the war between Russia and Ukraine will likely have serious consequences for the balance of power in the post-war world. However, it is difficult to predict the direction in which this change will occur at this time.

What would you consider the beginning of the “post-war world,” in your opinion? In 1945, that moment was clear.

Yes, it was a complete defeat of the Nazis. Will there be a complete defeat of Russia? It’s difficult to imagine.

In one of the scenarios that everyone hopes for, including me, Russia would be expelled from all territories belonging to Ukraine, including Crimea and Donbas. Is it possible? That’s a question for the military.

However, another important question is what will happen within Russia. Will Putin stay or go? If he goes, who will replace him? Where will Russia go from there? It’s difficult to imagine Putin being part of the solution.

For me, this is a long struggle, and it won’t be resolved next week or next month. The war could escalate into something even more significant and serious. Perhaps this war will spread to other territories; I don’t exclude that possibility at all.

But Russia has to be part of the solution. And that solution needs to come from within Russia as well.


See also: The war for the voice: Ukraine in the awareness of the West


1945 is significant, but we can go even further back to the catastrophe of 1918 and the peace treaty signed at that time. It’s worth considering how to create conditions in which Russia can reconcile its place in Europe and in the world without leading to negative consequences or another war in 20 years’ time.

I understand Ukraine’s desire to become part of the European Union and NATO, but it’s also important to ask ourselves about the consequences of this integration for our neighbor to the East. Historically, it has always been deeply affected by the expansion of power and the spread of values from Western countries. The answer lies in finding a balanced solution between Ukraine’s legitimate aspirations to integrate into the West, live within recognized borders, and not be subjected to horrific attacks, while also allowing Russia to manifest itself in a proper manner, rather than the way it is happening now.

What price are you willing to pay for temporary peace? The answer to this question will define the future path and long-term agreement for everyone involved. However, at this moment, the answer may not be clear.

To be honest, the dream scenario in Ukraine is for Russia to cease to exist in its current form. The hope is for it to disintegrate into smaller states and undergo internal decolonization. This goal is one that many Ukrainians seem willing to pay a high price for because if Russia remains as it is now, with its ideology and imperial ambitions, this war may resurface even after a certain “conclusion” is reached.

From this perspective, my next question arises. It is evident that February 24, 2022, became a turning point for Western countries in their perception of this war. However, the conflict has been ongoing since 2014, and decisions such as those made after the full-scale invasion were not taken in Europe and the United States. Why is that?

Let’s be frank: everyone knew what was happening in Ukraine since 2014, but Europe showed no interest in it. Europe did nothing, it danced with the Russians from 2014 until February 2022. I would even go further and mention the situation in Georgia in 2008, which European countries also ignored, just as they turned a blind eye to Chechnya and Syria.

Meanwhile, under Prime Minister Boris Johnson, the United Kingdom took significant amounts of money from the Russians. Germany did the same.

And then suddenly, in February 2022, everything changed. However, once again, we come back to the very complex balancing questions. Peace or justice?

Can we not have both?

Let’s imagine a situation where Russia says, “We will stop all military actions, and in return, you stop all legal proceedings, criminal investigations, cases in international courts, and so on.”

The response to this proposal should come from Ukraine. What price is Ukraine willing to pay for peace? You may find yourself in a situation where peace in the short term is only possible through such means. What would you say to that? It’s a very complex question, and different people will have different answers to it.

If we continue to discuss decolonization, we are talking about the right to self-determination, which is at the core of decolonization. Therefore, only the people can decide for themselves how they will live and how they will die. The people of Ukraine, through their political instruments, will determine the conditions under which they will peacefully coexist with their Russian neighbor.

However, this does not negate the importance of discussions in the hypothetical West. For example, will there be a discussion in Europe about what happened in Chechnya in the 1990s? The Chechen wars are a stumbling block for many, including the Russian opposition. In your opinion, can the war crimes committed by Russia in Chechnya be investigated?

They should have been investigated. Just like the crimes in Syria. However, the International Criminal Court does not have jurisdiction here because Russia has not ratified the Rome Statute, and neither has Syria. So practical, legal, and political issues intersect, and they cannot be resolved at the moment.


See also: Victory for Donbas: all about the European Court’s decision which will change the world’s opinion on Russian aggression


It seems we find ourselves in a somewhat paradoxical situation. On the one hand, we exist within the framework of grand ideas, discussing aspirations for justice and human dignity that the “moment of 1945” sought to restore. On the other hand, we confront the practical level, and here the question of compromises arises. When we find ourselves in the midst of the situation, such as in Ukraine, for example, it is natural for us to desire both peace and justice. We want to achieve a solution that prevents the repetition of this war, and I dare to assume that many Ukrainians currently do not even consider making any agreements with Russia. The year 1945 sought to teach us the lesson of “never again.” But, as we see, the war persists. Again.

And not just one war.

Indeed! So perhaps we should strive to achieve a true “never again”? How do we reconcile the understanding of these practical matters you mentioned while keeping the bigger picture in mind? How do we avoid becoming cynical in the end?

You know, I’m not a cynical person at all.

The first thing that comes to mind right now is how South Africa lived after Nelson Mandela came to power, or Chile after Pinochet. I’m currently writing a book about the Pinochet regime and how Chileans dealt with the crimes committed by the regime over 18 years. For them, the question of peace or justice was also important.

In the long run, we know that burying our heads in the sand and not addressing problems, hoping that they will magically disappear, is the wrong path to take. Because problems always resurface. Living in silence and with a sediment of injustice leads to resentment, to a lack of understanding, and to hatred, which can escalate into war.

So the only advice I would give is that any decision made by a community must be openly discussed, considering all possibilities. There is no need to shy away from the truth. I would say this to my Ukrainian friends and to my Russian friends as well (though I have few of them, nonetheless).

A society that doesn’t have honest conversations about its past or present is a society that condemns itself to difficulties. This is the problem of contemporary Great Britain: it has never truly reckoned with its colonial past. It has never come to terms with being a country that benefited from and profited off slavery. There has never been an honest dialogue about this in Britain. And it haunts the country.

It is important to have conversations with one another, as we are having now. Conversations need to continue with representatives from different sides and communities. If you simply cut them off and refuse to engage because they are Russians, it may be understandable, but it is not a path to resolving long-term issues.

Ukraine has lost many lives. Its deep anger, resentment, and hatred are understandable. But we must find ways to talk about it. The reality is that Ukraine and Russia will always be neighbors. You cannot rid of them, and they cannot rid of you. We need to find a modus vivendi.

The truth is also that Ukraine and Russia are not the first to find themselves in such a situation.

75 years ago, Hans Frank was responsible for the murder of my grandfather’s entire family. Today, his son Nicholas is my dear friend. Because he cares, he is attentive to what happened back then. We have talked about it for hours. My friendship with him on a very small scale provides evidence that reconciliation is possible under certain conditions, between certain individuals and communities.

So I remain an optimist in this gloomy world. I grew up in a household where no German item was allowed. I understand that after everything my mother went through, she had the right to set such a rule. But over time, it changed.

For me personally, it’s the main intellectual challenge. On one hand, I can intellectually grasp everything you’re saying, but I also know that in 15 minutes, a Russian missile could hit my house.

I would like to look at the positive side, and it lies in the fact that when this horror ends, Ukraine will receive a lot of support. Investments will be made, and it will continue to be part of a larger conversation. And I really want to be part of that conversation.

You know, there’s a song by Leonard Cohen called Anthem, and there’s a line that goes: “There is a crack, a crack in everything / That’s how the light gets in.” That’s my motto. I work with dreadful things, but I know that something positive follows them. And we need to focus on how to achieve that. The law gives us tools because modern rules of international law compel all of us to seek just solutions and think about the long-term perspective. You cannot forget that, just as you cannot forget about acts of murder, torture, and disappearances. It is our responsibility to honor these individuals, remember them, and know what they went through by gathering comprehensive information about it.

I want to say that the Ukrainian government is doing an incredible job in this regard. What Zelenskyy, Kuleba, and the Prosecutor General have already done is crucial for us not to forget who paid the highest price for this horror.

Originally posted by Daria Badior on Suspilne Culture (Part 1) and Part 2. Translated and edited by the UaPosition – Ukrainian news and analytics website


See also: Most Russians approve of the war one year after its start — an interview with the head of a Russian sociological center




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