Philippe Sands: It seems clear that Turkey right now appears to be having a problem in engaging with some of the most fundamental rights including freedom of expression
You will soon be in Istanbul for the performance of A Song of Good and Evil. How would you introduce yourself to people coming to watch?
I seem to have three jobs. I am a professor at the University of London. I teach international law, anything from the environment, human rights, trade disputes, a whole different range of things and I spend a lot of time with my students. My second job is, I am a lawyer, a barrister who wears a wig and goes to court and makes arguments. As a lawyer, I do cases at the International Court of Justice on boundaries, on human rights and on a whole range of issues; I also sit as an international arbitrator, I have been appointed by Turkey as an arbitrator and by many other governments. The third job I do is to write books and related things.
And so I assume A Song of Good and Evil links all these?
A Song of Good and Evil is a stage performance that links all these different things. In a nutshell, the performance that we will do in Istanbul on the 29th of April is one part of a bigger project. About six, seven years ago I got an invitation to give a lecture in a university in western Ukraine, in the city of Lviv about the work that I do on crimes against humanity and genocide. The reason I went was because my grandfather was born in that city in 1904 and it was curiosity --a grandson’s curiosity-- because he never talked about that period. And from this visit I made a number of discoveries. One of them was that the man who invented the word genocide studied at the university that had invited me, and unbeknown to them, the man who put crimes against humanity into international law also studied at the same university. So I started doing more and more research about these two men: Lemkin and Lauterpacht. And then I came across a third man who was Hitler’s lawyer who had come to the city in August 1942, his name is Hans Frank and arranged for the killing of the Jews and many Poles also in that city in the weeks that followed. A Song of Good and Evil is about those three men; Hans Frank- Hitler’s Lawyer, Raphael Lemkin who invited the word genocide and Lauterpacht. Part of my project is a book, which is coming out in May, called East-West Street—a title that is relevant for Turkey. There is also a film that we made which is my relationship with the son of Hans Frank and another man called Otto Von Wachter; so this is a package of products.
And by doing this are you trying to reach the wider public?
Back in 2003, I belonged to the community of international lawyers. This is a wonderful community but a very small one. In 2003, famously of course, we had the Iraq war and I started doing research on that and I came across documents that I probably shouldn’t have seen which made it very clear that the British Government and Tony Blair were going to war in Iraq basically on a lie. I wrote that into a book called Lawless World and that got a much bigger audience and all of a sudden I learned that there are a lot of smart and interesting people out there, not only in Britain and Europe but also in the world. I started getting e-mails and letters from people interested in international law and how it works. Ever since the book came out in 2005 I’ve been looking for ways to reach a bigger audience. Film, and stage, and books are ways of doing that.
You were talking about the relevance of your book East-West Street to Turkey, what is it?
East-West Street tells the story of four men, my grandfather, Hans Frank (Hitler’s lawyer), Raphael Lemkin, who is the man who invented the word “genocide” and Herr Lauterpacht who was the man who put the concept of crime against humanity into the Nuremberg Statute of International Law. And it all revolves around a single city, Lviv, which is sort of at a crossroads. Not quite like Istanbul perhaps, however, one of the things about Ukraine is where does it belong? Is it east, is it west or is it both? So there is a direct parallel, I think, with Turkey in the sense of being pulled in different directions. And at the heart of the book is a fundamental question “who we are,” which touches on any society, but I am sure it is very relevant right now in Turkey. Are we individuals or are we members of a group or are we both, and of course the answer is we are both and we are a member of many different groups. The relationship between the individual and the group is what the book explores in legal terms.
Ukraine is immersed in a conflict, being pulled one way by Russia, and being pulled another way by the European Union. I suspect there is an analogy with Turkey that finds itself being courted in many directions and Turkey is not unlike the city of Lviv, back in the 1930s and the 1940s. Lviv was a city that basically has three --more or less-- equal populations. It had Poles who are Roman Catholics, it had Ukrainians who were Eastern Catholics and it had Jews. Basically they all got on, but there was this constant struggle for power. The analogy of course is one that many countries have; in Turkey, I suppose one analogy is the relationship between the majority population and the Kurdish population and there is tension about the relationship with the minority community. Whether it continues to live in the country or have its own country is a big question.
Lemkin who invented the concept of genocide was quite an interesting man and the book is partly his biography. It explains how he came to invent the word genocide, actually he did a lot of research and in his view there were hundreds of genocides, but the one that seems to have triggered his imagination was an act that occurred on the streets of Berlin in 1921 when a man whose name you’ll know well, Talat Pasha was murdered by a young Armenian man, seeking to get revenge for what he said Talat Pasha had done to his family. There was this very famous trial in Berlin and the young man called Tehlirian wasn’t acquitted but was found to be insane. The trial was reported in the newspapers in Poland and Lemkin was living in Poland at the time and it prompted a conversation between him and one of his professors as to why Tehlirian was in prison, given that he was just trying to protect his community.
So in a sense, the catalyst for Lemkin’s work --although not its main focus-- was the trial of Tehlirian in relation to the Ottoman atrocities against the Armenian community in 1915. This led Lemkin eventually in 1944 to invent the word genocide. Lemkin made a lot of enemies because he said basically every large colonial type community had committed what he called genocidal acts. So Lemkin was not hostile to Turkey any more than he was hostile to Britain or the Soviet Union. He was very unpopular in the Soviet Union because he said that Stalin had committed genocide against the Ukrainians, and then he says the Ukrainians had committed genocide to others, and so he is just interested in all of these stories but one of the stories he is focused on is the Armenian-Ottoman Empire story which I know is very sensitive in Istanbul.
Is the word genocide a good concept to indict certain people and countries?
The word genocide sits alongside two other legal concepts: the first and the earliest is “war crimes.” Two countries, two communities are engaged in a war, one kills civilians, which is a war crime. The second international crime is “crimes against humanity,” which is murder, torture, enslavement, rape, whatever on a very large scale against individuals. To prove a crime against humanity as with war crime is that you focus on the individual victims, and not you and me as members of a group. However genocide is about the destruction of groups, not individuals.
So to prove genocide is very difficult. You have to show that the person who does the act intends to destroy the group in whole or in part. For example, in the more recent conflict in former Yugoslavia a genocide has been found in relation to Srebrenica, because it was demonstrated that people killed Bosnian Muslim men because they were Bosnian Muslim men and with the intention to destroy that group. However, when the same people did the same things on the other side of the border just a few kilometres away in Croatia against Croats, the Yugoslav War Crimes Tribunal said there was no genocidal intent but that it was a crime against humanity.
So what has happened is that genocide has sort of gone up the scale, like the football league. Some people call genocide “the crime of crimes.” When the International Court of Justice ruled that, although there had been genocide in Srebrenica, the state of Serbia was not responsible for the genocide, the government of Serbia declared they were innocent. It is as if being responsible for a crime against humanity is not serious, and war crimes even less serious. And I think that is a real problem. So I am very torn, I can see why the destruction of groups requires attention, people are killed usually because they are members of a group not because of their individual qualities, so the law needs to recognise that. But I think genocide is problematic because it elevates one crime to a special status and it suggests by implication that the other crimes are less serious or not even serious at all.
When Srebrenica killings were happening, they of course caught the world’s attention and so when Karadžić trial started we were very interested initially. Now the court has decided, and yet we seem to care less about the result.
The decision simply confirms what that court had already ruled. The events at Srebrenica were genocide but events in other villages; events in other parts of former Yugoslavia were not. So Karadžić was not convicted of genocide for example in relation to the Croats. But it is plain that the word genocide has a huge symbolic importance. So the other thing that happened a couple of weeks ago was that the Obama administration characterised what is happening in northern Iraq and Syria against a number of communities as a genocide, and John Kerry identified ISIS’s actions against the Yezidi community, the Kurdish community and Shiite Muslim community as genocidal acts motivated with the intent to destroy groups. And the fact that he chose these three communities is interesting and I am sure it is political, because if he had focused just on one, the Yezidis but not the Kurds or the Kurds but not the Shiites, or Shiites but not the Yezidis, he would have been accused of making a selection, but the main point was his speech would not have had the attention if he had called it the crime against humanity. No one would have reported it. Because it was reported as genocide it was on the front page of all the newspapers. So the word causes people to get very upset, on both sides. For example, last year on the 2015 centenary of the killings of the Armenian community by the Ottoman Empire, the government of Turkey made clear that whatever happened was not a genocide. There was a very interesting editorial in the Financial Times newspaper which basically said “what does it matter what it is called, acts of killing on a huge scale occurred, no one disputes that. What is the point of spending a lot of time saying it was a genocide or a crime against humanity or a war crimes or whatever” and I am quite sympathetic to that. By calling something genocide you put it on a pedestal, by saying that something is terrible but not genocide you tend to minimise it, and I think that’s problematic.
I don’t know if anybody said this to you or not, but this book of yours, Lawless World where you write about the illegality of the Iraq war, is a kind of prediction of what we are witnessing now in terms of terror, the rise of ISIS and the refugee crisis.
I think I know exactly what you are referring to. I cite the former British ambassador to Iraq, I think his name is Harold Walker, who in October 2002 gave evidence in the House of Commons to the select committee on foreign affairs and he said: “You remove Saddam and you don’t have a plan what you are going to do next, this is what is going to happen;” and it is exactly what has happened. I don’t take any credit for predicting that, I simply report what a lot of people --people who really understood the region-- knew, which was that if you attack the Sunni community and then you remove them from office, de-Baathification, and you demonise them and humiliate them, they are not just going to disappear into their houses, knit and cook. As I understand it in a simplistic sort of way, ISIS is largely militarily driven by Saddam’s generals and so they come back with a vengeance, and we are paying a price. But others predicted it; there is no surprise to what has happened.
That means the world is paying the price of international law knowingly not being respected…
International law is not perfect. We know that international law doesn’t protect rights always or even nearly always, but I think what it does is it gives us a framework for forming a view of what is right and what is wrong. It’s not always accurate, but in the case of Iraq I have no doubt that the illegality of the war in Iraq and the lie on which it was constructed, and the failure to plan for what came next is responsible for what transpired. I find it really extraordinary that the people who prosecuted the war in Iraq, and I am talking about my own former prime minister, don’t seem to have been affected at all. He is out there consulting, being paid tens of millions, but what is interesting is if he were to walk down the street in Britain, people will be very rude to him. So he lives his time outside the country. He makes a lot of money, but he is not respected in his own country.
And now it has come to the doors of the West, the US as terror and now refugee crisis...
And Istanbul. Turkey is at the epicentre of the whole thing.
Do you have any predictions as to how it will evolve?
I find this incredibly complicated. I like to focus on particular issues. So, what do we do about Assad? The evidence appears plain that Assad has been associated, involved with some pretty bad things. On the other hand, it seems that he is the only person who can lead a group that will confront ISIS. Does he stay or does he go? It’s imponderable. Is he the lesser evil, and I find it incredibly difficult, and I have friends on both sides in that region, some who say: “He has to stay, and it’s happening now; Palmyra has been liberated, Mosul soon will be liberated, Raqqa will fall and ISIS will be pinned back,” and that seems on the face of it to be attractive. On the other hand, another group of friends says this man is a monster and so long as he is the leader of Syria, it’s going be a brutal and a terrible country, which will have no long-term future. So what do you do?
My country contributed to this problem in a massive way and has a responsibility and therefore cannot simply walk away. But does that mean sending in ground troops and, if so, who to support? So I find this incredibly confusing, incredibly difficult and anyone who tells us there are simple solutions is not to be believed. This is a hundred year conflict or more, and we are going to have terrorism in London, and we are going to have terrorism in Istanbul, that’s the price we are going to pay and we are not going to accept it and we are not going to be deterred from our normal lives by it.
But there will have to be a strategy, won’t there? We can’t just allow ISIS to continue like this; that will be inaction, would not it? Something has to be done but what is it?
Have we not learned the lesson that a solution imposed from outside is not a solution. In the long run the solution has to come from the community, and from people who are close to that community. So how does that happen? Right now, Syria seems pretty helpless and Iraq almost helpless, so the question I ask myself is what about all these other countries in the region that have vast resources, and financial certainty such as Saudi Arabia, the Emirates, Qatar --what do they do? What are they all up to and why has no one attacked them? And you ask yourself the question; what is their role? My military friends say a few bombs from the air and a few drones are completely useless without ground troops to restore some sort of peace. But whose ground troops, British and American troops, Saudi troops, Qatari troops, Russian troops, Turkish troops? Which troops go in? You need some sort of a coalition, but once you’ve got an ethnic divide, or a religious ethnic divide between Sunni and Shia, you are caught in an intractable centuries-old dispute. So a lot of people in the UK would say: “You know what, it’s not our problem, let them sort it out.” I don’t think we can do that.
If the refugees didn’t knock on the door, that might have been an option. But there is a real refugee issue now, isn’t there? What is the West going to do about it?
It’s a real issue and I think we have a responsibility for the refugees, I mean we contributed to this issue, and as a humanitarian issue I think what Angela Merkel has done is completely remarkable. And actually I think what Turkey is doing is remarkable. When I was in Istanbul last, which was two years ago in the spring of 2014, there were a lot of Syrian refugees on the streets. That was already a big issue and I remember coming back here and telling people, “It is amazing, you walk in the streets and there are Syrian refugees begging on the streets everywhere.” And now it’s even more so. And now we are sending the refugees in Greece to Turkey, and now why are we creating it as Turkey’s problem? Turkey has already taken millions of refugees over the border; so the question we ask ourselves, would it be better if Saddam were still there? Is there something to be said for a strong man in some countries? That’s a dangerous question. It’s a particularly dangerous question to ask right now in Turkey. Are there some circumstances in which a country on balance is better off? I am not answering that question positively, I am just saying that by looking back it does seem that Saddam was a force for some degree of stability, appalling as he was, it has become even worse. And most Iraqis that I speak to say it is now even worse than it was. On the other hand I also speak to Kurds in northern Iraq and they think Bush and Blair are heroes. They are liberated; they have their own autonomous government. So you learn that nothing is simple, nothing is black and white. I think we just have to get back to the first principles, and the first and biggest principle is you can’t impose a solution from outside. It has to come from within. We learned that in Northern Ireland. It was only when the communities in Northern Ireland, after decades of bitter conflict, started to talk about coming together to sort out a solution that it began to happen. Surely the answer to all of this is finding a group of reasonable people. They must exist in each of the communities, and I do believe that they will begin a process that will cut across divisions. But I suspect there will be a lot of bloodshed before this happens.
Going back to the refugees, it’s become an EU problem.
The EU should take in a lot more refugees. The position of the United Kingdom is appalling. The UK has taken twenty thousand people, which is virtually nothing. I think what Angela Merkel has done is remarkable but I know she is paying a big price for it politically and we know that in some parts of Germany there is tremendous social resistance to what is going on, but we have to come together in some form of solidarity. Britain is not taking enough, but at least it is taking some. Some EU members are taking zero. And they are taking zero because the refugees are Muslims. If they were Christians they would take them. That is scandalous. They are human beings, each of them individual human beings, and it comes back to the theme that we talked right at the beginning; who are these people, are they individuals or are they labelled because of the group they happen to be a member of? What is our essence? And that is a big and complex question but essentially for me each one of these refugees is an individual human being and is to be treated as an individual human being, not with a label saying Kurd, Yezidi, Christian, Jewish, Muslim, or whatever. And we have a responsibility to sort that out and we aren’t.
And at the moment there is nothing other than the agreement between Turkey and the EU, to keep the refugees in Turkey.
And why has Turkey accepted that? There is obviously some deal that has been struck with Turkey: get these people off our streets, get them off of our beaches and we’ll cut you a bit of slack on other things. That seems pretty clear. There is a renewed, heightened tension between the Turkish government and the Kurdish community, and will the West just turn its eyes away and say, “It’s not our problem, it’s your problem.” On the other hand, the west is working very closely with the Kurdish community in Northern Iraq, and the community in Northern Iraq feels connected with the community in Turkey, so these things seem to be all interconnected.
It looks then that the EU is appeasing the Turkish government?
It looks like there is a form of appeasement taking place and that the quid pro quo is, you take these people out of our countries, we will cut you some slack and not criticise you or not criticise you too harshly, it looks like that. So many western European countries need Turkey; it would seem to do them some favours on the refugee issue.
One of the main points of the agreement which caught the attention of the Turkish public and what the Turkish government keeps on reminding all the time is the Schengen visa exemption clause for Turkish passport holders if certain conditions are met.
I can only talk about the United Kingdom and I just want to be very clear, this is not my view, but I would be amazed if the British government has agreed to a regime which allows Turkish nationals to walk in and out of United Kingdom at will, after having levelled the amount of criticism on the EU for the systems allowing the Bulgarians, Romanians, and Poles to come in. Now it may be there is a modest relaxation in relation to Turks who have money, Turks who are holiday makers, and Turks who can demonstrate that they will genuinely go back to Turkey, but in general I think the average Turkish woman or man should not assume that Britain will immediately and significantly become an easier place to visit theatre in the West End to see Mamma Mia on the London stage in London.
Well, Britain is outside the Schengen area, so it’s easier for her to keep its borders closed.
There’s a bigger question of whether Schengen is still alive. If the deal has been linked to the Schengen arrangement, I think the Schengen arrangement is in trouble in light of what happened in Paris and now in Brussels. I noticed that after the Paris attacks for the first time when I flew from one EU country into France, I had to show my passport. These were two Schengen countries, and they were imposing restrictions. I think there is a big question about the future of Schengen, and I think a few more attacks on the scale of Bataclan and Brussels, and Schengen is in real trouble. And if Schengen is in real trouble and disappears, the idea of visaless travel for our Turkish friends becomes an illusion.
It seems to me like it is a very complex arrangement that would normally take years to negotiate but which has been cobbled together in very great haste to deal with an immediate problem. We know from experience that agreements that are prepared in such situations are often fraught with difficulty. People have not thought through all the consequences including the practical consequences. This conversation makes me want to look in more detail at the agreement.
All this means to me that nothing is strategically planned, that there is no strategic thinking, even what is going to happen tomorrow is a total unknown…
In England we call this policy on the hoof, where you make up your policy on the back of an envelope. I think they have been caught on the hop and they are simply ill prepared and they have not worked out and asked themselves the crucial, long-term questions: what sort of Europe do we want to be and what our relationship with our neighbours is going to be, what are the advantages and disadvantages of going this way or that way, and let’s develop a consensual plan to work out over the long-term. Long-term thinking in a sense has disappeared in western Europe, if it ever existed, and it’s just jumping from one crisis to the next; the Greeks one day, the Turks the next day, the terrorist attack in Paris the day after. You get the sense that our politicians, perhaps with the exception of Angela Merkel, are ill equipped to deal with the situation that is now arisen.
Could these be the indications of even worse situations developing, that we cannot even begin to predict at the moment?
Could the situation get even worse? Yes, it could. I’ve been spending quite a lot of time in the Ukraine, which is a contested territory. Does it pull east or does it pull west? That’s a big issue that could erupt to something much bigger. We’ve got on the table now the question of the future of the European Union. It is under immense threat from the economic situation, not just the Greeks, but also the Italians and the Spaniards and the Portuguese. And now on top of it all, the madness (and it is absolute madness) of a referendum on EU membership in the United Kingdom at the very moment, when Europe cries out for stability and leadership, Britain or a large part of Britain seems to be saying: “we don’t want you anymore, we are going to be on our own.” That has potentially huge consequences.
If Britain votes to leave the EU, the accepted view is that Scotland will leave Britain. Secondly, the EU umbrella as a broad and non-British way of resolving the problem between different factions in Northern Ireland, paved the way to the peace agreement. That would disappear and I think you will see a renewal of tensions between different communities there. They will see Ireland being part of the EU and all of a sudden across the border in Northern Ireland they are not members of the Union. If Britain votes to leave, there will be referenda in other countries and you can see the beginnings, like the wings of a butterfly, one tiny little wing just creates consequence that no one expects. Putting a referendum right now on the table was an act of madness and I am extremely worried about it.
And at times like this, out of the uncertainties, unknowns, and problems accumulating one after another, it is the extreme right wing that gets stronger and stronger. Do you see that happening now?
There is a resurgence, definite resurgence of nationalism across Europe. You feel that very very strongly. It’s a poisonous nationalism that already in some countries is gaining strong ground. I spent a large part of the last six years working on the 1930s and 1940s; I don’t think any of those conditions have gone away. I think that in western Europe the impossibility of a renewal of these kinds of ethnic, nationalist, religious tensions is not something we should take for granted. And the one thing the EU has done that no one is talking about in this British referendum is that it has brought to Europe a period of unparalleled stability, including the absence of military conflict for seventy years between Germany, and France, and other countries. That’s a remarkable achievement, and I think you take away the European Union, and you reopen the box. The civilising effect of the European Union is not permanent. We feel the tensions just below the surface, and you see it now on this refugee issue; Poland, Hungary, Croatia are not taking anybody, zero.
So when some people warn us of the possibility of a third world war, you are not ruling that out…
Anything can happen. Europe, I think is in a febrile state and all the conditions for tension exist. There are territorial claims. There is the treatment of minority claims; there are the economic challenges of poverty; the political and social consequences of the absence of jobs. It seems as if no one has a sense of history any more. The big change in Britain, the country I know best, is that we have a generation of politicians who have not known war. They have forgotten what happened in the 1930s and they are not well placed to remember what happens when communities turn against each other.
How familiar are you with what is going on in Turkey at the moment? We are faced with the erosion of basic human rights. Freedom of expression is seriously suppressed. That is one side of the equation. On the other side, we see the same repressive government getting more than half the votes in a general election.
I follow Turkey a lot; I am really interested in Turkey for lots of different reasons. It’s obviously one of the great civilisations, and so you are just fascinated with a community that has such a long history, so I am fascinated to know about that. Intellectually, it is a community that has thrown up a lot of interesting international lawyers and human rights people. At a personal level my father’s girlfriend happens to be Turkish and lives in Istanbul. So Turkey is a big part of my life. I love Turkish food, I like being there, I am as happy in Istanbul as in any city in the world -- is there a more magnificent place in the world than Istanbul? It’s truly the epicentre of human achievement, an incredible place.
So yes, I am very interested in Turkey, which means that I also have a basis for being worried about Turkey. I know that these things go in ebbs and flows and cycles, and at one level we have to recognise there have been great improvements. Turkey is now bound by a raft of international conventions, like any country the level of compliance with those conventions is mixed, but for which country is this not true? Turkey is an active member of Council of Europe, it is bound by the European Convention of Human Rights and it accepts the principle that individuals have rights. That is very significant.
So when rights start being interfered with there is a basis of language in law for addressing that. This starting point is already better than if the country where those conditions do not exist. So that I think it is important to say they have not torn up the conventions. They haven’t said we are no longer participating, as happened in the 1930s with Germany, with Poland. That this has not happened, and that is important and we should recognise that. So the question then becomes how do you enforce these conventions, and these rights of the individuals, and rights of groups?
I am on the Board of English PEN, so I have a particular interest in freedom of expression, and I know several Turkish journalists and writers pretty well. So I hear from them firsthand what are the restrictions. I read the newspapers, I watch what is happening with the Turkish printed media, and the takeover by governments of an entire newspaper because it doesn’t like what that newspaper is saying about its politics. These are obviously deeply, deeply worrying actions that require attention, and which require a response which I would summarise by saying that it seems clear that Turkey right now appears to be having a problem in engaging with some of the most fundamental rights including freedom of expression.
Unfortunately it is not alone in that situation. In other countries a pattern is emerging, namely that the system that was put in place in the 1940s appears now to be under real challenge, and at a point where we face other challenges. I am thinking of ISIS and related matters. So, we have to stick to our essential values. Every single time there is a violation of freedom of expression, every time someone is tortured, every time someone has disappeared, and every time someone is killed in custody, we need to react and make clear this is unacceptable, and it will not be tolerated, and it will be responded to. But the cycle gets deeper and deeper.
I think one has to be optimistic about Turkey. This is a country in which there are a very large number of extraordinary people, and there are a large number of people who care passionately about values, universal values of respecting the individual, and respecting fundamental rights. Those of us on the outside have to be prepared to show absolute solidarity with our friends in Turkey when things aren’t going well. That means writing, and telephoning, and speaking, but it also means being there. That is why I am really pleased that we are coming to Turkey. It would be all too easy to say: “It’s a little bit dangerous in Turkey we don’t think its right to come” and so on. No, our place is to be alongside our friends and display solidarity, and show that Turkey continues to be part of the world that is committed to essential values. This is plainly a difficult time. No one can say otherwise. But it is not yet a desperate time. We have to be prepared to fight for the values we care about. So that is why we are all coming to Turkey.