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tv   HAR Dtalk  BBC News  October 19, 2021 4:30am-5:01am BST

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welcome to bbc news. our top stories: president biden has paid tribute to colin powell, the first african—american to be appointed us secretary of state. mr powell has died from covid complications at the age of 8a. mr biden described him as a warrior and a diplomat who repeatedly broke racial barriers. british members of parliament have paid their respects to the mp sir david amess who was killed in a knife attack on friday. a minute's silence was observed before the archbishop of canterbury conducted a memorial service at saint margarets church in westminster. and donald trump has filed a lawsuit against the us house select committee investigating the attack on congress on january six. the former president is hoping to keep the records secret by claiming the material is covered under executive privilege.
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now on bbc news, it's time for hardtalk. 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?
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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 thereafter 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 in the town of saved her. and so this has always
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been part of my life, and 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'd 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 britishjudge at the world court in the 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 developed my interest in international law. and with your academic hat on, 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 a sort of extraordinary positive landmark or do you now focus on some of their shortcomings? no, it was a revolutionary moment.
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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 or 1942 as such, and so they were applied retroactively. well, they weren't on the charge sheet, where they, genocide was not on the charge sheet in 1945? genocide was a subheading of war crime, they sort of snuck it in. the guy who invented the concept in autumn of 1944, 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.
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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 — 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 treblinka extermination camp, the 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're 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
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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, "the judgement at nuremberg were not the whole truth". 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
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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 know 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, hersch lauterpacht, we must protect individuals because they are living, breathing, sentient beings as individuals.
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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," says lauterpacht. "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, axis rule, 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've taken a biological approach to the definition "of the crime and you've taken the same path that "hitler took". and 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? because you write very frankly, very honestly about the impact
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it has had on you going to visit the region known as galicia. it's been variously polish, and occupied—german and russian, and currently, i think, the town where some of yourfamily is from is ukraine. you've been to this region, a troubled region, and you went to the village where your grandmother was from and you then said... great—grandmother. "i was told about the mass grave," you said, "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've read the whole book — it's a struggle. the book reflects many struggles. one of them is the inner struggle that i have. i'm with lauterpacht intellectually. essentially, i think that every single human being — because they're a human being — has the right not to be subject to that sort of atrocity —
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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 lauterpacht�*s family co—mingle with my family, i found it — i was overwhelmed. i found it impossible not to feel a sense of kinship and connection. and in that moment it was a sort of an 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's 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 it's 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 wider family.
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there are two key individuals — hans frank and otto von wachter — whose sons you meet and become in one way or another very friendly with. you humanise 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.
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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 do 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 in relation to the treatment of their rohingya, allegations of genocide. and sitting no further away from me than you are today was aung san suu kyi, and i sat there looking at her thinking, "how can you possibly defend this horror?" and 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?
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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,
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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 or the privy council. and there are exceptions — and i was let off the hook once a few years ago in the case
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of augusto pinochet, not so far from here, because actually, i'd come... former chilean leader... former chilean president and then a senator, arrested in london 16th october 1998. a few days later, i get the call would i act for him? and in the end, i did not act for him because i'd been in a bbc studio on the sunday night before — world service, zeinab badawi, 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, crime "against humanity, 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
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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 in the former — to consider the crimes in the former yugoslavia did its work, then there was the rwandan tribunal. we have, since 2002, an active international criminal court. but there are many people who look at this whole sort of mechanics of international justice today and they think that it is 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, "we're going to set 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,
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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's 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 don't have a monopoly on international criminality. well, you've written extensively on what you regard as the illegality of american military action in iraq
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and i'm sure you've also looked at afghanistan too, but none of that gets anywhere near the icc. none. and the truth is that the biggest powers in the world — the united states, china, russia, india — a whole host of countries... britain. ..they don't accept the legitimacy of the icc. no, britain and france do, and i think we have to give britain and france very great credit — they are both parties to the statute. russia, china and us are not. but the jurisdiction of the international criminal court, interestingly, doesn't 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, in the alleged torture chambers, those fell within the jurisdiction. from 2002, they have not been investigated. that's a serious problem. well, you say it's a serious problem. if you accept the glaring sort of failings of the internationaljustice framework at the moment, why on earth are you now seeking to push the notion of internationaljustice even
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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 — it's not conceivably going to happen. let me separate — it is actually going to happen — but let me just separate out the two issues. the first issue is internationaljustice generally. am i in favour of developing the existing system? absolutely. it's a long game. you can't expect humankind 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 sort of keels over and says "ok, we're gonna behave from now on." it's a long game. it's going to take notjust decades, it's going to take centuries. but your second point is an important one. since 1945,
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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 all focus on the protection of the human. there's a gap and we're facing that gap right now in the face of climate change, the face of 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, without having the deep legal knowledge you have, and i would put to you that if you pursue a legal action which, 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%.
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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 oneself the question if we're going to use the law at the international level to stop people 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 their coal—fired stations? is it 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 called trafigura — the dumping
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of ultra—hazardous waste in peoples�* communities in cote d'ivoire 15 or so years ago. obviously, there are going to be issues with climate change. the difficulty and the challenge — and i accept that challenge — is where you draw the line? am i an �*ecocider�* because i drive a car that's only partially electric? or because i'm involved as a 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 moment, you know, when... hang on. no, no, no. 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 might know — michael karnavas. he's a defence attorney, he was involved in the tribunal on the former yugoslavia. he says "i'm all for stopping ecocide —
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"the killing of the environment " by state practices and policies — "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 raphael lemkin in 1945. they said it was a nonsense. prosecutors said, "go away. leave us in peace. "don't bother us with your stupid genocide idea." two years ago, i stood in the great hall ofjustice, peace palace in the hague, icj, next to aung san suu kyi. she was there to defend. you can say it's not a system that works, but for the folks who were in the camps at cox's bazar — there were many images of them around television sets... you mean the rohingya refugees? the rohingya refugees, who had crossed the border from myanmar to bangladesh,
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sat in front of television boxes and computers watching the proceedings, thinking how astonishing that they are being held to account. and, you know, i had a conversation a week before that with the former judge of the international court ofjustice — a wonderful man, thomas buergenthal, who'd been a child at auschwitz, who had been in the care ofjosef mengele. he survived and he went on to have a wonderful career and he said to me, "can you imagine, philippe, "if in 1944, when i was in auschwitz, "there was a law called "the prevention and punishment of genocide? "and there was an international court to which a faraway "country, could go and 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.
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hello. good evening. quite a few parts of the country had temperatures of 18 degrees today, and it's likely to get warmer tomorrow, if and when the sunshine does come out. the warmer air is coming our way, thanks to the winds from the south or south—west, but as we've seen already, that has brought with it a lot of cloud. the cloud is still around at the moment, and this cloud here, coming infrom the atlantic, is going to bring the next area of rain later in the night. the earlier rain and drizzle is moving away and, for a while, there could be a few breaks in the cloud. that'll lead to the odd mist and fog patch, and then that thicker cloud arrives, mainly across the western side of the uk, to bring some rain for these areas. and, of course, after the warmth that we had during the day, then the temperatures aren't going to fall very low overnight, 12 to 14 degrees. we start, though, with a lot of cloud. we've got some outbreaks are rain around. that could be heavy
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for a while over some of these western hills. mostly, as we head into the afternoon, the rain is in the north and west. it could cheer up again later across parts of northern ireland. but ahead of the rain in the afternoon, we should get some sunshine in east anglia and the south—east, and it's here temperatures could reach 20 or 21 degrees, more typical of early summer. but even where we have cloud and outbreaks of rain, it's around 17 to 19 celsius, so a very mild day. but there's more rain in the forecast for wednesday, this time generally moving northwards across england and wales. some thundery downpours possible. either side of that, there's going to be some sunshine. it's still a mild day on wednesday, just not quite as mild as tuesday, and we've got this rain arriving in the north—west of scotland. that's going to be significant because to the north of that, there is colder air, and that will push across the country through the rest of the week, and the weather will feel very different. now, we still have a tangle of weather fronts on the scene during wednesday. as we head into thursday, these are the main ones drifting down across the uk, bringing with it some showery outbreaks of rain, and then those northerly winds come setting in, and it's those northerly winds that will drop the temperatures as well.
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now, we've still got some outbreaks of rain to clear away from eastern parts of england on thursday. otherwise, there'll be some sunshine, a rash of showers, the showers in the far north over the higher ground maybe of a wintry flavour as well, and it's going to be a windy day. the winds generally from the north, possibly touching gale force around some north sea coasts, and that of course will make it feel colder and very different from what we're feeling at the moment. so 8 degrees the best in northern scotland, 13 in southern england and wales.
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welcome to bbc news. the latest headlines for viewers in the uk and around the world: the senior us envoy to afghanistan stepped down from his role less than two months after the taliban takeover. south korea's military says the north has fired a ballistic missile into the sea ofjapan. seoul has convened its security council. the european union sends emergency coronavirus aid to romania as it records the highest covid mortality rate in the world. translation: ~ ~ ., , ., translation: we know it is a daily average _ translation: we know it is a daily average of— translation: we know it is a daily average of 15,000 - daily average of 15,000 infected people. we have a daily average of unfortunately 300 deaths.
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and it known as the french

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