Philippe Sands, QC, can be biting. As one of the foremost scholars of genocide in international law, the University College London professor has no doubt been in close proximity to some fairly unsavoury figures in his time. One in particular, though, stuck in his mind. He was representing The Gambia in a suit brought last year against Myanmar at the International Court of Justice for its brutal treatment of the Rohingya minority, when he found himself making arguments two metres from the Burmese premier, Aung San Suu Kyi. “It was a surreal situation because she is such an icon. She defended the indefensible – but she turned up, and that was important.”
I speak to Sands shortly after the release of a grim report by the AP that claims that Uighur women in Xinjiang are subject to forced sterilisation, and a complaint was made to the International Criminal Court by exiled Uighurs. I want to find out what the author of the brilliant East West Street, on the origin of genocide and crimes against humanity, thinks about what the Uighurs are suffering at the hands of the Chinese state. Specifically, how can outside observers judge whether the ongoing oppression in Xinjiang passes the threshold to be considered genocide? I soon find out, though, that I am asking the wrong question.
At the heart of East West Street is the tension between the rights of the group and the rights of the individual. The book examines the reasoning of two legal thinkers, Hersch Lauterpacht and Raphael Lemkin, who were instrumental in formulating the legal base for the Nuremberg trials of Nazi war criminals from 1945 – and the tensions between their legal philosophies. Lauterpacht believed that individuals possessed rights and that Lemkin’s proposed crime of “genocide” (from the Greek genos, meaning race or people) subsumed the rights of individuals to the rights of the group. When Sands refers to Lemkin’s book Axis Rule in Occupied Europe, in which the term was first coined, he leaps up excitedly, returning to wave a tattered first edition at his webcam.
Although we today associate genocide with gas chambers and machetes, “Lemkin’s original conception of genocide had at its heart not physical destruction but cultural destruction, the destruction of the cultural variety of humanity. By destroying books, monuments, writings as well as the lifestyles of people of a community, you were engaged in a genocidal act.”
But the Allied victors, particularly the US and UK, watered down Lemkin’s definition, fearful that it would be applied to their policies in the Jim Crow South and colonised Africa. “The British worried that their treatment of people in places like Kenya and South Africa would be called genocide, and the Americans were similarly concerned about lynchings in the Southern states.” Curiously, the hardly lily-white French and Soviets backed Lemkin’s definition, which would likely have opened them up to charges of their own in places such as Algeria and Ukraine.
The definition eventually adopted in the 1948 Genocide Convention centred on the physical destruction of groups, a partial victory for Lemkin’s legal philosophy. The tension between Lauterpacht and Lemkin’s differing views, though, remains just as contemporary as in the 1940s. On this issue, Sands sides firmly with Lauterpacht’s reasoning. “There are inherent difficulties with the concept of genocide.”
“It is here forever because Lemkin’s invention is a magical word. Because people have feelings of kinship with their own group identity, there is a sense that somehow the destruction of a group is worse than the destruction of a large number of individuals. But it seems fairly unpersuasive to me that killing 100,000 people as a crime against humanity is less terrible than killing 100,000 people as a group.”
As such, Sands rejects the initial framing of our conversation: whether China’s actions in Xinjiang can be qualified as genocide. “Somehow, there is this idea that if it is genocide, it is seriously bad. There is no question that what we know indicates that what is going on against the Uighurs is an international crime. The real question is, why does it matter if we call it a genocide, and is it less bad if it’s just a crime against humanity?”
Sands’ argument is that the acts perpetrated against the Uighurs are of unimaginable violence, regardless of whether they could be deemed genocidal according to the Genocide Convention. “If I say to you that it is pretty tough to show that what is happening against the Uighurs is a genocide, the headline unwittingly will suggest that somehow it is less important and less bad,” he pointed out to me. “In other words, the narrative becomes that it is not so serious if it’s not a genocide – but actually, for me, it is equally serious. What’s happening is terrible, period, and it is not less terrible if it is not genocide.”
Almost as if to prove Sands’ point, a few days later, the former US presidential candidate Elizabeth Warren said: “China’s suppression of Muslims now meets the UN definition of genocide” – as though it would be less alarming if it did not.
According to Sands, the concept of genocide as it stands is unfit for purpose. “Genocide needs to be redefined, so that acts which are horrendous on a mass scale can more easily be characterised as genocide, to limit the exceptionalism of the nature of the horror.” He supports Lemkin’s conception of cultural genocide, and would extend the definition to encompass “ecocide”, or massive ecological harm. “Either that, or get away from the concept altogether and have crimes against humanity aggravated where it is combined with group destruction.”
One of the most salient criticisms of the crime of genocide is that until very recently, it had usually been applied retroactively – too late to halt any bloodshed, though not for accountability. But in January, in the case in which Sands represented The Gambia against Myanmar, the International Court of Justice ordered provisional measures to protect the Rohingyas from ongoing violence under the Genocide Convention. It seems progress is, slowly, being made.