Philippe Sands steps off his train at Brussels’ Midi station and sees a familiar face amidst a flurry of passengers.
The British lawyer is flush with energy, despite being at the tail end of a week-long visit with clients on the island nation of Mauritius. His casual black jacket, navy blue scarf, and black boots give him the appearance of a relaxed college professor. But his furrowed face and sharp gaze are those of a man who sees the world with a certain type of intensity.
He greets his colleague, an arts executive, with an elbow bump and they hurry to grab a taxi. Sands, a dark-haired, 61-year-old with a salt and pepper beard, high forehead, and gray-green eyes, has come to speak about his latest book, “The Ratline,” and to give two lectures on what he hopes will become the first international crime since 1945: ecocide.
His lectures are part of a global campaign, led by Stop Ecocide International, to make acts of mass environmental destruction a crime within the purview of the International Criminal Court, which has a mandate to investigate and prosecute individuals who otherwise would evade accountability after committing the most serious crimes of concern to humanity at large.
Sands is a professor of law at the University College London. He has written 18 books, is a sought after international lawyer at Matrix Chambers — countries seek out his counsel — and he is a frequent contributor to publications like The Financial Times, The Guardian, and The New York Times. He is also the president of English PEN — a human rights organization that promotes the freedom to read and write internationally — and a member of the International Court of Arbitration for Sport, among other endeavors. That advocating for an ecocide crime is the next step in Sands’ long and capacious career says something both about who he is and about the peril of the moment we are living in.
|THE FIFTH CRIME: ECOCIDE
An ongoing series, produced in collaboration with Inside Climate News and NBC, about the campaign to make ecocide an international crime. See all stories in the series here.
Three days before Sands arrived in Brussels, world leaders concluded global climate change talks in Glasgow, Scotland. The results left the world doubtful that governmental negotiations alone can end the crisis. Since Glasgow, analysts have warned that the world is now on a pathway to a dangerous 2.4 degrees Celsius of warming, manifesting itself in weather extremes, biodiversity collapse, acidification of oceans, and soil erosion — all affecting the health and wellbeing of humans and other species.
In the backseat of the taxi, Sands tells the driver in fluent French to head to the Rue Duquesnoy in the heart of the city. Over a four-decade career, Sands has spent his fair share of time in the European Union’s capital city, as well as other centers of international commerce, where he regularly rubs shoulders with politicians, diplomats, journalists and, from time to time, royalty. Sands just learned that his brother-in-law is also in town for a meeting with Luiz Inácio Lula da Silva, the embattled former president of Brazil who has shaken off a series of corruption charges and is running against Jair Bolsonaro in Brazil’s 2022 election. His brother-in-law, Joseph Stiglitz, is a Nobel-prize winning economist, making Sands, with his laundry list of accomplishments, the lesser known spouse in the Schiffrin family. Sands’ wife, Natalia Schiffrin, is the daughter of the late, renowned publisher André Schiffrin, and a well regarded attorney and magistrate in her own right.
As much as he is part of the establishment, the Cambridge-educated Sands has a reputation as a rebel, never missing an opportunity to criticize those same elites. He has faced off against his own government more than once and was one of the first voices to condemn the 2003 U.S. invasion of Iraq and the United Kingdom’s support of the war — that didn’t go over well with his then-law partner, Cherie Booth, Tony Blair’s then-spouse. “Huge row,” Sands said about it. In 2019, decrying the alleged mass murder, forced deportation, and rape of Myanmar’s Rohingya Muslims by the country’s military before the International Court of Justice, he denounced the nation’s then-leader, the Nobel Peace Prize laureate Daw Aung San Suu Kyi to her face: “We heard much from Myanmar’s Agent about the vital importance of domestic accountability, but not a word — not a word — about the women and the girls of her country, Myanmar, who have been subjected to these awful serial violations. Madam Agent, your silence said far more than your words!” And while he is a consummate supporter of the International Criminal Court, he has also been one of its biggest critics. In particular, he has decried the court’s historical focus on African defendants, saying: “Africa doesn’t have a monopoly on international crime.”
Agitating for progressive change in the law and culture has been a hallmark of his career, and now, believing the world is facing an environmental crisis of epic proportions, he has become a leading voice behind calls to put mass harm to the environment below international criminal law’s moral red line, alongside war crimes and genocide.
Sands is widely seen as the ideal spokesman for the cause because of his legal bona fides, his charisma, and his fire for justice. It also doesn’t hurt that Sands is an expert in the history of two of the world’s major international crimes: genocide and crimes against humanity. His 2014 book “East West Street” traces the lives of two Eastern European Jews who fought for creation of the crimes, and a third man, a Nazi bureaucrat, who presided over the murders of their families, and Sands’ own.
He also understands the political machinations of states and has seen how quickly major changes in the law can take place under the right circumstances, like the adoption of the 1987 Montreal Protocol in reaction to a growing hole in the ozone layer. “The international community moves very fast when it has to — not when it wants to — when it has to,” he said during a July interview.
Still, looming over Sands is the question: With little time to spare, can he convince enough world leaders that perpetrators of mass environmental harm should no longer go unpunished?
The taxi jerks to a stop outside the stately Warwick Hotel, and Sands drops his small roller bag at the front desk. He has about 30 minutes before he’s due to give his first speech on ecocide at the European Trade Union Confederation. He decides to walk the mile or so there under a gray November sky. Anytime he has the chance to walk, he takes it. The movement helps to clear his mind and organize his thoughts. Back in London, he walks on the heath near his home and often coaxes colleagues and friends into joining him. His best friend and former colleague, James Cameron, who is also a distinguished environmental lawyer, said that it can be hard to get a word in edgewise on those walks. “He has to fight really hard to be quiet,” Cameron said, laughing.
Toting a black messenger bag stuffed with a laptop, iPad, and papers, Sands walks for about 30 minutes to a building in the quiet business district. His talk is scheduled for a conference room on the ground floor with a projection screen, a table of catered salads, sandwiches, pastries, and four tables surrounded by red office chairs.
He grabs a quinoa salad — “I’m trying to eat more vegetarian meals,” he says — and takes his place in front of the screen. Covid numbers in the region have been surging and his audience will be mostly virtual. He removes his watch and lays it next to a thin packet of talking points, which he rarely checks. His goal is not so much to preach about the state of the world’s ecosystems but rather to educate his audience about how an ecocide crime would fit into modern international criminal law and function in reality.
“He’s like a three dimensional chess player, always thinking a few different steps ahead in three different directions and seeing the consequences of things,” said Paul C. Saunders.
“I want to give you a little bit of context and background so you can situate this in its broader framework,” he says. “As of 1945, there have been four international crimes, the oldest one is war crimes, a 19th century invention, and then three invented in 1945 in the context of the creation of the international military tribunal at Nuremberg: crimes against humanity, the destruction of individuals; genocide, the destruction of groups; and the crime of aggression, the waging of illegal war.”
“All of these existing international crimes, and there have been no new ones for 75 years, focus on the protection of the human being, for obvious and very good reasons. None of the international crimes as such focus on the environment, because of course in 1945 the environment wasn’t part of the international legal order or part of political consciousness.”
His virtual audience is composed of labor and workers’ rights representatives, one of many groups Stop Ecocide International is looking to for political support. Though Sands prefers to talk in person — he likes to feel what the audience is feeling and adjust his direction and tone accordingly — he still speaks with a degree of sweep and verve characteristic of a litigator. Those familiar with his legal career say that his oral arguments transform dry legalese into compelling stories that unspool with a dramatic flair. “He has tremendous presentation skills,” said Paul C. Saunders, an American lawyer and former opponent of Sands in a high-stakes dispute between Suriname and Guyana. “He’s like a three dimensional chess player, always thinking a few different steps ahead in three different directions and seeing the consequences of things.”
Sands tells the audience that the time has come for the law to evolve beyond the ideas set forth in 1945. “We must sever the connection between international criminal law and an anthropocentric approach,” he says, referencing the work of American legal scholar Christopher Stone, whose 1972 law review article, “Should Trees Have Standing,” has long been a touchstone for Sands. “Protection of the environment is an end in and of itself.”
The son of a dentist and an antique bookstore manager in comfortable North London, Sands began his career as a legal research assistant of Eli Lauterpacht at Cambridge University. He had no particular desire to pursue environmental law. But that all changed in April 1986 when a nuclear power plant melted down in the Soviet Union.
Lauterpacht encouraged him to write about the legal obligations resulting from radioactive waste that was not respecting international borders. Sands’ work on Chernobyl turned into his first book, which led to speaking invitations. Two leading American environmental lawyers, Wendy Dinner and Durwood Zaelke, were in the audience at one of Sands’ lectures in Washington, D.C. They tracked down Sands and Cameron, his colleague, at their hotel. Fueled by youthful optimism and drinks at the Tabard Inn bar, the foursome launched the Center For International Environmental Law with the aim of pushing the equitable development of international environmental law.
Their timing and instincts couldn’t have been better. The world was gearing up for the 1992 Rio de Janeiro Earth Summit to hash out how to tackle a panoply of growing environmental problems from biodiversity loss to climate change. Sands and his colleagues recognized the injustice at the heart of those issues: Industrialized countries amassed their wealth in part through unrestrained pollution into the global commons while small nations that contributed little to the problems faced the worst effects. The group, acting pro bono with the backing of the Ford Foundation, approached small low lying island nations and convinced them to band together, using CIEL as their legal representation.
In 1990, the same year the Intergovernmental Panel on Climate Change released its first assessment, Sands, using a bulky compaq computer, typed out the founding agreement of the Alliance of Small Island States, known as AOSIS, with Cameron looking over his shoulder. The coalition of vulnerable countries has since become known as the conscience of climate change negotiations for their role in consistently pushing for strong emission reductions and equitable financing for the most affected nations.
By 1991, Sands and Cameron had put together their own draft climate change treaty, chock full of new and progressive ideas, including an insurance mechanism to help vulnerable countries cope with the effects of climate change. They presented the document through the island nation of Vanuatu in February 1991 at the first of six intergovernmental meetings leading up to the Rio conference. The move shocked the representatives of powerful countries, who bristled at the ballsy move. Dan Esty, who attended the summit on behalf of the United States and is now a Yale law professor, said the draft treaty instantly elevated the standing of small island countries: “They demonstrated the truth of an idea — that if you come to a conversation, not because you bring big power or money, but bring a big idea with an important moral foundation, you can get people to pay attention.”
Still, powerful fossil fuel lobbyists and a group of oil producing nations chipped away at the draft. Sands worried about the direction of the talks, but ultimately decided that an imperfect agreement was better than no agreement. He has remained critical of the U.N. Framework Convention on Climate Change’s political process and its ability to meaningfully curb dangerous emissions. “We’ve squandered the 30 intervening years and wasted time,” he said in July.
Following the Rio conference, Sands veered away from his work on climate change, taking the same audacious energy to his own legal practice before international courts. Soon, he and his mentors Tulumi Neroni Slade, then the Samoan ambassador to the United Nations, and James Crawford, then a law professor at Cambridge, would argue a case that now forms the core of international environmental law.
In the mid ‘90s, France resumed testing nuclear weapons in the South Pacific, leaving widespread radioactive waste in the atmosphere and ocean. Lacking the political and military power to stop the hazardous tests, the affected countries looked to the rule of law for help. They backed a U.N. resolution asking the International Court of Justice to issue an advisory opinion on the legality of the use of nuclear weapons.
Representing the Solomon Islands, Sands and his colleagues developed a series of arguments aimed at pushing the World Court to embrace a more pro-environmental perspective. Even if the decision fell short on the illegality of nuclear weapon use, there was an opportunity for the U.N. tribunal to affirm the environment’s place in general international law. Major nuclear powers like France, the United States, and the United Kingdom balked at the idea, arguing that environmental protection had no place in general international law.
Months went by as the parties waited on a ruling. When the day came to hear the opinion read aloud in open court, Sands felt as he always does on the cusp of a decision: anxious and prepared for the worst. But by paragraph 29 of the decision, the most authoritative international tribunal made clear: environmental protection is a concern of international law. “‘The environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn,” the court ruled.
Soon, the International Court of Justice received an increase of cases with environmental issues, building up a body of law that Sands would later draw from in his work on ecocide.
“It was revolutionary,” Sands said in July. “A little group of countries had basically changed the world.”
Shortly after Sands begins his lecture in Brussels on ecocide at the European Trade Union Confederation, a tall, slender man with dark curly hair walks into the room. Samuel Cogolati, 32, is a Belgian lawmaker who has advocated for a domestic and international ecocide crime for years. Wearing a blue suit and white sneakers, Cogolati apologizes for being late and tells the virtual attendees that two years ago even progressive academics and thinkers had laughed at him for pushing for an ecocide crime. The idea, they told him, was too vague to be taken seriously. Their views changed in June, Cogolati explains, when a drafting panel co-chaired by Sands released its proposed definition for the crime, giving the movement legal legitimacy: Ecocide is unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
As Cogolati speaks, Sands strokes his beard with his right hand and jots down notes whenever he hears a point he wants to rebut or remember. He feels most himself when he is batting around ideas with others. “Philippe likes to work things out by disagreement,” Cameron said, adding that Sands’ tendency to challenge ideas can agitate certain sensibilities. When Cogolati makes a remark suggesting the crime of ecocide should apply to corporate entities along with individuals, Sands’ starts fidgeting with his pen until he has an opening to jump in. “Could I just play devil’s advocate for one last second,” he says, holding up his left hand. “Is there not a risk that by putting corporations into that definition, that prosecutors will say it’s less sensitive if we go against the corporation, and we will avoid going against the individual.”
He continues: “And that undermines the deterrent effect because at the end of the day…you can’t put a corporation in prison.” Sands jabs his left pointer finger in the air as he emphasizes each word: “And what concentrates the mind of the chief executive is that she or he or they will personally be subject to criminal responsibility.”
Ecocide is unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
Sands’ embrace of what at times can be difficult conversations stems from his fundamental sense of curiosity, according to Farhana Yamin, a prominent environmental lawyer and one of Sands’ longstanding friends. When he’s being interviewed, he refuses to receive the interview questions ahead of time —“I prefer spontaneity and it’s a better experience for the audience.” His contrarian tendencies are also rooted in one of his core beliefs: Reasonable people can differ on many things. But after a dustup, his thoughts inevitably turn on himself. Was he polite enough, did he talk too much, and was he effective?
But at this moment, he is in the flow. His perfect Queen’s English unfurls with a distinct clarity as he explains how environmental concerns began to creep into the global legal order beginning in the 1970s thanks in large measure to the Vietnam War and the United States’ widespread and long-term use of highly toxic defoliants. Then, in the lead up to the 1998 conference in Rome that established the International Criminal Court, there was more discussion about a fifth crime of ecocide, but a number of countries thought the time wasn’t right.
He’s quick to note that it was the work of advocates, specifically Jojo Mehta and the late Polly Higgins, co-founders of Stop Ecocide International, who pushed the idea of an ecocide crime into the mainstream. It was Mehta, carrying on Higgins’ decade-long campaign, who invited Sands in the fall of 2020 to co-chair the panel charged with legally defining the crime. The group, which differed ideologically, professionally, and geographically, something Sands emphasizes, met once a month on Zoom for three hours at a time and more often in smaller working groups. Sands and his counterpart, Dior Fall Sow, a Senegalese jurist, were adamant that the group reach a consensus on the definition and that the final product be something that governments would embrace.
The approach is reflective of Sands’ style — pragmatic, thoughtful, and deliberate. The panel could have overreached, putting out an aggressive definition knowing that governments would inevitably water it down. But Sands isn’t interested in the esoteric. He wants to build things and is interested in real change.
He tells the audience that he doesn’t like to give specific examples of ecocide — his position is that it is for prosecutors and judges to decide. Giving examples, he explains, instantly creates enemies, something the campaign can’t afford. And he’s very careful not to cast ecocide as a means to subvert the ongoing U.N. political negotiations on climate change: “As soon as states think ecocide is a backdoor to address climate change,” he said, “it’s dead.”
As Sands was pivoting his professional focus from climate change to international courts and tribunals in the 1990s, nations that had declared “never again” in the wake of the Holocaust found themselves asking how such horrors could be repeating.
International criminal law underwent a second growth spurt as ad hoc tribunals were set up to hold accountable perpetrators of atrocities in Rwanda and the former Yugoslavia, and calls for a permanent international criminal court grew louder. In 1998, the world’s nations gathered in Rome to hash out a treaty, what would become the Rome Statute, that established the permanent International Criminal Court.
A coalition of small island states in the Pacific asked Sands and his colleague, Andrew Clapham, to represent them at the conference. The two men were tasked with drafting the treaty’s 300-word preamble, within which they ambitiously included 20 words that would come to mark a milestone toward ending impunity for the powerful: recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.
The words codified the idea of universal jurisdiction, which allows national governments to investigate and prosecute international crimes, even if committed outside the territory of that country. But Sands and Clapham didn’t just write that universal jurisdiction is allowable. Using the word “duty,” they set forth the idea that governments must enforce international criminal law.
Three months later, a Spanish judge issued an arrest warrant for the former Chilean president Augusto Pinochet, 82 at the time, on grounds that the dictator was responsible for torture, mass murder, and other grave human rights abuses during his reign from 1973 to 1990. Pinochet, who was in London for medical treatment, was arrested by British authorities, putting the ideal of universal jurisdiction to the test.
The legal team representing Pinochet had asked Sands to join them in arguing that their client, as a former head of state, was immune from prosecution. Sands declined at the behest of his wife, one of only two times in his career when he turned down a case. (The other time was in 2002 when Saddam Hussein sought out his counsel over whether, should the United States invade Iraq, the country could ensnare the American military by ratifying the Rome Statute and joining the International Criminal Court.)
Having rebuffed Pinochet, Sands went to work for Human Rights Watch on the other side, arguing in favor of the application of universal jurisdiction and against immunity for the former head of state. The prohibition on torture and other heinous crimes, they argued, are universal values that transcend national borders and apply even to the world’s most powerful individuals.
By the time the case had reached Britain’s House of Lords, the world was watching, and Sands had a front row seat. He recalled the moment like a sporting match. Two Law Lords had voted against Pinochet and two had voted in his favor. It all came down to the fifth Law Lord. There was absolute silence as he spoke, “no immunity.” Audible gasps flooded the chamber.
“You could feel the axis of law shift,” Sands said.
Ultimately, Pinochet was never extradited to Spain for trial. The United Kingdom’s then-home secretary allowed the former dictator to return to Chile based on his failing medical condition. But the case set an important precedent solidifying the principle of universal jurisdiction and denying former political leaders immunity for international crimes.
“My view of international law is one step forward, one step sideways. A step back, two steps forward, a step sideways. The arc of history is long and irregular,” Sands said in July.
Having finished his first ecocide talk of the evening, Sands and Cogolati walk five minutes to where Sands will deliver his next lecture, which was organized by one of his former students at the Université Saint-Louis. On the way, they trade gossip about Belgian and international politics. Sands tells Cogolati about an invitation he received from the German ambassador in Brussels to brief an international coalition of diplomats about ecocide. Political support is building. “It’s not if it happens, but when,” Sands says, holding up his right index finger.
The men arrive at the university and are immediately greeted by a group of five people that includes Françoise Tulkens, the former vice-president of the European Court of Human Rights. From 2016 to 2017, Tulkens, who will be speaking alongside Sands, chaired the “Monsanto Tribunal,” which delivered a non-binding legal opinion on the company’s practices and ruled that ecocide should be an international crime.
The group makes their way to the lecture hall, which is about half full with students and peppered with about 10 middle aged men in suits, some of whom are Belgium policymakers. The country’s legislature is on the cusp of voting on domestic ecocide legislation and deciding whether to back the international effort.
Sands is aware that one man is particularly important: He is drafting a legislative report on the viability of an ecocide law. Though a small country, Belgium’s support could act as a catalyst for other governments to quickly get on board, and, as home to the headquarters of the European Union and NATO, it would be a powerful bellwether. Conscious of this, Sands knows he must deliver.
Sands is given a generous introduction, though most people in the room already know who he is. He launches into what he calls his ecocide stump speech in French from a seat on a raised dais. Behind him is a large bright projection screen with the word ecocide written in cursive and the crime’s French definition below it.
“My view of international law is one step forward, one step sideways. A step back, two steps forward, a step sideways. The arc of history is long and irregular,” Sands said in July.
If he feels any pressure it doesn’t show. He makes jokes and the audience laughs. The suits in the audience take notes and intermittently students lean forward, smile, and nod their heads in agreement. Sands can feel their energy and knows he’s connecting with them.
At one point, Sands shares that his work on the campaign has made him question his own professional choices. He has represented a number of countries in boundary disputes that inevitably are about access to, and exploitation of, natural resources.
During the Q&A portion of the lecture, Sands is asked about whether the definition sets too high of a threshold for an act to qualify as ecocide. He explains that international criminal law is only concerned with the most egregious crimes. And, practically speaking, for the definition to have political support, it could not be used as a form of neocolonialism that prevents the global south from developing. To that end, the definition includes a balancing test between social and economic benefit, on one side, and environmental harms, on the other.
When the lecture wraps up, the room gives him an extended round of applause. The man he has been watching moves slowly to the dias where Sands is sitting and signals that he wants Sands to come closer. The man whispers something in his ear.
In two weeks, Belgium’s lawmakers would pass a resolution supporting both domestic and international ecocide legislation.
Sands found himself literally at ground zero in the U.S. war on terror as a global professor at New York University Law School on Sept. 11, 2001. In 2002, he began working on a case in which he helped secure the release of 24-year-old British National, Feroz Abbasi, who had been wrongfully detained at Guantánamo Bay without evidence. The case gave the then 42-year old lawyer a close look at how the U.S. government was cutting legal and ethical corners, if not outright breaking them.
When U.S. troops invaded Iraq in March 2003, Sands was outraged and deeply concerned about what he saw as a “manifest violation of international law.” He wanted to understand, as he put it: “How…a country as profoundly attached to the rule of law and principles of constitutionality as the United States could have so little regard for international law?”
In 2005, he answered that question in his first non-academic book, “Lawless World,” a scathing critique of America’s evolving engagement, for better or worse, depending on the perspective, with international rules like the Geneva Conventions, the U.N.’s restrictions on the use of force, the Kyoto Protocol, and the International Criminal Court’s Rome Statute, which Bill Clinton signed in 2000 and George W. Bush “unsigned” in 2002. Later that year, Bush signed what is known as the “Hague Invasion” law, giving the president authority to use force should Americans be detained at the court.
One chapter in the book scrutinizes how the first Bush administration justified the use of what is widely believed to be torture, in the name of fighting terrorism. But, Sands still had a burning desire to know how lawyers like him could so easily subvert the rule of law they swore an oath to uphold. He wanted to go further. So he started cold-calling administration lawyers and pouring over official documents like Defense Secretary Donald Rumsfeld’s notorious Action Memo, which aimed to legitimize extreme interrogation measures like waterboarding, sleep deprivation, and mental and physical torment.
His research produced the 2008 book “Torture Team,” a searing analysis of the role top American officials played in systematizing torture. In it, he disproved the administration’s narrative that torture had come from the bottom up, as opposed to a top-down administration policy.
The acclaim for Sands’ books began to raise his profile outside of the international legal establishment and cement his place as a storyteller who could weave complicated topics into page-turning narratives. Three years after “Torture Team” was published, he received an invitation that, unbeknowst to him at the time, would again change the trajectory of his career.
Growing up, Sands had a close relationship with his maternal grandfather, Leon Buchholz. But his grandfather never spoke about his life before 1945, and Sands and his brother Marc knew not to ask any questions. So when the University of Lviv in Ukraine invited Sands to give a lecture on crimes against humanity and genocide in 2010, he accepted knowing that Buchholz was born in the city, then known as Lemberg.
In Lviv, he embarked on a journey of both familial and self-discovery. His research also led him to find that the two men responsible for bringing the concepts of crimes against humanity and genocide into the conscience of the world, Hersch Lauterpacht and Raphael Lemkin, respectively, were born around the same time as Buchholz and in the same region of Eastern Europe. They also attended the university where Sands was invited to speak. (In an almost unbelievable twist of fate, Lauterpacht’s son, Eli, had been his mentor at Cambridge Law.)
Sands tells the story of those three men in his acclaimed 2016 book “East West Street,” including how Lauterpacht and Lemkin fought against all odds, and in two very different ways, to bring to life the idea that sovereignty can no longer be a shield that prevents mass murderers from accountability. Because of their work, crimes against humanity and genocide were written into the fabric of the Nuremberg tribunal and now form the foundation of modern international criminal law.
The book also tells the story of a fourth man, Hans Frank, who as Hitler’s personal lawyer and then governor-general of Nazi-occupied Poland, bore responsibility for the extermination of the families of Lauterpacht, Lemkin, and Buchholz. At Nuremberg, Frank was charged with crimes against humanity and genocide. He was convicted and hanged in October 1946.
For Sands, Lauterpacht and Lemkin provide examples of human resilience in the face of catastrophe: “They didn’t curl up in a corner and weep when faced with a crisis,” he said in July. “They used the power of their ideas to change the world.”
When he settled into his seat on the 2:22 p.m. Eurostar train from Brussels to Amsterdam the day after his two whirlwind ecocide lectures, Sands welcomed the opportunity to relax. His destination that evening was a 17th century Mennonite church in the center of town where he was to deliver a talk about “The Ratline.”
But I’d been asking him questions about his legal career for two days running, and he was still thinking about a woman — a client—named Marie Liseby Elysé. She was 20 years old in 1973 when the colonial British government forcibly removed her entire community, about 2,000 people, many of whom were former slaves, from their homes in the Chagos Islands. The forced relocation was, in part, to make way for the U.S. military base Diego Garcia. In 2018, Elysé recounted the experience of being forced onto a ship and treated like “animals and slaves.” She was four months pregnant at the time and miscarried after arriving in Mauritius.
He showed me photographs from his recent Mauritius trip, one of which is Elysé sitting on a couch in her living room. She’s smiling warmly at Sands who is taking the photograph.
From 2018 to 2019, Sands represented Mauritius before the International Court of Justice. He won a favorable advisory opinion for the Indian Ocean island nation, with the court ruling that during the decolonization process, the United Kingdom had wrongfully separated the Chagos Islands from Mauritius and that London had to end its control over the islands as soon as possible. The U.N. General Assembly later affirmed the court’s opinion, but the United Kingdom has refused to comply with the ruling.
“They didn’t curl up in a corner and weep when faced with a crisis,” Sands said in July. “They used the power of their ideas to change the world.”
He opens his silver laptop and pulls up a map of the Chagos Islands as the Dutch countryside rolls by his left side. When he talks about the case, which he calls one of the most important of his career, his nose wrinkles and the volume of his voice ticks up, tinged with an edge of disgust. “It is a disgrace that my country has treated them as they have,” he says. “I’m ashamed of it.”
For him, the Chagos case is emblematic of an international legal system that is still infused with vestiges of colonialism. It proves, he says, that powerful nations continue to pursue their narrow self interests and, when it suits them, ignore the legal order they purport to uphold. He wrote about the case in an April opinion piece in The New York Times, highlighting the U.S. and U.K. governments’ intransigence over Chagos and arguing that an a la carte approach to legal rules emboldens authoritarian nations like China and Russia. “…anyone who wants to weaponize the rule of law first needs to have their own house in order,” he wrote. In August 2022, he is releasing a short book about the case called “The Last Colony.”
Sands spends the rest of the train ride answering emails by jabbing his keyboard with his right index finger. With about 20 minutes left in the journey, he puts on a pair of Bose over the ear headphones, closes his eyes, and listens to Leonard Cohen’s 2009 Live in London show.
It’s rare that he has time alone. Most people in his orbit clamor for a piece of his time and attention, and he is fairly generous with both. He makes it a point to respond to each email he receives about his books. At dinners, he circles around the table to connect with each person. And he regrets that he has to decline most of the speaking invitations he receives — about 10 per week.
When he arrives in Amsterdam, he makes a quick stop at his hotel, changing from lawyerly slacks to jeans. Tonight he is appearing as Sands, the author.
It’s 8 p.m. when he arrives at the Doopsgezinde Singelkerk church, situated alongside one of Amsterdam’s iconic canals. Outside, the night had turned cold giving the air inside the spacious hall a chill. About half the guests, socially distanced around the room in small groups, keep their jackets on. When Sands appears, some of them crane their necks and point in his direction. The moderator and Sands take their place at the center of the hall, which has a high ceiling and two floors of galleries along three of the four walls. The space, with two softly lit chandeliers, has an intimate feel to it.
Sands takes the podium and begins telling the audience about how the three part series of “East West Street” (2016), “The Ratline” (2021), and the yet-to-be-named third book (about Pinochet in London due out in 2024) came into being. “It deals with issues of identity: Who are we?” he explains. “And, in particular, the catalyst was questions that I had about my own identity.” By learning more about his grandfather and family, he said, he would come to know more about himself.
His work on “East West Street” set off a cascading series of events that led him to befriend Horst Wächter, one of the six children of the lawyer and Nazi governor of Galicia, Otto Wächter. Through their on-again, off-again friendship, Sands gained access to thousands of Wächter family documents and photographs, now housed in the U.S. Holocaust Memorial Museum in Washington, D.C.
His forensic examination of those records, coupled with interviews and old fashioned detective work, resulted in “The Ratline,” which follows the life, and mysterious death, of Otto. The book reveals how Otto, with the unflinching support of his wife, Charlotte, rose through Nazi ranks, oversaw the deaths of over 130,000 men, women, and children, including Sands’ relatives. Otto, an indicted war criminal, evaded justice and escaped to Rome after the war with the help of the Vatican — and, Sands came to discover, with the knowledge of the U.S. government.
Central to the Wächter family’s story is the same question Sands has wrestled with throughout his career: How is it that highly intelligent and seemingly decent people can become involved in horrible things?
“I don’t have an answer to that question,” he tells the audience. “But I have a sense of the road that allows that to happen and it begins with the crossing of the line…the skies never fall when you cross these little lines and once you’ve crossed the little lines, you can cross a slightly bigger line.” He jabs his right index finger in the air as he speaks.
To illustrate his point, he draws a detailed picture in the minds of his audience of the decisions Otto made leading up to a consequential moment between him and his wife Charlotte on March 15, 1938. The couple was at the Hofburg Palace in Vienna, where they stood next to Adolf Hitler greeting a crowd. Afterwards, the couple walked to the bottom of a marble staircase to discuss their future. In that moment, they decided Otto would accept an official position in the Nazi government, knowing fully what that choice would mean.
“Seventy-five years later, that family is still convulsed by that single decision,” Sands said. “The legacy goes on and on.”
Sands lingers after the event to talk with fans until staff tell him they are turning the lights out. He walks out of the tall black doors of the Doopsgezinde Singelkerk, which means he’s completed his 10-day whirlwind trip and can relax for the moment. When he arrives back at the hotel, we sit down in the lobby to have one last conversation about ecocide.
Cementing new values into law is painstaking business. Raphael Lemkin’s quest to criminalize genocide lasted over a decade. The relentless campaigning and ridicule for pushing a revolutionary idea took a toll on his health and livelihood. He died in 1959, broke and still trying to convince the world’s most powerful country to ratify the 1948 genocide convention. The United States finally did so in 1988. Another 10 years passed before the world saw the first conviction for a genocide crime.
Sands knows this and could easily divert his attention to more lucrative endeavors, but he chooses to devote a portion of his time, pro bono, to promoting the campaign. When asked why he does it, Sands’ response is straight forward: his three children. In 2019, while trekking across the Alps with his youngest daughter, Sands saw firsthand the lifeless plots of land where glaciers had once stood. The experience reified the idea of environmental destruction, and what it will mean for his children and future generations absent a change in course. “My generation have fucked it up,” he said. “We really have.”
His own evolution on the idea of an ecocide crime has been gradual. It’s not that he was opposed to the idea, but his innate conservatism as a legal tactician made him wonder whether the timing was right. The International Criminal Court has for years wrestled with shortcomings, having too much on its plate to effectively execute its mandate. Adding a fifth crime on top of that, Sands had thought, was a real concern. But today, he feels that worry cannot override what he calls pressing and vital threats to the environment. “If that argument had been used in 1945, that the time wasn’t right, the world would be in a much darker place,” he said. “We have to seize the moment now.”
When speaking about ecocide, one of the questions Sands is often asked is some variation of: “Having a crime of genocide hasn’t stopped genocide from happening, so what good would an ecocide crime do?” The question is one he takes to heart and he’s quick to admit that he is not “starry-eyed” about the law and its ability to stop horrific things from happening. But, he argues, law does change consciousness.
“Our values change over time. What is acceptable behavior, at one moment in our existence becomes unacceptable, sometimes in a very short period of time,” he said. “By changing the law, you are sending a signal: This is a value that we are cognizant of and that we want to protect.”
He sees the addition of ecocide in the rarified company of the four other international crimes as a signal that the world’s values are on the cusp of transforming.
“It is about the wellbeing of the planet. We have to break this umbilical cord where we just assume it has to be about the wellbeing of humans,” he said. “Putting the human at the center of everything has got us into a terrible mess.”
He pauses, then adds: “You have to ask people, ‘do you want to be one of the naysayers like in 1945? Is that how you want to be remembered? This is a moment and you want to be on the right side of history.”
Katie Surma is a Roy W. Howard fellow at Inside Climate News focusing on environmental justice.
The Fifth Crime is an ongoing series, produced in collaboration with Inside Climate News and NBC, about the campaign to make “ecocide” an international crime. See other installments here.