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The Outlaw World

1.

Philippe Sands is a practicing international lawyer and professor in London. Having been involved in many cases before the International Court of Justice in The Hague, he took part in the effort to deny Augusto Pinochet immunity in the UK and has represented the British detainees at Guantánamo.

Along with the other books under review, Sands’s Lawless World provides a disturbing picture of the state of international law and the part, at times visionary, at other times destructive, that the US had in its development. Sands indicts the United States, with Tony Blair’s complicity,1 for abandoning its commitment to the post–World War II legal and institutional arrangements that both countries, more than anyone else, had put in place. “I am not starry-eyed about international law,” Sands writes. “I recognize that it has frequently failed millions around the world and will continue to do so. But do recent events justify a wholesale change of approach?”

Before World War II, governments could act more or less as they wished in international affairs, provided they had the power to do so. This situation began to change radically when Roosevelt and Churchill proclaimed the Atlantic Charter on a battleship off the coast of Newfoundland on August 14, 1941, at a time when Nazi Germany appeared to be decisively winning the European war. This first sketch of the UN Charter and the international system that was to regulate the postwar world was based on three simple but revolutionary principles. First, states would recognize the obligation to refrain from the use of force in their international relations, and would resort to force only in self-defense or when authorized to do so by the international community—later to be represented by the UN Security Council. Second, they would maintain and respect the “inherent dignity” and “equal and inalienable rights” of all members of the human family. Third, they would promote economic liberalization and progress through free trade and other means.

The Atlantic Charter marked the beginning of the long process that led to the establishment of the UN, the various UN specialized agencies, the World Bank and the International Monetary Fund, the General Agreement on Tariffs and Trade (which after forty-five years became the World Trade Organization), and the 1948 Universal Declaration of Human Rights (in Sands’s words “arguably the single most important international instrument ever negotiated”), as well as the Geneva Conventions of 1949 and 1977.

Further steps toward establishing an international institutional and legal order continued with the 1957 International Atomic Energy Agency in Vienna, which has now become an important monitoring and inspection agency; the Nuclear Non-Proliferation Treaty and other arms control conventions; environmental law and institutions; and now the International Criminal Court, and the beginning of a system of legal obligations for states related to the prevention and suppression of international terrorism.2

Throughout Lawless World Sands’s main preoccupation is the damage that current United States policies and actions may do to the respect for international law and its authority, both of which may be decisive in dealing effectively with the global challenges that lie ahead. His concern is well justified. As he notes, the 1997 manifesto of the neoconservative organization Project for the New American Century, signed by such people as Dick Cheney, Paul Wolfowitz, Donald Rumsfeld, and Scooter Libby, proclaimed that the detention of Augusto Pinochet,3 the new International Criminal Court, and the Kyoto Protocol on global warming were all threats to American security. John Bolton, now United States ambassador at the UN, said at the time that treaties were simply political acts and “not legally binding.” Richard Perle declared publicly in April 2003 that the war in Iraq provided an opportunity to refashion international law and undermine the United Nations.

Sands is particularly concerned about the frenzied opposition of the Bush administration to the new International Criminal Court, which has been accepted by one hundred other nations and is now investigating the current genocide in Darfur.4 The Bush administration, he writes, is using the ICC as “a useful stalking horse for a broader attack on international law and the constraints which it may place on hegemonic power.”

As for the rejection of the Kyoto Protocol, Sands recalls with nostalgia that in 1970, another Republican president, Richard Nixon, signed into law the National Environmental Policy Act, the world’s first comprehensive attempt to protect the environment. The UN Charter makes no mention of rules governing the environment. Nixon vigorously supported an environmental program within the UN, and just before the UN’s first global conference on the environment in Stockholm in 1972, he proposed a World Heritage Trust to protect regions of such unique worldwide value that they should be treated as part of the heritage of all mankind.5 The United States was also a leader in adopting the first measures, taken under the Reagan administration in the 1980s, to counteract the depletion of the ozone layer; it did so against the opposition of European governments that were worried about possible unfavorable economic consequences.

Since 1990, when the report of the UN’s International Panel on Climate Change revealed a deadly potential threat to islands and other low-lying regions that clearly called for a timely global response, Sands himself has been deeply involved in such issues.6 He makes it clear that short-term economic considerations have so far taken precedence over the enormous long-term risks involved in doing too little about climate change.

As he points out, the United States and OPEC initially opposed an international convention on climate change or any timetables to reduce and stabilize the emission of greenhouse gases. A preliminary convention, in a very modest form, came into force in 1994. In 1997 the Kyoto Protocol marked a real commitment to action and provided a basis for more far-reaching measures. In signing it President Clinton praised the protocol as a major step forward. Sands writes that Clinton was then informed somewhat mystifyingly by former Secretary of Defense Dick Cheney and a number of other Regan and Bush officials that the protocol would “hamstring” American military operations and undermine American sovereignty. The Bush administration soon “unsigned” the Kyoto Protocol, claiming among other reasons that the scientific verdict on global warming was not yet in. Alone of all industrialized states, the United States and Australia have not ratified the protocol. Whatever its defects in not adequately controlling emissions from the large Asian economies, it remains an essential preliminary step toward limiting climate change.

The invasion of Iraq that started in March 2003 arouses Sands’s deepest objections to what he sees as an unwarranted assault on international law. The invasion itself, without benefit of Security Council authorization, was a blow to the essential basic principle contained in Article 2.4 of the UN Charter, which reads:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Sands is equally concerned with the violation of international laws in connection with the conduct of the war. In the Guantánamo prison hundreds of alleged “killers,” “terrorists,” or “unlawful combatants,” as they have been variously designated by the United States, have been deliberately put, he writes, into a “legal black hole,” from which most of them are unlikely to emerge anytime soon. The basic principle of habeas corpus has seldom if ever taken such a beating at the hands of a leading democracy. The atrocities at Abu Ghraib and elsewhere are plainly in violation of the Geneva Conventions and the UN Convention against Torture. They also set a terrible precedent for the future treatment of captured Americans.

The 1899 Hague Convention, which puts limits on methods of interrogation of prisoners of war; the four 1949 Geneva Conventions, which deal, among many other matters, with treatment of prisoners; and Article 75 of the Geneva Protocol I of 1977 mean, in Sands’s judgment, that “no person can ever fall outside the scope of minimum legal protections” against violence, torture, threats of torture, outrages against personal dignity including humiliating and degrading treatment, and any form of indecent assault. This list certainly describes what happened in Abu Ghraib and other prisons.

Of course these rules have often been violated by other states, but the United States, since 2001, is unique in claiming, in the words of Deputy Assistant Attorney General John Yoo in 2002, “What the Administration is trying to do is create a new legal regime.” This was also presumably the basic notion behind Bush’s proclaiming the right to resort unilaterally to preventive war as part of his new national security strategy. To minimize legal constraints on the United States and to extract information from prisoners, Alberto Gonzales, then White House general counsel and now attorney general of the United States, urged the President to declare that the Geneva Convention III of 1949 did not apply to al-Qaeda or the Taliban. “This new paradigm,” Gonzales wrote in January 2002, “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions….”

Although Guantánamo, because it was not in US territory, was chosen partly to avoid such interference, from time to time the US judiciary has tried to stem the administration’s flood of expedient revisionism. A federal judge halted the first hearing, after nearly three years, before a special military commission established to try non-American Guantánamo prisoners. He did so on the grounds that the proceedings lacked the basic elements of a fair trial and violated the Geneva Conventions.

Sands is particularly good at picking, from an amazing wealth of material, quotations that capture the eerie atmosphere of the Bush administration in the midst of a war of choice and an unprecedented assault on international law. On the Guantánamo inmates, for example, he quotes Cheney as saying, “They’re living in the tropics. They’re well fed. They’ve got everything they could possibly want.”

Sands’s discussion of the period preceding the second Iraq war are particularly interesting in charting Bush’s relatively unobstructed path to war as compared with Tony Blair’s far more difficult one. Sands shows that both leaders engaged in much dissembling and tinkering with the truth. He describes the content of the so-called “Downing Street memo,” which caused a considerable stir on both sides of the Atlantic when it was later published in full in the London Sunday Times and in these pages.7

On March 27, 2006, The New York Times reported on another “extremely sensitive” British memo describing Bush and Blair’s private two-hour meeting in the Oval Office in January 2003, of which several highlights were first published in the later edition of Sands’s book. The sometimes bizarre quality of these talks make one long for the publication of the full five-page text. Bush apparently suggested provoking a confrontation with Saddam Hussein by painting a US surveillance plane in UN colors in the hope of drawing Iraqi fire. The basic theme of the meeting was Bush’s determination to go to war in early March regardless of Security Council resolutions, the findings of UN inspectors, or anything else.8

  1. 1

    In a later, paperback edition published by Penguin in the UK in early 2006 and to be published in the US in September, Sands has added a chapter on how the British attorney general, Lord Goldsmith, during March 2003, came to change his advice against going to war in Iraq without a second enabling Security Council resolution. Whereas he had previously said that the legality of military action without a second Security Council resolution was “only reasonably arguable” and “would probably fail in a court of law,” he then reversed himself and produced a clear and positive opinion a few days later. This second opinion was of particular importance to Admiral Sir Michael Boyce, the UK chief of defense staff, who had demanded a clear and unequivocal legal opinion before committing troops to the invasion of Iraq.

  2. 2

    Secretary-General Kofi Annan has outlined the elements of a UN strategy on terrorism as follows: first, to dissuade disaffected groups from choosing terrorism as a tactic to achieve their goals; second, to deny terrorists the means to carry out their tasks; third, to deter states from supporting terrorists; fourth, to develop state capacity to prevent terrorism; fifth, to defend human rights in the struggle against terrorism. See Javier Ruperez, “The Role of the United Nations in the Fight Against Terrorism: A Provisional Balance,” Perceptions, Summer 2005.

  3. 3

    Sands characterizes the denial of Pinochet’s immunity under English law as “a transforming event in international law.” Since that time, two former heads of state, the late Slobodan Milosevic of Yugoslavia and Charles Taylor of Liberia, have been brought before international tribunals for crimes against humanity.

  4. 4

    Faced with the Security Council’s inability to agree on stronger measures to end the genocide in Darfur, the United States did not block the referral of the Darfur case to the International Criminal Court. The Court’s chief prosecutor, Luis Moreno Ocampo, is now engaged in building a case against those responsible for the atrocities in Darfur. See Elizabeth Rubin, “If Not Peace, Then Justice,” The New York Times Magazine, April 2, 2006.

  5. 5

    The trust now protects more than seven hundred cultural and heritage sites, from Kew Gardens outside London to the Galapagos Islands six hundred miles off the coast of Ecuador.

  6. 6

    In 1989 Sands created a public interest law firm to provide free legal assistance to developing countries on environment and development. With a grant from the Ford Foundation it provided free legal assistance on global warming to a group of some forty island states mainly from the Pacific and the Caribbean. The group eventually organized itself into the Alliance of Small Island States.

  7. 7

    See The New York Review, June 9, 2005. The memo has now been published with other documents in Mark Danner, The Secret Way to War (New York Review Books, 2006).

  8. 8

    See Don Van Natta Jr., “Bush was Set on Path to War, Memo by British Adviser Says,” The New York Times, March 27, 2006.

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