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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

About the performance of the UN Security Council concerning Iraq, Sands concludes:

The simple fact is that the great majority of states who sat on the Security Council in March 2003 did not consider that the circumstances, as they were then known to be, could justify the use of force. History has shown that they were right and that the US and Britain were wrong. No WMD have been found. It could be said that the UN system worked. No amount of bullying by two permanent members could buy the votes they wanted.

He could have added that had the inspections been allowed to continue, war probably could have been avoided, with all credit being given to the US for putting the necessary pressure on Saddam Hussein. Instead, the ostensible reason for the US invasion was changed from the alleged threat of WMDs to regime change. Moreover, as Hans Blix reminded the Security Council after inspectors had reached preliminary conclusions about the absence of WMDs, “international inspections and monitoring systems were to stay in place.”

2.

Michael Byers states that the objective of his book is to “provide the interested non-lawyer with a readily comprehensible overview of the law governing the use of force in international affairs.” Clear and informative, his account is particularly valuable at a time when there is a worldwide debate, arising largely from the Iraq situation—but also relevant to the genocide in Darfur—about the circumstances in which it is legally appropriate for one country to use force against another or for international intervention on humanitarian grounds.

Byers’s discussion of self-defense, the justifying condition for the unilateral use of force in the UN Charter, takes up more than half his book. He goes back to the case of the steamship Caroline, which was hired in 1837 by a private militia to ferry men and supplies across the Niagara River to support a Canadian rebellion against the British. The British set the ship on fire and floated it over Niagara Falls, later claiming that they did so in self-defense and that their action was justified on political grounds. When the dispute was finally, and amicably, settled in 1842, the American secretary of state, Daniel Webster, conceded that the use of force in self-defense could sometimes be justified as a matter of necessity, but that nothing “unreasonable or excessive” could be done in self-defense.

These criteria—“necessity and proportionality”—were widely accepted as the requirements of a new international legal right to self-defense. Byers emphasizes the importance of this precedent as showing that a country could defend itself without declaring war, and that peace could be maintained even when the right to self-defense was exercised; he traces the development of this concept up to the present time.

The United Nations was the first international organization to combine in its charter the three main rules for maintaining peace: prohibition on the use of force in international affairs (Article 2.4); a provision for the use of force by the Security Council against threats to the peace and acts of aggression (Chapter VII); and an exception for the use of force by governments in self-defense (in Article 51). But the plea of self-defense, as Byers shows, can be complex when it involves forceful action beyond a nation’s own territory.

For example, in 1976 an Air France plane with many Israeli passengers aboard was hijacked by Palestinians and taken to Entebbe in Uganda, where non-Jewish passengers were released. Facing a deadline for meeting the hijackers’ demand for the release of fifty-three Palestinian terrorists, an Israeli commando team, led by Jonathan Netanyahu, killed the hijackers, rescued the Israeli hostages, and flew them back to Israel. Netanyahu himself was killed. This action is now credited as a precedent for extending the right of self-defense to protecting nationals abroad.

In April 1993 an attempt to assassinate former President George H.W. Bush in Kuwait was thwarted by the discovery of a sophisticated car bomb. When Iraq’s involvement in this attempt was established, President Clinton ordered the destruction of Saddam Hussein’s Military Intelligence Headquarters in Baghdad by twenty-three Tomahawk missiles. The Security Council did not censure this action, although the use of force without Council authorization was condemned by the Arab League.

The Council did not even consider President Clinton’s response to the destruction by terrorists of the US embassies in Tanzania and Kenya when he fired seventy-nine Tomahawk missiles at al-Qaeda training camps in Afghanistan and also at a pharmaceutical plant in Sudan suspected of making chemical weapons for terrorists. Moreover, by authorizing the US-led operation against the Taliban in Afghanistan after September 11, the Security Council also set a precedent for using force against a state harboring terrorists, provided that the terrorists had previously attacked the state concerned.

On the even more controversial question of preemptive self-defense, Byers cites the case of Israel’s 1981attack on Iraq’s French-built Osirak nuclear reactor, which the Council unanimously condemned as a grave breach of international law. Byers writes that George W. Bush’s policy claiming the right of the United States to use unilateral, preemptive force—widely considered a dangerous example that other states may try to emulate—clearly violates the common-sense criteria of the Caroline case for self- defense. He believes that such a policy as Bush’s, if maintained, could even serve as an incentive to some states to try to acquire a nuclear deterrent in self-defense. He quotes the response of the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change to Bush’s claim of the right of preemptive self-defense:

…In a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.

Byers then examines the current legal status of the relatively recent issue of humanitarian intervention and the obligation to protect populations in distress, even from the actions of their own governments. One of the most important decisions of the UN Summit Meeting of September 2005 was to give a general, although highly qualified, approval to such interventions. But as Byers points out, while Kofi Annan reiterates that the “security situation in Darfur continues to deteriorate and the moral case for action is overwhelming,” the Security Council has so far agreed only to deploying a UN peacekeeping force later this year to take over from the existing African Union force, a move strongly opposed by the Sudanese government. The Council has also, as mentioned above, referred the Darfur case to the International Criminal Court.

Byers’s closing chapters on the protection of civilians and prisoners of war, and on the various UN international tribunals, are characterized by mounting frustration at the US administration’s contemptuous attitude toward international law and legal institutions. Of the Bush administration’s obsessive hostility toward the recently established International Criminal Court he writes:

Only the United States has actively endeavoured to undermine the court. With troops in more than 140 countries, a propensity to intervene under dubious legal circumstances, and interpretations of the laws of war that sometimes differ from those of other states, the single superpower feels vulnerable to international mechanisms for enforcing international criminal law. Whereas the Clinton Administration sought to negotiate protections against the abuse of international procedures into the statutes of the tribunals it helped to create, the Bush Administration has adopted an entirely hostile stance….

Since coming to office, President Bush has “unsigned” the ICC statute, pressured the UN Security Council into temporarily exempting US forces from the Court’s jurisdiction, and obtained more than ninety bilateral treaties committing individual countries not to surrender US citizens to The Hague. Bush has even signed legislation that authorizes him to use military force to secure the release of any US service member detained by the ICC. The law is popularly known as “The Hague Invasion Act.”

Since under the present ICC statute it is virtually impossible that the Court would detain a US soldier, this exceptional—even paranoid—brand of US exceptionalism can only add to the frustration of the nations seeking a fair and workable international legal system.

When the UN Preparatory Commission was setting up the world organization in London in the fall of 1945, the European colonial powers could sometimes scarcely contain their resentment of what they saw as the self-righteous attitude of the US delegation toward European colonialism and its abolition. Their resentment occasionally took the form of rather feeble allusions to the fate of American Indians; but I cannot recall a single reference to America’s many efforts at regime change in the fairly recent past. These actions are the subject of the first part of Overthrow, Stephen Kinzer’s wonderful chronicle of America’s interventions in foreign countries.

Kinzer describes three periods of American intervention: first the “Imperial Era” between 1893 and 1910 (in Hawaii, the Philippines, Cuba, Puerto Rico, Nicaragua, and Honduras); second, the “Covert Action period” between 1953 and 1973 (in Iran, Guatemala, South Vietnam, and Chile); and third, the “Invasions” since 1983 (in Grenada, Panama, Afghanistan, and Iraq). The original announced aim was to help anti-colonial patriots to achieve success, as in Cuba and the Philippines; and then, to the patriots’ surprise, the US would establish an authoritarian protectorate. The reasons for doing so were usually presented as extending the advantages of American democratic principles and protecting US security. In practice, as Kinzer shows, the principal aims were to establish the right of US business to act as it wished, to satisfy a new national ambition for expansion, and to add to the strength of the US economy.

Kinzer quotes a letter from John L. Stevens, the American minister in Honolulu, on January 16, 1893, to Captain Gilbert Wiltse, the commander of the cruiser Boston. He comments, “Its single sentence is a dry classic of diplomatic mendacity, full of motifs that Americans would hear often in the century to come.” The letter reads:

In view of the existing critical circumstances in Honolulu, indicating an inadequate legal force, I request you to land marines and sailors from the ship under your command for the protection of the United States legation and the United States consulate, and to secure the safety of American life and property.

That, effectively, was the end of the courageous Queen Liliuokalani’s resistance to the American annexation of Hawaii.

Although there were impassioned opponents of such actions in the United States, William James among them, Kinzer shows that the expansionist mood of the 1890s was already producing justifications that sound all too familiar today. American presidents and military officers, then as now, said they were intervening in struggles of “good and evil” for humanity’s sake and had God’s guidance in doing so. “The parallels between McKinley’s invasion of the Philippines and Bush’s invasion of Iraq were startling.” Kinzer writes:

Both presidents sought economic as well as political advantage for the United States. Both were also motivated by a deep belief that the United States has a sacred mission to spread its form of government to faraway countries. Neither doubted that the people who lived in those countries would welcome Americans as liberators. Neither anticipated that he would have to fight a long counterinsurgency war to subdue nationalist rebels. Early in the twenty-first century, ten decades after the United States invaded the Philippines and a few years after it invaded Iraq, those two countries were among the most volatile and unstable in all of Asia.

Kinzer’s book is particularly enlightening about the consequences of such unilateral interventions. He writes:

If it were possible to control the course of world events by deposing foreign governments, the United States would be unchallenged. It has deposed far more of them than any other modern nation. The stories of what has happened in the aftermath of these operations, however, make clear that Americans do not know what to do with countries after removing their leaders. They easily succumb to the temptation to stage coups or invasions but turn quickly away when the countries where they intervene fall into misery and repression.

Brushing aside fifty years of international law in the name of the “global war on terrorism” is a bad idea for everyone, including the United States. Violating global rules undermines both America’s authority and standing and its long-term strategic interests. An already globalized and interdependent world cannot permit a return to a situation where each nation is entirely free to act as it wishes.

To use Sands’s words, the United States, like other countries, badly needs international agreements and international cooperation to promote and protect its own interests, and cooperation requires rules. The conclusion seems plain: the United States should reengage in respecting and developing the rule-based system that it largely initiated after World War II and which has for many years served it well.

Such an approach could certainly not have worse consequences than the recent attempt to abandon the idea of international restraint and go it alone. Some US administrations have vigorously supported international regulation in the past. On April 1, 2005, Secretary of State Condoleezza Rice told the annual meeting of the American Society of International Law that the US “has been and will continue to be the world’s strongest voice for the development and defense of international legal norms.” She added that America “has historically been the key player in negotiating treaties and setting up international mechanisms for the peaceful resolution of disputes.” As Sands comments, “These are important words, but they remain just that.”

A more down-to-earth perception of the situation was expressed in May 2004 by US Senate Foreign Relations Committee Chairman Richard Lugar, who was speaking of the US Senate’s delay of some ten years in acceding to the Law of the Sea Treaty, a delay largely caused by those Americans who have argued that the treaty restricts the exploration and exploitation of the seabed. Lugar posed the question that the US has still to face:

If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multilateral solution to any international problem is likely to be accepted within the US policy-making structure.9

  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.

  9. 9

    Senator Richard Lugar, “The Importance of Acceding to the Law of the Sea Convention,address at the Brookings Institution, May 4, 2004.

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