Lawless World

Philippe Sands is a British QC who is Professor of Law at University College London since 2002. He has also taught at Boston College School of Law, Cambridge University and New York University Law School. He was a participant in the negotiation of the 1992 Climate Change Convention and the 1998 Rome statute of the International Criminal Court (ICC). He is a practising barrister in English and International courts including the Pinochet case and Guantanamo detainees. He is an author of several books on international law, the most famous of which is his 2005 publication “Lawless World: America and the Making and Breaking of Global Rules”.

The book’s dedication quotes the 19th century French writer Honore de Balzac: “Laws, like the spider’s webs, catch the small flies and let the large ones go free”. The book is about the recent innovation of international law and how it is now flouted. Winston Churchill and Franklin Roosevelt were instrumental in the creation of a rules-based system to replace the conflict and chaos that went before. In 1941, they proposed international rules to place limits on the use of force, promoted the protection of human rights, and enshrined free trade. It led to the creation of the UN in 1946.

By the end of the 20th century, the world had changed drastically from the days of Roosevelt and Churchill’s Atlantic Charter. International law had almost stealthily reached into everyday life although few people were aware of its impact. The US, now the sole superpower, was becoming increasingly antagonistic to the revolution it had wrought and its new rulers saw international rules and law undermining its sovereignty. When George W Bush was elected president, the new administration signalled its intent to challenge the new global rules. Even before 9/11, the Bush administration took to its task. It abandoned the Rome Statute on the ICC and it reneged Clinton’s promise on the Kyoto Protocol on Global Warming. However the events of 11 September 2001, took America’s unilateralism to new heights through its attempts to disapply the Geneva Conventions and the disavowal of UN prescriptions on the use of force. Sands argues that US (with its major collaborator Britain) did all this without a proper script. He says no thought was given to the question: what do we replace these rules with?

International law has a growing effect on domestic actions. Europe is used to this through its everyday impact of EU rules and regulations. But America is very uncomfortable with the idea that decisions in far-away countries could impact the US justice system. In 1998 Paraguay took the US to the International Court to stop the impending execution of one of its nationals. The US had breached the 1963 Vienna Convention on Consular Relations and not offered consular representation to the accused. Clinton apologised and acknowledged the wrongdoing but refused to halt the execution. The International Court ordered an injunction to stop the execution. A spokesman for Sen. Jesse Helms, then Chair of the Senate Foreign Relations Committee, declared the Court’s order as an “appalling intrusion by the UN into the affairs of the state of Virginia”. Neither the US Supreme Court nor the Governor of Virginia would suspend the execution and it went ahead on the due date. America was now thumbing its nose at the same treaty that Carter had invoked to secure the release of the Tehran hostages in 1979.

The emergence of a new body of international law has impact on democratic governance and accountability. However most treaties are rarely scrutinised or debated by national assemblies or parliaments. Although Sands sees this as a problem, he argues that international law serves a valid function. We live in a globalised interdependent world. States are no longer free to act as they wish unfettered by international obligation. Bush and Blair have argued that international rules no longer work and need to be changed. Sands disagrees and argues that international rules work “reasonably well”. The politics of international law may have changed. But the rules cannot be wished away.

The Bush administration has been active in its opposition to the ICC. Defense Secretary Rumsfeld gave its reasons in May 2002 when it ‘unsigned’ the Rome Statute: “ the lack of adequate checks and balances on powers of the ICC prosecutors and judges; the dilution of the UN Security Council’s authority over international criminal prosecutions; and the lack of an effective mechanism to prevent political prosecutions of American service members and officials”. Sands says what Rumsfeld really means is that the “rules will not allow the US or other countries to use political power to control the proceedings”. In any case, the ICC scope for “rogue prosecutions” is limited due to the rules internal checks and balances. It has no jurisdiction over the conduct of the Iraq War, for instance. The real problem is that the US was unable to impose a Security Council veto on ICC activities.

Until the 1990s, the US was at the forefront of international efforts to promote global rules for environment protection. As far back as 1864, the US created the World’s first National Park (Yosemite). By 1916, there were 21 national parks. In the 1930s Roosevelt attempted to spread the idea internationally. Nixon signed the National Environmental Policy Act in 1970, the world’s first comprehensive environmental protection regime. In 1985, the US drove the Ozone Layer protection program and the subsequent Montreal Protocol of 1987. By the 1990s, climate change was the main focus. The Kyoto Protocol of 1997 focussed on getting the 39 most industrialised countries to reduce their greenhouse gas emissions by 2012. Countries can jointly work to reduce by permitting emissions trading. It wasn’t a perfect system and it wouldn’t prevent global warming but it was a commitment to take action and would provide the basis for more far-reaching measures which would eventually include developing countries. Clinton hailed the Protocol as a historic agreement. But when Bush was elected, it was immediately repudiated. He used the minority scientific view to claim that there was an absence of consensus on global warming. He described the Protocol as unfair and ineffective. Whether it is ineffective remains to be seen, but not many outside the US would regard it is as unfair that the world’s largest emitters should take the lead.

The events of 9/11 allowed the Bush administration make a broad-scale attack on the Geneva conventions. 650 detainees from 40 countries were held at Guantanamo military base. The base was outside the sovereign territory of the US and thus the detainees had no legal protection either in US constitutional or in international law. They were described as ‘unlawful combatants’ and not entitled to POW status. They had no human rights because they were not on US soil. And in any case, none of the international treaties imposed any additional legal obligations beyond those in US law. Sands argued all three of these reasons were incorrect. The new rules were established by Presidential Orders in 2001 and 2002 which established military commissions to try non-Americans suspected of violating the rules of warfare. Bush described the inmates as dangerous killers, the detainees’ guilt was not in question. In 2004, the US Supreme Court overruled the administration and found that US federal courts did have jurisdiction to determine the legality of non-nationals’ detention at Guantanamo. This judgement is likely to bring the detainees back into the legal fold.

The mood for war in the US has been more or less constant since 9/11. There has been very little internal dissent with the wars in either Afghanistan or Iraq. The UN declares that all members should refrain from war with two exceptions. Firstly Article 51 of the UN Charter allows for self-defence. The US believed that the ambiguous language of Article 51 provides a right for ‘anticipatory self defence’. The second exception is when force has been authorised by the UN Security Council. Until 1990, Cold War vetoes prevented this course of action. But when the Soviet bloc collapsed in 1989, the Iraq invasion of Kuwait was met by a unanimous Security Council vote to authorise force. Since then, it has also been applied in Somalia, the Balkans, Liberia, Sierra Leone, Haiti and East Timor. After the first Iraqi war ended, the ceasefire was adopted in resolution 687 which also obliged Iraq to disarm and destroy chemical, biological and nuclear weapons. The UN inspections to enforce this were ended by Iraq in 1998. Bush was committed to an overthrow of Saddam from the time of his election. Two days after 9/11, Rumsfeld was linking Iraq with al-Qaeda. In November 2002, the UN passed Resolution 1441 to give Iraq a ‘final opportunity’ to comply with its disarmament obligations. It warned of serious repercussions of failure to comply. But it did not use the language described when authorising force, the UN code for that is ‘to use all necessary means’. Iraq did not comply. But France and Russia were in no mood to authorise a Security Council invasion. The view of international legal experts is that an invasion was not authorised based on the current resolution. An international group of lawyers wrote to the Guardian (where it was published) and the New York Times (where it wasn’t) outlining their concerns. The British Attorney General argued that the war was valid because of a breach to the original Resolution from 1990 allowed the war to be prosecuted. This legal advice caused a firestorm in Britain and led to the resignation of senior ministers, including the Leader of the House of Commons and (ex-foreign minister) Robin Cook. The US meanwhile had no such scruples. The majority of the Security Council in March 2003 thought that the conditions in Iraq did not justify the use of force. And history and the lack of WMDs have shown them to be right.

Bush and his allies assume that the US can go it alone. Iraq has shown they cannot. The use of military power is a means to an end, not an end in itself. Commerce cannot be dictated to by brute force. The US will find that it will need the international alliances and rules it has so casually discarded. Kyoto and the ICC will outlive the Bush administration. Sands concludes by remarking “tough guys are not enough in international relations. In the 21st century you need rules, and proper lawyers too”. Well, he would say that, he’s a lawyer. But other than a fairly shameless spruiking for his profession, he makes a very valid point in a very important book.