Charles Taylor trial of brief interest to celebrity mags

The Special Court for Sierra Leone does not usually feature in world tabloid headlines nor does it typically attract the attention of supermodels and Hollywood stars. The Court has a very serious purpose:genocide. It wants to try those who bear the greatest responsibility for serious violations of international humanitarian and local law in Sierra Leone since it was overrun by rebels on 30 November 1996. Its most famous case is the trial of Charles Ghankay Taylor, former President of neighbouring Liberia, who stands accused of 17 crimes against humanity including murder, rape, mutilation, sexual slavery and conscription of child soldiers by arming RUF rebels during the 1991-2001 Sierra Leone civil war.

Taylor's extended trial took a surreal edge recently with the conflicting testimony of a Hollywood star and a supermodel briefly giving case a taste of world tabloid headlines. In the last month the Court heard testimony from actress Mia Farrow which contradicted that of British model Naomi Campbell. Prosecutors had called the model to testify to provide evidence that Taylor had handled blood diamonds used to purchase weapons during the war.

The prosecution said Taylor gave a gift of diamonds to Campbell at a dinner hosted by Nelson Mandela in September 1997. The occasion was a lavish dinner in Cape Town to raise funds for the Mandela Children’s Fund. Campbell attended the dinner along with Farrow and Campbell’s former modelling agent Carole White. Campbell gave evidence on 5 August which attracted large headlines, partially because she told the Court her appearance there was a “big inconvenience” (a mistake for which she would later apologise to the Court) and partially because of the incongruity of a model giving testimony at a genocide trial. As the Washington Post noted, it’s hard to believe that these two worlds could ever collide. “That they did, however, said the Post, "is testament to beauty as both valuable currency and irresistible narcotic."

In her own evidence Campbell said she was woken up from sleep by two unknown men who handed her a pouch saying it was a gift. Because she was sleepy she didn’t ask who the men were or who gave her the pouch. She said she did not even open the pouch until the following morning she was disappointed to find a few “very small, dirty looking stones”. She said either Farrow or White suggested the stones were from Taylor and she believed so herself.

With Campbell’s testimony giving Taylor a lifeline, the Prosecution looked to White and Farrow to give them the evidence they needed. But these two only succeeded in complicating the picture as they contradicted Campbell and each other. Farrow told the court on she heard Campbell say that Taylor had given her a "huge diamond" at the dinner. She said Campbell told the story to a group of guests at breakfast the following morning. Carole White said it wasn’t a huge diamond but rather five separate pieces. She said Campbell and Taylor were seated near each other during the dinner and started flirting. White said Campbell then whispered to her Taylor was going to give her diamonds and she was very excited at the prospect.

Campbell told the court that she later gave the diamonds to Jeremy Ractliffe, a representative of a Mandela charity. Ractliffe said he worried the gift would damage reputations and might be illegal, so he kept the diamonds and did not tell anyone. He issued a statement last week saying that following Campbell's testimony he had now handed over to authorities three alleged "blood diamonds" given to him by the model. South African police confirmed their authenticity.

The appearance of the beautiful and wealthy Western women and their precious stones overshadowed most of the other recent testimony in the trial. Former RUF leader Issa Hassan Sesay, who has already been convicted by the Court for his part in the atrocities, has been on the stand for three weeks. He refuted claims Taylor had directed the rebels when they entered the capital Freetown in 1999. The prosecution preferred to hammer him on his earlier statements Taylor had directed the 1998 attack on diamond-rich town of Kono. Sesay's testimony concludes this week.

It is more difficult to say how much longer will go on for as proceedings head towards the seven year mark. Taylor was indicted on 7 March 2003, when he was still President. The indictment was announced three months later on his first trip outside of Liberia. In August Charles Taylor resigned as president and went into exile in Nigeria. Nigeria finally transferred him to the Special Court in March 2006. Due to concerns about security in Sierra Leone, the Special Court arranged for the trial to be held at The Hague where he was transferred to in June 2006. After legal wrangling, the Prosecution re-opened witness testimony on in January 2008. They closed their case 13 months later after having presented testimony from 91 witnesses. The Defence opened their case on 13 July 2009. The Prosecution also reopened its case to call Campbell, Farrow and White. While the trial briefly reached the women's magazines, it will now once again retreat into international law journals, until the day the judges make their final decision.

Chemical Hiroshima – 25 years since Union Carbide disaster at Bhopal

Next month is the 25th anniversary of the world’s worst industrial disaster at the Union Carbide pesticide plant near the Madhya Pradesh city of Bhopal in central India. It is a tale of corporate greed and failure of American law that is mostly ignored in the west. While the American setting of 9/11 ensured it would became the mythological event of the millennial generation, about 800 more people died in the 3 December 1984 Bhopal disaster than were killed by the four planes 17 years later on 11 September 2001. And unlike 9/11, the Bhopal death toll kept rising after the first day. Three times more died in the next 72 hours and in the end Indian authorities estimate 17,000 Indians were killed as a result of the Bhopal gas leak. And while Americans argue over what should be done with their Ground Zero, Bhopal residents contend with the effects of their Chemical Hiroshima a generation on, including death, health problems and contaminated groundwater. (photo from Wikimedia commons)

The killer was 42 tonnes of Methyl isocyanate (MIC). MIC is highly flammable and highly toxic chemical used to make rubber. It is so toxic in small measures that scientists recommend it not be more than 2 parts to a million of any solution. 42 tonnes is a large amount. MIC was a crucial interim stage for the plant's eventual output: an insecticide called carbaryl. At Bhopal over half a million people were exposed to this filthy compound.

The nightshift on 2nd of December 1984 was blissfully unaware of the silent disaster that was unfolding around them. But it was only a matter of time. The pesticide plant three 3kms out of town was old and creaking. The pipes were corroded and Union Carbide cutbacks meant the crews were too overstretched to notice deadly gas had started leaking from an overloaded storage tank. A worker first noticed a problem an hour before midnight and he reported it to management. Nothing else was done about it. As the problem worsened over the next two hours a frightened worker raised the alarm. People were starting to cough and vomit, there were irritated eyes and many felt suffocated. The panicked management team shut the alarm down quickly and sat on the problem for yet another hour before finally sounding the siren to evacuate.

By 2am the vapours had being doing their deadly work for at least three hours. The poison spread rapidly keeping low to the ground. Many died on the spot as they came in contact with the poison. Hundreds more were trampled to death in the rush to flee the contaminated plant. The final death toll is disputed, it is still going on and some say it may be as high as 20,000 people. Another 2,000 animals also perished. Timothy White in Bhopal Express says that half a million citizens would be maimed by the noxious breezes of their Chemical Hiroshima.

Union Carbide did an “investigation” to find out how the gas escaped. They put it down to bad luck or sabotage. Union Carbide blamed its Indian subsidiary for falsifying safety reports and someone had either “inadvertently or deliberately" pumped 600 litres of water into one of the three liquid MIC tanks. The water trigged a heat generating chemical reaction. Chloroform decomposed releasing chloride ions which corroded the stainless steel tank. The tank eventually collapsed under high temperature and pressure, releasing the deadly methyl isocyanate.

Even the company’s admission there were critical violations of safety procedure managed to make the local operation look bad without any sense of responsibility falling on head office. India was predictably outraged with Union Carbide’s whitewashed report. They retaliated by denying Union Carbide investigators access to important documents. India claims workers put only a small amount of excess water into the tanks and some other reason caused the chain reaction. It was the American-design safety system that was flawed.

The result is that Bhopal plant employees still do not know what actually happened to this day. The city is still an environmental disaster area and people are still getting sick. It was Jackson B. Browning, Union Carbide’s vice president for health and environmental affairs who made the truest company statement in the entire disaster. "Now, we can confidently say,” he said smugly after the investigation, “it can't happen here." By “here” Browning meant America not India. In the end it was only the fears of the local audience that mattered.

In any case, Browning was probably lying. If the Indian investigators are closer to the truth than Union Carbide then no-one still knows how it happened exactly, and therefore it couldn’t happen “here”. Connecticut-based Union Carbide decided the interests of its shareholders were more important than the people of India when they used the little known common law legal doctrine of forum non conveniens to avoid being sued in the more lucrative American market. The doctrine balances foreign and local factors to determine the right country to host the litigation. The Chief Justice of India said the US was the only hope the victims have, but New York District Court Steve Keenan disagreed and said India was where the witnesses and evidence were and it should host the trial.

Back in India the government lodged a $3.3 billion claim against Union Carbide. But by 1989, Union Carbide had wheedled the Indian lawsuit down to just $470 million. The figure was based on the subsequently discredited figure that only 3,000 died and 100,000 were affect. The settlement discharged the company of all future responsibilities. It was small compensation for the lives of 17,000 Indian coolies in the service of western capitalism and with over a half million claimants, it amounted to just $550 to each survivor. There have been delays in getting even this pittance distributed with over 80 percent still in the fund in 2006. By that time Union Carbide was under new management. Dow Chemical bought the company for $10 billion in 2001

Anger is still palpable in northern India. Now every 3 December they march through the streets of Bhopal burning an effigy of Warren Anderson. Anderson was Union Carbide’s CEO in 1984. He flew to Bhopal after the accident. Indian authorities detained him and then released him on $2,000 bail. Anderson fled the country never to return. In 1991 a Bhopal judge reinstated criminal charges against him but twelve years later (under G.W. Bush), the U.S. State Department formally denied India's request for his extradition. Anderson continues to play retirement golf in the Hamptons while India says is an absconder from justice.

But there is an even greater failure of law than Anderson’s lack of punishment. The forum non conveniens doctrine means that American firms will never be held to account when things go wrong overseas. In practice what this means is the problems are buried under the carpet. The practice also means that American firms have a vested interest in moving operations abroad where regulations are lax and they can avoid US tort liability. Dow Chemical probably see no irony in relying on Asia to reverse sliding revenues. Chair and CEO Andrew Liveris says “we remain tightly focused on those factors we can control." Presumably that means continuing to avoid all legal, ethical and moral responsibility to the horrendous legacy of Bhopal.

Paying the Bill of Rights

Last week former Prime Minister John Howard told the 2009 Menzies Lecture that an Australian bill of rights was misguided and would not expand individual liberties. Howard reminded his audience that Robert Menzies was a lawyer and would have opposed such a bill with “every bone of his common law body”. Howard said that one of the functions of the common law was to protect the individual against infringement of his personal rights.

But Menzies is more remembered as a politician than a lawyer. Here again Howard said Menzies would not have supported a Bill of Rights. It would have impinged upon Menzies “deep reverence for parliament”. The parliamentarians’ ability to enact good law on behalf of their constituents would be hampered by an “elitist” charter that would place rights ahead of responsibility. According to Howard, common law provides better protection for the individual than a bill of rights and enshrining such rights muzzles the ability of parliament to pass laws in the public interest. So the question becomes, are rights right or are they a tool of the left? To answer this, we need to go back a bit.

The history of rights begins properly with the guilt of Auschwitz. During the war, the Allies had very good maps of the area, knew the layout of Auschwitz I and II and knew roughly what was its scale and purpose. Yet while Dresden and other cities were regularly firebombed, not a single bomb was dropped on either Auschwitz. It was considered to be unhelpful in the act of the winning the war.

While apparently sadistic, this was an essentially correct military decision. Germany’s lunacy in the later stages of the war meant that valuable resources were being drained away on the unproductive factory-killing of many of its minorities and the Allies wanted this to continue so that they could put an end to the war sooner. The military decision could not take into account that society’s weakest would be the ones that would pay the highest price for thia strategy.

When the full cruelties of the camps unfolded after the war ended, it inspired the new UN to act for the defenceless. In 1948 its General Assembly instituted a Universal Declaration of Human Rights. Prior to this, the only well known bill of rights was the first ten amendments of the US constitution in which timeless notions such as freedom of speech mixed uneasily with peculiarly Georgian needs such as keeping a well-regulated Militia. But despite misgivings over possible post-war anachronisms in the UN declaration, all western countries have adopted some components of the UDHR charter.

All western countries bar one, that is. Although Australian foreign minister Dr Herbert Vere Evatt was a crucial player in the formation of the UN charter, his own government had misgivings about the brown and black people having the same dignity and rights as them. Its aboriginals were then still considered fauna and Labor supported the White Australia Policy to protect the jobs of its voters. Australia ratified grudgingly but never adopted it in local laws.

The Menzies era that followed was equally disinterested in formulating rights laws though for a different reason. In 1967 the newly retired prime minister said individual rights were adequately protected by common law and “the good sense” of elected representatives. Howard drew on these traditions when defending matters such as mandatory sentencing, sedition, and the treatment of refugees. The original 1901 constitution still gives the federal government powers over “the people of any race for whom it is deemed necessary to make special laws”. While this seems like antiquated law, it has been invoked as recently as 1998 in the Hindmarsh Island case which allowed the government to discriminate against Aboriginals.

While the jurists see no way past these laws, it may be dangerous to also assume that politicians will always have the sense to be sensible. Against it, is the political need to be seen doing something. No politician ever lost an election by being tough on “law and order” and many rights are further eroded in knee-jerk reactions to terrorism events or bad bikie behaviour. Once taken away, it is very hard to get those rights back. The usual response to harsher measures is that if you are not doing anything wrong you will have nothing to worry about. But lack of rights doesn’t just affect deviants. They also affect the vulnerable, the unlucky and those on the border-line.

That is not to say there are no protections in Australian law. There is freedom of religion, trial by jury, freedom of trade, and property rights. Voting is not simply a right, it is a duty. Common law also has an 800 year tradition of preserving rights that goes back to the Magna Carta. But while it recognises rights, it does not recognise freedoms. Judges see this as a role for parliament.

But while many parliamentary inquiries have looked at rights bills, very few have recommended action. A Labor Human Rights Bill in 1973 was sunk by strong opposition in the Senate. A second attempt in 1985 collapsed because WA was unwilling to give up its gerrymandered electoral boundaries. Further efforts for constitutional change failed in 1988 and 1999 which made the rights agenda a handy wedge issue. Opponents would say Russia in the 1930s had a human rights bill but that did not stop the gulags. So savvy politicians like Bob Carr preferred to hide behind cosy do-nothing statements such as “the protection of rights lies in the good sense, tolerance and fairness of the community.”

He may be asking too much of the community. But Australia does have one bill of rights jurisdiction. In 2004, the Australian Capital Territory lived up to its acronym and became the first Australian administration to enact a Human Rights Act. The Act recognises equality before the law, the rights to life, family, reputation and freedom of expression. But it has weaknesses. There is no remedy for breach of these rights. It is also silent on the matter of economic and social rights, which are the ones most lacking in the most disadvantaged sectors.

But as George Williams says in “The Case for an Australian Bill of Rights”, it is a good start. He argues a national bill would augment the common law and enhance democracy here by expressing the fundamental rights of a diverse Australian people. This is not an obvious or intuitive concept and education will be needed to show the community why it is needed. It should follow the model used in the ACT, New Zealand and UK legislation and begin with a small set of laws that could be expanded upon over time. The courts should have the permission to strike down legislation, there should be an override clause and should eventually be included in the constitution.

Williams says the real value of such a bill would be in education, shaping attitudes and offering hope and recognition to otherwise powerless people. There is also little doubt it would be also be something all new law would be measured against, and could act as a moral check to any temporary madness towards clamping down on a country's own citizens. Perhaps this the real reason Howard and his supporters do not want a Bill of Rights - they do not want to identify what freedoms citizens really have, or should have.

Lockerbie anguish continues as Al-Megrahi protests innocence

While many in Britain and America have condemned the celebratory nature of Abdel Basset al-Megrahi’s Libyan return, they conveniently overlook the fact he was unlikely to be the Lockerbie bomber. The Scottish government released the 57 year old cancer suffering al-Megrahi on compassionate grounds last week after serving eight years of his life sentence. But dying or not, al-Megrahi says he is still intent on proving his innocence. “If there is justice in the UK I would be acquitted or the verdict would be quashed because it was unsafe,” he said this weekend. “There was a miscarriage of justice.”

Al-Megrahi has a good point; justice has always taken a back seat to politics in the Lockerbie bombing. Pan Am flight 103 blew up over the small Scottish town a few nights before Christmas 1988 en route from London to New York. 270 people died - 243 passengers, 16 crew and 11 residents on the ground. Scotland claimed jurisdiction for the crime as the plane was destroyed in Scottish airspace.

The initial suspect was a Syrian group with the unwieldy title of the Popular Front for the Liberation of Palestine, General Command (PFLP-GC). The PFLP-GC had a motive by acting for Iran in revenge for the American attack on an Iranian Airlines passenger plane a few months earlier. Two years before Lockerbie, the group’s Syrian leader Ahmed Jibril had publicly warned there would be "no safety for any traveller on an Israeli or US airliner". Although PFLP-GC subsequently denied responsibility for Lockerbie, the early years of piecing together evidence focussed firmly on the Syria-Iran link.

But by 1990 Iraq had invaded Kuwait. Neighbouring Iran and Syria were now suddenly proxy-allies whom the west could not afford to alienate. The Lockerbie case refocussed on the “Malta connection” and later that year the US and British governments issued indictments of murder against two Libyan men Abdel Basset al-Megrahi and Al Amin Khalifa Fhimah. In 1991 the pair were back in Libya and the US and the UK requested their extradition. Libya refused as it had no extradition treaty with either country. Libya arrested the pair but a local prosecution went nowhere as US/UK refused to hand over their evidence. The UN then made an unprecedented move to impose sanctions for not complying with the extradition request. The sanctions lasted six years.

After years of negotiation the UK agreed to Libyan demands for it to take place in a neutral country due to concerns of safety and a fair trial. The juryless trial began in May 2000 in the Netherlands under Scottish law and three Scottish judges. The key evidence was the brown Samsonsite suitcase which contained the bomb hidden in a radio/cassette player. The clothing in the suitcase was purchased at a shop in Malta and the store owner swore that a Libyan he could not identify bought them. Al-Megrahi, a Libyan intelligence officer, was in Malta on the day of the purchase and stayed near the shop. He was unable to offer the court a reason for his stay on the island. This evidence plus his connections to airport security and the Swiss company that built the timer in the explosive device was enough to convict him. Al-Megrahi was given a life sentence.

The second defendant Fhimah was an acquaintance of al-Megrahi and an Air Malta employee. They both arrived in Malta on the same flight from Libya two days before the bombing. The prosecution argued Fhimah knew how to get unaccompanied baggage onto a plane but the court found no evidence to show he had assisted al-Megrahi and acquitted him. But with Fhimah’s acquittal part of the case against al-Megrahi collapsed too. How did he get the bomb out of Malta?

Also, as part of their defence under Scottish law, the pair accused the Syrian-backed PFLP-GC of carrying out the attack. A German police officer testified that PFLP-GC had the means and intention of attacking an airline but the timers and cassette player used were not consistent with other PFLP-GC attacks. A Jordanian agent Marwan Khreesat who had infiltrated the group said he had never seen radio cassette players with twin speakers converted into explosive devices. On the basis of the German and Jordanian evidence the court concluded the PFLP-GC did not make the bomb.

The UN appointed five observers to watch the trial. Of these only one, Professor Köchler from Innsbruck University, published his findings. Köchler concluded the trial was unfair based on two points of objection. He noted the extraordinary length of detention (though this had been requested by the defence to prepare its case) and said the “presence of foreigners” at the prosecution and defence tables hampered the judges’ ability to find the truth and introduced a political element to the case (though there was no evidence that the judges were swayed by the “foreigners”).

Al-Megrahi appealed against the sentence based on the strength of the evidence linking him to the fatal suitcase. There was also the startling evidence that emerged in September 2001. A former security guard at Heathrow named Ray Manley made a sworn affidavit he had told anti-terror police one of Pan Am's luggage rooms had been broken into on the night of the bombing. This evidence cast complete doubt on the whole Malta connection. But for many years Scotland fought the appeal process.

The Scottish law professor who negotiated the Netherlands trial says many people believe there was overt political pressure placed upon the judges. Robert Black says it was probably necessary to reach a conclusion that was satisfactory to the British and American governments. “I think that consciously or subconsciously, these judges appreciated that if neither of the two Libyan accused were convicted in this trial, this would be an enormous embarrassment to the prosecution system in Scotland,” he said.

But by 2003, Libya was no longer a public enemy. Gaddafy told the Americans about his weapons capability. The west lifted international sanctions against Libya after it admitted responsibility for Lockerbie in 2005 and paid about $2.7bn in compensation to the victims’ families. Libya has since got that money back and much more in oil revenues. As The Times points out, al-Megrahi’s freedom is a further product of the effort to bring Libya out of dangerous isolation. “This is as much to America’s advantage as Britain’s, but Washington has too much baggage to be openly involved,” said The Times. And 20 years on, everyone is happy except the families of the Lockerbie victims who are still no closer to knowing who killed their loved ones.

Sudan's Bashir defies the ICC

The African Union has appointed Thabo Mbeki to act as an intermediary between the International Criminal Court (ICC) and Sudan. The former South African leader will chair a committee to investigate human rights violations in Darfur in response to the ICC arrest warrant for Sudan's President Omar al-Bashir. 300,000 people have died and two million others have been displaced in Darfur however the Sudanese dictator has rejected the charges and accused the court of a being a colonial tool. The warrant is the first ever issued by the court to a reigning head of state.

The ICC said his official capacity does not exclude his criminal responsibility or grant him immunity. On Tuesday the court issued the warrant “for war crimes and crimes against humanity.” The arraignment is on ten counts; three of genocide, five of crimes against humanity and two of war crimes. The ICC accused Bashir of being criminally responsible for intentionally directing attacks against the civilian population of Darfur over five years (2003-2008) and for “murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property.”

The most powerful Darfuri rebel group, the Justice and Equality Movement (JEM), has welcomed the announcement. Its leader Ibrahim Khalil said the ruling invalidates Bashir’s legitimacy to govern. He told Al Jazeera the warrant would "create huge transformation" in Sudan. Khalil expects that Bashir will refuse to attend the trial in person and hinted that JEM might be prepared to carry out the arrest warrant. "They say the ICC does not have a mechanism to arrest him [Al-Bashir],” he said “But we say that [the] JEM has its own great and powerful mechanism.”

The announcement brought a predictably more hostile response in Khartoum. The government arranged an impromptu anti-ICC rally where Bashir said Sudan was a target of Western powers and that the ICC was a tool of colonialists after Sudan's oil. He immediately revoked the licences of six aid groups working in the country include Oxfam, Medecins Sans Frontieres (MSF) and Save The Children. MSF said it was absurd that impartial organisations were caught up in a political and judicial process. Sudanese officials also threatened witnesses who co-operated with the ICC. Last week, the head of Sudan’s security service warned: “We will sever the limbs of those who attempt to stick their hands in to execute the [court’s] plans.”

But even some sympathetic Darfur watchers also have misgivings about sticking their hands in. British writer and expert on African issues, Alex de Waal, called the indictment a sad day for Sudan. He says we are now in unchartered waters and calls the indictment a “roll of the dice, a gamble with unknown consequences”. He says that the Sudanese problem requires delicate negotiation and compromise between the various diverse stakeholders with an interest in the future of the nation. He says the ICC undermines this process by being a “human rights absolutism that demands that some people be ruled out entirely”. He says the most likely reaction is that the Sudanese government will ignore the indictment, and the West will be left with no leverage in the country, short of invading it.

The International Crisis Group (ICG) is more hopeful, though it too admits there is little likelihood of Bashir resigning. The ICG says the status quo is unsustainable in the long term and believes that some senior members of the ruling National Congress Party (NCP) are unhappy with Bashir’s policy of confrontation with Sudan’s peripheral regions (Darfur, Kordofan, Eastern and Southern Sudan). “To preserve its economic interests and guarantee its survival,” says the ICG, “the NCP is likely to look for a way out of a situation, by changing its policies or leadership.”

The new US president will also have a role to play in what happens next if he revisits the hostile American position to the ICC. The court was conceived of as an important mechanism for protecting civilians against atrocities and the US is the only Western power not among the ICC's 108 member nations. The Save Darfur Coalition immediately urged the Obama administration to immediately take advantage of what it called a "new window of opportunity for peace" in Sudan. But so far the response has been equivocal. Obama press secretary Robert Gibbs refused to specifically support the warrant on Thursday merely saying that “the White House believes that those who have committed atrocities should be held accountable; that as this process moves forward, that we would urge restraint on the part of all parties.” Gibbs and his boss know that until the US joins the ICC, it can’t afford to put its mouth where its money might be.

Mixed start to Thomas Lubanga’s ICC trial

The first week of evidence in the historic International Criminal Court (ICC) trial of Congolese man Thomas Lubanga has ended with mixed results for the prosecution. Lubanga has pleaded not guilty to recruiting and using child soldiers under age 15 in 2002-2003. After the first witness recanted his evidence he was a child soldier, a second has restored hope to prosecutors by testifying he taught child soldiers in the art of war. He is the first of four Congolese warlords that will face trial. The trial is the first to be heard by the world's first permanent war crimes tribunal since it was created in 2002. But as the Toronto Star editorialises, the real value of the case is that the practice of using child soldiers “will persist until warlords and others understand they can no longer send children to their deaths with impunity.”

For this first case, ICC chief prosecutor Luis Moreno-Ocampo charged the 48 year old Lubanga with recruiting 30,000 child soldiers to fight in the conflict that raged in north-eastern DRC between 2002 and 2003. Lubanga is the leader of the UPC (Union of Congolese Patriots), a group set up in 2000 that was closely allied to Uganda. The UPC was accused of massacring civilians in 2002 in DRC’s eastern province of Ituri. Ituri is a gold-rich region near the Ugandan border and the Ugandan army took the side of Lubanga’s Hemi ethnic group against the Lendu.

Initially the war here was ignored while peace efforts focussed on more pressing parts of the DRC. Eventually French troops occupied Ituri’s capital Bunia. UN peacekeepers arrested Lubanga in 2005 and transferred him to jail in the DRC capital Kinshasa. A year later he was extradited to the ICC court at The Hague where he was charged with three counts of war crimes for using child soldiers. However it has taken a long process to get him to trial. It was due to begin in June 2008 but immediately stalled when the court ruled that prosecutors had wrongly withheld evidence. The court granted his release a month later but this was delayed pending appeal. In November the suspension was lifted and The British Judge Adrian Fulford announced a start date for the trail of the end of January 2009.

However things went badly for the prosecution on the opening day of the trial last week. Firstly the young star witness flown in from Congo was forced to take his oath three times due to malfunctioning microphones. There was a bigger shock when he finally testified and recanted his earlier testimony that he was a child soldier. Earlier the young man, now a teenager, said he was snatched by Lubanga's militia on his way home from school. However he changed his story in court and denied that he'd ever been a child soldier taken to a military training camp. Instead, the witness claimed his testimony was prompted by an NGO which he did not name. Stunned prosecutors claimed their witness felt unprotected and feared for his safety from the watching Lubanga.

Judge Fulford immediately ordered the witness’s testimony to be adjourned and called for a probe into possible threats against the witness and his family. He also directed the prosecution to examine the risks of self-incrimination faced by witnesses who may face prosecution in the DRC. The court’s "Rule 74" requires that witnesses be fully informed that evidence could possibly incriminate them back home.

Meanwhile the trial continued and prosecutors did better with Friday’s witness. A former militia fighter told the court he trained children to use assault rifles and fought alongside them. The man said he joined Lubanga's militia in 2002 when senior officers threatened to torch his village unless the young people joined up. He had previously served as a child soldier in the Congolese army five years earlier and he was made an instructor because of his experience. He taught recruits the basics of war and how to fire AK47 rifles. He said children often were assigned to officers as armed "bodyguards or escorts," and many fought and died in battle.

The trial is expected to last for six to nine months and is a crucial test for the tribunal's ability to bring war criminals to justice. The ICC is the only permanent tribunal for prosecuting individuals accused of war crimes, genocide and crimes against humanity. Previous war crimes cases have been handled by adhoc tribunals. The ICC was established under the 1998 Rome Statute, a treaty now ratified by 106 states (though the US is a notable absentee). While discussion of ICC membership was studiously avoided during the election campaign, Obama is known to support the court. Bringing the US back into the fold would be an even bigger step towards the ICC’s legitimacy than a Lubanga conviction.

Hew Griffiths sentenced in US court

Australian software pirate Hew Griffiths will spend over a year in a US prison after he pleaded guilty on Friday on a charge of conspiring to commit a criminal copyright infringement. Judge Claude Hilton of the US District Court in Alexandria, Virginia, sentenced Griffiths to 51 months jail. However the judge reduced the sentence to 15 months after he took into account three years Griffiths spent at Silverwater detention centre in NSW fighting extradition.

Griffiths is a 44 Briton who came to Australia with his family when he was seven. He has a British passport and never applied for Australian citizenship. Griffiths was controversially extradited to the US in February. He is the first person to be extradited from Australia to the US to face intellectual property charges. Griffiths had never set foot in the US before this time. He faced a maximum sentence of up to 10 years in prison and a US$500,000 fine for the charges. His Australian pro bono lawyer, Nicolas Patrick of DLA Phillips Fox, said he would investigate prisoner-exchange options that might allow his client to serve his sentence in Australia. Patrick also claimed the sentence highlighted the "injustice of this process" as Griffiths would have served a much shorter sentence had he been tried in Australia.

Griffiths admits he was the brains behind several counterfeit software rings called DrinkOrDie, Razor1911 and RiSC. DrinkOrDie is a network which copied software, computer games, music and videos worth $50 million. As far back as 2001, the US Customs Service was calling the group “the al-Qaeda of Internet software theft” and "the oldest and most well known" of Internet piracy organisations. Founded in Russia in 1993, it expanded internationally throughout the 1990s until it was broken up by US Immigration and Customs Enforcement in December 2001, with more than 70 raids conducted in the US, the UK, Finland, Norway, Sweden and Australia.

DrinkOrDie is a software cracking site known in its own jargon as “warez sitez”. “Warez” (pronounced either like “wares” or like the city of “Juarez”) is software that has been stripped of its copy-protection and made available on the Internet for downloading. They distributed software from computer giants like Microsoft, Adobe Systems and Symantec, as well as smaller software vendors. The group used encryption and other security measures to hide their activities from police. Bob Kruger, of the anti-piracy Business Software Alliance trade organisation said DrinkOrDie was at the forefront of piracy. "They are a notorious elite Internet pirate organization," he said. "I doubt there's much (software) out there that people want that (DrinkOrDie) can't provide."

According to Alice Fisher, a US Department of Justice assistant attorney general, Griffiths became one of the most notorious leaders of the underground Internet piracy community by orchestrating the theft of hundreds of thousands of dollars in copyrighted material. Griffiths, who used the alias “BanDiDo”, became involved with DrinkOrDie in the 1990s and he himself earned nothing from the piracy.

After 11 members of the group were arrested and charged in the US, they started to chase down Griffiths. They alleged he was one of the few who controlled access to the drop site at the Massachusetts Institute of Technology. They had Australian police arrest Griffith in August 2003 on copyright charges. He was held in custody for two months until bail was granted. He came to trial in March 2004 however Australian magistrate Daniel Riess threw out the charges saying there was no extraditable offence. The US won an appeal against the decision in July 2004. Justice Peter Jacobson ruled that magistrate Riess had "misdirected" himself, possibly because he held the view that the alleged crimes had been committed in Australia when case law and the indictment showed it was committed in the US.

Griffiths' appeal to the Full Federal Court was turned down in March 2005 and his special leave application to the High Court was refused that September. Griffiths' lawyers at the NSW Legal Aid Commission then wrote Justice Minister Chris Ellison asking him to exercise his power to refuse the US request. After eight months the Attorney-General's Department drafted a submission to the minister refusing the request. Ellison finally issued a warrant for Griffiths' extradition to the US and he was flown out in May this year.

Critics of the Griffiths case have called the Australian government action craven in the face of American pressure. They have pointed out he could have been charged in Australia and that the UK did not hand over any of their DrinkOrDie suspects. Many have likened Griffiths' treatment with that of convicted Guantanamo detainee David Hicks. Others have warned that criminal prosecutions for intellectual property (IP) violations will increase as a result of Australia's Free Trade Agreement with the US. David Vaile of the Cyberlaw and Policy Centre of UNSW believes the "overreach of American power" produced an FTA that was "unbalanced". "It was a partial harmonisation with only those parts of American law that favoured certain interests," he said.

Meanwhile Australian judicial opinion is that while copyright infringement, particularly on a large scale, is clearly wrong, extradition seems disproportionate. Griffiths’ lawyer Nicolas Patrick claimed his client was the real victim. "Effectively my client was sent to face charges in a foreign country where he has no knowledge of the legal system and no friends or family," .he said "He has been surrendered to a country where the penalties for such offences are much harsher." With no Australian citizenship to protect him, it is possible he will be deported from Australia after he completes his sentence.

New hope for Libyan AIDS six

The EU said yesterday it has made substantial progress in talks with Libya over the release of five Bulgarian nurses and a Palestinian doctor. The six, who have spent eight years in prison already, are accused of the murder of 240 children EU officials spent two days lobbying Libyan officials on the weekend and met with Gaddafy's son who is in favour of an early release. A European Commission told a Brussels news briefing that efforts will continue to release the six, but didn't expand on what that will involve. The news came a day after US President Bush called for their release on a state visit to Bulgaria. The six medics have been sentenced to death after they were found guilty of infecting Libyan children with AIDS in a Benghazi hospital in 1998.

The two officials, EU External Relations Commissioner Benita Ferrero-Waldner and German Foreign Minister Frank-Walter Steinmeier, left Tripoli on Monday. Steinmeier visited the five Bulgarian nurses on death row in Judeyda prison. "Libya has showed understanding on the case and I hope it will come to a positive end at my next visit to Jamahiriya [Libya]," said Steinmeier, whose country is president of the EU until the end of this month. His calls were echoed by Muammar Gaddafy son, Saif al-Islam, who praised European efforts to end the stand-off on the case.

Libya claims it will free the medics if an agreement is reached to pay compensation to the families of the children. Tripoli has demanded $13 million for each infected child's family. The EU has rejected this as an admission of guilt. However it has offered a fund for treatment for the children at European hospitals and already donated over $3 million to this plan. In 2005 Libya's ambassador to Britain, Mohammed al-Zaway, said Bulgaria should negotiate with the victims' families of the victims to decide on "dia", or blood money, which Sharia law allows to be paid to victims in murder cases to prevent a death sentence. "Any solution other than negotiations is a waste of time," said al-Zaway. "An agreement with the families of the children would reflect positively on the case according to Islamic law."

The nurses and a Palestinian doctor were sentenced to death in May 2004 by firing squad for infecting 426 children through contaminated blood products at Al Fateh Children's Hospital in Benghazi, Libya. They also were ordered to pay a total of $1 million to the families of the HIV-positive children. The Libyan Supreme Court in December 2005 overturned the convictions and ordered a retrial in a lower court. Finally an appeal court convicted the health workers in December 2006 and re-affirmed the death sentence.

The crisis first came to light in November 1988 when a Libyan magazine called “La” published an expose about a mass incidence of AIDS at a Benghazi paediatric hospital. The article quoted the Libyan Health Minister Sulaiman al-Ghemari, who said that most of the 60 known cases were children. The children’s parents blamed faulty blood transfusions for transmitting the virus. The article created a huge stir and countered the official propaganda that Libya was AIDS-free. An outraged Gaddafy shut down the magazine. Despite the shutdown, it soon became apparent that not only was magazine’s allegations correct, it was worse than initially thought. Up to 400 children were infected.

Scapegoats were needed and authorities immediately arrested Filipino, Polish, Hungarian and Bulgarian clinic workers on suspicion of organising the spread of the virus. Finally the court filed charges against five Bulgarian nurses, a Bulgarian doctor and a Palestinian doctor. They were charged with premeditated homicide, "activities which led to a massacre designed to sap Libya's strength" and "a violation of the Islamic way of life," according to the Bulgarian foreign ministry. The nurses were also accused of working for the CIA and Mossad. "Nurses from little towns in Bulgaria acting as agents of Mossad?" said a daughter of one of the nurses. "It all sounds funny and absurd until you realize your mother could die for it”.

The six have now been in prison for over eight years. Their names are: Ashraf Ahmad Jum’a, the Palestinian doctor, and Nasya Stojcheva Nenova, Valentinaa Manolova Sropulo, Valya Georgieva Chervenyashka, Snezhanka Ivanova Dimitrova and Kristiana Malinova Valcheva, the five Bulgarian nurses. In 1999, Libya commissioned a World Health Organisation (WHO) report on the growing crisis. The report cited multiple causes but particularly blamed the lack of supplies and equipment including sterilised needles and protective gloves.

At the trial, the six suspects claimed they were tortured and forced into confessions. They said police used many methods including sexual assault, electric shock, hanging by the arms, threats with dogs while the prisoners were blindfolded, and beatings with electric cable on the soles of the feet. It was also reported that police officers forced the nurses to undress before them, put insects on their bodies and set dogs on them. But the defence lawyers were denied access to files and investigation results. The court later rejected the torture claim and the accused police officers were cleared of any wrongdoing.

The court also ignored the testimony of Dr. Luc Montagnier, the French discoverer of the AIDS virus and Italian microbiology professor Vittorio Colizzi who evaluated more than 200 of the infected children and found the virus was present at least six months before the Bulgarian nurses arrived at the hospital. Montagnier and Colizzi’s report (pdf) concluded the virus was introduced through a contaminated injection and spread as a result of poor sanitary practices.

But at the trial the judge accepted the confessions backed up by testimony from Libyan medical experts for the prosecution who claimed the medics deliberately injected the AIDS virus into the patients. The six were sentenced to death in December 2006 in front of delighted parents of the infected children. The father of one child told the BBC “justice has spoken out with a ruling against those criminals and the punishment they deserve, because they violated their obligations and sold their consciences to the devil”.

While the fate of the six remains unknown, Libyan children continue to be at risk of AIDS due to poor sanitary practices in hospitals. The Association for Child Victims of Aids in Benghazi told Human Rights Watch in 2005 that 19 mothers of these children are also infected with the virus. The association’s spokesman Ramadan al-Faturi has demanded better training for Libyan doctors and psychological support for the families. “Tell the world that these children are innocent and suffering,” he said.

Charles Taylor trial starts in The Hague

The trial of Charles Taylor opened yesterday in The Hague with the dramatic boycott of proceedings by the 59 year old former Liberian dictator. Instead his lawyer read out a letter on Taylor’s behalf. In the letter Taylor denounced the court, claimed he could not receive a fair trial and terminated his participation by dismissing his lead counsel. "I cannot take part in this charade that does injustice to the people of Liberia and the people of Sierra Leone," he said in the letter. "I choose not to be a fig-leaf of legitimacy for this process."

Taylor’s lawyer Karim Kahn then walked out of the room in defiance of a court order to continue to represent Taylor for the day. Julia Sebutinde, the British-trained Ugandan presiding judge, said the trial would continue despite Taylor's failure to attend, as the session quickly got bogged down in legal arguments that delayed the prosecution's opening presentation. The case then began with an overview of the history, a description of the crimes and a description of the individual liability for which Taylor could be held responsible.

Charles Taylor has been indicted on 11 charges, including terrorism, murder, rape, sexual slavery, mutilation and recruiting child soldiers linked to his alleged support for rebels in Sierra Leone's civil war. The prosecution claims to have overwhelming evidence that holds Taylor conducted war crimes against Sierra Leone’s civilian population. He is being tried in the Special Court for Sierra Leone in offices borrowed from the International Criminal Court in The Hague.

The Special Court for Sierra Leone was set up joint by the UN and Sierra Leone. It is an independent judicial body set up to "try those who bear greatest responsibility" for the war crimes and crimes against humanity committed in Sierra Leone after 1996 during the Civil War that ravaged that country. So far, eleven people have been charged with offences. Ten of these trials have taken place in the capital Freetown but Taylor’s high profile trial was moved out of Sierra Leone due to fears that militias still loyal to Taylor might attack the court room. Proceedings are been broadcast live on four giant screens in Freetown.

Charles Taylor is the first African head of state to go on trial for war crimes before an international tribunal. He is currently being held in the same prison where former Yugoslav president Slobodan Milosevic was held when he died in 2006. This is not the first time Taylor has been in jail. In 1985, he was imprisoned in Massachusetts after he stole $900,000 in Liberian government funds in the US. He escaped after a year and returned to Africa.

Taylor first came to world prominence when he launched a revolt from the Ivory Coast which stormed Liberia’s capital Monrovia in 1989. He overthrew former leader Samuel Doe and kept control of the country in a civil war which lasted through the early 1990s. Although he cemented his position by winning an election in 1996, he was eventually ousted by Liberian rebels and Taylor accepted asylum in Nigeria in 2003. Liberia requested Nigeria to extradite him and in 2004 he was released into the custody of the Special Court for Sierra Leone.

Human rights organisations are hoping his trial sends a message to other dictators that no-one can escape punishment for atrocities. Human Rights Watch say the case provides an important chance for victims to see justice done. “The trial of a former president associated with human rights abuses across West Africa represents a break from the past,” said Elise Keppler, counsel with Human Rights Watch’s International Justice Program. “All too often, there has been no justice for victims of serious human rights violations. Taylor’s trial puts would-be perpetrators on notice.”

Taylor has denied all 11 charges. When the case for the prosecution finally started, Chief Prosecutor Stephen Rapp alleged that Taylor waged a campaign of terror against the civilian population of Sierra Leone by arming and training the Revolutionary United Front (RUF) rebel force which murdered and mutilated civilians, raped women and recruited child soldiers. Taylor armed the RUF in exchange for diamonds which he trafficked on the black market despite a ban on conflict diamonds. The decade long war claimed 60,000 deaths and an untold number of mutilations.

If convicted, he is likely to serve his sentence in the UK. Last year British foreign secretary Margaret Beckett said London has agreed to a request from former UN chief Kofi Annan to imprison him if convicted. The tribunal has wide powers of sentencing. It statutes allow a sentence of "imprisonment for a specified number of years" without giving a maximum. This means he could go to prison for life. The trial is expected to last 12 to 18 months.

Clusters last stand?

There was a small victory today for that much-maligned force called international law. A Geneva conference led by Sweden announced a new law will soon come into force requiring countries to clear up unexploded bombs and mines or pay teams of de-miners to do it. Is this what they meant by carbon trading? The treaty covers ordnance such as land mines and cluster bombs. The US, China, Russia and the UK all oppose the outright banning of them at the moment or as Washington lawyer and leader of the US delegation to the Geneva conference Ronald Bettauer said the “time is not right to discuss a ban… because the bomb still plays an important military function”.

Simon Conway of the Landmine Action charity says the weapon is a redundant legacy of the Cold War, designed for use against mass Warsaw Pact army formations charging across the central European plain. The conference is taking place in Geneva as Switzerland and the UN back calls for cluster bombs to be outlawed. Debate over the use of the weapon intensified after Israel dropped them on southern Lebanon in its month-long war against Hezbollah militia earlier this year.

Cluster bombs are dispensed or dropped from an aircraft. Dropped ordnance is divided into three subgroups: bombs; dispensers, which contain submunitions; and submunitions. Submunitions are classified are “bomblets” , grenades, or mines. Some are very small and are delivered on known concentrations of enemy personnel, scattered across an area. They are used to primarily kill infantry. Cluster bombs were developed first by Germany in World War II with their "Butterfly Bomb." It was so called because it fluttered in flight. It was quckly copied by the Russians, US and Italians. They were used in 2003 in Iraq and earlier this year Israel used cluster bombs in several areas in South Lebanon, including the towns of Blida, Hebbariyeh and Kfarhamam.

The problem with cluster bombs is that some don’t explode immediately. Like land mines they leave a dubious legacy to the peacemakers after a war. It may seem puzzling that such an unreliable weapon, which makes no distinction between friend and enemy, is not banned. But as George Monbiot (via Taiwan!) said “The necessary resources, both economic and political, will always be found for the purpose of terminating life”.

Britain announced on 9 November is to phase out "dumb" cluster bombs and join negotiations aimed at imposing global limits on their use. That leaves the US, China and Russia to convince. And shame, if necessary.

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.