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Notes of CCADD meeting December 14th 2005 prepared by an attendee. This text is intended to be no more than a précis to capture the gist of the discussion.
Philippe Sands: Lawless World: America and the Making and Breaking of Global Rules (Allen Lane, 2005)
The speaker’s book is an introduction to international law for non-lawyers. It began from the Pinochet case, which created a new climate of thought, especially after the House of Lords’ landmark ruling about the accountability of a former head of state for crimes committed during his period of office. Today, unlike the recent past, there is a lot of media interest in such questions. There is a ‘battle’ of competing conceptions of how the world should be run, and how far international law should have a major role.
In August 1941 Roosevelt and Churchill created the ‘Atlantic Charter’ which proposed a new world order based on the rule of law comprised three threads: 1) Use of force outlawed except in self-defence or where authorised by the international community 2) Dignity of individual person protected 3) Global economic liberalisation. The following period spawned the UN Charter, Universal Declaration of Human Rights, Geneva Conventions, Genocide Convention, GATT, World Bank, and the IMF. Whilst placing necessary constraints on expressions of sovereign power, these also created great opportunities to benefit states.
The Project for a New American Century (PNAC) is a think-tank of American conservatives who have gained influence since George W. Bush came into power, and especially after 9/11. It approves of international law under 3), as this can be used to promote, extend and support US economic interests. But 1) and 2) impose unwelcome limits on US sovereign power. PNAC is pursuing a new agenda, undermining the Roosevelt/Churchill concept of a new post-WW2 world order.
PNAC signatories include many in the current US administration ie. Rumsfeld, Cheney and Wolfowitz, and considers international law to be a threat to the interests of the United States. Any such rules-based system is thought to limit US power in the world, despite the fact that it was in large part instigated by the US back. Sands believes that 9/11 has been used to pursue an agenda of revising these rules – which the US itself had helped put in place! - e.g. by the unilateral invasion of Iraq, and creation of Guantanamo Bay (a legal ‘black hole’). PNAC rejects the thesis that ‘the greatest threat we face is that we become like those who seek to destroy us’ (George Kennan, US diplomat).
The speaker covered the Iraq invasion at length - he said that in his view it was illegal, and thought it significant he was only aware of one public international lawyer who could be found in the UK to stand out and declare it to be legal at the time. The speaker commented on the Attorney General’s advice and on resignation of Elizabeth Wilmshurst from the FCO. She had ‘made a very personal sacrifice to resign over a crime of aggression’. It was good that the language of international law had now emerged into public discourse.
Q: Had Condoleeza Rice made any significant statements in relation to the current Renditions issue?
A US federal law on torture allows things which the international convention forbids (e.g. ‘waterboarding’). Hence it was possible for Rice to say that ‘the US does not do torture’ and that the US ‘has not changed its policy since 9/11’. (The US had entered a reservation to the 1984 Convention about the definition of torture). [NOTE by BW: since this meeting on December 14, under congressional and international pressure, Bush has apparently changed US policy by announcing that the US ‘will make it clear to the world that this government does not torture and that we adhere to the international convention on torture, whether it be here at home or abroad’. The Guardian, 16 December 2005].
Q: What has changed in terms of any precedent being set by the AG’s ‘advice’ affair? What’s to stop another AG doing the same thing in few years’ time?
A: Cases are right now working their way up the courts, whose outcomes could be significant, especially the case of peace activists claiming they were preventing a greater. The speaker felt the public were now alert to ‘weasel words’ the government may use, and it would therefore be much harder for such a situation to be repeated. The existence of the International Criminal Court – he referred back to Pinochet case – could, if the invasion was declared illegal, have implications for Tony Blair should he wish to travel around the world once out of office!
Q: Can you speak on the legality of replacing Trident?
A: The speaker was not supportive of the process of pressing for the 1996 ICJ advisory opinion on nuclear weapons(NW), because he believed those on the bench were never likely to give the NGO’s their desired result. This had indeed been the outcome. But the ICJ opinion was positive in that it flagged up Article 6 of the NPT – the requirement for NW states to disarm. This needs to be continually placed back on the table! We keep hearing how Iran must disarm – but all NW states have an obligation to do so. If they do not attend to Article 6, this questions whether they are complying with the NPT. They did a deal to disarm but are doing the opposite by extending their NW status, and by developing new ones. [NOTE: at this point the chairman pointed out that Roland Smith had addressed these matters in his chapter in CCADD’s forthcoming book on the question of replacing Trident]
Q: What is law – is it just ‘what the judges say’ ?
A: Several complex thoughts in reply ! Unless judges/bench have spoken out with some authority, and definitively, one can usually ‘wheel out’ judicial decisions or legal opinions from somewhere to support a particular view. Some international lawyers carry more authority than others. The speaker stressed that, for most of the time, international law works very well and is effective – he believes strongly that international law will certainly outlast the current US administration! Rules regarding torture and genocide have been strengthened by recent events. However, those concerning the use of force ‘stand on a knife edge’. In today’s world (very different from 1941) the rules may well need changing at some point, but we’re not at the right moment for that to happen yet.
Q: Meeting with some PNAC supporters in the US, it seems they are not against the idea of international law itself : rather they believe law can be changed by ACTIONS not just legal representations, e.g. Kosovo. What if Iraq had been better planned? The US has unique responsibilities due to its power
A: a) and b): Situations re Kosovo/Iraq are not comparable: e.g. Iraq was not justified on the basis of any humanitarian motive. Kosovo had widespread support – a second resolution was taken within 3 months, which legitimised the intervention. Furthermore, the US is not in a ‘special role’ – this is a dangerous idea. No one country should proceed on the basis that it is above the law.
There is much professional legal – and military – concern about these issues, with these groups not generally in support of the administration’s stance. One person said the small group promoting PNAC-inspired policies was growing rapidly, and he was grateful to the speaker for his book. The speaker also emphasised how changing the rules on torture/humanitarian law is not in the US interest. International rules so far have served US interests well, helping it to develop where it is today. PNAC consisted of individuals, not informed by world experience, or by properly considered analysis, or by consultation with allies.
Q: How can international law be changed regarding’ the responsibility to protect’?
A: Trust has been badly damaged over Iraq, especially because of the misrepresentations about WMD and the AG’s advice. Those countries most likely to need such intervention are those who say they were misled over Iraq. We must first repair this damage and regain trust, otherwise those we try to ‘protect’ will be suspicious that any intervention is used as a pretext for other actions, as with Iraq.
Q: Is there a distinctive contribution the UK can make to international law?
A: Worldwide, the British judiciary continues to be respected for its integrity and its wisdom and courage shown on complex issues. House of Lords judgments can have a far-reaching impact around the globe, affirming and encouraging the rule of law. The speaker noted that, as respect for the executive arm of government seemed to be decreasing, respect for the judiciary was increasing.
Q: Could he comment on these issues in respect of education and training?
The speaker teaches in the UK and the US. There is ‘a world of difference in the responses of UK and US students’. There seems to be a climate of fear in the US; some students seem to be willing to go to great lengths to clamp down on the human rights of others who may be a threat. UK students are more relaxed, maybe due to interaction with other countries, travelling more widely. Britain has been attacked/threatened in the past. Confronting terrorism not new, especially in Northern Ireland. With US students, the speaker attempts to put 9/11 in perspective but this doesn’t go down well! When he compares the 3,000 deaths in the twin towers to the three and a half million in the Congo, he is typically greeted with ‘how could you even say that!?’ He wanted to emphasise, finally, how concerned he was that the UK government had issued no public statement deploring the Guantanamo conditions. It was deplorable that no firm condemnation had been made. The US saw this as a ‘green light’ to carry on.