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LAWLESS WORLD: AMERICA AND THE MAKING AND BREAKING OF
GLOBAL RULES

PHILIPPE SANDS
PENGUIN, 324PP

When I published a book urging commitment to global justice I was denounced in the Moonie-funded Washington Times as a threat to America. My reviewer turned out to be a charming Southern gentleman who explained – in a debate at Washington University – that an international criminal court was unnecessary: if diplomacy failed, the US could always drop nuclear bombs on any recalcitrant state. That was back in 1999, when I assumed John Bolton would remain deep in his neo-con think-tank. Last week, he was appointed US ambassador to the United Nations.

That one of the UN’s severest critics should now occupy this influential position might appear to support Philippe Sands’ criticism of the “lawlessness” of the Bush administration. Yet last week also saw President Bush direct US law enforcers to respect the ruling of the International Court of Justice that requires arrested foreigners to have consular access – a step too far for the Clinton administration and even for the majority in the US Supreme Court. Since Mr Sands opens his book with an account of his shock at America’s failure – in a death penalty case - to comply with this world court ruling, perhaps his second edition will concede that “the Atlantic cowboy” (as he characterises President Bush) can play sheriff as well as outlaw.

Despite such lapses into names calling, Philippe Sands has written an important and interesting book – a considerable achievement for a discipline where important books are usually incomprehensible, even to lawyers. In the dense semiology of international law, riddled with pig-Latin and alphabet soup acronyms, this book is a most refreshing read: it is clear, sensible and appropriately provocative. For the most part, it achieves the most difficult goal of a legal academic writing for a lay audience, that of remaining simple without becoming simplistic.

The book’s publication has already made an impact, at least on the front page of The Guardian, by raising questions about the advice provided by the Attorney General to the British government over the legality of war on Iraq. Criticism of Peter Goldsmith is misplaced – his advice was given genuinely and independently. The big issue, however, is whether the public should be entitled to read it. This is not an issue specific to the Iraq war: the blanket of professional confidentiality traditionally hung over law officers’ advice – and the advice to law officers by outside counsel – has always been unjustified. Confidentiality belongs to clients and where the client is a government responsible in constitutional theory to a parliament which represents the people, democracy demands that they should see advice which is sought (and paid for) in their name.

This is not a party political point: successive ministers in successive governments have occasionally been given wrong and sometimes incompetent legal advice by counsel who in some cases should not have been briefed in the first place. Open government requires that legal advice to ministers should always in due course be revealed – as it is in the US (thus exposing, for example, the mistakes recently made by government lawyers in their interpretation of the Geneva Conventions). If Lawless World inspires a case in which our new freedom of information commissioner rejects the blanket confidentiality which at present wrongfully attaches to government legal advice it will have struck a blow for better governance in Britain.

The book is principally concerned to measure US policy compliance with legal norms. Sands shows how American thinkers and actors have contributed vastly to the modern development of international law, often against the wishes of European leaders (Churchill vigorously opposed the Nuremberg trials and Eden went to war over Suez without bothering to ask for his Attorney General’s advice). Illuminating chapters on international trade and investment laws demonstrate (against the grain of the book’s title) that the US has an excellent record for compliance in these areas. Sands ventures a curious criticism of ICSID (the arbitral court provided by the World Bank) on the basis that it detracts from the sovereignty of local courts and governments, although it is precisely because of the corruption and lack of independence of courts in certain countries that international arbitration has become increasingly important.

Compliance with international human rights law is another matter and the book recounts the depressing story of US hostility to the International Criminal Court; its insistence on placing detainees in the legal limbo-land of Guantanamo Bay, outside the protection (until the Supreme Court ruled otherwise) of due process; the rush to invade Iraq without a second Security Council resolution and the obscene behaviour of its custodians at Abu Graib prison (who have at least been prosecuted). These events are being exhaustively examined in the current literature of politics and ethics and international affairs: here, problems are precisely analysed in terms of the legal norms that were available to solve them. Mr Sands’ preferred solutions are well argued, although he occasionally ventures into perilous factual judgements (“The UN system of collective security had contained Saddam Hussein” – tell that to the Kurds and the Marsh Arabs). Overall, this book makes a compelling case for the enforceability of those human rights rules that can be generally agreed and clearly formulated.

Therein lies a rub about which Mr Sands is uncharacteristically coy. His book assumes that “the rules of international law” exist in the real world with the same precision and capacity for litmus paper application that we associate with rules of domestic law – in particular, domestic criminal law. This is true of rules against torturing prisoners of war, for example, or bumming hospitals: it is wishful thinking with respect to rules about, for example, the crime of aggression (which international law cannot define); the deployment of nuclear weapons (thanks to an incoherent world court decision) and the scope of humanitarian intervention – Mr Sands himself fudges the question of whether the NATO bombing of Serbia to stop ethnic cleansing was lawful. In a rare moment of pessimism, he does wonder whether “there will always be doubt about the extent to which international law can really limit the use of force by states”.

The truth is that international human rights law is at a very rudimentary stage in its development. Just ten years ago, proceedings against Pinochet, let alone Milosevic and Saddam Hussein, were pipedreams. It is not surprising that America – under Clinton (remember Rwanda and the original US vote against the ICC) as well as Bush - should be cautious: the defenders of state sovereignty and head of state immunity, even when this has amounted to tyranny, have been as vociferous from the left as from the right. Sands’ conclusion – “In the 21st century you need rules, and proper lawyers too” – begs the question: international lawyers have fumbled some of their new opportunities to devise meaningful rules and justice mechanisms that work expeditiously, fairly and effectively – especially, cost effectively. As a result, Ambassador Bolton may these days be more difficult to debate: this book explains why we should make the effort.

Geoffrey Robertson QC is the author of “Crimes against Humanity: The Struggle for Global Justice”

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