Six decades later, as Philippe Sands explains in Lawless World,* the US, aided in some cases by a compliant British government, seems bent on undermining the legal order it did so much to foster. This isn't entirely the doing of the current US government—the turn away from international law starts with Reagan—but the second Bush administration has certainly brought a whole new level of energy and commitment to the project, particularly since the attacks of Sept. 11, 2001. Thus the US in recent years has unsigned the Kyoto Protocol and backed out of the Anti-Ballistic Missile Treaty; tried (unsuccessfully) to kill off the International Criminal Court; disregarded human rights law in its treatment of detainees in the "war on terror"; and launched an illegal "preventive war" in Iraq.
The Bush administration has argued that international law isn't up to the challenges of an age of global terror—that it constrains US power and thus compromises national security. Sands argues on the contrary that the need for all nations to respect the rules is more urgent now than ever, and that the US will surely come to regret its recent actions and the precedent they set. As he wrote in a recent op-ed: "We live in a complex, interdependent world in which social, political, economic and religious values and interests collide with increasing frequency over an ever greater set of issues. International law sets minimum standards of behavior. Outside of bullying and force, it is all we have to provide a framework for resolving those differences. Without it, we are back to the law of the jungle."
Sands is professor of law at University College London, and a practicing barrister. He recently spoke with Mother Jones by phone from London.
MJ: As you explain in the book, the United States did more than any country to replace the laissez-faire international order with a rules-based system. When did its commitment to that system start to wane?
PS: I think the change begins in the Reagan administration, when Nicaragua brings a case to the International Court of Justice and the U.S. withdraws from the court altogether. That marked a very significant departure after 40 years of commitment to international judicial function. And the people who were involved with this in the Reagan administration are in many cases the same people now in the Bush administration—only they’re more senior and more powerful. They consider international law as excessively constraining to the United States, and they’ve used 9/11 to bring forward their project to dismember it.
MJ: What's at the root of this hostility to international law?
PS: Well, there have always been two strands of thought in the United States. If you go all the way back to the League of Nations, you’ll see that you had a president, Wilson, who wanted to join the League but could never persuade Congress that it was in the national interest. By the 1940s things had changed and the dominant strand of thought was that rules suited the United States. Today, the congressional instincts that were at play during Wilson’s presidency are back to the fore. It’s not quite the same as Wilson because the United States doesn’t want to disengage from the world, as it did then; in fact its significantly engaged with the rest of the world.
MJ: Yes—to a fault!
PS: Right. So it’s not an isolationist America; it’s an exceptionalist America, one that says that if there are rules, they don’t constrain us. International law is for others.
MJ: One of the arguments you hear again and again is that 9/11 changed everything—that in terrorism you’re dealing with non-state actors and hitherto unimaginable threats—and that the current international system is not up to meeting the new challenges. Do you think that’s right?
PS: I don't buy the argument that there’s been a paradigm shift and that 9/11 reflected the emergence of some new order. I don’t think other governments think there’s been a paradigm shift. The British, Spanish, and Australian governments are not saying that we have to ditch all the rules because of a new threat from malign non-state actors like Al-Qaeda.
One has to be pretty skeptical about the motives of those who see a paradigm shift. At the heart of the [neoconservative] Project for New American Century is a desire to unbind America, to free America from the constraints of conventions—like Kyoto or the International Criminal Court—that could limit its exercise of power. In the simplest terms, it is the fear that the exercise of political power will be constrained by the rule of law. So I think they’ve opportunistically taken advantage of what 9/11 presented as a way of putting forward a particular project.
MJ: Do you think terrorism is best seen as a criminal matter to be dealt with in the context of the existing legal system?
PS: This is the great point of difference between the United States and Britain. The United States has decided to proceed on the basis of a war on terror. The UK doesn’t use the term “war on terror”; the British government believes this is best dealt with through a refined and modified use of the criminal law. It’s two different approaches—the British approach is determined by the experience with the IRA, and the recognition that if you characterize this as a war on terror, you elevate criminals into the status of warriors, which confers a degree of legitimacy on their struggle.
The United States of course does not have that experience, and it has a completely different approach to dealing with terrorism. But I think they’ve made a fundamental mistake in declaring a war on terror. They've opened the door to the legitimation of the efforts of Al Qaeda around the world, and they’ve made it much more difficult to engage with other allies and partners in the response to gross criminal activity.
MJ: You point out that the Bush administration is perfectly happy to go along with international law when it sees advantage in doing so.
PS: There’s no a priori objection to international rules. It's rather a belief in what's been called a la carte multilateralism: You pick and choose the bits you like and ditch the rest. And the bits that are liked essentially are those that promote or protect economic interest, that allow American goods to be traded or American capital to flow abroad and to be subject to protection through investment treaty regimes, or international rules that protect intellectual property rights around the world.
The danger with that approach is that it allows other countries to do the same thing. If the United States is going to pick and choose the bits that it likes and reject the bits it doesn’t, other countries will start doing the same thing.
MJ: So the cost to international order generally is that other countries will take America’s lead and the legal system comes apart. What’s the cost to the United States?
PS: The price America is paying is a loss of authority, a loss of cooperation and a loss of morale. The US is undermined by withdrawing from various rules, rules on protection of prisoners of war, rules on detainees, rules on interrogation. It’s undermined in its ability to work with other countries, even its closest allies. And it’s undermined in the sense that the strongest supporter of the rules that are being ditched is the U.S. military, which is pretty horrified about what is happening because US troops are on the frontline—they’re the people who know what benefits these rules can bring and the cost of their being removed.
MJ: Do you think current Bush officials have reason to fear prosecution under international law?
PS: I suggested recently in a debate with John Yoo, who’s the drafter of one of the torture memos, that those individuals associated with putting in place the policy that has given rise to abuse could themselves be subject to Pinochet-style proceedings. (A few years ago I was involved in the Pinochet case, in the House of Lords, and I saw firsthand how it worked, and how Pinochet’s advisers failed to see what was coming.) What was so striking when I put this to Yoo, who's now at Berkeley Law School, was that it seemed he'd never really thought these issues through. And of course what applies to the lawyers who draft legal advices giving a green light to abuses applies equally to those more senior individuals in the administration who have allowed such legal advices to be written.
MJ: The Pinochet trial is regarded as a watershed moment in the history of international law. Can you explain its significance?
PS: It was a vitally important moment. Pinochet traveled to the United Kingdom [in 1998] for medical treatment and was arrested while recuperating. An allegation came from Spain, where an arrest warrant was issued, that he had engaged in torture, which was contrary to international law. Under the 1984 torture convention to which Chile, Spain and the United Kingdom were all parties, any state who finds an alleged torturer—or somebody who has authorized torture—within its territory has an obligation to do one of two things: you either arrest the individual, investigate and prosecute; or you extradite to a country where the individual will be investigated and possibly prosecuted. Upon receiving an arrest warrant from Spain, the United Kingdom had an obligation to extradite him to Spain, provided it could be demonstrated that the acts fell within the convention. And they did – there were three acts of torture that were identified in the relevant timeframe. Pinochet authorized or turned a blind eye to those associated with the government engaging in torture.
MJ: And didn't the case demonstrate also that a longstanding international norm—in this case the presumption of immunity for heads of state—could be trumped by the norms embodied in a later law, which here was the UN Convention Against Torture?
PS: Yes. Until the Pinochet case, it was thought that a head of state, or a former head of state in the case of Pinochet, would be able to claim immunity from the jurisdiction of foreign court in relation to any acts committed whilst head of state. And the Law Lords ruled in the end pretty decisively that that was no longer the case. With that ruling the international legal order ceased to be one designed to protect states in their ability to deal with each other, and became one that protected and promoted the rights of individuals, of victims in that case.
MJ: Back to the Bush administration. You argue that the legal advice offered by the likes of Yoo was, as well as being contrary to international law, of shockingly poor quality.
PS:Yes, it's really bad. It’s almost as though it’s not really legal advice. The suspicion is that policymakers decided what they wanted to achieve and they then went to a small group of handpicked lawyers to give them legal advice that authorized them to do it. But you can barely call some of the memoranda put out by people like John Yoo and Jay Bybee legal advice. It’s advice that on its face is pointedly wrong. It doesn’t consider properly the relevant rules.
MJ: Throughout the book we see again and again Tony Blair and the British government going along with this American project to trash international law and start afresh. How to explain that?
PS: That's the $64 million question—why did Tony do it? And I don’t think we’re able to give that question a proper answer at this point. History will tell what it was that encouraged Tony Blair to act as he did. We know on Iraq he gave support very early on. It’s pretty clear that by March or April 2002, he had indicated to the American president that he was with him. That tends to suggest that his diplomatic skills were not as finely tuned or well honed as they should have been. He seems to have pushed himself into a box from which he could not subsequently escape, having committed too early. But I think the bottom line is that Blair took the view that at this time, after 9/11, Britain had to be alongside the United States, whatever the United States did.
MJ: One criticism of the international legal order has to do with the so-called "democratic deficit" wherein citizens find themselves subject to laws that they didn’t even know were being crafted, much less had a say in formulating.
PS: Well I think that’s a real problem. There’s a real question about the processes of making international law. There’s very little involvement of citizens or interest groups or stakeholders—call them what you will—NGOs, corporations, those who have the most direct interest. So these issues I think are very rightly put on the agenda.
MJ: And shouldn't laws in some cases evolve with changing circumstances?
PS: Yes. I’m not starry-eyed about international law, and it’s plain that it needs to be kept under constant review. It’s got to be updated to take into account new threats and new challenges. But it did that. In the context of the attacks of 9/11, within 24 hours the Security Council had indeed acted to determine that if a threat came from a nonstate actor outside the United States, the United States was entitled to use force in self-defense. And that was an instantaneous change of international law to take account of a real threat and a real change.
It’s not a perfect system. It’s premised on the idea that all states are sovereign and equal, and we know that that's not in fact the case. And it’s premised on a 1945 settlement and a view of the world that has changed and changed very significantly. Buried in the assault on international law are nuggets of issues that definitely need to be addressed. But a wholesale attack on international law is unwarranted.
MJ: Do you see any signs of lessons learned or a chastening on the part of the US that might give cause for optimism?
PS: I don’t think at this point there’s enormous cause for optimism. I think maybe there are little things. Sen. [John] McCain’s effort legislation committing the United States to meet international standards of mistreatment of prisoners and detainees wherever they are in the world. This indicates the beginnings of a recognition, from an individual who’s well-placed to know what international rules can do, of the need to restore a rules-based system. I’m not sure one can be hugely optimistic so long as the Bush administration is in office, but I’m pretty clear that they will not manage to remake the rules of international law. The rules of international law are robust, and they will outlast the Bush administration.