In the 1940s, the United States, with the strong support of Great Britain, was the prime mover in the creation of a new world order based on international law. In a few short years their efforts brought into being the UN Charter, the Universal Declaration on Human Rights, the Genocide Convention, and the General Agreement on Tariffs and Trade, among other landmark laws and institutions designed to set limits on the use of force, promote the protection of human rights, and establish a framework for international trade and global economic integration.
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?