Page 2 of 2

Lawless World

The United States is wrecking the international legal order?against its own interests.

| Mon Dec. 19, 2005 3:00 AM EST

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.

Page 2 of 2