Confirming the real nature and objects of the international legal system

Lawless World: America and the Making and Breaking of Global Rules  by Philippe Sands.  Pub: Allen Lane Ltd., London, UK, 2005.  Pp. 200. £12.99.

By Laila Juma

Among the many interesting points in this book is the difference between the covers of the British and American editions.  It is not unusual for books to have different covers for different markets, but in this case the contrast is unusually obvious.  The original British edition, published by Allen Lane Ltd. in February,  is bright orange and shows a picture of a bound and masked man, wearing an orange jumpsuit, a clear reference to the political prisoners at Guantanamo Bay.  It also promises “new revelations” about “Bush and Blair’s illegal war”.  The US edition,  published by Viking last month, is far lower key, a mottled gray colour with a stylised crown incorporating the stars-and-stripes, a subtle reference to American imperialism.             

The reasons are straightforward enough; in the UK and the international market, there is little illusion about the nature of America’s role in international affairs.  People are interested in understanding the phenomenon of hegemonic American neo-imperialism, rather than needing to be convinced of it. In America, on the other hand, a more subtle approach is needed, not only to minimise offense because America is the main focus of the book’s analysis and criticism, but because many Americans are so uninformed about both international affairs and the way  that their country is perceived in the world that they would automatically dismiss any book referring to Guantanamo Bay and the causes of the Iraq war as an extremist polemic.

That would certainly be a mistake.  Whatever else one may think of this book, polemic it is not.  Philippe Sands is both Professor of International Law at University College, London, and a working barrister in the UK, and his approach is strictly academic and legal.  It is this what gives his book massive weight, although it should be emphasised, given the legal and judicial spheres’ capacity for obscure and incomprehensible language, that Sands also writes with remarkable clarity and readability.  It also goes far beyond the populist topics of Guantanamo and Iraq, to give a much more rounded and comprehensive analysis of various elements of international law and politics than any polemicist might.

Having said that, it was Sands’ comments on the Iraq war, justifiably described as revelations, that made the front page of the Guardian newspaper, sent ripples through British politics and were noted around the world when the book was first published.  Sands revealed that Britain’s attorney general, Lord Goldsmith, a member of the Blair government, had informed prime minister Tony Blair that Iraq’s failure to fulfil its obligations under UN Security Council resolution 1441, passed at the end of the first Gulf War, did not provide legal justification for the use of force against Iraq in 2003.  Nonetheless, Blair went on to quote 1441 to justify the war in parliament, claiming that he had received “unequivocal” independent advice that US plans to invade Iraq would be legal under international law.  The Blair government has firmly refused to publish the full advice that Goldsmith gave Blair, but Sands’ revelation has been described by political commentators as a smoking gun that proves both that Blair knowingly took the UK into an illegal war, and that he lied to parliament -- perhaps the most heinous crime in British politics.  This was only the latest of a series of revelations that have made Blair’s position increasingly indefensible, but carried particular weight coming from a figure like Sands.  The fact that Blair remains in power without facing any serious political accountability is an indictment of British democracy.

There are, moreover, further revelations in the additional material that Sands has added for the American edition of the book, published eight months after the British edition.  In this, Sands quotes a British government memo regarding a telephone conversation between Bush and Blair on January 30, 2003, in which Bush told Blair that he planned to target other countries in the Middle East after dealing with Iraq.  Countries specified by name include Iran, Pakistan and Saudi Arabia.  At the time, Blair firmly denied suggestions that there were any plans to go beyond Iraq.

Sands places the issue of Guantanamo Bay in the context of a much broader drive on the part of the Bush administration to legitimise torture by US troops and authorities.   He discusses this on the basis of a number of case studies of deaths in American custody, including those of an Afghan prisoner, named Dilawar, who died after being beaten for days while being kept chained to the ceiling by his wrists, and an Iraqi general, Hamed Mowhoush, who died of what the US military decided were “natural causes” after being stuffed head-first into a sleeping bag and repeatedly kicked and beaten.  But here too, Sands’ analysis goes beyond case studies.  Instead he traces how the US has set aside norms of civilised behaviour in the context of the so-called “war on terror”, starting with Bush’s assertion that those captured in Afghanistan, Iraq and elsewhere -- including those kidnapped illegally from countries all over the world -- were “illegal combatants” rather than prisoners of war, and were therefore not covered by the provisions of the Geneva Conventions or other international treaties. 

When this raised objections, the White House General Counsel, Alberto Gonzales, declared that the war of terror “renders obsolete the Geneva Conven-tions’ strict limitation on the questioning of enemy prisoners and renders quaint some of its provisions.”  The Bush administration argued that prisoners held outside the territory of the US were not subject to US laws and rights, even if they were held by US forces and authorities.  It then went on, combining these two stances, to say that US law took precedence over international law, while redefining the terminology of the relevant US legislation.  Although US law restricts torture, US Assistant Attorney General Jay Bybee said that any it did not include physical abuse or pain short of that that would normally cause “death or organ failure”.  Such developments have been opposed even within the US, but they expose a mindset within the highest levels of US politics that is very different from the image the US has of itself and tries to project to other people..

Other, less politically explosive, parts of the book are also important, however, particularly because they address issues that far fewer people know anything about.  Sands gives considerable attention to international trade and investment law.  He points out that this has been an essential feature of international legal institutions and procedures ever since the Atlantic Charter of 1941, an agreement between US president Roosevelt and British prime minister Winston Churchill that set out principles for the foundation of international cooperation after the Second World War.  The Charter outlined three central principles: a prohibition on the use of force in international relations except in self-defence; a commitment to the equal and unalienable rights of all humans; and trade liberalization.

Sands pointed out that, behind these pious principles, the shape of international trade and investment law as developed from the 1960s onwards was very different.  He argues that it was in fact a direct response to the emergence of independent nation states in the former colonies, and a conscious attempt to shackle their political and economic freedoms.  It is these secretive laws, binding and firmly enforced on developing countries, although the US and other Western states routinely flout them, that have underpinned the neo-liberal globalization project and are the basis of the West’s corporate and bureaucratic power worldwide.  Sand’s analysis of how these rules are made in invisible and unaccountable international bodies, and how biased they are in favour of the West, is truely stunning. 

The result is that the working of international trade law has, over the last three decades, been a massive boon for the US in particular, and the west generally.  Sands points out, however, that this may be changing; in recent years, non-Western countries have had some success in using international agreements, such as those governed by the World Trade Organization, against American restraints of trade.  The result is that this is another area, Sands points out, in which the US’s approach to international law is becoming increasingly idiosyncratic and self-serving.

Sands describes the US’s general approach to international law in two terms: as a “pick-and mix” buffet approach, in which the US chooses to emphasise those laws that suit it, while ignoring others, or enforce the same laws in some cases but not in others; and an “us and them” approach, which sees one set of rules as applicable to the US and another set to the rest of the world.  He points out that these are not universally held positions even within the US; hence the constant debate about the US’s role in the world and how far it should cede power to international institutions, as international agreements inevitably require it to do.

Perhaps the most surprising thing about Sands’ book, at least to those who are not surprised by the nature of international law as he exposes it, is the optimism of his conclusions about the future prospects of international law and legal institutions in a world that is likely to remain dominated by the US for the foreseeable future.  What is more, his optimism is not based only on the cynical view that the US is likely to need them and therefore will ensure that they retain some level of credibility.  Rather, despite the grim picture he paints of the “lawless world”, Sands genuinely believes that there is a possibility of establishing a just international legal framework and the genuine rule of law in international affairs on the basis of the current political and institutions.  Perhaps a man of his background and position cannot afford to believe anything else; but this is perhaps the place where his argument and analysis are less than convincing.