Atlantic cowboy

Lawless World: America and the making and breaking of global rules

Philippe Sands <em>Allen Lane,

When I published a book urging commitment to global justice, I was denounced in the neo-con Washington Times as a threat to America. My reviewer turned out to be a charming southern gentleman who explained - when we debated at Washington University - that an international criminal court was unnecessary: if all else failed, the US could always drop a nuclear bomb on any recalcitrant state. That was a few years ago; this month, John R Bolton was appointed US ambassador to the United Nations.

That one of the UN's severest critics should occupy this position appears to support Philippe Sands's denunciation of the Bush administration's "lawlessness". Yet President Bush has just directed 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 for a majority in the US Supreme Court. Perhaps Professor Sands's second edition will provide more examples of how "the Atlantic cowboy" (as he characterises Bush) can obey the sheriff as well as play the outlaw.

Despite such name-calling, Sands has written an important and interesting book - a considerable achievement in the discipline of international law, where important books are usually incomprehensible, even to lawyers. It achieves the most difficult goal for a legal academic writing for a lay audience, that of remaining simple without becoming simplistic.

And it has already made an impact, by raising questions about the Attorney General's advice to the British government over the legality of war on Iraq. Criticism of Lord Goldsmith is misplaced - his advice was given genuinely and independently. The big issue is whether the public should be entitled to read it. The blanket of professional confidentiality usually hung for 30 years over law officers' advice has always been unjustified. Confidentiality belongs to clients, and where the client is a government responsible to a parliament that represents the people, democracy demands they should see advice that is sought (and paid for) in their name.

This is not a party-political point: ministers in successive governments have occasionally been given wrong 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 (recently, to reveal the Bush lawyers' mistaken interpretation of the Geneva Conventions). If Lawless World inspires our new Information Commissioner to reject blanket confidentiality, it will have struck a blow for better governance in Britain.

The book is concerned mainly to measure US policy compliance with legal norms. Sands shows how Americans have contributed vastly to the modern development of international law, often against the wishes of European leaders (Churchill vigorously opposed the Nuremberg trials and Anthony 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 that the US has an excellent record for compliance in these areas.

Compliance with international human rights law is another matter, and Sands 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 beha-viour of soldiers at Abu Ghraib (who are at least being prosecuted). Sands's analysis of such problems is precise, and his preferred solutions are well argued, although sometimes he fails to notice better arguments and 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, the book makes a compelling case for the enforceability of those human rights rules that can be generally agreed and clearly formulated.

But therein lies the rub. Sands assumes that "the rules of international law" are as clear-cut as the rules of domestic law - in particular, domestic criminal law. This may be true of rules against torturing prisoners of war or bombing hospitals, but it is wishful thinking in respect to rules about the crime of aggression, the deployment of nuclear weapons and the scope of humanitarian intervention.

The truth is that international human rights law is at a very rudimentary stage of development. Ten years ago, proceedings against Augusto Pinochet were a pipe dream, let alone against Slobodan Milosevic and Saddam Hussein. It is not surprising that America is cautious, and the defenders of the principles of state sovereignty and head-of-state immunity have been as vociferous on the left as on the right. Sands's conclusion ("In the 21st century you need rules, and proper lawyers, too") begs the question: international lawyers have fumbled some opportunities to devise meaningful rules and to develop justice mechanisms that work expeditiously, fairly and effectively - especially cost-effectively. As a result, it may be harder these days to debate with Ambassador Bolton: this book explains why we should make the effort.

Geoffrey Robertson QC is the author of Crimes Against Humanity: the struggle for global justice (Penguin)

This article first appeared in the 21 March 2005 issue of the New Statesman, What Britain really thinks