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27 February 2006

Squandering a precious heritage

By Philippe Sands

Amnesty International’s report coincides with the 60th anniversary of a famous telegram. Writing from Moscow on 22 February 1946, the diplomat George Kennan painted for his masters in Washington the classic picture of the vast scale and sinister character of the postwar Soviet threat. But he concluded on a note of caution. “We must have courage and self-confidence to cling to our own methods and conceptions of human society,” he declared. The greatest danger was that “we shall allow ourselves to become like those with whom we are coping”.

Today’s British government would do well to heed that advice – and to bear in mind how its distant predecessor the Attlee government responded to the Soviet threat and the insurgencies that challenged British global interests at the same time. That Labour government met the challenge by putting in place the modern system of international laws which determined that all persons, wherever they were, were entitled to minimum and fundamental rights. No one was to be cast into a legal black hole.

Within a month of taking office in 1945, Clement Attlee’s government adopted the London Statute of the Nuremberg International Military Tribunal. Shortly before losing power in 1951 his government became the first to ratify the European Convention on Human Rights (ECHR). In between, it played a lead role in promulgating instruments that remain vitally relevant, such as the Universal Declaration of Human Rights (1948), the Genocide Convention (1948) and the Geneva Convention on the Treatment of Prisoners of War (1949).

Sixty years on, our present Labour government has done a great deal since 9/11 to undo this precious legacy and undermine the international rule of law. Its actions make a grim litany.

A Labour government has caused Britain to be the only one of the 46 members of the Council of Europe to derogate from the ECHR, authorising indefinite detention without charge or trial of non-nationals who could not be deported. A Labour government has argued that certain evidence that may have been obtained by torture overseas could be used in English proceedings.

A Labour prime minister has expressed a willingness to override the UN Charter, suggesting that he might ignore a French veto of a Security Council resolution authorising force against Saddam Hussein’s regime. A Labour government has decided unilaterally that Iraq was in material breach of Security Council resolutions so as to justify the use of force.

A Labour prime minister has failed to condemn publicly the conditions under which detainees are being held at Guantanamo. A Labour government has entered into an agreement with the US undertaking not to transfer any US national to the International Criminal Court. A Labour government has sought to sign agreements with Algeria, Egypt, Jordan and Libya to ensure that suspected Muslim extremists could be returned to their home countries. A Labour prime minister has stated that if obstacles arise in the implementation of these agreements his government “will legislate further, including, if necessary amending, the Human Rights Act, in respect of the interpretation of the ECHR”. And a Labour home secretary has told the press that his government “would not be constrained by international conventions or by the way the judiciary interpreted them”.

There is no evidence that any of these actions has made Britain – or the world – a safer place. But there is plenty of evidence that Tony Blair’s attitude to international law is undermining Britain’s ability to promote respect for human rights and the rule of law in other parts of the world. The British Prime Minister’s approach – describing Guantanamo merely as an “anomaly”, and announcing after the 7 July bombings that “the rules of the game are changing” – provides sustenance to those who wish to break the rules.

In both domestic and foreign policy, restoring Britain’s commitment to the basic values reflected in global rules is much needed, with actions not words. If we are not to become like those with whom we are coping, the next prime minister should heed Kennan’s advice.

Philippe Sands QC is professor of law at University College London and a barrister at Matrix Chambers. His book Lawless World (Penguin) was published in paperback this month

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