Sir Brian Urquhart
joined the United Nations
Secretariat in 1945 after six years
in the British army. He worked
closely with the first five
Secretaries-General, and with Ralph
Bunche, on peace and security
matters, and especially
peacekeeping. He succeeded Ralph
Bunche as Under-Secretary-General
for Special Political Affairs in
1972 and retired from the United
Nations in 1986.
From
1986 to 1996, he was
Scholar-in-Residence in the
international affairs programme at
the Ford Foundation. His books
include Hammarskjold, a biography of
the second Secretary-General; Ralph
Bunche: an American Odyssey; and a
memoir, A Life in Peace and War.
This
article was first published in The
New York Review of Books, Volume 53,
Number 8 · 11
May 2006. Sir Brian
Urquhart is a Contributor to MaximsNews
Network.
UNITED NATIONS - / www.MaximsNews.com/ -
6 June 2006 - "A rule-based international
society" may seem a lackluster
phrase, but it describes, for those
who wish organized life on this
planet to survive in a decent form,
the most important of all the
long-term international objectives
mankind can have.
That international
law has already been formulated to
deal with a wide range of human
activities is one of the great, if
often unappreciated, achievements of
the years since World War II.
Yet
the obstacles to its being effective
are enormous.
We all know that
international law is often
challenged by the caprices and
diverging interests of national
politics and that it still lacks the
authority of national law.
With a
few important exceptions,
international law remains
unenforceable; when it collides with
the sovereign interests or the
ambitions of states, it is often
ignored or rejected. It is still far
from being the respected foundation
of a reliable international system.
In the first years of the new
millennium, and especially after the
terrorist attacks of September 11,
the development of international law
has encountered an unexpected and
formidable obstacle—the
ideological opposition of the Bush
administration, both to vital
treaties and to international
institutions.
This attitude
culminated in the 2003 invasion of
Iraq without the specific
authorization of the UN Security
Council, and without allowing UN
inspectors to complete their work.
Prisoners captured by the US were
denied the protection of the Geneva
Conventions and were often treated
brutally.
It is therefore no
surprise that the three very
different books under review all end
by deploring the United States' war
for regime change in Iraq and the
illegal abuses that have accompanied
it.
It is ironic that such widespread
criticism should be incurred by the
US.
From the Permanent Court of
International Justice in The Hague,
the Covenant of the League of
Nations, and the Charter of the
United Nations to the Universal
Declaration of Human Rights and many
UN conventions, the US has done more
than any other country to develop
and strengthen both the concept and
the substance of international law.
It is nothing less than disastrous
that a United States administration
should have chosen to show
disrespect for the international
legal system and weaken it at a time
when the challenges facing the
planet demand more urgently than
ever the discipline of a strong and
respected worldwide system of law.
Those challenges include
globalization at almost every level
of human society, the deeply
troubling evidence of climate
change, and the linked threats of
international terrorism and
proliferating weapons of mass
destruction.
It is true that the
United States remains broadly
committed to the international rules
on trade of the World Trade
Organization and NAFTA, rules that
are important to the United States
not least because they protect the
rights of US investors and
intellectual property rights.
1.
Philippe Sands is a practicing
international lawyer and professor
in London. Having been involved in
many cases before the International
Court of Justice in The Hague, he
took part in the effort to deny
Augusto Pinochet immunity in the UK
and has represented the British
detainees at Guantánamo.
Along with the other books under
review, Sands's Lawless World
provides a disturbing picture of the
state of international law and the
part, at times visionary, at other
times destructive, that the US had
in its development. Sands indicts
the United States, with Tony Blair's
complicity,[1]
for abandoning its commitment to the
post–World War II legal and
institutional arrangements that both
countries, more than anyone else,
had put in place. "I am not
starry-eyed about international
law," Sands writes. "I
recognize that it has frequently
failed millions around the world and
will continue to do so. But do
recent events justify a wholesale
change of approach?"
Before World War II, governments
could act more or less as they
wished in international affairs,
provided they had the power to do
so. This situation began to change
radically when Roosevelt and
Churchill proclaimed the Atlantic
Charter on a battleship off the
coast of Newfoundland on August 14,
1941, at a time when Nazi Germany
appeared to be decisively winning
the European war. This first sketch
of the UN Charter and the
international system that was to
regulate the postwar world was based
on three simple but revolutionary
principles. First, states would
recognize the obligation to refrain
from the use of force in their
international relations, and would
resort to force only in self-defense
or when authorized to do so by the
international community—later to
be represented by the UN Security
Council. Second, they would maintain
and respect the "inherent
dignity" and "equal and
inalienable rights" of all
members of the human family. Third,
they would promote economic
liberalization and progress through
free trade and other means.
The Atlantic Charter marked the
beginning of the long process that
led to the establishment of the UN,
the various UN specialized agencies,
the World Bank and the International
Monetary Fund, the General Agreement
on Tariffs and Trade (which after
forty-five years became the World
Trade Organization), and the 1948
Universal Declaration of Human
Rights (in Sands's words
"arguably the single most
important international instrument
ever negotiated"), as well as
the Geneva Conventions of 1949 and
1977.
Further steps toward establishing
an international institutional and
legal order continued with the 1957
International Atomic Energy Agency
in Vienna, which has now become an
important monitoring and inspection
agency; the Nuclear
Non-Proliferation Treaty and other
arms control conventions;
environmental law and institutions;
and now the International Criminal
Court, and the beginning of a system
of legal obligations for states
related to the prevention and
suppression of international
terrorism.[2]
Throughout
Lawless
World Sands's main preoccupation
is the damage that current United
States policies and actions may do
to the respect for international law
and its authority, both of which may
be decisive in dealing effectively
with the global challenges that lie
ahead. His concern is well
justified. As he notes, the 1997
manifesto of the neoconservative
organization Project for the New
American Century, signed by such
people as Dick Cheney, Paul
Wolfowitz, Donald Rumsfeld, and
Scooter Libby, proclaimed that the
detention of Augusto Pinochet,[3]
the new International Criminal
Court, and the Kyoto Protocol on
global warming were all threats to
American security. John Bolton, now
United States ambassador at the UN,
said at the time that treaties were
simply political acts and "not
legally binding." Richard Perle
declared publicly in April 2003 that
the war in Iraq provided an
opportunity to refashion
international law and undermine the
United Nations.
Sands is particularly concerned
about the frenzied opposition of the
Bush administration to the new
International Criminal Court, which
has been accepted by one hundred
other nations and is now
investigating the current genocide
in Darfur.[4]
The Bush administration, he writes,
is using the ICC as "a useful
stalking horse for a broader attack
on international law and the
constraints which it may place on
hegemonic power."
As for the rejection of the Kyoto
Protocol, Sands recalls with
nostalgia that in 1970, another
Republican president, Richard Nixon,
signed into law the National
Environmental Policy Act, the
world's first comprehensive attempt
to protect the environment. The UN
Charter makes no mention of rules
governing the environment. Nixon
vigorously supported an
environmental program within the UN,
and just before the UN's first
global conference on the environment
in Stockholm in 1972, he proposed a
World Heritage Trust to protect
regions of such unique worldwide
value that they should be treated as
part of the heritage of all mankind.[5]
The United States was also a leader
in adopting the first measures,
taken under the Reagan
administration in the 1980s, to
counteract the depletion of the
ozone layer; it did so against the
opposition of European governments
that were worried about possible
unfavorable economic consequences.
Since 1990, when the report of
the UN's International Panel on
Climate Change revealed a deadly
potential threat to islands and
other low-lying regions that clearly
called for a timely global response,
Sands himself has been deeply
involved in such issues.[6]
He makes it clear that short-term
economic considerations have so far
taken precedence over the enormous
long-term risks involved in doing
too little about climate change.
As he points out, the United
States and OPEC initially opposed an
international convention on climate
change or any timetables to reduce
and stabilize the emission of
greenhouse gases. A preliminary
convention, in a very modest form,
came into force in 1994. In 1997 the
Kyoto Protocol marked a real
commitment to action and provided a
basis for more far-reaching
measures. In signing it President
Clinton praised the protocol as a
major step forward. Sands writes
that Clinton was then informed
somewhat mystifyingly by former
Secretary of Defense Dick Cheney and
a number of other Regan and Bush
officials that the protocol would
"hamstring" American
military operations and undermine
American sovereignty. The Bush
administration soon
"unsigned" the Kyoto
Protocol, claiming among other
reasons that the scientific verdict
on global warming was not yet in.
Alone of all industrialized states,
the United States and Australia have
not ratified the protocol. Whatever
its defects in not adequately
controlling emissions from the large
Asian economies, it remains an
essential preliminary step toward
limiting climate change.
The invasion of
Iraq that started in March 2003
arouses Sands's deepest objections
to what he sees as an unwarranted
assault on international law. The
invasion itself, without benefit of
Security Council authorization, was
a blow to the essential basic
principle contained in Article 2.4
of the UN Charter, which reads:
All Members shall refrain in their
international relations from the
threat or use of force against the
territorial integrity or political
independence of any state, or in
any other manner inconsistent with
the Purposes of the United
Nations.
Sands is equally concerned with
the violation of international laws
in connection with the conduct of
the war. In the Guantánamo prison
hundreds of alleged
"killers,"
"terrorists," or
"unlawful combatants," as
they have been variously designated
by the United States, have been
deliberately put, he writes, into a
"legal black hole," from
which most of them are unlikely to
emerge anytime soon. The basic
principle of habeas corpus has
seldom if ever taken such a beating
at the hands of a leading democracy.
The atrocities at Abu Ghraib and
elsewhere are plainly in violation
of the Geneva Conventions and the UN
Convention against Torture. They
also set a terrible precedent for
the future treatment of captured
Americans.
The 1899 Hague Convention, which
puts limits on methods of
interrogation of prisoners of war;
the four 1949 Geneva Conventions,
which deal, among many other
matters, with treatment of
prisoners; and Article 75 of the
Geneva Protocol I of 1977 mean, in
Sands's judgment, that "no
person can ever fall outside the
scope of minimum legal
protections" against violence,
torture, threats of torture,
outrages against personal dignity
includ-ing humiliating and degrading
treatment, and any form of indecent
assault. This list certainly
describes what happened in Abu
Ghraib and other prisons.
Of course these rules have often
been violated by other states, but
the United States, since 2001, is
unique in claiming, in the words of
Deputy Assistant Attorney General
John Yoo in 2002, "What the
Administration is trying to do is
create a new legal regime."
This was also presumably the basic
notion behind Bush's proclaiming the
right to resort unilaterally to
preventive war as part of his new
national security strategy. To
minimize legal constraints on the
United States and to extract
information from prisoners, Alberto
Gonzales, then White House general
counsel and now attorney general of
the United States, urged the
President to declare that the Geneva
Convention III of 1949 did not apply
to al-Qaeda or the Taliban.
"This new paradigm,"
Gonzales wrote in January 2002,
"renders obsolete Geneva's
strict limitations on questioning of
enemy prisoners and renders quaint
some of its provisions...."
Although Guantánamo, because it
was not in US territory, was chosen
partly to avoid such interference,
from time to time the US judiciary
has tried to stem the
administration's flood of expedient
revisionism. A federal judge halted
the first hearing, after nearly
three years, before a special
military commission established to
try non-American Guantánamo
prisoners. He did so on the grounds
that the proceedings lacked the
basic elements of a fair trial and
violated the Geneva Conventions.
Sands is particularly good at
picking, from an amazing wealth of
material, quotations that capture
the eerie atmosphere of the Bush
administration in the midst of a war
of choice and an unprecedented
assault on international law. On the
Guantánamo inmates, for example, he
quotes Cheney as saying,
"They're living in the tropics.
They're well fed. They've got
everything they could possibly
want."
Sands's discussion of the period
preceding the second Iraq war are
particularly interesting in charting
Bush's relatively unobstructed path
to war as compared with Tony Blair's
far more difficult one. Sands shows
that both leaders engaged in much
dissembling and tinkering with the
truth. He describes the content of
the so-called "Downing Street
memo," which caused a
considerable stir on both sides of
the Atlantic when it was later
published in full in the London Sunday
Times and in these pages.[7]
On March 27, 2006,
The New
York Times reported on another
"extremely sensitive"
British memo describing Bush and
Blair's private two-hour meeting in
the Oval Office in January 2003, of
which several highlights were first
published in the later edition of
Sands's book. The sometimes bizarre
quality of these talks make one long
for the publication of the full
five-page text. Bush apparently
suggested provoking a confrontation
with Saddam Hussein by painting a US
surveillance plane in UN colors in
the hope of drawing Iraqi fire. The
basic theme of the meeting was
Bush's determination to go to war in
early March regardless of Security
Council resolutions, the findings of
UN inspectors, or anything else.[8]
About the performance of the UN
Security Council concerning Iraq,
Sands concludes:
The simple fact is that the great
majority of states who sat on the
Security Council in March 2003 did
not consider that the
circumstances, as they were then
known to be, could justify the use
of force. History has shown that
they were right and that the US
and Britain were wrong. No WMD
have been found. It could be said
that the UN system worked. No
amount of bullying by two
permanent members could buy the
votes they wanted.
He could have added that had the
inspections been allowed to
continue, war probably could have
been avoided, with all credit being
given to the US for putting the
necessary pressure on Saddam
Hussein. Instead, the ostensible
reason for the US invasion was
changed from the alleged threat of
WMDs to regime change. Moreover, as
Hans Blix reminded the Security
Council after inspectors had reached
preliminary conclusions about the
absence of WMDs, "international
inspections and monitoring systems
were to stay in place."
2.
Michael Byers states that the
objective of his book is to
"provide the interested
non-lawyer with a readily
comprehensible overview of the law
governing the use of force in
international affairs." Clear
and informative, his account is
particularly valuable at a time when
there is a worldwide debate, arising
largely from the Iraq
situation—but also relevant to the
genocide in Darfur—about the
circumstances in which it is legally
appropriate for one country to use
force against another or for
international intervention on
humanitarian grounds.
Byers's discussion of
self-defense, the justifying
condition for the unilateral use of
force in the UN Charter, takes up
more than half his book. He goes
back to the case of the steamship Caroline,
which was hired in 1837 by a private
militia to ferry men and supplies
across the Niagara River to support
a Canadian rebellion against the
British. The British set the ship on
fire and floated it over Niagara
Falls, later claiming that they did
so in self-defense and that their
action was justified on political
grounds. When the dispute was
finally, and amicably, settled in
1842, the American secretary of
state, Daniel Webster, conceded that
the use of force in self-defense
could sometimes be justified as a
matter of necessity, but that
nothing "unreasonable or
excessive" could be done in
self-defense.
These criteria—"necessity
and proportionality"—were
widely accepted as the requirements
of a new international legal right
to self-defense. Byers emphasizes
the importance of this precedent as
showing that a country could defend
itself without declaring war, and
that peace could be maintained even
when the right to self-defense was
exercised; he traces the development
of this concept up to the present
time.
The United Nations was the first
international organization to
combine in its charter the three
main rules for maintaining peace:
prohibition on the use of force in
international affairs (Article 2.4);
a provision for the use of force by
the Security Council against threats
to the peace and acts of aggression
(Chapter VII); and an exception for
the use of force by governments in
self-defense (in Article 51). But
the plea of self-defense, as Byers
shows, can be complex when it
involves forceful action beyond a
nation's own territory.
For example, in 1976 an Air
France plane with many Israeli
passengers aboard was hijacked by
Palestinians and taken to Entebbe in
Uganda, where non-Jewish passengers
were released. Facing a deadline for
meeting the hijackers' demand for
the release of fifty-three
Palestinian terrorists, an Israeli
commando team, led by Jonathan
Netanyahu, killed the hijackers,
rescued the Israeli hostages, and
flew them back to Israel. Netanyahu
himself was killed. This action is
now credited as a precedent for
extending the right of self-defense
to protecting nationals abroad.
In April 1993 an attempt to
assassinate former President George
H.W. Bush in Kuwait was thwarted by
the discovery of a sophisticated car
bomb. When Iraq's involvement in
this attempt was established,
President Clinton ordered the
destruction of Saddam Hussein's
Military Intelligence Headquarters
in Baghdad by twenty-three Tomahawk
missiles. The Security Council did
not censure this action, although
the use of force without Council
authorization was condemned by the
Arab League.
The Council did not even consider
President Clinton's response to the
destruction by terrorists of the US
embassies in Tanzania and Kenya when
he fired seventy-nine Tomahawk
missiles at al-Qaeda training camps
in Afghanistan and also at a
pharmaceutical plant in Sudan
suspected of making chemical weapons
for terrorists. Moreover, by
authorizing the US-led operation
against the Taliban in Afghanistan
after September 11, the Security
Council also set a precedent for
using force against a state
harboring terrorists, provided that
the terrorists had previously
attacked the state concerned.
On the even more
controversial question of preemptive
self-defense, Byers cites the case
of Israel's 1981attack on Iraq's
French-built Osirak nuclear reactor,
which the Council unanimously
condemned as a grave breach of
international law. Byers writes that
George W. Bush's policy claiming the
right of the United States to use
unilateral, preemptive
force—widely considered a
dangerous example that other states
may try to emulate —clearly
violates the common-sense criteria
of the Caroline case for
self- defense. He believes that such
a pol-icy as Bush's, if maintained,
could even serve as an incentive to
some states to try to acquire a
nuclear deterrent in self-defense.
He quotes the response of the UN
Secretary-General's High-Level Panel
on Threats, Challenges and Change to
Bush's claim of the right of
preemptive self-defense:
...In a world full of perceived
potential threats, the risk to the
global order and the norm of
non-intervention on which it
continues to be based is simply
too great for the legality of
unilateral preventive action, as
distinct from collectively
endorsed action, to be accepted.
Allowing one to so act is to allow
all.
Byers then examines the current
legal status of the relatively
recent issue of humanitarian
intervention and the obligation to
protect populations in distress,
even from the actions of their own
governments. One of the most
important decisions of the UN Summit
Meeting of September 2005 was to
give a general, although highly
qualified, approval to such
interventions. But as Byers points
out, while Kofi Annan reiterates
that the "security situation in
Darfur continues to deteriorate and
the moral case for action is
overwhelming," the Security
Council has so far agreed only to
deploying a UN peacekeeping
force later this year to take over
from the existing African Union
force, a move strongly opposed by
the Sudanese government. The Council
has also, as mentioned above,
referred the Darfur case to the
International Criminal Court.
Byers's closing chapters on the
protection of civilians and
prisoners of war, and on the various
UN international tribunals, are
characterized by mounting
frustration at the US
administration's contemptuous
attitude toward international law
and legal institutions. Of the Bush
administration's obsessive
hostility toward the recently
established International Criminal
Court he writes:
Only the United States has
actively endeavoured to undermine
the court. With troops in more
than 140 countries, a propensity
to intervene under dubious legal
circumstances, and interpretations
of the laws of war that sometimes
differ from those of other states,
the single superpower feels
vulnerable to international
mechanisms for enforcing
international criminal law.
Whereas the Clinton Administration
sought to negotiate protections
against the abuse of international
procedures into the statutes of
the tribunals it helped to create,
the Bush Administration has
adopted an entirely hostile
stance....
Since coming to office, President
Bush has "un-signed" the
ICC statute, pressured the UN
Security Council into temporarily
exempting US forces from the
Court's jurisdiction, and obtained
more than ninety bilateral
treaties committing individual
countries not to surrender US
citizens to The Hague. Bush has
even signed legislation that
authorizes him to use military
force to secure the release of any
US service member detained by the
ICC. The law is popularly known as
"The Hague Invasion
Act."
Since under the present ICC
statute it is virtually impossible
that the Court would detain a US
soldier, this exceptional—even
paranoid—brand of US
exceptionalism can only add to the
frustration of the nations seeking a
fair and workable international
legal system.
When the UN
Preparatory Commission was setting
up the world organization in London
in the fall of 1945, the European
colonial powers could sometimes
scarcely contain their resentment of
what they saw as the self-righteous
attitude of the US delegation toward
European colonialism and its
abolition. Their resentment
occasionally took the form of rather
feeble allusions to the fate of
American Indians; but I cannot
recall a single reference to
America's many efforts at regime
change in the fairly recent past.
These actions are the subject of the
first part of Overthrow,
Stephen Kinzer's wonderful chronicle
of America's interventions in
foreign countries.
Kinzer describes three periods of
American intervention: first the
"Imperial Era" between
1893 and 1910 (in Hawaii, the
Philippines, Cuba, Puerto Rico,
Nicaragua, and Honduras); second,
the "Covert Action period"
between 1953 and 1973 (in Iran,
Guatemala, South Vietnam, and
Chile); and third, the
"Invasions" since 1983 (in
Grenada, Panama, Afghanistan, and Iraq).
The original announced aim was to
help anti-colonial patriots to
achieve success, as in Cuba and the
Philippines; and then, to the
patriots' surprise, the US would
establish an authoritarian
protectorate. The reasons for doing
so were usually presented as
extending the advantages of American
democratic principles and protecting
US security. In practice, as Kinzer
shows, the principal aims were to
establish the right of US business
to act as it wished, to satisfy a
new national ambition for expansion,
and to add to the strength of the US
economy.
Kinzer quotes a letter from John
L. Stevens, the American minister in
Honolulu, on January 16, 1893, to
Captain Gilbert Wiltse, the
commander of the cruiser Boston.
He comments, "Its single
sentence is a dry classic of
diplomatic mendacity, full of motifs
that Americans would hear often in
the century to come." The
letter reads:
In view of the existing critical
circumstances in Honolulu,
indicating an inadequate legal
force, I request you to land
marines and sailors from the ship
under your command for the
protection of the United States
legation and the United States
consulate, and to secure the
safety of American life and
property.
That, effectively, was the end of
the courageous Queen Liliuokalani's
resistance to the American
annexation of Hawaii.
Although there were impassioned
opponents of such actions in the
United States, William James among
them, Kinzer shows that the
expansionist mood of the 1890s was
already producing justifications
that sound all too familiar today.
American presidents and military
officers, then as now, said they
were intervening in struggles of
"good and evil" for
humanity's sake and had God's
guidance in doing so. "The
parallels between McKinley's
invasion of the Philippines and
Bush's invasion of Iraq were
startling." Kinzer writes:
Both presidents sought economic as
well as political advantage for
the United States. Both were also
motivated by a deep belief that
the United States has a sacred
mission to spread its form of
government to faraway countries.
Neither doubted that the people
who lived in those countries would
welcome Americans as liberators.
Neither anticipated that he would
have to fight a long
counterinsurgency war to subdue
nationalist rebels. Early in the
twenty-first century, ten decades
after the United States invaded
the Philippines and a few years
after it invaded Iraq, those two
countries were among the most
volatile and unstable in all of
Asia.
Kinzer's book is particularly
enlightening about the consequences
of such unilateral interventions. He
writes:
If it were possible to control the
course of world events by deposing
foreign governments, the United
States would be unchallenged. It
has deposed far more of them than
any other modern nation. The
stories of what has happened in
the aftermath of these operations,
however, make clear that Americans
do not know what to do with
countries after removing their
leaders. They easily succumb to
the temptation to stage coups or
invasions but turn quickly away
when the countries where they
intervene fall into misery and
repression.
Brushing aside
fifty years of international law in
the name of the "global war on
terrorism" is a bad idea for
everyone, including the United
States. Violating global rules
undermines both America's authority
and standing and its long-term
strategic interests. An already
globalized and interdependent world
cannot permit a return to a
situation where each nation is
entirely free to act as it wishes.
To use Sands's words, the United
States, like other countries, badly
needs international agreements and
international cooperation to promote
and protect its own interests, and
cooperation requires rules. The
conclusion seems plain: the United
States should reengage in respecting
and developing the rule-based system
that it largely initiated after
World War II and which has for many
years served it well.
Such an approach could certainly
not have worse consequences than the
recent attempt to abandon the idea
of international restraint and go it
alone. Some US administrations have
vigorously supported international
regulation in the past. On April 1,
2005, Secretary of State Condoleezza
Rice told the annual meeting of the
American Society of International
Law that the US "has been and
will continue to be the world's
strongest voice for the development
and defense of international legal
norms." She added that America
"has historically been the key
player in negotiating treaties and
setting up international mechanisms
for the peaceful resolution of
disputes." As Sands comments,
"These are important words, but
they remain just that."
A more down-to-earth perception
of the situation was expressed in
May 2004 by US Senate Foreign
Relations Committee Chairman Richard
Lugar, who was speaking of the US
Senate's delay of some ten years in
acceding to the Law of the Sea
Treaty, a delay largely caused by
those Americans who have argued that
the treaty restricts the exploration
and exploitation of the seabed.
Lugar posed the question that the US
has still to face:
If we cannot get beyond political
paralysis in a case where the
coalition of American supporters
is so comprehensive, there is
little reason to think that any
multi-lateral solution to any
international problem is likely to
be accepted within the US
policy-making structure.[9]
Notes
[1]
In a later, paperback edition
published by Penguin in the UK in
early 2006 and to be published in
the US in September, Sands has added
a chapter on how the British
attorney general, Lord Goldsmith,
during March 2003, came to change
his advice against going to war in
Iraq without a second enabling
Security Council resolution. Whereas
he had previously said that the
legality of military action without
a second Security Council resolution
was "only reasonably
arguable" and "would
probably fail in a court of
law," he then reversed himself
and produced a clear and positive
opinion a few days later. This
second opinion was of particular
importance to Admiral Sir Michael
Boyce, the UK chief of defense
staff, who had demanded a clear and
unequivocal legal opinion before
committing troops to the invasion of
Iraq.
[2]
Secretary-General Kofi Annan has
outlined the elements of a UN
strategy on terrorism as follows:
first, to dissuade disaffected
groups from choosing terrorism as a
tactic to achieve their goals;
second, to deny terrorists the means
to carry out their tasks; third, to
deter states from supporting terror-ists;
fourth, to develop state capacity to
prevent terrorism; fifth, to defend
human rights in the struggle against
terrorism. See Javier Ruperez,
"The Role of the United Nations
in the Fight Against Terrorism: A
Provisional Balance," Perceptions,
Summer 2005.
[3]
Sands characterizes the denial of
Pi-nochet's immunity under English
law as "a transforming event in
international law." Since that
time, two former heads of state, the
late Slobodan Milosevic of
Yugoslavia and Charles Taylor of
Liberia, have been brought before
international tribunals for crimes
against humanity.
[4]
Faced with the Security Council's
inability to agree on stronger
measures to end the genocide in
Darfur, the United States did not
block the referral of the Darfur
case to the International Criminal
Court. The Court's chief prosecutor,
Luis Moreno Ocampo, is now engaged
in building a case against those
responsible for the atrocities in
Darfur. See Elizabeth Rubin,
"If Not Peace, Then
Justice," The New York Times Magazine, April 2, 2006.
[5]
The trust now protects more than
seven hundred cultural and heritage
sites, from Kew Gardens outside
London to the Galapagos Islands six
hundred miles off the coast of
Ecuador.
[6]
In 1989 Sands created a public
interest law firm to provide free
legal assistance to developing
countries on environment and
development. With a grant from the
Ford Foundation it provided free
legal assistance on global warming
to a group of some forty island
states mainly from the Pacific and
the Caribbean. The group eventually
organized itself into the Alliance
of Small Island States.
[7]
See The New York Review, June
9, 2005. The memo has now been
published with other documents in
Mark Danner, The Secret Way to
War (New York Review Books,
2006).
[8]
See Don Van Natta Jr., "Bush
was Set on Path to War, Memo by
British Adviser Says," The
New York Times, March 27, 2006.
[9]
Senator Richard Lugar, "The
Importance of Acceding to the Law of
the Sea Convention,"address
at the Brookings Institution, May 4,
2004.
