Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 300-319)


19 APRIL 2006

  Q300  Mr Purchase: Fair enough. For USA substitute Bush.

  Professor Sands: I think there is a very significant internal battle going on even within the Bush Administration in terms of the nature and extent of its engagement with global rules. There are parts of the Bush Administration that remain very strongly committed to its traditional approach, recognising that a rules-based system has provided tremendous support and advantage to the United States over the last 50 years—in the economic field, in relation to intellectual property rights and also in relation to force. You see that, for example, in the statements of Senator McCain, a Republican senator, who has led the charge against the Administration's efforts to undo the rules. But there is also another camp that is apparently led by the Vice President and by the Secretary of Defence and formerly also by Mr Wolfowitz, who believe that the rules are a fundamental threat to the United States, that they restrain the United States. You can see that most clearly in a statement of 1997 during the Administration of President Clinton by the very individuals who now occupy these high offices, in a document called The Project for a New American Century. The Project for a New American Century has a statement of principles which basically says that international law is part of the problem, we need to get rid of it, we need to remove these constraints from ourselves, and unconstrained by rules of better international law we would better be able to protect our national security. I think left to their own devices these gentlemen would get rid of the rules altogether on the belief—mistaken in my view, mistaken in the view of Senator McCain, mistaken in the view, I think, also of Secretary Rice—that the US is somehow threatened by the global rules.

  Q301  Mr Purchase: So the other side of that coin? Who gets disadvantaged?

  Professor Sands: The other side of the coin is the thesis I hold to—and which I think most people would generally accept—that in a complex globalising world we have an interest in a rules-based system setting forth minimum standards of behaviour. If you start unilaterally tinkering with the rules and getting rid of the ones that you do not like, others will do the same thing in relation to the rules that they do not like. The great issue that is coming up is China. China, until the 1990s, was not a party to many of the multilateral instruments that we are very familiar with—the human rights instruments, the World Trade Organisation, the intellectual property instruments—and the Clinton Administration and indeed the previous Bush Administration expended a great deal of political capital in trying to persuade the Chinese to ratify all of these treaties, and by the end of the 1990s the Chinese had ratified the human rights instruments, the WTO and various other instruments. At the very moment that they have ratified them all in comes a new American Administration to basically shred the rules that have been put in place. So coming to your question, I think the crucial issue within the United States that is being asked right now is to what extent are America's principal emerging competitors, including the Chinese, better off unconstrained by global rules or subject to global rules—I think that is where the debate is heading—and I think the emerging dominant group is beginning to recognise that the Administration and the United States is better off with the Chinese, with the Indians and with other emergent economic powers constrained by global rules, than acting entirely unconstrained by a rules-based system.

  Q302  Mr Illsley: Following on with this theme of an assault on the international rules—and I think one of your conclusions is that the robustness of the international rules system, the international law as we have it, is such that it will withstand this assault and that eventually we will return to a situation of the pre-Iraq war whereby the international law regime will hold good. But looking at Guantanamo Bay where, for some three years now, you have a group of people who are not classed as combatants, so they are outside the Geneva Convention, they have no status within the United States Judiciary because they are outside of the American territories, and you have this group of prisoners who are simply prisoners with absolutely no status anywhere within the international regime, how confident are you that the regime will come back to normality, given that we are three years into this and there are people in America commenting that these guys could be in Guantanamo Bay for the rest of their lives?

  Chairman: You have a quarter of an hour to think about the answer! We will come back in 15 minutes and continue.

The Committee suspended from 2.59 pm to 3.13 p.m. for a division in the House

  Q303 Chairman: Professor Sands, if you would answer Mr Illsley's question, thank you.

  Professor Sands: I do not want to be unduly optimistic nor do I want to be unduly starry-eyed about the state of international law or its prospects for resolving all the ills of the world, but there are strong signs that the all-out assault has failed. Whether you look at Senator McCain's efforts successfully to get the US to reengage with its obligations under the Torture Convention or whether you look at the rules governing the use of force, which were decided by the leaders of the world at the UN Summit in September 2005 as adequate to meet all of the changes that we presently face, including the United States, including—and it must have been rather painful for him to sign off on it—John Bolton signing the Millennium Outcomes document, I think what has concentrated minds is the recognition that if you abandon the rules you pay a significant price. The situation that we now face in Iraq is plainly worse than it would be if the rules had been followed and the present events in relation to Iran, which are beginning to concentrate the mind on the adequacy of the rules and the circumstances, if any, in which force can be used has, I think, brought even the Bush Administration back to a re-engagement with multilateralism, and even in the last 48 hours President Bush has said without excluding any other options we will go down the multilateral route of diplomacy, if we can, to sort out the Iran situation. The difficulty, of course, is that we heard precisely the same thing in relation to Iraq and we now know that whilst public words were being given on the diplomatic and multilateral route, privately other actions had already been decided upon. So there is a certain scepticism, but subject to that I think that there is a broad recognition that the rules generally serve a useful purpose and you pay a price if you abandon them.

  Q304  Mr Illsley: I came back from America yesterday and running over the weekend were comments by Senator Lugar, Chairman of the Senate Foreign Relations Committee, who had called upon President Bush to negotiate directly with Iran, which might have prompted his comments on multilateral diplomacy. The Committee met with Lugar during its last visit to the USA and with Senator McCain and one of the things Senator McCain said to us was there has to be a process for Guantanamo, and he was taking the argument that whether it was the Geneva Convention or whether it is a new process there has to be a process to address this issue. Yet we are not seeing any progress in relation to that. I was wondering, given that in America now there are articles appearing and generals are being interviewed on TV setting out how many troops it would need to invade Iran and what the strategy would be for military strikes. So this is gathering momentum—and I hope this does not happen—and it looks as though in the future this type of ad hoc attack on other countries for regime change or whatever is likely to be the norm, rather than how we would expect a properly conducted war with declarations and so on, against a war against terrorism, and it is likely that this informal assault on the rules is going to continue for years to come. I take a pessimistic outlook towards it and I cannot see any end to it.

  Professor Sands: I am afraid I disagree very strongly with that view. If you look at the situation in Iran, what is going on in Iran, the allegation is that it is engaged in the production of nuclear material for the purposes of producing an atomic bomb. If that is the case—and facts obviously are central—it would be in violation of its obligations under the 1968 Treaty on Non-Proliferation of Nuclear Weapons. Imagine the scenario now in Tehran when Jack Straw or Condoleezza Rice or Tony Blair or George Bush tell the Iranians that they are not complying with their obligations under international law. The Iranians turn around and they say, "You have not been complying with your obligations in relation to Abu Ghraib, in relation to Guantanamo, in relation to the use of force in Iraq." What has happened is that the credibility of Britain and the United States has been significantly undermined and that is broadly recognised in both countries. There is, therefore, in both countries an effort—the right effort, I think—to re-engage. If you are going to have a go at other countries for breaking the rules you need yourself to be in a situation in which you can credibly say you are meting your international obligations. Regrettably that is not the situation and I fear that it will not be the situation until we have a change of government in both this country and in the United States because the credibility of both heads of governments has gone, because of what happened in the road to war in Iraq. In the meantime the central and crucial thing to do is to re-engage public trust and I think that is what Senator Lugar and Senator McCain are trying to do, and I think they are doing it pretty successfully and they are doing it off the back, also, of an effort by others who have been very senior in the Bush Administration, who have publicly stated that they consider, for example, that Vice President Cheney has violated the rules of international law such as he himself may be a war criminal. The highest authority to have done that is Lawrence Wilkerson, who was Chief of Staff of Colin Powell throughout the entirety of the first Bush Administration, and that leads me to the answer to your question, which is that the United States is a complex country in which political processes take time, but there has been a backlash against what has happened and there is now, I think, a concerted effort to reengage with its classical traditional position and marginalize those who say you can consign people to a legal black hole, you can use force against recalcitrant States and you can do X, Y and Z. So my reading is that the situation is changing, but I think it is absolutely right to be cautious about the state in which we find ourselves.

  Q305  Mr Pope: What happens when the international rules shortchange us? Intervention in Kosovo in the late 90s was probably illegal under international law but was certainly defensible morally, I would posit to you. So what happens when the rules are not good enough; the rules that were drawn up a long time ago are not fit for purpose in a modern world against failed States, rogue States. What is your view of that?

  Professor Sands: Assuming the assumption that underlies that question is right then obviously States and governments have a duty to reassess the adequacy of the rules. In the case of Kosovo it is probably right that the majority of international lawyers would have said that that use of force was contrary to international law. My own view is that there was a decent argument to be made in circumstances where mass atrocity is happening or is likely to be about to happen that States cannot sit idly by and do nothing when the Security Council fails to act. Interestingly, in the context of Kosovo after that conflict the Security Council did act and did adopt a resolution which, in the eyes of some, myself included, amounted to an ex post facto justification of the use of force. Of course that has not happened in the context of Iraq, but again very sadly because of the circumstances in which the war in Iraq was arrived at, the emergent justification that States could use force to protect fundamental human rights in third countries where the Security Council does not react has been stopped in its tracks, and it is understandable why it has been stopped in its tracks because other countries around the world are highly sceptical, to speak frankly, of claims by large or middle-sized western powers that they are going to use human rights justifications to use force. So another price we have paid for Iraq, regrettably, is that it has made it much more difficult to justify the use of force in relation to Darfur or in relation to other places where a response is needed.

  Q306  Mr Pope: So if Tony Blair had been successful in getting a second resolution in the spring of 2003 it would have been legal?

  Professor Sands: Yes.

  Q307  Mr Pope: Are you saying that the determination of legality is whether or not we can persuade the French?

  Professor Sands: The determination of legality is simply whether or not we follow the rules. There are five permanent members of the Security Council; they are each entitled to exercise a veto and each has on different occasions, and it is part of the rules of the game that if one of the permanent members exercises a veto that is, according to the rules, the end of the matter. I happen to have spent some time reading very carefully the statement that President Chirac made, which was used to justify the claim that France would have vetoed a second resolution under any circumstances. He did not say that; he was very, very careful what he said. He dealt with the situation as it was in March 2003, namely on the basis of the facts then available there was no justification to authorise the use of force because there was no compelling evidence that Iraq was in further material breach. I have included further material in the book and from my perspective it would be entirely appropriate for this Committee to seek through its own methods to obtain some of that material because if I have seen it then certainly this Committee also ought to see it. But that material includes communications between the Foreign Secretary and the Prime Minister in which the Foreign Secretary recounts to the Prime Minister a telephone conversation with Colin Powell in which Colin Powell, coming to your question, says, "If there is insufficient evidence to get a second resolution then the US should not act unilaterally." That is the same answer that I have just given you and I think it is the right answer.

  Q308  Mr Pope: We can debate whether or not President Chirac said "never", which I think he did. Are you suggesting to the Committee that this, de facto, makes the Prime Minister a war criminal?

  Professor Sands: I think the war was illegal. I think the material that has been put into the public domain, in my book and in an article in The New York Times, makes it clear that the decision to go to war was taken before the United Nations' process was over. In those circumstances the Deputy Legal Adviser at the Foreign Office, Elizabeth Wilmshurst, resigned, and in her resignation letter—which you will also find in the book—she makes it clear that the reason she felt compelled to resign was she could not contribute to the work of a government which was engaged on waging an illegal war that constituted the crime of aggression. In those circumstances it does indeed appear strongly arguable that those who prosecute an illegal war could be subject to investigation for the crime of aggression.

  Q309  Sandra Osborne: In relation to having a rules-based international law, that can only surely work if it is seen to be fit for purpose and reform of the United Nations is at best faltering, partly due to the influence of the United States. So what is your take on the capacity of the United Nations to deliver in the modern setting?

  Professor Sands: The United Nations was designed for a world as it was constructed in 1945, and I think as some of the questions of your colleagues have made clear the world has changed very significantly since 1945. There are far more States—there were only 51 States originally in 1945 and there are now about 200. There are malign non-State actors who are committed to doing very nasty things to lots of people around the world and the structure of international legal order was not really designed to deal with those types of entities. Over six decades the United Nations has evolved and last year the high level panel convened by the Secretary General of the United Nations, with the support of all the permanent members of the United Nations, produced a high level report which identified areas for political change in the structuring of the United Nations. Governments deliberated for about a year on that high level report and governments agreed on some of the changes that needed to take place, but they were not able to reach agreement on all of the changes and I think it would be wrong to identify any single permanent member or any single country as having been particularly problematic in those changes—the United States is a sovereign state, it is entitled to have its views and put them through the negotiating process; the Russians have their views, the Chinese have their views, Britain had its views, France had its views—but ultimately the changes which were adopted were regrettably very limited and I think insufficient to apply the changes that the Secretary General's high level panel required, particularly, for example, in relation to the question of a state's responsibility to protect. What do you do when a massive and fundamental violation of human rights is taking place in another country, do you stand by and do nothing at all? The high level panel came up with reasonably specific rules to try to move the UN rules along a little bit and State said, "No, we are not having that, we are basically satisfied with the rules as they are." So at the end of the day it is very easy, I think, to point the finger at the United Nations, but State members of the United Nations have the responsibility for making the changes and in their wisdom they have decided that they are going to stick more or less with the United Nations that they have, subject to a few changes, some of which are rather cosmetic.

  Q310  Sandra Osborne: We heard the view in the United States that because of that the UN in some ways could not be relied upon to take decisive action when that was necessary and that that situation could not continue. What would be your view on that?

  Professor Sands: I would agree with that view in the circumstances which are described in your question. The crucial issue is: who decides whether the rules are inadequate? That in essence was the problem with Iraq and the difference between Iraq and Kosovo. In Kosovo you had, broadly speaking, a decent coalition recognising that action was needed; in Iraq that did not exist and that de-legitimised what happened in Iraq. But coming back to the fundamental question: are the rules adequate to deal with the threats that we now face? My view is that they are adequate, that if the State finds itself in a situation in which a malign organisation, al Qaeda or some other entity, is assembling weapons of mass destruction, it does not have to wait until the Security Council has authorised the use of force; if it is threatened by the actual use of force it is entitled to use force in self-defence. So those rules remain adequate to deal with a changed situation. So it is the positive side of the rather amorphous nature of international law rules that they are sufficiently ambiguous to evolve with time to take into account new situations. They are not set in stone.

  Q311  Sandra Osborne: If that view was really put to us in relation to Iran and the Security Council's capacity to deal with that situation what would be your view of that, and could you see a situation where military action would be legal?

  Professor Sands: I think that is, with respect, a very important question. We are at the beginning of a process in which I think the first stage is to establish what the facts are. It appears, on the basis of what is already in the public domain, according to the International Atomic Energy Agency and Mr ElBaradei, that there is pretty strong evidence that Iran is engaged in an activity which is not consistent with its obligations under the Treaty on Non-Proliferation of Nuclear Weapons. Assuming those facts are correct and assuming that Iran persists in its actions what is to happen? At the first stage we are in discussion right now of moving the debate to the Security Council and the Security Council has adopted a first declaration urging Iran to bring itself into compliance with its international obligations. You will note in particular that the Security Council was not able to reach agreement on a resolution—it is called a declaration—and part of the reason they could not reach agreement on a resolution which would have a binding effect was the concern of what had happened with Iraq. If you adopt a resolution one or two countries may then unilaterally say, "That entitles us to act in that particular way," and a number of countries were concerned that that should not happen again. Let us assume that after the declaration Iran does not bring itself into compliance what happens next? It goes back to the Security Council, the Security Council adopts, one assumes, a resolution, negotiations go on and ultimately a point may be reached in which there is a stalemate and in which the Security Council tells Iran what to do and Iran refuses. In those circumstances, which are some way down the line, the President of the United States has said that he does not exclude any options, including the use of force. I think it is premature to reach a firm view on what ought to happen in those circumstances but one can see two arguments. One argument is that when a State which is a party to the Treaty on Non-Proliferation of Nuclear Weapons violates its obligations and is found to be in violation by the Security Council, States are entitled to use force in self defence. That might be one view that could be put by the Bush Administration, adopting a particular interpretation of pre-emption. Another view would be that in those circumstances it is only for the international organisations concerned to act and that anything that falls short of a threatened use of force against an individual State or a group of States will not justify the use of force until it has been authorised by the Security Council, perhaps in association with the International Atomic Energy Agency. Judging by the statements of the Foreign Secretary he is rather hoping that in the coming months things will become clearer as to which of those two views are likely to emerge and dominate.

  Q312  Richard Younger-Ross: I wonder if you could talk a little about what I call "legal creep". You talked about the international laws being amorphous—moving—and you stated earlier that the US was trying to change international law and in some cases you have stated actually flagrantly breaching international law. How far do you think their actions have changed what is regarded as legitimate action?

  Professor Sands: I have talked a lot about the use of force; let me talk about another area of human rights. I wear two hats: I am an academic and I am a practising barrister and as a practising barrister most of my work involves acting for foreign States or European States so I get to work with a lot of governments. A number of governments in various parts of the world have said to me, at levels of Foreign Minister and President, "Since Britain and the United States now believe there is no problem of taking people off the streets and banging them up indefinitely, in circumstances which previously they had said would violate international law, we do not see why we cannot do the same thing." That it is the flipside of legal creep, if you like; it is that very regrettably two of the countries that have been most associated with a rules-based system have engaged in actions, one rather more directly than the other, which have tended to legitimise actions of other countries which are not consistent with international law obligations. So it has had that unfortunate effect. To put it in hard terms: if the United States is able to say unilaterally there is a new category of persons who are not criminals and who are not combatants but who fall into a legal black hole such that they can be locked up indefinitely, then other countries are going to do the same thing when they find individuals who are engaged in terrorist acts or alleged terrorist acts, and so a precedent has been set, which I think is a very unfortunate precedent, and that is why my understanding is that within the Foreign Office in particular there is a concerted effort alongside various elements in the State Department in the United States to get Britain and the US batting back with the international rules because of the unfortunate precedent that has been set.

  Q313  Richard Younger-Ross: You have spoken about it will change when the Bush Administration goes, you have spoken that there is hope for change when Blair eventually stands down, as he has told us he would. What other measures do you think will have to happen for us to get back to the protection of basic civil rights where you can walk along the street and not just be arbitrarily arrested?

  Professor Sands: I think one of the elements that has characterised this country rather differently from the United States—and I spend amounts of time in both countries so I have seen it at first hand—is there has been a very vibrant debate in Britain over the right balance or balance to be struck between security and fundamental rights, and it is always a difficult question and I think in Britain we can be pretty comfortable that the debate, including in this House, has ensured that a wide range of views have been put forward, and I think that is the heart in a democratic society of making sure that fundamental values, security and civil liberties are protected, and I think we have had that debate in Britain and we are continuing to have that debate in Britain. I have to say that it has not happened to the same extent in the United States and famously President Bush said, "If you are not with us you are against us," and that has tended to stifle political debate and political opposition and political challenge to things like the Patriots Act, and I think that has left the United States in a rather unhappier place than is Britain today. But I think that is the starting point and I feel rather proud as I go around the world with people recognising the extent to which there has been a full debate with a wide range of views being expressed, and that is the starting point—that is the heart of it, I think.

  Q314  Richard Younger-Ross: And the closure of places like Guantanamo Bay, the release of prisoners in Afghanistan, would also have to occur before we could move on?

  Professor Sands: I think Guantanamo should be closed down tomorrow. Guantanamo is terribly undermining of a legitimate effort to protect against a serious threat and it is being used mainly as an indication of the values that our societies purport to hold dear not being followed when their vital interests are at stake, and I think it has been terribly undermining in that sense. I recall here a statement made by the great American diplomat, George Kennan, who wrote a famous telex in 1947 from Moscow, where he was posted for the State Department, on the emergent Soviet threat, and he ended that telex by saying, "The greatest threat that can befall us as a nation is to become like those who seek to destroy us." I think that is what we have to keep our eye on, and I think pretty much we have been able to keep our eye on that in this country.

  Q315  Mr Maples: I sense a dichotomy in your view about two separate kinds of intervention, but I wonder if you could perhaps clarify it for me. You seem to say that on Kosovo, which I think most international lawyers, certainly at the time, would have said was illegal—certainly in 1980 would have said was illegal—we did it not only without a UN resolution but knowingly could not get one, but you say international law moves and humanitarian intervention moves and you are perfectly happy that the humanitarian consequences of not taking action there justified taking action, but in the case of intervention to prevent or pre-empt an attack on yourself you say the existing rules of self defence are enough. But clearly if Iraq had been—which I think is a matter of dispute, although I do not personally think it was—sponsoring international terrorism, or if it had, as most people believed, been developing nuclear weapons, then the rules of self defence surely would have extended to the point of intervention. If we had known that it was developing nuclear weapons are we saying that the rules of self-defence have not extended that far? Perhaps there is not a difference in your opinion here and I am imagining it, but the UN Charter says somewhere that except for Article 51 you cannot intervene in the internal affairs of another country, and you are saying that you can on humanitarian grounds but you cannot to prevent a nuclear attack on yourself.

  Professor Sands: I think that that is a very fair question. Can I just indicate my different view? I do not believe that in relation to nuclear weapons as of March 2003 the people who were in the know believed that Saddam's government was developing them, and I do not think that is in fact the case. But putting that on one side you have asked, I think, what is a very fair question and an important question. Classically there are two grounds to use force in international relations under international law: one, in self-defence, Articles 2(4) and 51 of the United Nations Charter; and, two, where authorised by the Security Council. In classic international law there is no third ground, but the United Nations Charter, when it was adopted in 1945, put into its preamble into Article 2 a commitment to protect fundamental human rights, which was in tension, if you like, with the fundamental sovereignty of each State—what happened if the State was violating its fundamental human rights of its nationals or of others internally? In those circumstances the classical rules of international law appeared to say that you could do nothing if the Security Council did not authorise you to act. Over a period of 50 years there have increasingly been calls by academics and by some States and by some governments to say that there is an emergent third circumstance in which the use of force would be justified. If a State is massively and systematically violating fundamental human rights, and if the Security Council has failed to act, then in those circumstances you cannot stand idly by and do nothing. I am supportive of that emergent third way, so to speak, in the development of international law rules but I recognise that States have not yet accepted unequivocally that there is such a right to use force, and crucially the issue, as with many of the issues, turns on the particular facts of the case in question, and in relation to the facts in question there is a second issue which is fundamental and that is credibility of motive. That, I think, is what links humanitarian intervention with self-defence. At the end of the day we are dependent on governments that regain the trust of their populations. If a Prime Minister or a President says, "This is the situation and this is why I have justified these actions" we want to believe that that is in fact the situation, and anything that undermines credibility and trust undermines the effectiveness of the rules-based system. Both in relation to use of force by means of self-defence if a third entity is developing weapons of mass destruction or humanitarian intervention the concern is that those justifications will be used in circumstances where the facts do not authorise them for ulterior motives, and that is the difficulty that we have.

  Q316  Mr Maples: That is one of the dangers of developing it. But it seems to me—and I come back to my point—that you are saying that Kosovo was perfectly legal, there was a humanitarian disaster—although I think 30 people had been killed in Kosovo by Milosovich's forces before we started bombing Serbia—but the possibility of a rogue State—and I think Iran probably falls into the category of rogue State by most of us by its issued threats to destroy another country, and most of us think it probably is developing nuclear weapons but we it will be very difficult ever to prove it—but it is okay to intervene after 30 people have been killed by some rogue security forces by a very unpleasant government like Serbia's, but it is not okay to intervene in Iran where we think maybe it is developing nuclear weapons which might kill millions of people. Similarly, I find it difficult to believe that international law cannot move to cover the so-called illegal combatants that the United States has got, mostly at Guantanamo. These are people who are not prisoners of war in the sense that they would be covered by the Geneva Conventions. They were mostly captured on a battlefield in Afghanistan (some were not but most were) and the idea that we can put all those people on trial in the civil courts in the United States seems to me to be totally impractical. First, there could be thousands of people in such a circumstance and, anyway, if you have arrested them who has got the evidence? You are not there like a policeman collecting criminal evidence. Surely international law must be able to move on these two issues as well. I am not saying that if you are in Guantanamo you are not entitled to have your human rights defended but I cannot see that international law cannot move to cover people who are neither prisoners of war covered by the Geneva Conventions nor criminals or subject to criminal charges in the normal sense, but can move on humanitarian intervention.

  Professor Sands: If I can deal first with your second question, classically you bifurcate. You either go down the criminal law route, which is what Britain did in relation to the IRA, rightly in my view, and do not elevate criminals into warrior status, or you treat them as warriors. Either way there are rules which govern their treatment. I do not believe there is a third category. The individuals who have not been wearing uniforms or distinctive signs or recognising the rules of war in armed conflict do not fall into a middle category. They are combatants who are acting illegally and they can be held as security detainees in accordance with the Geneva Conventions. You do not need a Guantanamo type of place to put them in. The rules are perfectly adequate already to deal with that situation and the Red Cross, as the guardian of the treaties, has made that absolutely clear, so I do not accept that there is a need for some sort of third category. The existing categories are clear. I would add also that I think a great mistake was made by the Bush administration but not by the Blair administration in characterising the response to 9/11 as a "war on terror". Having done that, they set aside the rules of criminal law but they also then recognised that the rules of armed conflict, humanitarian law, were inadequate and hence they had to create this third category and that is why they have got themselves into this difficult mess. The British Government does not use the concept of "war on terror" and it is one which is I think best avoided for all the reasons that have now become clear. In relation to your first question, I do not know, Chairman, whether there is time to deal with it.

  Chairman: Probably not. I am conscious of time. I have three of my colleagues who have indicated that they want to ask questions. I also have another witness waiting outside. I am in your hands. If people feel that there is something they really want to ask and they are going to be brief and ask one question, then I will take it. Otherwise I am going to conclude things.

  Q317  Mr Hamilton: Chairman, there were a few things I wanted to ask but I will stick to one. Can I follow up something you said about Iran and its membership of the Non-Proliferation Treaty to which it is a signatory? What happens in international legal terms if Iran withdraws unilaterally from the Non-Proliferation Treaty? Are they then outside the rules and there is nothing the United Nations or international law can do about their development of nuclear weapons?

  Professor Sands: They are limited by the rules of international law, including the treaty itself, as to the circumstances in which they can withdraw. I have not, I am afraid, looked at the withdrawal clauses of the treaty so to be able to answer your question in full, but in simple terms they cannot simply announce that with effect from tomorrow they are no longer parties to the Treaty on Non-Proliferation of Nuclear Weapons. More significantly, in the most recent review conference, the 1995 Review Conference on the Treaty on Non-Proliferation of Nuclear Weapons, they transformed their undertaking not to develop nuclear weapons from a 30-year commitment to an indefinite commitment and that would have implications for the circumstances in which they could withdraw. But plainly you are right in this sense: states as sovereign entities are free to ratify treaties and, in accordance with the relevant rules, to opt out of them. Depending on whether opt-out is permitted, it may be that it is possible for them to withdraw, as North Korea did, from the Treaty on Non-Proliferation of Nuclear Weapons, and that, of course, would leave them in a circumstance in which they would not be open to the criticism that they are not complying with their international legal obligations and would transform, I think, the nature of the legal debate as to what can be done to respond to that situation.

  Q318  Andrew Mackinlay: I want to take you back to your view, the way I understand it, which is in a sense that not only the United States but also Prime Minister Blair had committed themselves to regime change come hell or high water, as it were. It is an area which troubles me personally and all the people who voted for this. In the period just before it became clear that there was not going to be a second UN resolution I (and probably others here) met the Prime Minister with two other Members of Parliament and I put to him the question that if there was compliance—and by "compliance" I meant full disclosure, access and destroying weapons of mass destruction if they were there—would an invasion be avoided. He replied to me —and I remember it well because he referred to the President in first name terms; he referred to him as "George"—that he put this to the President of the United States, that if there was full compliance by Saddam there would be no invasion, and he told me that the President of the United States confirmed that was so. Why I put that to you is because that particular period was an important part of my life, as with everybody else here; we shall think about it till the day we die—our decisions, our dispositions. The Prime Minister made it clear to me that if there was compliance by Saddam there would be no invasion. That was both his desire and the undertaking given to him by the President of the United States. I wanted to put that to you because I really want to find out what you think about that.

  Professor Sands: The only material that I can direct you to, and indeed I would invite the committee to obtain a copy of it in order that it can inform its own view, is the memorandum of 31 January 2003 describing the meeting between President Bush and Prime Minister Blair. The New York Times has described it as a five-page memorandum. The President says in express terms that irrespective of what the inspectors find the war will begin on 10 March 2003, irrespective of whether there is a second resolution, and the Prime Minister says, and I quote, that "he was solidly with the President and ready to do whatever it took to disarm Saddam". On that basis it appears that the Prime Minister's statement to you was inconsistent with what he told the President of the United States on 31 January 2003.

  Q319  Ms Stuart: Feel free to say, "I will drop you a note on that" because I genuinely want to take you back to your undergraduate days when you did Kelsen and Grundnorm, and what you said about this emerging third way for the application of the force. Can you think of another way, which will be a kind of accepted third application of the force other than an example where a country will go ahead and break the rules but is successful and then we come and accept it, in the current way the UN is structured such that we will get to a sensible set of rules which will define the right of intervention, and I use as an example Zimbabwe, and I am happy if you just drop us a note?

  Professor Sands: You have raised, obviously, a hugely important and significant question. I just come back to what I said before: the law is moving in a particular direction. The crucial issue is, what are the circumstances in which that is justified and, most centrally, how can we be satisfied that motives for action are genuinely what the proponents for action say they are, but I will certainly drop you a note. [1]

  Chairman: Professor Sands, thank you very much for coming along. We have covered an enormous area in quite a short time and we are grateful to you.

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