Examination of Witnesses (Questions 300-319)
PROFESSOR PHILIPPE
SANDS QC
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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