PM may be targeted by criminal indictment: lawyerReporter: Tony...

PM may be targeted by criminal indictment: lawyer
Reporter: Tony Jones

TRANSCRIPT

TONY JONES: Now to the international lawyer who claims that John Howard might one day find himself targeted by a criminal indictment in a foreign country over his decision to go to war in Iraq. Philippe Sands QC is the Professor of Law at University College in London. As a barrister he was involved in cases before English and international courts, including those concerning the former Chilean dictator Augusto Pinochet, the British detainees at Guantanamo Bay and detained asylum seekers in the UK. He's also an author and his latest book is called Lawless World - America and the making and breaking of international rules. He's currently in Australia on a speaking tour and he joins us now from our Melbourne studio.

TONY JONES: Philippe Sands, thanks for being there.

PHILIPPE SANDS, INTERNATIONAL LAWYER AND AUTHOR: Very good to join you this evening.

TONY JONES: Thank you. Can I start by asking you to tell us more about what you've described as the "most remarkable moment of your professional life" when the deciding vote was cast in the House of Lords over the decision of whether Augusto Pinochet should have immunity.

PHILIPPE SANDS: It was a fateful day in November 1998 when the judicial committee at the House of Lords, the Law Lords, decided by three votes to two that Senator Pinochet was not entitled to claim immunity in relation to an extradition request from Spain for charges concerning his activities whilst he was a Head of State - torture, disappearing people and so on and so forth. The significance of the judgment was it was the first time that any national court had said a former Head of State or a former head of Government couldn't claim immunity. It was always thought that immunity attached even after individuals left office. It was a remarkable moment when the fifth judge, Lord Hoffmann, at 2-2, a score draw, gave his vote in favour of no immunity and you hear on the web site of the BBC if your listeners would care to listen to it, an audible intake of breath as a moment when the international legal order really changes.

TONY JONES: Okay. What were the implications of that decision for former heads of state and former officials? I'm thinking in this case of Margaret Thatcher in particular who apparently does constrain her travel arrangements these days and Henry Kissinger who has to do the same.

PHILIPPE SANDS: It signalled a real change in the nature and purpose of the rules of international law and a coming of age of the human rights rules and the humanitarian rules that Australia and Britain and the United States had done so much to put in place after the World War II. The consequences in practical terms are that any Head of State or Head of Government who's engaged in activity which could give rise to a criminal investigation abroad at the level of international crime, it's got to be at that serious level, faces the prospect of investigation when abroad. To give you an example, Henry Kissinger was in Europe not so long ago publicising a new book and he took the decision not to go to Paris, I understand, because there was a credible concern that he might be the subject of a request for extradition in relation to activities he'd been involved with in Chile in the 1970s. Equally, I understand, that Baroness Thatcher after she left office in relation to issues relating to the Belgrano, the sinking of the Argentinian Naval vessel off the coast of the Falklands, the Malvinas, used to take considerable care in determining where she was going to travel.

TONY JONES: You say that it's not fanciful to believe that Donald Rumsfeld that Tony Blair and even our own Prime Minister John Howard might one day find themselves in a similar position.

PHILIPPE SANDS: Well, let's take the case of Donald Rumsfeld. In a sense, his is the clearest case because in December 2002 he signed a memorandum, one of the infamous torture memorandums, which I describe in the book Lawless World, in which he authorises various techniques of interrogation which in the views of basically every international lawyer around amounts to torture. Those techniques were used for several weeks before the order was rescinded. They were used, for example, in Afghanistan, which is a party to the Statute of the International Criminal Court and the International Criminal Court has jurisdiction over torture and that means in principle that court has jurisdiction to investigate the involvement of Donald Rumsfeld for authorising activities which amount to torture. You mentioned Prime Minister Tony Blair and Prime Minister John Howard, the issue there is slightly more complex and turns really on the legality of the war in Iraq. No-one is suggesting that either the British or Australian prime ministers have been involved in torturing anybody, but most people now recognise that the war in Iraq was illegal and under international law, an illegal war amounts to a crime of aggression and in some countries around the world a crime of aggression is one where they exercise jurisdiction. So the possibility really can't be excluded if Messrs Blair and Howard at some point in the future travel after they've left office to a country which, for example, has an extradition agreement with another country where you have an independent prosecutor like the independent prosecutor in Spain who initiated the investigation of Senator Pinochet, a request for extradition or for investigation or questioning has happened in the case of Mr Kissinger could happen. There's precedent for it.

TONY JONES: It does sound a little fanciful in the case of our Prime Minister John Howard. Who on earth would want to prosecute the Australian Prime Minister?

PHILIPPE SANDS: Well, others - I've been talking about this a little bit since I've been in Australia and of course it may turn out to be much easier to go for John Howard than Tony Blair or for obvious reasons George W Bush.

TONY JONES: Why is that?

PHILIPPE SANDS: Well, he may produce a more easy target in the sense that Australia doesn't have politically the clout of a country like the United States. I mean, I'm not saying that it ought to happen, nor am I saying definitely that it will happen, but the simple point is that the rules of international law have changed very considerably in the last 50 years, largely as a result of efforts of the US, by Australia and the United Kingdom. A whole new range of international criminal rules has emerged and when you break the rules of international law you pay a price for that and one of the prices that you pay if you're a leader is you travel with greater care and caution.

TONY JONES: Let's look at that fundamental question at stake there and that's about the legality of the war in Iraq. This question dominated much of the recent British election campaign as we know and it really got going, didn't it, when the full advice of the Attorney-General Lord Goldsmith was actually released to the public. Tell us about that.

PHILIPPE SANDS: It was my book which had been published a couple of months before the election which confirmed for the first time there was a full written legal advice written by the Attorney-General on the 7th March, 2003 which was different from the very short one-page document that was put into the public domain on 17th March, 2003 in the House of Lords just three days before the war began. The first document, the 17th of March document, 13 pages, carefully balanced, basically says, reading between the lines, it will be safer to go if you have a second resolution and if you don't have a second resolution from the United Nations, the better view is that it is going to be illegal. Ten days later, a complete change of view and the public and parliament and the Cabinet, because the Cabinet was never given the full legal advice, is presented with an unequivocal view that war would not be unlawful in any circumstances.

TONY JONES: The critical question here, who wrote the second document if it wasn't Lord Goldsmith?

PHILIPPE SANDS: Lord Goldsmith wrote both the documents and that's the astonishing thing.

TONY JONES: How do we explain that then?

PHILIPPE SANDS: Well, we haven't been able to explain it. What happened in those 10 days? Now you may ask, what's the relevance of this for Australia? Interestingly preparing for my visit here with help from some Australian colleagues, I checked out what John Howard had said in the Australian parliament and on the 18th of March he relied on the British legal advice or he called it the British legal advice -

TONY JONES: To be fair, he didn't rely very heavily on it. He tabled the summary of the advice but he actually relied on his own advice from the Australian Attorney-General and lawyers from the Department of Foreign Affairs.

PHILIPPE SANDS: He relied on two documents, one from a senior lawyer in the Attorney-General's office and one from a senior lawyer from the Department of Foreign Affairs and Trade and he also tabled, as you said, but he also referred on two occasions to what he called the summary legal advice of Lord Goldsmith, but that was the document of the 17th of March, and what is significant is the document of 17th March was not a summary of the legal advice. In fact, Lord Goldsmith very clearly stated on 26th February, in response actually to the publication of my book, that the second document, the 17th March document, wasn't a summary of the first. It was simply, if you like, a recast view. The question that I think is interesting is, was the Australian Government aware of the earlier full written legal advice prepared by the British Attorney-General on the 7th of March and if so did it have an opportunity to consider an expressive view on that earlier advice which of course was very, very equivocal about the case for war?

TONY JONES: We don't know the answer to that, but let me ask you this: has Lord Goldsmith ever been cross-examined or questioned by journalists about these discrepancies in the first and the second advice?

PHILIPPE SANDS: Well, he's been subject to many requests for interview. To the best of my knowledge, he's given only one interview to a friendly journalist writing in the Daily Telegraph last week and he's not answered the question, the key question: why did you change your mind between the 7th and the 17th? I just want to put this in a broader context also. Elizabeth Wilmshurst, the deputy Foreign Office legal adviser, resigned at around this time. She resigned because she said she could not be part of a government which was participating in what she called, the crime of aggression, an illegal war. But more significantly, her resignation letter confirmed that Lord Goldsmith changed his mind not just once but twice and his earlier view back in December or January 2003 was that an explicit Security Council resolution was needed and that resolution 14.41 which of course had been adopted in November 2002 was not adequate. So there's a great mystery as to the chain of events that happened at a crucial point shortly in the run-up before the war.

TONY JONES: All of this raises the question of how the three countries and the coalition of the willing seemed to come simultaneously to the same view about how to call the war legal and in this regard you raise a visit that Lord Goldsmith made to Washington I think in February of 2003. Can you tell us about that visit and what was later said about it by officials?

PHILIPPE SANDS: Yeah. The book refers to a visit that Lord Goldsmith made to Washington on 7th February, 2003. At that point of course my understanding is Lord Goldsmith was very wobbly about the war and believed a second resolution was needed. During the course of his visit he met with John Bellinger who at the time was legal adviser to the National Security Council, Condoleeza Rice's legal adviser. Later on John Bellinger told, and I reported this in the book, the senior visiting British official, "We had trouble with your attorney, but we got him there eventually." I put that to Tom. I know him and he's a decent man and honourable man. He gave a denial. He couldn't remember and he'd be surprised if the Attorney-General, so eminent a man, would need persuading. There's been no denial the meeting took place, nor frankly that Lord Goldsmith that the Americans played a decisive role. In fact, if you read the full legal opinion, which if your viewers are interested, you can get it on the No. 10 Downing Street website and you will see that the Attorney-General of the UK makes explicit reference to the significance of the views of the US on the legality of the war.

TONY JONES: A final question, if we can, because we are nearly out of time, I'm afraid. It was Prime Minister Blair I think who first started pushing the idea that humanitarian intervention could be a justification for war and in fact all of the leaders of the Coalition of the willing relied not only on the UN resolutions but on the humanitarian intervention aspect of the war in Iraq, including, it must be said, John Howard here in Australia who in making the case put human suffering in the balance and concluded that human suffering in Iraq would be worse if Saddam remained in place. That argument still remains cogent to this whole question, doesn't it?

PHILIPPE SANDS: Well, it doesn't, but let me just explain that briefly. The NATO countries supported the war in Kosovo in 1999 on the basis of humanitarian intervention, intervention in Kosovo to protect the fundamental human rights of Kosovar Muslims threatened by Serbian actions. My own view is that war was lawful and was consistent with international law. The argument of humanitarian intervention was not used by the United States or by the UK. I'm not aware that it was used by John Howard. The British Attorney-General in the advice of the -

TONY JONES: I am just pointing out to you it was used as part of the overall argument he made in parliament on the day in question.

PHILIPPE SANDS: It was used as part of the political context but not used as a legal argument. The British Attorney-General in his advice is absolutely clear there was no humanitarian crisis as at March 2003 such as to justify that argument and it's plain that however appalling Saddam Hussein was, and he plainly was, at the time of March 2003 he was not at the height, if you like, of his powers of brutality. The real excesses had taken place in the late 1980s and early 1990s particularly in the early phase when he was an ally of the US and other countries around the world in trying to prosecute a war against Iran. OK Philippe Sands, we are out of time, unfortunately. We've enjoyed talking to you. We have to leave you there now unfortunately. Thank you for talking to us.

PHILIPPE SANDS: Thank you very much.