Towards the Rehabilitation of Law: interview with Bill Bowring

posted 6 Nov 2010, 08:46 by Rights in Russia   [ updated 6 Nov 2010, 09:17 ]

By Masha Karp

This article was first published by Masha Karp and here: openDemocracy. Reprinted by kind permission.

Masha Karp talks to Professor Bowring about his book, Bill Bowring: The Degradation of the International Legal Order?: The Rehabilitation of Law and the Possibility of Politics (256pp, Routledge-Cavendish, £30)

MK: The title of your book sounds alarming, even with a question mark; the subtitle seems to give some hope. What is your view on the development of international law?

BB: When I am teaching public international law to my students we start with the question: Is public international law really law? There is a strong English theory – the law is the command of the sovereign. In international sphere there is no sovereign, we have no world government, so many theorists will say there is no such a thing as international law, it does not exist. So how can you teach it? To which I think part of the answer is that there is a huge amount of international law on all kinds of issues and 99 % of the time it’s obeyed by everybody. We could not possibly have telecommunications, we could not have postal services, we could not have the use of the sea, and we could not have air-transport. The area of law which most people come across on a daily basis is the Highway Code. Some people disobey it and crash their cars and kill people, but 99 per cent of the time people obey the Highway Code, because otherwise you could hardly move along the road. So with international law it’s very much the same.

There’s been a massive growth in international law since the Second World War, since the formation of the United Nations, in all kinds of fields. And what I find very interesting and encouraging is that even states like the United States, the most powerful country in the world, which often feel that the International law is quite uncomfortable and they do not like it, they still put enormous resources into explaining that they are behaving lawfully.

The world is by no means perfect and there are terrible things going on, but we need a lot more of these structures, so that states really have to think before they use armed force…

MK: And yet in your book you quote the international relations scholar David Chandler who proclaimed the “degradation” of international law following the US and UK response to the events of September 11, 2001. Moreover, you describe a “prelude” to these events and state “the three exemplary uses of armed force against Iraq (1991), Serbia (1999) and finally Afghanistan (2001) appear as three acts in a tragedy of intimate deception, a macabre vampire-bride relationship between law and power… First consummation, when law and power, freed by the end of the Cold War, seemed set for the longed-for happy alliance; second seduction, when power sought from law invasion of its means of creation, international custom; third, rejection, when power, having taken and ravished the law, turned its back and walked away”. And then you talk of “the blatantly unlawful behaviour of the US and UK in the invasion and occupation of Iraq”. So you seem to support the idea of “degradation” and “violation” of law. What are the means, then, to “rehabilitate law”, borrowing your terminology?

BB: My bottom line in this chapter and throughout the book is to insist that the United Nations is worth preserving, because I am arguing against people, in particular David Chandler, who think that the United Nations is a complete waste of time, that human rights is a shamble and one should forget about it, that is, he is basically saying this is all worthless. I say, on the contrary, that the United Nations has developed principles that we need to stick to very closely indeed, in particular on the use of force – when force can be used in self-defence, and the whole series of principles. For my part why I say that these principles are so worth sticking to is because they are precisely the product of the transformation of the international order as a result of the aftermath of the Second World War and the collapse of the colonial empires, and the transformation of the United nations from a small club of victors to the enormous organisation that we have now. These principles have tremendous historical content and we have to defend them. That is why I use the phrase “the degradation of the international legal order” with a question mark. The question is: is it finished and we forget about it or on the contrary, is it more important than ever? I go for the latter.

MK: But hasn’t the United Nations actually deteriorated in later years? We all remember how impatient everybody was with United Nations during the wars in former Yugoslavia, for example. They did not seem to be doing anything, just procrastinating, didn’t they?

BB: There is a difference between the General Assembly, where all states are represented, which is able to get things to the International Court of Justice, and the Security Council , which is still the permanent members, still the winning side in the Second World War, including Russia sitting in the place of the Soviet Union. And it is a fact that it badly needs reforming, it’s been obvious for a long time, because in any serious conflict either Russia will vote against, or China will vote against, or the United States will vote against… However, I still maintain that the UN represents a huge achievement. And if certain people would say: “get rid of it!", they will have to rebuild it once again, and I do not see the point of that.

MK: You write about the tension between the International Humanitarian law and the law of International Human Rights. What is the reason for this tension?

First of all they are different branches of the international law. Human Rights law has very deep historical roots and comes really from the 18th century straight into UN structures. The focus of Human Rights law is the individual. Article 2, which is the Right to Life in the European convention, says that the State can kill people in certain circumstances, but it has to do everything possible not to. Humanitarian law, on the other hand, is the law of war, it’s grown with the Red Cross and so the big treaties like the Geneva Convention do not come from the UN, they come from the Red Cross in Geneva. And the whole point of the Humanitarian law is that it assumes that there is already a war and in a war civilians are going to get killed. Whereas with Human Rights law the state can only kill people if it’s absolute necessity, in Humanitarian law, it’s assumed that civilians are going to get killed. What is considered war crimes then is when civilians are targeted.

So when we took the first six Chechen cases to the European Court of Human Rights - and they were the massacre when the refugee column was bombed in October 1999 coming out of Grozny and children were killed in that bombing, and then other massacres of civilians that occurred in early 2000 - we had a big dispute within our team: should we refer to the humanitarian law at all and we decided not to.

MK: The Russian government would not, of course, admit that it was waging a war in Chechnya… I found very interesting what you write in the book about the two Additional Protocols to Geneva conventions adopted in 1977, which deal with international (Protocol 1) and non-international (Protocol 2) armed conflicts. You mention that “in the cases of United Kingdom (Northern Ireland), Turkey (South-Eastern Turkey) and the Russian Federation (Chechnya), the state concerned has been at pains to deny the existence of an “armed conflict”, but has instead characterised the events as “terrorism”, “banditry” or simply “organized crime”. Despite the claims to self-determination of the Irish, Kurds or Chechens, the international community did not seem to recognise these conflicts as national liberation movements, which are treated as “international conflicts”, so they had to be considered under Protocol 2. How did these rules apply to Chechnya?

BB: We won the cases because the Russians argued that they had a right to kill these people because of absolute necessity and we argued that it was totally disproportionate. What is particularly interesting and I tried to draw it out in the chapter is that we won on Human Rights principles, but the court in its judgement named two generals – General Nedobitko and General Shamanov, who definitely had committed war crimes.

MK: But the Russian government still did not admit that it was a war, or did it?

BB: In the First Chechen War, that is, in 1995, a whole lot of Communist deputies took a case to the Russian Constitutional Court on the legality of Yeltsin sending the troops in. And the Constitutional Court decided that he did have the right to send the troops in, because as President he was responsible for the integrity of the country as a whole, but they said: Russia had ratified the Additional protocol to the Geneva Convention, which applies to internal armed conflict and therefore, the Constitutional Court said, it was an armed conflict, it was the war within the meaning of the Additional Protocol. And consequences flow from that, like the whole of Russian law should be changed to take account of that; there should be a compensation for everyone who suffered as a result of the war... Now this was not done. So in the enforcement of the cases that we won against Russia concerning the Second Chechen war, we’ve been pushing for this to be implemented. We’ve also been pushing for Shamanov and Nedobitko to be prosecuted for war crimes, because war crimes are there in the Russian criminal law. Shamanov has actually been promoted; he is now the Head of the Parachute forces, so Russia is obviously not going to do that. And along with China and the United States, they have refused to join the International Criminal Court. I am working very closely with Stas Dmitrievsky in Nizhny Novgorod who has done a huge amount of research on the question of how one can get at the issue of war crimes committed in Chechnya.

But because of the particular focus of my book I am interested in firstly what are the roots of Human Rights law. I try to push for a historical political account of human rights, with different generations of human rights emerging from different historical periods : civil and political rights emerged from French and American Revolutions at the end of the 18th century, social-economic rights came in the West as a reaction to Russian revolution and the third generation of human rights, the rights of peoples – a right to self-determination, right to development, right to peace - are the product of the anti-colonial struggles of the 1960s, for me this is the centre of the book. With Humanitarian law what I seek to draw out is how the Additional Protocols of 1977 got there directly because of de-colonisation struggles. And that was when the Humanitarian law began to apply to the internal armed conflicts.

MK: You describe legal problems related to the Iraqi citizens killed in 2004 in incidents in Iraq involving British troops. What was the final decision on the cases?

BB: It’s still going on. There were two cases: one was Al-Skeini, which was about the Iraqi man, Baha Mousa, who had died while in a British detention facility - the European convention applied to him, although this happened not within Britain or within Europe. However, because Britain had effective control over that piece of Iraq, it did apply to us. And now there is an inquiry going on. And the second case was Al-Jedda, where the chap was indefinitely detained for a number of years without any chance of appeal or anything else. And the British were holding that he did not have the right to apply under British law, he did not have the right to apply under Iraqi law, so there was no law, actually… Both these cases will go further to the European Court of Human Rights in Strasbourg. This is related to cases like Ilascu vs. Russia, where it was held that Russia was responsible for what was happening in Transdniestria, although Transdniestria is not part of Russia. So that was the first step. And then there was another case, Issa vs. Turkey, to do with Turkish forces fighting in Iraq outside of Turkey. And now we are going to have a series of cases on Britain in Iraq. Leaving aside the question of the legality of the war, I think it’s very interesting to see how Strasbourg will apply the European convention to the British troops.

MK: Before we talk more about Strasbourg, I’d like to ask you about the claim you make in the book about a rather dubious role Tony Blair played in shaping European attitude towards the Second Chechen war…

BB: When Putin announced in 1999 that he was going to “mochit’ v sortire” (“hit terrorists in the outhouse”) I do not think people fully understood what he was saying, but then it was quite clear he was intending to completely demolish Grozny this time and kill a vast number of people. Then in 2000 there were two things that happened simultaneously: one was that the Secretary–General of the Council of Europe wrote to the Russian Federation, saying: “Please tell us in detail what you are going to do to ensure that you obey the European convention on Human Rights in the course of these military activities, because you ratified it in 1998” and basically the answer from the Russians was: “Go to hell!". It was quite clear they were not going to obey. Secondly, Frank Judd, who was then the Rapporteur for the Council of Europe and was profoundly shocked by the terrible things that were going on, produced a number of examples that were so serious and so graphic that the Parliamentary assembly of the Council of Europe voted to suspend the Russian delegation and to recommend the Council of Europe Committee of ministers, which is its executive branch, to expel Russia.

And where we knew that that was not going to happen was when ten days after that resolution Tony Blair invited “Volodya”, his good friend at that time, to London and they had a pint of beer in a pub and “Volodya” had tea with the Queen. And he was not even President, he was just acting President and it was not an official visit as such, it was purely unofficial. And that was Blair sending a very strong signal that he would prevent any action being taken against Russia on Chechnya. And actually Putin publicly acknowledged that and thanked Britain very much. It was only recently with Litvinenko’s murder and other things that relations got rather bad but at that time they were golden relations. Britain was Putin's main protector.

MK: So how did you manage at that time to organise support for Russian applications to Strasbourg?

BB: In early 2000 I already knew “Memorial” people very well and they had just set up a Human Rights Centre within Memorial, because this is not a lawyers’ organisation at all. So this was a tiny corner of an office and Anna Kornilina, who had a degree in journalism, not even a lawyer, was working by herself, for no money, in the corner of “Memorial” office, on cases for Strasbourg. By that time I had ten years experience working together with my colleagues on cases against Turkey on behalf of Kurds. And we had a big network of barristers in this country prepared to work free of charge on these cases. So I proposed to “Memorial” that I’d try and get money from the European Commission, which is the only serious funder of this kind of thing. So in April 2001 I applied for a grant from the European Commission. It took two years, in the course of which they lost the file twice in Brussels, so I had to send all the papers again. Finally in December 2002 three things happened: first of all, we got a million Euros, secondly, we got admissibility on the first six Chechen cases and thirdly Philip Leach became available to become the director. So that was really quite magical.

With the million Euros we set up, in partnership with “Memorial”, an office in Moscow where we now have 4-5 staff of young lawyers. We also have representative lawyers in Chechnya, Ingushetia, Novorossiysk, Ryazan and St Petersburg. We are responsible for quite a few hundred cases against Russia. We’ve won about 50 of them so far. Many of these cases are to do with Chechnya, but now we have environmental cases, for example the case of Ozersk, near Chelyabinsk on the consequences of the nuclear catastrophe there. We have a lot of cases on discrimination. And we have an office in Britain, with 5 people in it, in partnership with the Human Rights Committee of the Bar of England and Wales. That money lasted for three years and now it’s funded by a number of different funders.

MK: This seems to be a remarkably successful project, but you must encounter some problems in Strasbourg?

BB: It’s terribly slow, always has been. Incidentally, Russia is not the top of the applicants. It has the biggest number of applications, but it has the biggest population, so it comes number 15 or 16 per head of population in going to the court, so it’s not particularly unusual. But I think everyone in Russia has now heard about Strasbourg and every lawyer in Russia now says to their client: we‘ve lost, but don’t worry, we are going to Strasbourg next. Still 98 per cent of cases from Russia go in the bin

MK: Because they are badly prepared?

BB: Because they are from mad people, because they are badly prepared and so on. One of our objectives with the project was to ensure that if something comes from us it is to be taken seriously. Not all of our cases get through or are successful, but I think a much higher proportion. So the problems are: length of time, then there’s a fact that your chances of winning are not necessarily that good. Besides, when you do win, all you get at present is the declaration that your rights have been violated and a small sum of money, that’s it. But the enforcement process – when, for example, you are trying to find out what has happened to your children, who were abducted by the Russian troops - is much more lengthy and difficult.

However, I think that the Chechens who go to the European Court are not looking for quick justice and they are not looking for money. What they are looking for is that the top court in Europe tells the truth about what’s happened to them. That is what they go there for.

There are other consequences too. Since 1998, the European convention and its case law has been part of Russian law. So all the textbooks now for law students in Russia are full of Strasbourg, and I think that makes a difference. I am a judge every year in a competition in International law in Moscow. This year we had 55 teams from Vladivostock to Kaliningrad of fine young people of 55 universities with great English, great command of International law and Human Rights law, able to write 8000 word arguments on each side and appear in front of me, being a very difficult judge.

The Russian Constitutional Court, moreover, practically always refers now to the European Case law. Anton Burkov, who is at Cambridge, has just written his PhD thesis on how European conventions are applied in Russian court, and it makes interesting reading. And in 2003, of course, the Plenum of the Russian Supreme Court resolved to incorporate Human Rights law in Russian law. All in all, then, it is a process that has been a going on for a long time, but there is movement in the right direction.

4 November 2010