Newsweek on Jack Goldsmith and the 'Palace Revolt'

Here is the Newsweek piece on Jack Goldsmith and the 'palace revolt' against the Addington view of executive power. I should add that I am both friend and fan of Jack's.

Bruce Miner interviews Bruce Bawer and Claire Berlinksi

Via Instapundit, two interviews on Compass Points Blog, one with Bruce Bawer, author of While Europe Slept, and a second with Claire Berlinksi, author of Menace in Europe, both on the question of the future of Europe with particular focus on its ethnic and immigration and demographic issues.

I was struck by the same sections from the Berlinksi interview that caught Glenn Reynold's attention:

***
Here is a point of great importance. When you are talking of second- and third-generation immigrants, as most of the rioters were, it is not entirely coherent to say that this is a problem with immigrants.

These people have been in France for more than fifty years. This is a problem internal to France every bit as much as it is a problem of the French versus their immigrants. One rioter, for example, was interviewed on France 2 (from the neck down). He said: We are not racaille as Sarkozy said. WE ARE FRENCH CITIZENS. He said it proudly and he obviously believed what he said. He also said it in perfect French. Of course he did. His family has been in France for forty years. And in this sense, the trajectory of the crisis can be predicted: Because it so clearly an exercise in the French tradition, the rioters, having made a lot of trouble, will now forget about things and go back to hanging out, dealing dope, and making a street corner nuisance of themselves.

But this is nonetheless a European problem, and it has already spread. It is a European problem in that the economic and social complaints that gave rise to this episode of unrest are pan-European, and they cannot be resolved with any traditionally European solution. The problem — which we see in France, Germany, the Netherlands, Scandinavia, Italy, Britain, everywhere in Europe, in fact — is that every single European country has imported a huge body of ill-educated, unskilled immigrants who for both cultural and economic reasons cannot be assimilated and who do not see themselves as part of the larger story of Europe, and do not feel that they have been able to claim their proper share of the postwar European bounty. Neither France nor any European country can solve this problem because they are insoluble, at least within the parameters almost every European country has rigidly defined, in the postwar era, for solving social and economic problems. Not long ago, on French television, a shoe manufacturer compared the price of making a pair of shoes in France with the price of making the same pair of shoes in India. The difference is roughly on the order of ten to one. So even if the racaille (a perfectly apt description) were employable, how could they be employed, given the exigencies of French labor law, which demands both a high minimum wage and a short work week — not to mention huge social security taxes? The only solution, in this neo-socialist context, is for France to adopt a WPA-style program and make work for them. Not a bad idea in the abstract, but so long as France wishes to participate in the global economy, not a realistic one, either. If taxes were raised in France to pay for this, more riots would break out. A great many corporations would simply pick up and leave. This is true everywhere in Europe. It is quite possible that riots in the specifically French style will not break out in, say, Denmark (although I do note that similar riots have broken out in Denmark and other European countries), but the strain at the social fabric is nonetheless great everywhere in Europe, and as it becomes progressively more frayed, social malaise and unrest in one form or another is inevitable.

Links to the Danish cartoons of the Prophet that have caused so much ruckus

(Update, February 3, 2006. My own blog thoughts and mini-manifesto, here.)

(Update, February 2, 2006. I know a lot of people have been visiting, probably looking for the cartoons. As of ten minutes ago, I was able to view them at this site, here, at http://photobucket.com/albums/c308/kimpolita/. I'm not an expert on this - I'm following the story mostly via the marvelous Brussels Journal. I do encourage people to view them, post them, pass them around, and be willing to defend the principle of free expression. I would post them myself on this blog, but like one of the commenters below, I can't get them to upload using the Blogger photo function - should I be worried about Blogger's owner, Google, having a "just a little bit evil" censorship policy here? I'm not exactly tech-savvy.)

In honor of the principle of free expression, here are the caricatures of the Prophet that appeared in a Danish newspaper. These are not very good reproductions, as they were taken from a site where they appear all as one image. But it's the principle that counts. Guess what? I'm not a multiculturalist. And I hope, after this is all over, that not too many Danes and Norwegians are, either. I hope that the blogosphere will reproduce these images and the original book illustrations - not cartoons, not caricatures, just book illustrations, something like the Illustrated Bible - everywhere, as a gesture in support of free expression. You can read all about the controversy with on-going coverage, at Brussels Journal, here.

(Question: can some reader point me to a website that has the cartoons as separate images that can be saved as individual images? I would like to reproduce them on the site, not simply as a link, but I do not have a link where I can pick them up as individual images. Please leave as a comment below. Thank you. As I said above, as of February 2, you could see them as individual images at http://photobucket.com/albums/c308/kimpolita/.)

Michael Walzer on the triumph of just war theory (Social Research 2002)

I've been meaning for some time to link to this Michael Walzer article, The Triumph of Just War Theory and the Dangers of Success, from Social Research, 2002. Here. Via findarticles.com.

Denmark's Muslim cartoon and free speech affair

(Update, February 3, 2006. My own blog thoughts and mini-manifesto, here.)

From the Brussel's Journal blog, coverage of the Danish Muslim cartoon affair, and the reaction of moderate Muslims in Denmark, when they realized that the Danish government would actually stick by its pro-free expression position. Here.

(Update, January 30, 2006. Here are the illustrations that were done for the original book on the Prophet Muhammed. Here (go all the way down the page) are the cartoons that followed in the newspaper, as a form of protest over the idea that no one - no one, not Muslims, not anybody else, would be allowed to draw the Prophet. Here is a post from the Brussels Journal, re further troubles - riots in Gaza against Norwegian and Danish aid offices. Norway and Denmark are advising their citizens against travel in Gaza. Will the Danish government, which up to now has shown admirable adherence to the principle of universal, secular free expression, continue to hold to principle?)

(Update, February 2, 2006. A lot of people have been visiting this site thinking that I know something special about all this. I don't, actually - I have been following this on Brussels Journal. But as of ten minutes ago, if you are looking for the cartoons, I found them again here. The actual URL is http://photobucket.com/albums/c308/kimpolita/ . The above links aren't working, although it may be bandwidth problems.)

NYT on ethics and spies conference

Interesting article in the NYT on a conference on ethics and spying - ethics and intelligence work. Great issue for a conference, great topic. But here's my question. The article goes in detail about the conference, a bit about its organizers, and so on. All good stuff. I'd love to attend. But it nowhere tells us an important bit of information. This is not being sponsored by the US government. But who is paying for it? Is it all being paid for out of attendee fees? Is it being partly paid for by foundations? Corporate sponsors? Anyone? I don't say this with any suspicion or suggestion that there is anything wrong with whoever might be funding it or that there is anything wrong with funding from outside donors for conferences like this. But it is a very important question in conferences, nonprofit organization work, advocacy work, etc., to know who is putting up the money. It is a vital bit of information in a newstory like this.

(Update, January 31, 2006. Anonymous, in comments below, has clarified this question - thanks:

This was not a separate conference per se, but a session taking place at the end of the annual Joint Services Conference on Professional Ethics (JSCOPE). Information is available online at usafa.af.mil/jscopeAs such this is organised by members of the US military and also civilians working at US military academies.)

Lance Morrow reviews books on the torture debate

Lance Morrow reviews books on the torture debate in the NYT book review, January 29, 2006, here. Morrow is an elegant essayist, as always. What I don't understand, however, is how he can tell us, at the beginning of this review, that these two books cover all the big questions, but then tell us later on that there are virtually no contrarian voices and that the voices suffer from piousness, and an attitude of "torture bad, me virtuous." The addition of Heather MacDonald as a contrarian voice is not enough to give wide coverage to views on the debate over torture and interrogation. You would need to add, at a minimum, Sanford Levinson's edited book, Torture: A Collection, as well as Phillipp Heymann and Juliette Kayyem' Protecting Liberty in a Time of Terror. The two books Morrow has reviewed are essentially by institutions with institutional interests - Human Rights Watch and NYU's Center on Law and Security - not even semi-neutral edited collections. Their positions are important ones, of course, but they are not exactly the best positioned to present a fair range of views, and they don't. It means, as Morrow hints but doesn't quite say, that the arguments against those institutional positions don't really get their say. Text:

***
January 29, 2006
New York Times Book Review

Books on Torture
Necessity or Atrocity?

Review by LANCE MORROW

Sept. 11 encouraged a corrupted version of American exceptionalism, among other things. The superpower suddenly became the embattled victim, the injured innocent - which was how Americans imagined themselves when they declared their independence in 1776. The Bush Justice Department's 2002 "torture memos" - hardboiled pettifogging intended to give legal cover for getting rough, for "taking the gloves off" in America's war on terror - were later repudiated by the administration. But the memos amounted subliminally to a different sort of declaration of independence, conjured up out of the founding Shinto: America, claiming a special dispensation under Providence, would make its own rules, especially if national security was at stake. The signal emanating from the White House and the Pentagon borrowed a memory from the American subconscious: we would not be contradicted by the tainted Old World, with its treaties and conventions drawn up far away - in Geneva, for example - especially not when such conventions would protect the likes of Al Qaeda.

New reality trumps old morality. Out of a new emergency of history, one particularly menacing narrative took shape, darkened by the prestige of apocalypse - the ticking bomb. A script emerged, along these lines:

The Qaeda terrorist breaks under aggressive questioning. (The waterboard worked. He came up spluttering and talking.) The interrogator relays information that, just in time, snips the wire on the dirty nuke hidden in the heart of an American city. The interrogator - "torturer," if you insist - is actually a hero. Thousands of lives are saved.

The ticking bomb may be hypothetical for now, but according to this scenario a certain amount of rough stuff may already have paid off in the war on terror, which, mind you, is a real war against ingeniously concealed fanatics traveling the globe at will, capable of mass killing, anywhere, without warning. In this context, due process, beyond a certain formal point, is for sissies. We live in a newly vulnerable, porous world. Human rights fetishists, fighting the last war (a state-to-state conflict, with old rules now rendered quaint) have become Al Qaeda's useful idiots. What will the bien-pensants have to say if and when another 9/11 - or something worse - occurs?

Who-whom?, Lenin asked. The rough-stuff rationale elicits an indignant counterversion from advocates of human rights:

Abu Ghraib and Guantánamo have become outposts in a global American gulag in which innocent and guilty alike are illegally detained and tortured, usually with no yield of usable intelligence - we squander the nation's moral capital for trash. Torture is the refuge of the lazy, the stupid, the pseudo-tough. Real intelligence services don't have to torture; they are intelligent enough to learn the prisoner's language and culture. Why would a tortured man tell you the truth? He will say anything to stop the pain. What happened to those mystic chords of memory about all men - all of them - being created equal, endowed with unalienable rights? What of America's respect for human dignity? For itself? A couple of dozen prisoners, give or take, have died in the American gulag - not to speak of those whom the C.I.A. has disappeared into regimes far less fastidious than our own.

The American superpower, many human rights advocates go on, has under George W. Bush turned its back on civilized opinion from Aristotle on, has abandoned the Geneva Conventions, America's 1994 antitorture law and a century's progress toward basic rights, and in the process, compromised the ideals of freedom and democracy for which the wars on terror and in Iraq are supposedly being fought. America has become a pariah among nations by committing human rights crimes similar to those for which Nazi government officials were tried and convicted at Nuremberg.

Two new volumes of essays take up all of the questions contained in these contrasting views, examining the subject of torture in the context of international terrorism, studying it in various lights - moral, legal, political, historical, military, philosophical. "The Torture Debate in America," edited by Karen J. Greenberg, focuses especially on legal questions; almost all of its contributors have been trained as lawyers, and are either professors of law or human rights workers. "Torture: Does It Make Us Safer? Is It Ever OK?," edited by Kenneth Roth and Minky Worden, looks at torture from a more global and historical perspective, ranging from ancient Greece and Rome, through the Renaissance, to contemporary Israel and Algeria and Argentina and Rwanda. Both collections proceed from an essentially left-brain mentality; the right brain's script has only token defenders. Overall, the voices in these books suffer from a tendency toward piousness: Torture bad, me virtuous.

Critics in both volumes dismiss the ticking-bomb scenario as chimerical - a puerile Hollywood hypothesis highly unlikely in actuality. The real danger of the administration's anything-goes message, they say, was that it fatally routinized and bureaucratized the coercive impulse, and once that message had made its way down the chain of command to the grunt level, it ordained in effect that all of Islam should be considered a ticking bomb. Any Muslim was fair game for waterboarding.

Is that version overdone? Heather Mac Donald, a fellow of the conservative Manhattan Institute, is one of the few contrarian contributors to either of the volumes. She argues in "The Torture Debate" that Abu Ghraib, which she says showed nothing more than "the sadism of a prison out of control," generated among the critics of President Bush a false "master narrative - call it 'the torture narrative.' " "The actual interrogation techniques promulgated in the war on terror," Mac Donald writes, were "light years from real torture and hedged around with bureaucratic safeguards."

Mac Donald's defense of rough coercive interrogation contrasts the Americans' "torture lite" with the gruesome, mangling, sadistic and genuinely evil ingenuity that torturers have historically shown, from the Inquisition to Pol Pot. Training manuals for Al Qaeda, according to Chris Mackey in "The Interrogators," tell fighters that a failure to cooperate with Americans carries no penalties and no risk of torture - a sign of American weakness. Mac Donald quotes an American interrogator who said: "They realized: 'The Americans will give us our Holy Book, they'll draw lines on the floor showing us where to pray, we'll get three meals a day with fresh fruit, do Jazzercise with the guards. . . . We can wait them out.' " Gitmo as Club Med.

Conscience is a protean thing; it reprehends acts that, unofficially, it may consider necessary under some circumstances. We have formal morals and vernacular morals, like the good china and the everyday. Torture is that paradox, an all-but-universal practice that is simultaneously a universal taboo, like incest. In the real world lots of people marry their cousins.

IF you call something torture, you are officially bound to be against it. So call it "interrogation." Almost everyone concedes that it is all right to try to find out what a terrorist in your custody may know. But what methods are all right? Sleep deprivation? Being forced to stand for long periods? Bright lights? Hooding? Rock music? Menacing dogs? Cigarette burns? Thumbscrews? Electric shock? Rape? Where do you draw the line?

Any wholesome mind thinking of torture sympathizes with the victim. (A diseased mind identifies with the torturer.) Therefore, anyone inclined to countenance rough physical or psychological treatment is bound to argue either that what he has in mind is not really torture, but something short of that, temporary discomfort maybe, or that a certain amount of brutal questioning is legitimate because it is aimed not at the past but the future: it is inflicted not for purposes of punishment or revenge, but to prevent a future catastrophe, another 9/11. The change of tense from past to future is what might turn the interrogator from villain to hero.
But surely torture - whether torture lite or torture satanic - is, in the long run, bad karma for the United States. Noah Feldman, a professor of law at New York University School of Law, argues in one essay in "The Torture Debate" that "whatever the merits of unilateralism in foreign policy, unilateralism in law and morals is incoherent and dangerous."

Saul Bellow's Mr. Sammler observed that different people living at the same time may inhabit different centuries. What century does Osama bin Laden inhabit? In what century is Guantánamo located? Who is pulling whom back to darkness and barbarism? Being a victim of 9/11 gave Americans a kind of moral Get Out of Jail Free card. But a superpower cannot plausibly play the victim for long; for many of those who recognize the dilemmas surrounding torture, the card expired somewhere between Shock and Awe and Abu Ghraib.

As for myself, after reading these two thoughtful collections, I would contend that America should be setting an example of attention to international norms and treaties, and respect for the opinions of others in the world. Torture is a mug's game. You give up too much in the way of ideals for too little in the way of information. Al Qaeda may not abide by the Geneva Conventions, but Americans should do so scrupulously, ostentatiously, not in order to coddle terrorists but to encourage the rule of law in a bad world. God presumably granted Americans their dispensation only on condition that they aspire upward. When they head in the other direction, the dispensation is rescinded.

(Lance Morrow is the author of "Evil: An Investigation," and most recently of "Second Drafts of History," a collection of his essays. He is working on a biography of Henry Luce.)

UN Secretary General contenders square off at Davos, January 2006

AFP on contenders to succeed Kofi Annan as Secretary General, debating at Davos, January 26, 2006:

***
Contenders for UN's top job face off at Davos

Agence France-Presse
26 January 2006S

Some of the contenders touted to replace UN chief Kofi Annan set out theirstalls when they faced off at a debate here on the future of the worldbody.

Joining Annan on stage at the World Economic Forum in Davos, Switzerland,were Latvian President Vaira Vike-Freiberga, Foreign Minister Ban Ki-Moonof South Korea and senior Sri Lankan diplomat Jayantha Dhanapala.

All three promised to continue sweeping UN reforms, with Vike-Freiberga in particular lashing the make-up and influence of the Security Council's fivepermanent, veto-wielding members.

Annan, who took office on January 1, 1997, ends his second term next year, and Asia believes the UN tradition of regional rotation means it is owed the next turn at the helm.

While it is considered undiplomatic to campaign for the post, Annan drew some laughter by acknowledging the jostling. "I understand several membersof this panel may be interested in the position," he quipped at the end of his opening address.

They did not shirk either when asked what their top priorities would be if they became UN chief on January 1, 2007.

Vike-Freiberga said the international community must intervene faster and more efficiently in humanitarian crises, as it did after natural disasters.

"When these are acts of man that are responsible, as we are now seeing inDarfur, the reaction is not nearly as swift or as great," she said, referring to the ongoing crisis in the Sudanese region.

South Korea's Ban listed deep-rooted reforms -- a process already begun by Annan -- as a top priority.

"It's high time that the UN should change, adapt itself to cope with all the changes" of an increasingly globalised society.

Sri Lanka's Dhanapala also cited UN reform but pleaded notably for better understanding between the developed and developing worlds.

"There's a very serious need to address the North-South divide," he said.

The end of the Cold War had brought down the East-West barrier and "we do not want to have it replaced by a North-South" rift.

He cited the response to the devastating December 2004 tsunami as symbolic of how the developed world could help poorer nations.

Vike-Freiberga argued for "radical" UN reform that would include a debate over whether the five permanent Security Council countries -- Britain,China, France, Russia and the United States -- should have their powers curbed.

"The UN is made up of 191 members. We still have five who have a veto, and without their approval nothing can move. Is it really proper for five to have such an important say and if so, are these the right five?"

She said other nations "look with alarm on the chances of ever sitting on the Security Council as the years roll by, and it simply never happens."

South Korea's Ban called for closer cooperation between the United Nations and public and private sectors and institutions, giving all a "stake" in how the organisation acts. Despite best intentions, "the international community has not been able to maintain momentum," he added.

Taking up that theme, Dhanapala lamented a "paralysis" that had prevented the UN reaching a consensus on weapons of mass destruction.

"We need once again to inject a sense of urgency" over the issue, he added, saying there were around 27,000 nuclear warheads around the world. "

As long as states have nuclear weapons, other states will also want to acquire them."

01/26/2006 06:37:26 PM EST
Copyright © 2006, Agence France-Presse

Text of Kofi Annan speech at Davos, January 26, 2006

Here is the text of Kofi Annan's speech to the plenary session of the World Economic Forum at Davos, January 26, 2006. Annan stresses, among other things, his outreach to NGOs as an important part of his legacy. Text:

***

THE SECRETARY-GENERAL
ADDRESS TO PLENARY SESSION OF
THE WORLD ECONOMIC FORUM
26 January 2006

“A New Mindset for the United Nations”

Excellencies,Ladies and Gentlemen,Dear friends:

Some of you may remember me coming to Davos nine years ago, as a freshly minted Secretary-General.

Since then I have attended all but three of your annual meetings – including the memorable one in 2002 when you came to show confidence in New York, after the attack on the World Trade Center.

So I did not hesitate one minute, Klaus, before accepting your kind invitation to come here once more, at the beginning of my last year in office. And I was also very happy to accept the title you suggested for this session – “a new mindset for the United Nations”.

Why? Because it expresses something I have striven to achieve throughout these nine years, and something in which Davos itself has played a part.

In 1999, when I came here and called for a “global compact” between the United Nations and the private sector, many of my colleagues in the Secretariat – and many representatives of member States – would hardly have been more shocked if I had proposed a compact with the Devil.

It is that mindset that I have been seeking to change throughout my time in office – the mindset that sees international relations as nothing more than relations between States, and the United Nations as little more than a trade union for governments.

My objective has been to persuade both the member States and my colleagues in the Secretariat that the United Nations needs to engage not only with governments but with people. Only if it does that, I believe, can it fulfil its vocation and be of use to humanity in the 21st century.

That was why, in the year 2000, I used the first words of the UN Charter, “We the Peoples” as the title of my report setting out the agenda for the Millennium Summit, at which political leaders from all over the world came together to assess the challenges of a new century, and adopted a collective response, known as the “Millennium Declaration”.

And that was why last year, in my report called “In Larger Freedom”, I urged governments to accept that security and development are interdependent, and that neither can be long sustained without respect for human rights and the rule of law.

That report was intended as the blueprint, not only for a far-reaching reform of the United Nations itself, but also for a series of decisions that would enable humanity to realize the aims of the Millennium Declaration, particularly in the light of new challenges that had arisen since.
How far the blueprint will be translated into reality, remains to be seen. But in the meantime the United Nations has not stood still. Far from it! This has been a decade of rapid change. Let me give you a few examples.

When I took office there was a widespread perception, based on the tragic events in Bosnia, Somalia and Rwanda, that UN peacekeeping was a failed experiment, and that henceforth this task would have to be handled by regional organizations.

Peacekeepers, especially in countries where conflict is still raging – where there is literally no peace to keep – continue to face immense challenges. Even so, today we have 85,000 people serving in 16 UN peacekeeping operations, spread across four continents. Most of these operations are not static observers of a truce, but active participants in the implementation of peace agreements, helping the people of war-torn countries make the transition from war to peace.

Certainly, in many parts of the world regional organizations play an important role, and so they should. But most often they do so in partnership with the United Nations. The UN has become, in effect, the indispensable mechanism for bringing international help to countries recovering from conflict – and member States have now recognized this by agreeing to set up a Peacebuilding Commission, within the UN, to manage this highly complex process.

The last decade has also seen growing use of United Nations economic sanctions. These are now used to influence or restrict the activity not only of recalcitrant States, but also of non-State actors, such as rebel movements or terrorist groups. At the same time, the Security Council has developed more sophisticated and humane types of sanctions, aimed at individuals rather than whole societies – travel bans, for instance, and the freezing of bank accounts.

The same philosophy of punishing individuals rather than communities has driven the work of the UN criminal tribunals for Rwanda and the former Yugoslavia – one of which was the first international court to convict people of genocide (including a former prime minister) and of rape as a war crime, while the other has become the first to indict and try a former Head of State.
This in turn has led to further innovations, including the mixed tribunal in Sierra Leone and, of course, the International Criminal Court. The latter is not an organ of the United Nations, but the UN convened and serviced the conference which adopted its Statute in 1998.

Over 100 States have now ratified the Statute – which means that the Court’s jurisdiction is now recognized by well over half the UN’s membership.

Another way the UN has changed is the increasing focus on human rights – which is reflected in the recent decision by member States to strengthen the office of the High Commissioner for Human Rights. That office is now a dynamic operational entity, which deploys and supports hundreds of human rights workers around the world. And I hope that within the next week or two we may see agreement on a corresponding change at the intergovernmental level, with the establishment of a more authoritative Human Rights Council, to replace the now widely discredited Commission.

One more example of change: the United Nations has responded to the growth of international terrorism. Even before “9/11”, the Security Council had imposed sanctions on Al-Qaida, and set up a special committee to monitor its activities. Immediately after the attack, the Council went much further, with its historic resolution 1373, which imposed stringent obligations on all countries, established a list of terrorist organizations and individuals, and created the Counter-Terrorism Committee to monitor member States’ compliance and help them improve their capacity to enact and implement anti-terrorist legislation.

In short, I believe the United Nations is proving itself an increasingly flexible instrument, to which its member States turn for a wider and wider array of functions.
For instance, within the last five years the UN has been asked:

· to shepherd Afghanistan’s transition from the anarchic wasteland of the Taliban and the warlords to the nascent democracy – still struggling, but hopeful – that it is today;
· to help establish the Interim Government of Iraq, and to help organize the referendum and elections there – as it has supported democratic elections in half the world’s nations over the last 12 years;
· to verify the withdrawal of Syrian troops from Lebanon and carry out, for the first time ever, a full criminal investigation into the assassination of a former prime minister;· to coordinate global relief efforts after the tsunami, and again after the earthquake in Kashmir;
· and to take the lead in raising global awareness, as well as funds, to protect the world’s peoples against avian flu.

What all these activities have in common is that they involve the United Nations not simply in relations among its member States, but also in the lives of their peoples. To carry out such tasks, we must engage not only with governments but with all the new actors on the international scene.

That includes the private sector, but it also includes parliamentarians; voluntary, non-profit organizations; philanthropic foundations; the global media; celebrities from the worlds of sport and entertainment; and in some cases labour unions, mayors and local administrators. And it includes less benign actors such as terrorists, warlords, and traffickers in drugs, illicit weapons or – worst of all – the lives and bodies of human beings.

That is why I have repeatedly urged all the organs of the United Nations to be more open to civil society, so that their decisions can fully reflect the contribution made by groups and individuals who devote themselves to studying specific problems, or working in specific areas.
It is also why I myself have cultivated contacts with scholars, with parliamentarians, with practitioners of all sorts, and with young people – seeking to learn from their views and also encouraging them, whatever sector they work in, to use their talents for the public good and to keep the global horizon in view.

It is one of the reasons why I have worked constantly to make our Organization more transparent and comprehensible to the public, and thereby more genuinely accountable.

And, of course, it is why I launched the Global Compact, to which the international business community – including some of you in this audience – has responded with such enthusiasm that it is now the world’s leading corporate citizenship initiative, involving more that 2,400 companies, in nearly 90 countries.

This new mindset must also extend to the domain of international peace and security – so that we think of security not only in conventional terms, focusing on prevention of war between States, but also as including the protection of the world’s peoples, against threats which, to many of them today, seem more immediate and more real.

One of those threats is the threat of genocide and other crimes against humanity. I called the General Assembly’s attention to this in 1999, warning that such mass atrocities can never be treated as a purely domestic affair. Being rightly called crimes against humanity, they demand a collective response from humanity, which should be organized and legitimized by the United Nations.

More recently, the High-Level Panel that I appointed in 2003 has identified a broad range of threats, including:

· poverty, infectious disease and environmental degradation;· conflict within States, as well as between them;
· the spread of nuclear, radiological, chemical and biological weapons;
· terrorism;
· and transnational organized crime.

My “Larger Freedom” report built on this re-definition of global security, drawing it together with the detailed recommendations of the Millennium Project for achieving the Millennium Development Goals by 2015 – which in itself would rescue many millions of people from the threats of poverty and disease.

But my report also included a third dimension: human rights and the rule of law. Without these, any society, however well-armed, will remain insecure; and its development, however dynamic, will remain precarious.

Member States took the report as their starting-point in negotiating the outcome of last September’s world summit. I won’t say that that document fulfils all my hopes. But it does contain many important decisions – from the creation of a Peacebuilding Commission and Human Rights Council, through the commitments to advance the Millennium Development Goals, to the acceptance, by all States individually and collectively, of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

Excellencies, Ladies and Gentlemen,

The United Nations cannot stand still, because the threats to humanity do not stand still. Every day the world presents new challenges, which the founders of the UN 60 years ago could never have anticipated. Whether it is a looming crisis over Iran and its compliance with the Nuclear Non-Proliferation Treaty, continuing atrocities in Darfur, or the threat of an avian flu pandemic, people all over the world look to the United Nations to play a role in making peace, protecting civilians, improving livelihoods, promoting human rights and upholding international law. I have worked long and hard to transform the United Nations so that when called upon, as we are every day, we will deliver what is asked of us – effectively, efficiently and equitably. That is the true objective of the changes I have sought to bring about, and it will be the true measure of my success or failure.

And my successor – since I understand several members of this panel may be interested in the position – need not worry. Changing the mindset of the United Nations, so that it can both reflect and influence the temper of the times, is a never-ending challenge. There will be plenty more work to do in the years and decades to come.

Thank you very much.

Roger Alford at Opinio Juris on lower court use of foreign law

Roger Alford at Opinio Juris makes an important point that most of us, me included, haven't really focused on in the debate over the use of foreign law in US courts - its use by lower courts and state courts. He notes that the Missouri Supreme Court appealed to foreign law in its opinion in Roper v Simmons, flagrantly ignoring then-controlling US Supreme Court precedent. I've noted in earlier posts that foreign law, unless checked by a newly constituted Supreme Court (and the fact that Roberts and Alito are both opposed does not really change the situation all that much, given that Kennedy, Stevens, Breyer, Souter, and Ginsburg are all on board), will become much more a feature in the lower courts than we now realize, through the press of litigation. But Roger Alford's post notes that it is already present more than I, at least, had really thought about. Here.

Peggy McGuinness at Opinio Juris takes note of the new UN scandal developing in peacekeeping procurement

Peggy McGuinness at Opinio Juris, here, takes note of the new scandal developing at the UN, around procurement in peacekeeping operations, and compares it to similar scandals in the Pentagon. The Peacekeeping budget is far larger than the regular UN budget and, as Peggy notes, procurement always presents corruption problems for officials, whether the Pentagon or the UN. It's not so much that procurement presents opportunities for corruption - it always does - the question is whether there are genuine mechanisms of accountability that can root it out and effectively deal with it, both to reduce the risk and punish it afterwards. These scandals are not going away, either at the Pentagon or the UN.

Thanks, Peggy!

Thanks to Peggy and the folks at Opinio Juris, who posted a link to Jean-Marie Henckaerts comments on my comments on the ICRC customary law study. It's an Opinio Juris-launch!

ICRC's Jean-Marie Henckaerts responds to my comments on ICRC customary law study

Jean-Marie Henckaerts, legal advisor to the ICRC and one of the two authors, along with Louise Doswald-Beck, of the new ICRC study on Customary International Humanitarian Law, has very kindly written a response to an earlier post of mine, here, in which I offered some initial comments on the Study. I should emphasize, those comments are preliminary, first-cut blog comments - once past the current book project on UN reform and global governance, I will be doing a substantive review of the Study for the Hoover Institution's Policy Review. But I want to thank Jean-Marie for taking the time to offer a very serious discussion of some of the criticisms I offered - and which I will be thinking about very hard over the next few months. I also want to again reiterate what an extraordinary scholarly achievement the Study is - you have to read the entire thing to understand just what an undertaking it is. So here are Jean-Marie's comments. I hope they get very wide circulation in the world of international humanitarian law.)

***
Comments on Professor Anderson's initial reaction to the ICRC Study on Customary International Humanitarian Law

Geneva, 19 January 2006

Methodology

With respect to your question whether the Study privileges the written and verbal aspects of state practice over what states actually do in actual wars, the following points can be raised:

A. The study has not looked only at verbal acts of State practice.

1. Official reports on the conduct of actual wars have been included to the extent that they were available, e.g. the report by the US Department of Defence to the US Congress on the conduct of the Gulf War.

2. In addition, numerous instances of what appear to be verbal acts of State practice do in fact describe practice in actual wars. This is particularly the case for military orders, instructions and manuals which reflect what armed forces are instructed and trained to do and what they end up doing most of the time in actual wars. We often lose sight of this fact because the media and others focus so much on the alleged violations of those documents. For example, the best way by which to describe the many instances of humane treatment of prisoners by US troops in its recent wars in Afghanistan and Iraq is either by reference to an official report on those conflicts (see A.1) describing the required treatment of prisoners or by reference to a military order or a manual prescribing such treatment. Other reports, for example those relating to ill-treatment of prisoners, have to be treated differently, namely as descriptions of violations (see below).

B. An accurate snapshot of customary IHL does not merely require a description of what parties "actually do in actual wars". This is so because customary international law is formed by a general practice accepted as law. The latter element is often referred to as "opinio juris". The requirement of a general practice, combined with evidence that this practice conforms to a legal obligation has two important implications:

1. To the extent that field practice is not official and does not represent the legal conviction of the State concerned, it does not count. This implies, in particular, that if actual practice is generally seen as a violation of existing rules, this practice is not of a nature to modify existing rules. That is why notwithstanding numerous reports of, for example, attacks against civilians, pillage and sexual violence these acts are still prohibited under customary international law. The conclusion that these acts are considered to be violations of existing rules can be derived i.a. from a number of verbal acts, such as legislation, case-law and official statements. These verbal acts are therefore important and have to be considered to get the full and correct picture of customary international law.

2. The opposite is also true. Although States may in practice abstain from engaging in certain behaviour, through their verbal acts, qualifying their abstention as mere policy not based on a legal obligation to abstain, they can reserve their right to engage in those acts in the future. That is why attacks against works and installations containing dangerous forces – although seldom or never resorted to in the last twenty years – would still be considered lawful by States in case they constitute military objectives and sufficient precautions are taken. If mere battlefield behaviour were examined such targets would have to be considered off-limit. The same is true for nuclear weapons: on the basis of a mere consideration of battlefield practice, nuclear weapons would have to be considered unlawful – a position clearly not shared by the nuclear powers. This shows that verbal acts have an important impact on how battlefield practice has to be looked at.

In conclusion, while opinio juris alone cannot create custom, practice alone cannot create custom either. Both elements are required and were looked for in the Study. It seems to us therefore that on methodological issues we are actually more in agreement than in disagreement.


Substance

With respect to some of the substantive comments, the following remarks can be made, which indicate again that we are more in agreement actually than in disagreement:

Rule 54. Attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population is prohibited.

Contrary to what is asserted, this rule is subject to exceptions. They are addressed in the commentary but admittedly they should have been mentioned in the rule ("in principle" or "subject to exception"). The rule was never meant to be absolute or to go further than Additional Protocol I. George Aldrich first raised this comment at the Hague launch and we agree with him on this issue.

Rule 106. Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.

It has been suggested that (a) this rule goes beyond Protocol I or that (b) it elevates the relaxed standards of distinction found in Article 44(3), second sentence, to the status of customary law. Neither suggestion is correct, or at least not as such intended:

(a) Beyond Protocol I: This suggestion is based on the fact that in Protocol I, Article 44 has to be read in conjunction with Article 43. In other words, not any combatant who distinguishes him/herself is entitled to POW status, but only members of (State) armed forces. The term "combatants" in Rule 106 is limited in this sense as it is used in the sense defined in Rules 3 and 4 but admittedly this could have been stated more clearly. It was never the intention to go beyond Protocol I.

(b) Relaxed standards customary: This cannot be the conclusion of anyone reading the commentary. The rule is phrased in general terms and does not indicate exactly how a combatant has to distinguish. It is beyond doubt that a combatant complying with the standards in Article 4 of GC III does properly distinguish. Whether the relaxed standards that have been introduced in Article 44(3), second sentence, of Protocol I for exceptional situations (i.e. for resistance and liberation movements) are customary is explained in full detail in the commentary and that discussion is inconclusive. In other words, it is not concluded that it is customary.

For these and other reasons the study does not support the assertion that all of Protocol I is customary. Other examples which indicate that the study does not support the customary nature of Protocol I as a whole include the following. First, the study does not say anything about the customary nature of a number of provisions, as they are not as such addressed in the study:

- Article 1(4)
- Article 36 (new weapons)
- Article 45 (presumption of POW status)
- Articles 61–67 (civil defence)

Secondly, the study actually concludes that a number of rules are not customary:

- Articles 24–31 (medical aircraft)
- Article 50(1), second sentence (rule of doubt)
- Article 51(6) (reprisals against civilians)
- Article 56 (works and installations containing dangerous forces)

The fact that numerous rules of Protocol I are customary today should not be surprising, as many of them were already customary in 1977. In important respects, Protocol I was a codification of customary norms. It is true, on the other hand, that a number of provisions in the Protocol were new in 1977 but have in the mean time become customary because they have been extensively and uniformly accepted in practice. And as the study clearly shows, a number of provisions have not become customary because they are not uniformly accepted in practice.

We therefore think that the Study has approached Protocol I, and for that matter any other treaty, in a cautious manner and has not assumed that a rule is customary merely because it is contained in a widely ratified treaty. As stated in the introduction:

"This study takes the cautious approach that widespread ratification is only an indication and has to be assessed in relation to other elements of practice, in particular the practice of States not party to the treaty in question. Consistent practice of States not party has been considered as important positive evidence. Contrary practice of States not party, however, has been considered as important negative evidence. The practice of States party to a treaty vis-à-vis States not party is also particularly relevant."


Conclusion

In conclusion, we would like to underline that the ICRC was requested by States to undertake this study, in order to assist them in the complicated task of identifying custom. The organisation took this mandate very seriously and spent nearly 10 years on research and consultation. This study represents, therefore, our best possible effort in providing a snapshot of customary international humanitarian law that is as accurate as possible.

Jean-Marie Henckaerts
Legal Adviser
ICRC Legal Division

Mark Steyn on Michael Ignatieff, newly arrived immigrant to Canada

My admiration for Mark Steyn, as readers of this blog are aware, knows no bounds. Still, I did think this piece on Michael Ignatieff, whom I count as a friend and whom I also admire, is a little mean. In Macleans, here.

Ignatieff's novel puzzled me. I thought sure the hero of an Ignatieff novel would be an NGO field worker, and then instead he made the hero a journalist.

***
January 18, 2006
Maclean's

It's like a classical pianist at the burlesque
Intellectual colossus Michael Ignatieff downsizes himself to Liberal talking points

MARK STEYN

"We need troops, warriors and chieftains," Michael Ignatieff, parliamentary candidate for Etobicoke-Lakeshore, told a Liberal fundraiser the other day. Don't worry, he doesn't mean real troops, with guns and uniforms and so forth, like Scary Stephen wants to introduce to our cities, according to one of the wackier Grit attack ads. Professor Ignatieff was speaking metaphorically, as Liberals usually turn out to be when they get a whiff of cordite in their rhetoric. He only wants metaphorical troops on the streets of Quebec -- to save federalism, yet again -- though why he added "warriors and chieftains" is a puzzle. It makes the province sound like Afghanistan: "U.S. troops today brokered a tentative ceasefire between Uzbek warriors and Pushtun chieftains."

But perhaps that's the point. As his NDP rival in Etobicoke likes to point out, Professor Ignatieff has been out of the country for 27 years and he's "out of touch" with Canada. He's not up to speed, if that's the expression. When you've been wrestling with the Balkans and Iraq across the lecture halls at Harvard and the talk-show sofas of the BBC for two decades, it can't be easy bringing yourself down to speed for an election about federal daycare. Ignatieff's been doing his best this election campaign but it's like watching a classical pianist accompany the clowns in a burlesque house.

Three years ago, the great man was all over the (international) TV networks and papers arguing in favour of war with Iraq. He framed it in small-l liberal terms: Imagine one day being able to go to Baghdad and sit in a café drinking coffee with Iraqi poets and intellectuals freely discussing the affairs of the world. Well, then, how to make it happen? In his 2001 book Human Rights as Politics and Idolatry, he spells it out bluntly: "There are no peaceful diplomatic remedies when we are dealing with a Hitler, a Stalin, a Saddam, or a Pol Pot."

Actually, he doesn't spell it out that bluntly. Almost any Ignatieff tome spends most of its time swathing an issue in philosophical objections and recoiling from its own logic before eventually, belatedly coming to the right conclusion. Thus, his 2004 book argues that Western democracies "must not shrink from the use of violence," but the very title captures the self-torture required to reach his position -- The Lesser Evil -- and, by the time he's justified the use of violence, he sounds too exhausted to get up to any. Nonetheless, the fact remains that, if he'd come home to join the Conservative party, the Liberals would be running their current Harper attack ads against him: "Michael Ignatieff would have sent Canadian troops to Iraq!"

Well, American and British troops.

Nonetheless, as agonized as his liberal warmongering is, it's livelier than anything we're likely to hear from him if he's elected as MP for Etobicoke and starts working on his leadership campaign: shrinking from violence is one thing, shrinking to complacent Trudeaupian preening is quite another. The clarifying act of Ignatieff's adult life was the Bosnian war. He spent the eighties chugging through affable chit-chat on the BBC discussing the issues of the age as grand abstractions. But then Yugoslavia collapsed and it wasn't so abstract anymore: the European Union, with pretensions to "moral" superpower status, did nothing as tens of thousands of corpses piled up on its borders. If he disliked the EU policy on the Balkans -- hold committee meetings until everyone's dead -- he wasn't entirely comfortable with the Clinton approach, either. "War ceases to be just when it becomes a turkey shoot," he wrote of Kosovo in Virtual War. "America and its NATO allies fought a virtual war because they were neither ready nor willing to fight a real one."

That's a fair point. Yet it's the case that Ignatieff was most gung-ho on Iraq when it was a "turkey shoot" and, like most of the left's moulting hawks, began back-pedalling once it became a "real one," with men dying in hard, bloody, messy, ugly ways in Ramadi and Fallujah. As an armchair warrior, I'd be reluctant to share an armchair foxhole with Ignatieff and Co. after the last couple of years. The war he's become so tentative and equivocal on is exactly the kind he spent most of the nineties arguing the moral purpose of.

In that sense, of all the many volumes Bosnia brought forth from Ignatieff -- Blood and Belonging: Journeys into the New Nationalism; The Warrior's Honour: Ethnic War and the Modern Conscience; Empire Lite: Nation-Building in Bosnia, Kosovo, Afghanistan, and a few others I may have forgotten -- of all that vast groaning righteous bookshelf, the most revealing is the slender novel Charlie Johnson in the Flames (2003). The eponymous Charlie is a jaded American hack in the Balkans, the eponymous flames are on a young woman in an unimportant village:

"She was screaming at the commander, fists raised, when the gasoline arced over her and the lighter touched her hem. She went up with her house, an orange-black spinnaker of flame catching the wind . . . She was running along the road towards them, while the commander watched her go, and stayed the mercy of an executioner's bullet. Then he climbed into the half-track, reversing hard . . . "

In a quarter century on the war beat, Charlie Johnson's seen it all but he hasn't seen that. And, after burning himself trying to get the woman to hospital, he gets back to London and goes through the raw footage frame by frame:

"'Look at this.' He handed Shandler the picture: a man of about forty, dark hair, trim and tight inside his uniform, one hand outstretched, with the lighter at the end of it.

"'So?'

"'I want to find him.'"

What a crackerjack opening for a revenge thriller, eh? The hitherto passive observer of the world's pathologies plunges into the thick of it, pulls the old Count of Monte Cristo routine and hunts down the Serb colonel with the lighter.

Except, of course, that with an anguished progressive's revenge thriller nothing's quite that straightforward. Ignatieff has a wonderful journalistic eye for the startling detail, the telling banality, and he understands what it means. The BBC's foreign affairs editor, John Simpson, described Charlie Johnson as "the best contemporary account of what it is really like to be faced with the intense moral dilemmas of modern conflict." But, of course, a monster who lights up a young woman doesn't pose a "moral dilemma" so much as a practical one: Is feeble social-democratic transnational passivism capable of rousing itself to act, as the EU so conspicuously failed to do in the Balkans? Ignatieff's novel certainly has "a compressed cinematic brilliance" (The Sunday Telegraph) but by the time the protagonist brings himself to take action it's too late, too poorly thought out and is in the end a gesture of pointless moral narcissism. The novelist may have captured the practical uselessness of the liberal "conscience" better than he suspected. As The Scotsman's Alan Taylor once wrote, "Michael Ignatieff wailed like the intellectual banshee he is."

I've met him just once, a decade or so back, at a dinner party in London for Canadian expats. He left early, telling me he found all this talk of Canada frankly rather parochial. I wonder how he feels after two months on the campaign trail. For all his banshee wailing, he at least spent the last decade trying to persuade the dessicated Western left to confront the realities of our time. He won't be doing much of that as our Trudeau-in-waiting. It profits a man nothing to give his soul for the world, but for Etobicoke-Lakeshore and a mid-level cabinet post?

Until this last month, when the intellectual colossus downsized himself to Liberal talking points, the Ignatieff low point was widely agreed to be his performance in the wake of the Princess of Wales' death. "Twenty-four hours ago I couldn't imagine I would say this," he choked up to British TV viewers. "A light has left the world." That's how I feel about Ignatieff: a light has left the world to flicker instead over a party that explicitly rejects the moral doctrine he's formulated and, indeed, regards morality as no more than self-congratulation: feeling good about feeling bad. Goodbye, England's rose. Hello, Ottawa's narcissi.

Washington Post editorial on UN Human Rights Commission reform

Washington Post editorial, here, noting the not-unlikely possibility that without change very soon, the widely discredited UN Human Rights Commission could hold its next scheduled meeting in March 2006 - with representatives of Zimbabawe, Sudan, China, Cuba, Egypt, Saudi Arabia, Nepal, and Russia on board - the "very states," says the WP, "that should be at the top of the commission's list for examination."

The editorial lays blame on Ambassador John Bolton and the US, claiming that the existing structure of thus on the HRC is defended by two key US allies, Egypt and Pakistan, and that the United States bears the responsibility for not pressuring them. (It also points out that Venezuelan strong-arm man Hugo Chavez is also purchasing support through oil money from several small Carribean states.)

The editorial says that Bush administration support for HRC reform "has been lukewarm," and cites as evidence that the negotiations had been handled by junior diplomats.

Is the "lukewarm" claim by the Post correct? Not according to people, even people outside the administration, whom I've interviewed recently in preparing my little book ms. on UN reform and global governance. They tell me that the administration does regard reform of the HRC to be of fundamental importance - even as they criticize, as the Post does, Bolton's suggestion that the P5 Security Council members, including, of course, China and Russia, automatically have seats. But the more practical reformers I've spoken with - while thinking it a bad judgment call - acknowledge that the realism it embodies has two merits. One, it takes Russia and China out of opposition to general reform of the HRC. Two, it has the merit of ackowledging that the HRC needs not only the morally virtuous, but great powers - not all, but enough to make the body relevant, and the members of the Security Council are a useful way of ensuring some while not taking everyone. These are not arguments anyone should necessarily accept, but they are not wild and crazy, either. It is also true that the administration has backed somewhat away from this proposal.

I agree with the Post that if deep reform cannot be achieved, it is better simply to abolish the body. The reason that does not flunk the realism test is that it is possible to create fora outside the UN itself - caucus of democracies-type arrangements - that can frankly do better what the Human Rights Commission is supposed to do. There are alternatives that can compete on particular issues with the UN system.

Excerpts:

***
Impasse on Human Rights

Washington Post editorial
Friday, January 20, 2006; A16

IF NO ACTION is taken, a pitiful parody of an international human rights commission will convene in Geneva in March under the auspices of the United Nations. Among the 53 delegates who will judge abuses of freedom around the world will be representatives of Zimbabwe, Sudan, China, Cuba, Egypt, Saudi Arabia, Nepal and Russia -- the very states that should be at the top of the commission's list for examination. As Secretary General Kofi Annan acknowledged a year ago, the world's most conspicuous abusers of human rights have pushed their way onto the panel to prevent it from acting effectively in their cases; in so doing, they have turned what was once one of the more worthy U.N. institutions into its greatest disgrace. Mr. Annan's attempt to end this travesty while preserving a U.N. human rights body is bogged down in a predictable impasse between democratic and autocratic states. At the least, they should be able to agree that the present commission will not meet in March, or ever again.

Mr. Annan proposed to replace the human rights commission with a council that would be smaller, more effective and harder for chronic human rights abusers to join. A draft resolution to create the new body, issued by a working group in December, has some positive features, including a commitment to meetings throughout the year by the new council, instead of the current system of one annual session. But almost every important detail of the organization remains in dispute. Western democracies and human rights groups want to reduce the number of members to 30, require that they be elected by a two-thirds vote of the General Assembly and hold sessions at least four times a year for 10 weeks. The dictators' lobby wants more members, a lower threshold for getting on the commission, fewer meetings and a requirement that any resolution about a country be adopted by a two-thirds vote.

Who argues for the autocrats? Among their advocates are Egypt and Pakistan, two U.S. allies that rank among the world's leading recipients of U.S. government aid. Both regimes are headed by generals who claim they are steering their countries toward democracy; if that's true, they should have little to fear from a reinvigorated U.N. Human Rights Commission. Several Caribbean countries have also resisted the proposals of the democratic states; they, too, should have no reason to oppose a strong human rights commission, unless it is on behalf of their new financial benefactor, Venezuelan President Hugo Chavez. None of these states would be likely to insist on thwarting the new council if they believed it would do significant harm to their relations with the Bush administration.

The administration's support for the reform, however, has been lukewarm. Until recently it delegated the negotiations to junior officials; when John R. Bolton, U.S. ambassador to the United Nations, finally intervened early this year, it was to make the unhelpful demand that all permanent members of the Security Council be granted seats automatically. This would ensure a place for the United States but also for Russia and China. The administration has since softened this position, but it will need to make other concessions if the most important reforms are to be pushed through -- and it will have to put more pressure on Egypt, Pakistan and other allies. If the new council cannot be agreed on by March, the United States should insist that the current commission nevertheless be abolished. Better that the United Nations have no human rights body at all than a mockery of one.

Who is the hyper-cowboy now? ... Chirac

Truly remarkable. Reuter's, Thursday, January 19, 2006, France Defends Right to Nuclear Reply to Terrorism, here. Shocked responses in Europe, here. The Financial Times has a good front page story on Friday, January 20, 2006.

(Update, January 29, 2006. The major US newspapers seemed to have passed over this speech in embarrassed not-quite silence. But here is a comment by the lawyer and thriller-writer, Allan Topol, in the Washington Times, January 26, 2006, here.)

***
France defends right to nuclear reply to terrorism

By Elizabeth PineauThu Jan 19, 9:11 AM ET
Reuter's

France said on Thursday it would be ready to use nuclear weapons against any state that carried out a terrorist attack against it, reaffirming the need for its nuclear deterrent.
Deflecting criticism of France's costly nuclear arms program, President Jacques Chirac said security came at a price and France must be able to hit back hard at a hostile state's centers of power and its "capacity to act."

He said there was no change in France's overall policy, which rules out the use of nuclear weapons in a military conflict. But his speech pointed to a change of emphasis to underline the growing threat France perceives from terrorism.

"The leaders of states who would use terrorist means against us, as well as those who would consider using in one way or another weapons of mass destruction, must understand that they would lay themselves open to a firm and adapted response on our part," Chirac said during a visit to a nuclear submarine base in northwestern France.

"This response could be a conventional one. It could also be of a different kind."

Chirac, who is commander-in-chief of the armed forces, said all of France's nuclear forces had been configured with the new strategy in mind and the number of nuclear warheads on French nuclear submarines had been reduced to allow targeted strikes.

It was the first time he had so clearly linked the threat of a nuclear response to a terrorist attack.

Chirac, 73, did not say whether France would be prepared to use pre-emptive strikes against a country it saw as a threat.

SECURITY TIGHT

France has had nuclear weapons since the 1960s and experts believe it has some 300 nuclear warheads.

"Against a regional power, our choice would not be between inaction or annihilation," Chirac said in his first major speech on France's nuclear arms strategy since 2001.

"The flexibility and reactivity of our strategic forces would enable us to exercise our response directly against its centers of power and its capacity to act."

France has tightened security since Islamist suicide bombers killed more than 50 people in attacks on London transport last July, and following the Madrid bomb blasts which killed more than 190 people in March 2004.

Despite its strong opposition to the U.S.-led war in Iraq, France remains a target for Islamist militants because of its intelligence links with the United States and Britain.

Last July, national police service chief Michel Gaudin said a radical Algerian Islamist group, the GSPC, had been in contact with al Qaeda's leader in Iraq, Abu Musab al-Zarqawi, about launching attacks in France.

Since the end of the Cold War, questions have been raised about the usefulness of the nuclear program, which makes up some 10 percent of the overall defense budget.

Chirac's government is under pressure to cut spending as it struggles to bring its public deficit below the European Union's deficit limit of 3 percent of gross domestic product.

"Our country's security and its independence have their price," Chirac said.

Last post as I descend into rewrite silence

Lightly posting

I'll be only lightly posting for the next two weeks - mostly just stuff I need for my class on UN reform and global governance. I am frantically finishing a book manuscript on that same subject, due at the end of January.

Christopher Caldwell on Raymond Aron and the End of Europe

I have been meaning for several months now to post the link to Christopher Caldwell's Bradley Lectures at AEI, April 4, 2005, Raymond Aron and the End of Europe. Christopher is the finest American journalist covering Europe, and this lecture shows why. Like Christopher, I am a reader of Aron (pictured) - as he says, a vast country, of which I know only certain slivers - I have recently finished Aron's splendid study of Clauswitz and have come away a great admirer. He is right up there in my canon of political moralistes with Albert Camus and Rene Char.

What have I learned from Aron? Well, I am fundamentally an idealist in political theory - I come out of the human rights movement, and having expanded that take in values of democracy that the neo-Platonism of the human rights movement does not accommodate very easily, I embrace constitutional democratic sovereignty as the preferred ideal political structure in international life. That contrasts with liberal internationalism's preferred global federalism. But either way, the position is an idealist one, driven by arguments from morals. Aron, more than anyone, has rehabilitated realism for me - a sort of moral realism (I use this term very differently from what it means in ethical theory) that exists in service of moral ideals, but which operates as a serious, consequentialist qualifier on principles that might obtain strictly between individuals and strictly as a matter of morality.

Christopher's lectures take up, however, the question of demography in Europe, one which Aron never really confronted. He says:

"But European voters do increasingly tell pollsters they feel a “European identity.” When you ask them what they mean by that, they generally mention one thing or another that illustrates differences from the United States: Europe’s oldness, perhaps, or welfare states, or its secularism. In other words, they mention Europe’s institutions. And this is the big problem. Because those institutions have proved hard to adapt to two phenomena that are characteristic of our global age: (1) open markets, and (2) broad demographic change, including large migrations. There is no prospect of managing that change unless the continent’s social institutions (starting with its welfare states) are reformed. Europeans are afraid that such reforms mean “Americanization.” As they see it, the experts and economists keep telling them that they must destroy their continent to save it. So Europe is now--defensively--asserting an identity without a particularly clear idea of what that identity is."

John Bolton and UN reform on WAMU Kojo Nambe Show

Kojo Nnamdi's WAMU radio show has a discussion of John Bolton and UN reform, today, Wednesday, January 18, 2006. Here is the link to the WAMU page where you can listen to the recorded show. Below is the text of the show description (I tuned in late, and didn't hear Linda Fasulo, so I'm not sure she was actually on the show):

***
12:06 John Bolton and the UN
Ambassador John Bolton hasn't shied away from controversy since President Bush appointed him to the top job at the United Nations last summer. We'll take a look at the issues that have topped Bolton's agenda, and how he's interacted with his diplomatic colleagues.

Guests:

Linda Fasulo, UN correspondent for NBC News and longtime contributor to NPR; author of the book "An Insider's Guide to the UN"

Karl Inderfurth, former Assistant Secretary of State for South Asian Affairs (1997-2001), and Professor at the Elliott School of International Affairs, George Washington University

Brett Schaefer, Research Fellow in International Regulatory Affairs, The Heritage Foundation

Happy MLK Day

Let me send you to Roger Alford's post on MLK at Opinio Juris. And while I'm at it, Chris Borgen's post, same blog.

I've tried reflecting today on what it means, within the tradition of MLK and religion and politics in the United States, to "bear witness."

It is a peculiar idea for the public sphere, in many ways, because it flies in the face of secular concepts of deliberative democracy. The point of "bearing witness," after all, is not to convince someone by purely reasoned, rational argument - the core of it is to invite the person to see, in some spiritual, perhaps religious but perhaps not, way that they have something fundamentally wrong. And invite them to change.

In contemporary American political life, we, especially we in secular mode, have a very mixed reaction to that. When it is Dr. King, we embrace it. And we tend to be rather accommodating to it when it arises out of the generally liberal American black churches. When it comes from the right - using religious conversion to change minds about abortion, white people praying in the public square, etc. - then suddenly, somehow, there is this switch in gears, and that form of "bearing witness" is denigrated, less than worthy because it does not seek to persuade according to the canons of deliberative democracy (which, as Peter Berkowitz has pointed out better than anyone, in a review essay in the New Republic about ten years ago, has its own special rules about what counts as rational and what not, with an amazing coincidence between "liberal" and "rational"). And we have not yet begun to take in what bearing witness might mean as applied, say, to Islamic jihadists and fanatics, who are beyond the call of any kind of reasoned argument.

I don't know how one resolves all this. Partly, I guess, it is what Martin Luther King did - it was never all one or the other, all reason and no witness, never all witness and no reason. One reinforced the other. I'm not sure I know how to carry it further than that, so I guess ... God bless Martin Luther King on his birthday.

February 1 meeting with the ICRC director general for Asia

For anyone who happens to be in the DC area and is interested, the Hoover Institution will be hosting a small lunch meeting on February 1 with the director general for Asia of the ICRC, on the topic of humanitarian relief work by the ICRC in Asia. This includes things like tsunami relief, Pakistan earthquake relief, humanitarian relief work in various conflict zones and so on.

Here in Washington there is a general perception that the ICRC is all about Guantanamo, detention, and what the organization calls "protection" issues. Which is true - it takes up a vast amount of ICRC resources and time here in DC. People like me have often been critical of the ICRC on these issues - this blog takes up some of them, and folks like David Rivkin and Lee Casey have made the argument that the ICRC has become improperly politicized in its work.

So it is very important - I say this is both a strong supporter and occasional critic of the ICRC - that people in DC, including the ICRC critics, be aware of the broader work of the ICRC, especially in humanitarian relief work. I have always opposed linking the ICRC funding from the US government to the fights the Bush administration has with the ICRC over things like detainee access and so on. The reason is simply that the work of the ICRC in conflict zones, where it has not just the greatest expertise and ability to help, but not infrequently the only access, makes it indispensable. Frankly, that is more important than whatever the political fights between the administration and the ICRC over other issues - and I say this as someone who frequently takes the administration's side on many of these fights. Fight with the ICRC, by all means - even nastily if that is the only way to make the point - but be completely clear that those fights have no implications for the funding of the indispensable work of the ICRC with victims of war and disaster.

So this meeting, which Tod Lindberg, editor of the Hoover Institution's Policy Review, and I are honored to host, is a chance to discuss not the usual detention-interrogation-war on terror issues, but the humanitarian work of the ICRC. Tod and I will moderate, and we will limit discussion to the ICRC's humanitarian work and, because the speaker is coming from Asia, to Asia issues specifically.

The meeting will be 12-2 pm, February 1, in the Hoover Institution/Policy Review's offices in Dupont Circle. Limited space - no more than 20 people, of which we're reserving places for some government people and some others, so space is a premium. But it you'd like to attend, please email me and give some idea of your background, so I can see if we have space. No promises - this meeting may already be filled with people invited by the ICRC, but if you'd like to be considered, email me.

If it turns out that we have mega-response and not enough room, we'll probably schedule a subsequent meeting with Geoff Loane, the head of the ICRC office and himself a humanitarian relief specialist.

Niall Ferguson slyly touts the virtues of preventive war with Iran

Niall Ferguson, "The origins of the Great War of 2007 - and how it could have been prevented," Daily Telegraph, Sunday, January 15, 2006. Here. Thanks RCP.

Preventive war does not enjoy a good reputation with international lawyers or political ethicists these days. Too much consequentialism, too little Kant. Somewhere on this blog I link to a very interesting, carefully thought-out article by the philosopher David Luban in Philosophy and Public Affairs in which he is deeply skeptical of the idea of preventive war. I myself am not persuaded by the skepticism, however; at some level, I read it and shrug, willing to make the bet that the consequences of not using force are too great to allow you to wait. As, I take it, Niall Ferguson is at least sometimes willing to do.

That does not answer the question, however, of what an actual, workable use-of-force strategy, whether by Israel or the United States - forget Europe - would look like, with at least a reasonable chance of success. As to that question, I really have very little idea.

NYT editorial on UN Human Rights Commission reform

The New York Times, 10 January 2006, editorializes against the Bush administration's proposals for the reform of the UN Human Rights Commission. Here. The Times is not opposed to the goal of reform, even radical reform, of the Commission, but instead opposes the way Ambassador Bolton and Bush administration are seeking to go about it - pressure, for example, on the budget process of the UN as part of overall pressure for reform. In this editorial, the Times particularly criticizes the Administration proposal that Security Council members automatically have a seat on the (reformed) Human Rights Commission (or Council, or whatever it turns out to be called).

I think the Bush administration is right on this one. It is not because Security Council members are incapable of being serious human rights abusers - of course they can be, witness China. And of course it is true that the Bush administration is seeking to ensure that the US always gets on, whatever other countries may think of Guantanamo, detention and interrogation policies, etc. However, at some point, the realities of power, signified by the Security Council, have to meet idealism. A Human Rights Council that consisted entirely of Swedens and Costa Ricas would not be a very good idea. It would quickly become irrelevant. I understand the Times' point - but think it is outweighed by the need to have engagement by countries that are not the worst violators, but have power even if they have power, meaning China and Russia. And a Human Rights Council that did not include the United States, because of, say, complaints over its anti-terror policies? Mark Steyn would think this a terrific idea - but that's because he thinks the UN ought to be ineffective - presumably that's not the NYT's position, but that would be the only real result of something as shortsighted as that.

(I also think it wildly disingenuous for the Times to claim in its opening that it has long been saying that the Bush administration generally has the right substantive agenda on UN reform. Really? On the contrary, it has been sniping and ankle biting for several years, down to its laughable editorials essentially brushing away the whole oil for food scandal. Its editorials on UN reform typically read as though someone from the SG's office came over and dictated the thing to the folks on West 43rd Street.)

Excerpts:

***
New York Times
Editorial
January 10, 2006

Wrong on Human Rights

For months, we have been arguing that the Bush administration has generally the right substantive agenda for badly needed changes at the United Nations, but that Ambassador John Bolton's scorched-earth alternative to diplomacy is undermining the prospects for successfully achieving these reforms. Now it turns out that our criticism has been only half-right in at least one crucial area - in restoring the United Nations' moral authority on human rights by excluding egregious violators from a new human rights monitoring council. Mr. Bolton's latest proposal on this gets the substance wrong as well.

The problem with the current discredited Human Rights Commission is that its members are chosen by a system of regional rotation that fails to take into account the actual human rights performance of prospective members. The reform was originally intended to change that, by requiring the approval of at least two-thirds of the 191 member countries to win a seat on the new council.

Mr. Bolton wants to defeat the whole purpose of that reform by automatically assuring seats for all five permanent members of the United Nations Security Council - regardless of their own human rights records.

That would, of course, guarantee a seat every year for the United States, despite what other countries may think of Guantánamo Bay and Abu Ghraib, the death penalty, or Washington's practice of secretly flying suspects to be interrogated in countries that countenance torture. It would also guarantee a seat every year to China, one of the world's most notorious human rights violators, and to Russia, whose own human rights record is less than stellar and which has never hesitated to gloss over the human rights abuses of dictatorships it considers friendly, like Cuba, for example.

There are plenty of areas where special weight is, and should be, given to the Security Council's big five powers, which also happen to be world's five legally recognized nuclear weapons states. Most of these areas, appropriately, are in the Security Council's special domain of war, peace and sanctions.

But the issue of human rights is very different. It is not about recognizing the interests of the powerful. It is about protecting the interests of the powerless. It would be nice if all of the big five could be trusted to do this. But not all of them can, either at home or internationally. Some of the people most in need of a strong U.N. voice on human rights live under tyrannies that have carefully cultivated Chinese or Russian favor: Cuba, Iran, Myanmar, Uzbekistan and Zimbabwe, to name a few.

Although Ambassador Bolton has repeatedly made it clear that he has little use or respect for the United Nations and would be happy to see the United States walk away from it, we have never questioned his commitment to reform its most dysfunctional institutions. But his behavior on this issue leaves us questioning his judgment, and that of his bosses in the State Department and the White House.

Economist leader on reform of UN Human Rights Commission

The Economist magazine editorializes on reform of the UN Human Rights Commission, here, "Fix it or scrap it," 12 January 2006. This is a useful short article in describing current alternatives for fixing, amending, or re-doing the Commission. The website of the Commission is here. The UN website for UN reform is here.

***
The Economist
Leader
12 January 2006

UN reform:
Fix it or scrap it

Serial violators of human rights should be booted off the human-rights commission

THE United Nations was founded to promote peace, prosperity and human rights. It is doing somewhat better on the first two counts than its critics sometimes make out. The last, however, has been such a failure that it is threatening to bring the whole edifice down. Once revered as the creator of all the great universal human-rights rules and instruments, the 53-member Commission on Human Rights has been thoroughly discredited. If it cannot be fixed it needs to be scrapped. In its present form it serves only to make a mockery of the cause.

The reason for this is simple enough. The present committee is packed with members who are themselves serial abusers of human rights. Kofi Annan, the UN secretary-general, admits that their main purpose in being on the committee is not to strengthen human rights but to protect themselves from criticism. At present, these members include exemplars of virtue such as Zimbabwe, Sudan, China, Cuba, Saudi Arabia, Nepal and Russia—a veritable roll call of the worst offenders.

A plan of sorts exists to reform this mess. Mr Annan called last spring for the replacement of the commission, which at present meets for just six weeks once a year, by a leaner, tougher, year-round Human Rights Council, which would be ready to act whenever serious abuse was discovered, and whose members should have a solid record on human rights. America and the other leading democracies backed the idea. The serial abusers did not. In the wrangling at a summit on wider UN reforms last September, Mr Annan's baby was reduced to a skeleton. Many wondered whether it could survive.

Amazingly, it has—just. There is now agreement on the need for a new body, on a par with the Security Council, that would meet several times a year including, when necessary, for emergencies. But its size, powers and composition are still up for grabs. The Americans want no more than 30 members, all with solid human-rights credentials, elected by a two-thirds majority of the General Assembly, along with a routine review of human rights in all 191 UN member states. The abusers want as big a body as possible (to maximise their chance of getting a seat), elected by a simple majority, as at present, with no membership criteria, and no automatic peer review.

Any reform must not just shrink the commission, but must also change the way in which members are elected. At present, regions usually put forward a slate of candidates corresponding to their allotted number of seats, which the General Assembly votes on to the commission as a block. Under one sensible proposal, regions would be required to put forward more contestants than their quota. Each candidate country would then stand separately for election by the General Assembly. Early peer review of all members would further reduce the temptation for thugs to try to get seats. But opposition is fierce, not only from the most notorious offenders, but also from those middle-ranking ones who fear their relatively minor abuses would be put under the spotlight.

Timing is tight. The old, unreformed commission is due to hold its next annual meeting in March. Mr Annan wants a new one to be ready to take over by then. That means reaching agreement on a blueprint within the next few weeks. If agreement is stymied, the next-best solution will be to wind the existing commission up altogether. Human rights matter too much for the UN to continue to shunt the subject off to a cynical talking shop that has become home to the worst violators. That just blackens the overall reputation of the UN.

Alito comes out against foreign law in US constitutional adjudication

Here is one of several posts at Opinio Juris on Judge Alito's rejection of the US of foreign law in US constitutional adjudication. (I've written a lot on the subject on this blog, scroll down, especially around January 2005 when Justices Scalia and Breyer spoke on the subject at my law school. Also, my Policy Review article on the subject, here.)

Anthony Daniels reviews Bernard-Henri Levy, War, Evil and the End of History

I've written before on the French public intellectual Bernard-Henri Levy, and I won't restate all that. But I do agree entirely with the review in the Spectator (London), January 7, 2006, by Anthony Daniels, of Levy's new book, War, Evil and the End of History. It is a very astute, very funny review. I thought his remark that Levy would have done better to have sat at the feet of Raymond Aron rather than Althusser is exactly right. Here, sub req'd. Excerpts:

(Update, January 29, 2006. American intellectuals and writers, not even Blue Staters, are not much impressed with Levy's tour of America, American Vertigo. Pretty typical is Garrison Keillor's reaction in the NYT book review of January 29, 2006. Keillor was a shrewd pick by the NYT to review Levy, having set himself up as the chief interpreter of the American heartland, at least to its college educate elites. Here, sub req'd. and here is the representative opening paragraph - it's one of the better passages Keillor has written:

Any American with a big urge to write a book explaining France to the French should read this book first, to get a sense of the hazards involved. Bernard-Henri Lévy is a French writer with a spatter-paint prose style and the grandiosity of a college sophomore; he rambled around this country at the behest of The Atlantic Monthly and now has worked up his notes into a sort of book. It is the classic Freaks, Fatties, Fanatics & Faux Culture Excursion beloved of European journalists for the past 50 years, with stops at Las Vegas to visit a lap-dancing club and a brothel; Beverly Hills; Dealey Plaza in Dallas; Bourbon Street in New Orleans; Graceland; a gun show in Fort Worth; a "partner-swapping club" in San Francisco with a drag queen with mammoth silicone breasts; the Iowa State Fair ("a festival of American kitsch"); Sun City ("gilded apartheid for the old");a stock car race; the Mall of America; Mount Rushmore; a couple of evangelical megachurches; the Mormons of Salt Lake; some Amish; the 2004 national political conventions; Alcatraz - you get the idea. (For some reason he missed the Sturgis Motorcycle Rally, the adult video awards, the grave site of Warren G. Harding and the World's Largest Ball of Twine.) You meet Sharon Stone and John Kerry and a woman who once weighed 488 pounds and an obese couple carrying rifles, but there's nobody here whom you recognize. In more than 300 pages, nobody tells a joke. Nobody does much work. Nobody sits and eats and enjoys their food. You've lived all your life in America, never attended a megachurch or a brothel, don't own guns, are non-Amish, and it dawns on you that this is a book about the French. There's no reason for it to exist in English, except as evidence that travel need not be broadening and one should be wary of books with Tocqueville in the title.)

And now, back to Anthony Daniels:

***
Jaw-jaw about civil war

by Anthony Daniels
Spectator
January 7, 2006

War, Evil and the End of History
Bernard-Henri Lévy
Duckworth, 371pp, £12.99, ISBN 0715633368


Bernard-Henri Lévy is possessed of a large fortune, great intelligence and film-star good looks (if now a little ageing). He therefore had the wherewithal to go through life like a hot knife through butter, but yet has chosen many times to expose himself to great danger in the continuing wars of torrid zones. Why?

In this book, he reprints his reportage from five lengthy, indeed seemingly eternal, civil conflicts — Angola, Burundi, Colombia, Sri Lanka, Sudan — and then appends philosophical reflections as footnotes to what he wrote. These footnotes form two thirds of the book.

The author suffers from one of the besetting sins of French intellectuals, a tendency to torrential, undisciplined abstraction, presumably in the hope that profundity will eventually emerge of its own accord. It would have been better for the author’s prose if, during his youth, he had sat at the feet of the clear and concise Raymond Aron rather than at those of the mad and muddy Louis Althusser (anyone who has read the latter’s prose will be surprised only that his wife did not kill him before he killed her).

Nevertheless, many of Lévy’s reflections are interesting, if in the end unsatisfying. He characterises the wars he has here written about as ‘meaningless,’ in the sense that they no longer have a place in any grand narrative of history. For example, what was once in Angola a proxy confrontation between the Soviet Union and the United States, between the ideals represented by communism and anti-communism, became, after the end of the Cold War, merely a struggle for loot in the form of oil and diamonds, with child soldiers not knowing what they were fighting for but committing acts of savagery (so much for the intrinsic innocence of childhood, Lévy rightly remarks).

Did this emptying of the conflict of ideological meaning represent a moral advance or a moral retreat? The author cannot quite decide whether wars fought, at least ostensibly, for ideologies are better or worse than wars fought for no such reason, which are wars that are for him — a pale Hegelian — outside history, or rather History.

I personally find the characterisation of large events, such as people being massacred by the hundreds of thousand, as being outside history both mystifying and profoundly distasteful. It implies that there are some people who take part in history and others who merely experience events. There is an echo here of Marx’s disgusting and proto-genocidal contempt for unhistorical nations.

Surely the war in Burundi has a meaning. As the author recognises, Burundi is a mirror image of Rwanda (as Rwanda is of Burundi). The war is thus an attempt to pre-empt genocide by means of committing it first. This may not be glorious or even rational, but it is certainly not meaningless for those who participate in it. Indeed, one might ascribe the war not to the absence of history, but to the tyranny of history: the inability to suppose that anything in the future could be different from, or not completely determined by, the past. The evidence that the author adduces for the post-historical nature of the Burundian conflict, namely the silent blankness of the faces of the victims it creates, is evidence of no such thing. It is evidence only of what they have suffered.

The footnotes to the reportage represent an eternal pirouetting around concepts of dubious ontological status or explanatory force. No doubt they give plenty of scope for ferocious polemics by like-minded intellectuals, but they make me think of the extraction of sunbeams from cucumbers.

The author half-recognises the self-indulgent nature of his enterprise. (It is interesting that he cites one of the great early French masters of reportage, Albert Londres, who was most definitely not a self-flagellating narcissist.) Much as he hates violence, and excoriates an intellectual and literary tradition that has glorified it, he is honest enough not to claim that he travels to war zones solely for the good of humanity. A man with his possibilities of leading an extremely comfortable life surely cannot expose himself to insect bites by the million with the chance of being shot into the bargain simply because he wants to give voice to the voiceless — though his desire to do so is creditable.

Perhaps the most memorable words in the book are a quotation of Drieu la Rochelle, the novelist and fascist sympathiser. Anyone who has heard and followed the siren song of man-made danger — as I have done — will recognise the truth of these words:

There is within me a terrible taste for depriving myself of everything, for leaving everything: that’s what I like about war; I’ve never been so happy — while being atrociously unhappy — as in those winters when all I had in the world was a fifty-cent book by Pascal, a knife, my watch, and two or three handkerchiefs, and when I didn’t get any letters.

Lévy, too, has known life stripped of its accidentals, when only the big questions are asked. As I read this book I oscillated between admiration and irritation.