Justices Scalia and Breyer debate foreign law in US cases

I see that several bloggers have been kind enough to link up regarding the upcoming conversation at my law school, Washington College of Law, American University, DC, with Justices Scalia and Breyer on the relevance of foreign law in US constitutional adjudication. Here is a full announcement; you can register to attend in person here.

This event is cosponsored by Washington College of Law and the US Association of Constitutional Law, the US affiliate of an international scholarly organization on comparative constitutional law - Norman Dorsen, the founding president of the US affiliate, will moderate the event.

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On Thursday, Jan 13, 4-5:30 pm est, at American University law school in DC, Justices Scalia and Breyer will hold a conversation on the topic of "The Relevance of Foreign Law for American Constitutional Adjudication." You are cordially invited, if you were to find yourself in DC that day; RSVP by Jan 10 to secle@wcl.american.edu. However, the event will also be livestreamed on the web; details available beginning Jan 10 at www.wcl.american.edu.

The topic is a hugely important one, of course - is Justice Breyer right in believing that the US constitution is simply an emanation of a broader global body of universal law and values, and hence it is appropriate to consider other sources? Or is Justice Scalia right in insisting that the US legal system owes fidelity to the US constitution alone? This is the sleeper issue for the Court over the coming decade, with immense implications for the "values" debate in the US.

For those of you who are bloggers, I would be very grateful if you might let your blog community know about this event, and even more grateful if you and others would consider liveblogging it as it livestreams.

Announcing Sanford Levinson's Torture: A Collection

In the midst of the increasing revelations on US interrogation practices in the war on terror, the essays in Professor Sanford Levinson's edited volume, Torture: A Collection, take on enormous importance. Professor Levinson, the very distinguished constitutional law scholar at the University of Texas Law School, has performed a critical service in being willing to talk openly about the questions of what constitutes acceptable interrogation, what does not, and what is torture.

It is not comfortable reading. But it is one of the very few discussions of this subject that is willing to step beyond rights-absolutist platitudes that leave no room to discuss what is actually okay in interrogation and what is not, and under what circumstances. It is in part the inability to talk publicly about what is okay, what is not okay, and what practices concretely constitute torture that has led the US to the situation today. It has unfortunately been unacceptable even to raise the question of tradeoffs between the security of potentially large numbers of people and what is determined to be individual rights. However, if open discussion is impermissible because it is politically incorrect even to raise the question, then the question of concrete practices - which are acceptable and which are not - will be determined in closed police, military, and intelligence bureaucracies. The results are and will be ugly.

I am not going to discuss concrete practices that have been appearing in the press at this point, even though ultimately these questions come down to line-drawing about concrete practices - this is okay, this is not. Sure, if you are Human Rights Watch or Amnesty International or the ICRC, then none of this matters, or anyway is all wickedness, because you think that any time the US has custody of someone, they must somehow be protected as a prisoner of war under the Third Geneva Convention and, in any case, that the only thing one may do is politely ask the equivalent of "name, rank, serial number." But most people don't think that, and certainly I don't. A public discussion that is frozen in this kind of rights-absolutism, while living in a time of justified fears of terrorism, however, will only guarantee that the discussion is held in private, without broad public discussion and input. And that, quite obviously, is what has happened. (For that matter, we must also fear what happens when, as happened in the 1970s intelligence reforms, any interrogation is ruled out of bounds, and bureaucrats in law enforcement, the military, and intelligence rationally conclude anything beyond what the human rights NGOs think is okay will invite a trip to jail, and it is better not to seek the intelligence necessary to prevent terrorist attacks). Some of the methods described in the newspapers are obviously unacceptable, some acceptable, and some might fit the legal definition of torture - I want to wait and see more documentation that is not just the press description before discussing particular cases here. My point now is that we have got where we are in part by an unwillingness to discuss the issue in public fora, because even to discuss it violates certain canons of polite discourse.

Which is why Professor Levinson and his contributors have done such an enormous public service by breaking the silence around this issue. I add, too, that it could only be done by a constitutional scholar of Professor Levinson's acknowledged integrity and unapologetic liberalism. I'll give it a review here in a future post.

Defining terrorism, 2

In my earlier post on defining terrorism, I suggested that the full definition of terrorism cannot stop merely with direct attacks on civilians. Although direct attacks on civilians (done with a political purpose, etc.) will always constitute terrorism, they do not exhaust the category of terrorism (I am ignoring here the equally abhorrent but quite different phenomenon of state terrorism by a state against its own population). In particular, it does not take into account terrorism directed not against civilians but against what would be, in a legitimate war, legitimate targets such as military personnel or facilities, and collateral damage to civilians arising from such attacks. Examples include attacks against British soldiers by the IRA or the attack upon the USS Cole. The attack on the USS Cole, I noted earlier, in a legitimate war would be an exemplary attack against a legitimate military target in which - being a ship away from civilians - no civilian collateral damage occurred, although dozens of US military personnel were killed or injured.

I remarked that this is terrorism rather than a legitimate surprise attack not because of the means or methods of warfare - as would be the case in direct attack against civilians - but because the attackers had no legal right to be engaged in warfare at all, and hence any violence they engaged in (for political ends, etc.) constitutes terrorism. No concept of combatant's privilege applies. That is, determining whether it is terrorism or legitimate warfare depends crucially on the concept, in just war theory, of "right authority." Who has the rightful authority to engage in war? well, the sovereign, plainly - even if the war, for other reasons, is unjust or illegal.

But does anyone else? Historically, the world's great democracies very often arose out of assertions of the rightful authority to make war, rebellion, secession, and revolution - the US and France, to start with. In contemporary times, similar assertions arose out of the decolonialization movements and national liberation movements, notwithstanding that international law then and now allows the legitimate sovereign to punish such movements as rebellion, sedition, treason, etc. Hence the terrain of who is permitted to undertake war is contested - it is not, by law or history, entirely confined to sovereigns. Yet sovereigns are allowed to punish with the full weight of domestic law, those who undertake rebellion - put another way, rebellion is not a subject of international law as such, and its suppression fully available under domestic law. Rebels whose rebellions arise to a certain level of activity benefit from a special international law governing internal armed conflict and civil war, Common Article 3 of the Geneva Conventions but, although that article prohibits summary execution, it does not prohibit or address the domestic law right of a sovereign to charge and try rebels not only for rebellion, but to treat any violence in those acts as terrorism.

In attempting to define fully terrorism, then, the question is whether international law can or should pronounce upon who is permitted to make war or, instead, whose acts of political violence should be regarded as rebellion which might (depending on whether it is violence used to try and influence a government (etc.)), constitute terrorism - as a matter not merely of domestic law, but international law. One approach is to limit international law only to the question of direct attack on civilians, while leaving the rest of it to domestic law. A second approach is to seek to incorporate it all into international law. As a practical matter, I cannot see that international consensus will be reached on the non-civilian part of the question, or put another way, on those aspects of the definition of terrorism that go beyond prohibited means and methods of warfare - and it is better to explicitly announce that the prohibitions in international law are not comprehensive, and that individuals are subject to domestic law in addition to international law.

But that does not answer the question of where to draw the line, provided that one goes beyond the concept of only-sovereigns. The reality is that, beyond legitimate sovereigns, the question of who may use force is, for practical reasons, often answered post-hoc - if your rebellion was successful, then you won't be hanged, and your exercise of force (eventually) legitimate. If it wasn't, then you'll be hanged and your exercise of force will remain illegitimate. Force molds legitimacy in some cases, and this is one of them. It is, to be sure, an invitation to the use of force, and that is a large problem - precisely the same problem faced by those attempting to set out the ante-hoc criteria of legitimate self-determination - which, after all, is often another name for the legitimate exercise of force on behalf of a political community.

I don't propose to set out a full definition here. As a practical matter, I think the best approach is to have international law acknowledge its incompleteness on this matter, while working out prohibitions on direct attacks on civilians as terrorism as well as in particular circumstances - aviation, etc. - and leaving the rest, explicitly, domestic law. This is an approach that favors the strong sovereigns, such as the United States, and that is fine by me. But I will suggest some limited, incomplete criteria for terrorism going beyond civilians that might be put into international law. Political violence by transnational groups that have no limitation in territory - not only no attachment to a territory, but no limitation provided by one either, might be fit for international criminal law. This would rule out Al Qaeda, assuming one rejected the claim that it was really territorially based, but it would not, note, rule out the IRA or ETA; there are other principles, at the level of international law and not only domestic law, that could be used to rule them out. Beyond that, there are other criteria (some of which arise in the definitions of terrorism used in specific treaties covering specific types of terrorism) that I am still considering. I am tentative about the above as a matter of international law, and might change my mind about some of this, mostly because international law so often turns out to be a way of limiting the scope of sovereign action and, in the war on terror, turning it into a variety of criminal law enforcement, whether domestic law enforcement or international criminal law enforcement, seems to me a very, very bad idea.

Calling Chris Caldwell

The preeminent American journalist covering and writing on Western Europe, Christopher Caldwell, has written an important piece in the Weekly Standard - here - on why Dutch society, in thrall to a deadly multiculturalism, finds it difficult if not impossible to defend its own values in the face of movements which are only too happy to take advantage of its freedoms with the ultimate intent of undermining them. Western Europe faces a long term version of the campaign slogan of the Islamists in Algeria - one election, one time - using elections, free speech, the freedoms of a liberal order to undermine it. (One may recall that this was a Communist strategy as well; it was what Harry Truman and the anti-Communist Democrats confronted in the post-war 1940s when they finally purged the party of the Wallace faction.)

Here is my question for Chris Caldwell. I would have thought that the perfect theatre piece to represent Europe's problem would be the 1950s play by the Swiss playwright Max Frisch, The Firebugs (Biedermann und die Brandstifter). It is a very funny, very noir rendition of a city beset by anarchist arsonists who fully intend to burn the city down. They park themselves in the house of a stolid, but ultimately utterly spineless and pliable, bourgeois gentleman who simply can't say no. He can't say no, can't bear to impolite, and watches, unable to bring himself to interfere, as they assemble the incendiary devices and so on. It's nothing like brainwashing, nothing like the Stockholm syndrome - it's nothing more than Dutch levels of politeness. He recognizes very quickly what is going on, but can't bring himself to name it, and goes through endless comic levels of cognitive dissonance to avoid drawing the conclusion that two plus two really will equal four - with a big explosion. I recall reading it in a high school German class. My incomplete scan of the German and Swiss arts scene does not suggest than anyone remembers the play at all, although I would have thought it a picture perfect rendition of what Caldwell describes. Those of you who cover the German language arts scene - am I wrong? Is Frisch's play being revived?

I am also forwarding this on to the superb English language blog on German affairs, Davids Medienkritik for consultation.

UPDATE: I see that the play has been revived a couple of times in the United States - once in 2002, and again this year, 2004. Read about it here. The play is usually represented as an allegory about Hitler's rise, but it seems to me it works perfectly well as an allegory about any totalitarianism that rises through the bourgeois complacency - nazism, facism, communism, islamofacism. I don't suppose that anyone would be so multiculturally insensitive as to actually revive it as a direct play on islamofacism in Europe - but then one would hardly need to; any audience would get the point, yes?

Defining terrorism

One of the perennial problems of international criminal law is defining terrorism. The entire discussion was stalled for decades by the slogan, "one man's terrorist is another man's freedom fighter," and hence stalled by the wars and ideology of decolonialism and the wars of national liberation. Even though that era is largely over - it survives, really, only in Palestinian liberation ideology - the problem of definition remains intractable at both the abstract level and the practical level.

In practice, the question of the definition of terrorism arises each time, for example, a media outlet - newspaper, the AP, CNN, NPR, the BBC, what have you - refers to an attack, for example, on Iraqi civilian election workers as an attack by "insurgents." Terrorists, apparently, is too loaded a word for the main stream Western media, seeking polite neutrality. In the case of some especially politically freighted media, such as Reuters, the locutions seem aimed at making a definite political statement that the "insurgents" are not "terrorists," rather than some (morally indefensible) attempt to maintain a supposed "neutrality."

That's at the practical level. The theoretical problem can be stated this way. Leaving the media aside, there is general agreement among Western elites - including the functionaries of the UN and the elite international bureaucracies - that the core definition of terrorism must encompass attacks which target civilians directly. That, presumably, is the easy case, because it is always indefensible. It is part, for example, of the suggested definition of terrorism in the new report to the Secretary General by the High Level Panel, at paragraph 164. A number of treaties, resolutions, declarations, and so on have been formulated which adopt as a definition, in one fashion or another, the prohibition on direct attack against civilians from such sources as 1977 Additional Protocol I or other law of war sources.

Well, "always indefensible," anyway, except if you are among the numerous Islamic clerics (too many unfortunately in what passes for the "mainstream" of the Muslim world) for whom direct attacks on civilians, such as the terror attacks on Israelis, are acceptable because, being the weaker party, you supposedly have no other means of striking back against the oppressor. They treat such terrorism as a kind of extreme case of military necessity (and perhaps even a version of Walzer's "supreme emergency" thesis) - supposedly giving you the "necessity of nature," as Hobbes or Thucydides might put it, to attack civilians. That the prohibition in the law of armed conflict of direct attack against noncombatants is not accepted even in principle by a significant portion of influential opinion in the Muslim world must give great pause.

Still, one might wonder why these Islamic clerics should bother thinking any further about the moral implications of attacking civilians, however, given that not even the leading Western newspapers and media, by applying terms such as "insurgents" rather than "terrorists" (even to attackers such as those who over the weekend assassinated civilian Iraqi election workers), trouble themselves to apply the term to acts that even Kofi Annan and the High Level Panel would call terrorism. Those who attacked and summarily murdered the civilian election workers are "terrorists" even on the purely neutral criterion that you are a terrorist if, among other things, you use means and methods which directly target civilians. This is not the rocket science of ethics. The inability of writers and editors in the media to recognize even that much as plain terrorism and to call it by its name speaks to a particularly intractable and vicious brand of multiculturalism, politically correct sensitivity gone morally amok. They are intellectuals, Camus might have said, who deploy the weapons of their language in the justification of murder and then call it neutrality. (You can read my view of the moral poverty of discourse of neutrality here, in the last sections of the article on humanitarian neutrality.) But, of course, flogging the NYT, the Washington Post, CNN, NPR, or the BBC is flogging a dead horse - recall, after all, the BBC reporter, a few weeks back, describing the tears welling up in her eyes (and not tears of joy) at the death of Arafat.

The theoretical problem even beyond the question of civilians is that this definition of terrorism is too narrow. It does not include, for example, IRA attacks on British soldiers or policemen, whether in northern Ireland or elsewhere. In effect, what the IRA said was that it was in a war, and it would abide the general rules of combat - i.e., aiming at what it said were "combatants" in that war, and not aiming at what it said were "noncombatants." This meant that, according to its own criteria, its fighters were "combatants" fighting other "combatants" and - a crucial corollary - collateral damage, including death and injury of bystanders, would be measured according to the traditional law of war standard of proportionality between military necessity and harm caused. And of course, if they were in a war, and they otherwise met the requirements to be combatants in, say, article 4 of the Third Geneva Convention, then all that would be quite true.

But according to the British government and everyone else - leaving aside the looney left -the IRA was not a legitimate party to a legitimate conflict. The IRA had no right to be fighting at all, and it did not matter if they conducted themselves according to the laws and customs of war - any death, injury and destruction they caused was simply criminal and terrorism, because they were not entitled to fight. They did not benefit from the so-called "combatant's privilege" - the legal privilege of aiming at other combatants without the results of the fighting, or proportionate collateral damage resulting from the fighting, being accounted to them as criminal; a legal privilege matched, however, by the disability of being a target of someone else on the other side. The reason they did not benefit was simple: they did not fight in a legal and legally recognized war. Hence the people they attacked, including the soldiers and policemen, had no reason to think they were liable to attack and (if done for political purposes with the intent of influencing political policy) those deaths and injuries are no different for purposes of describing the attack as "terrorism" than if they had attacked civilians.

(The High Level Panel report carefully elides this question - referring specifically in par. 164(d) to definitions of terrorism that cover only "civilians and noncombatants" while also referring in par. 164(b) to earlier anti-terrorism treaties that arguably have broader scope. It is yet another reason why the report is and should remain a nonstarter.)

As soon as the definition of terrorism moves - as it must - beyond the question of civilians and noncombatants, however, it also moves beyond the jus in bello question of simply means and methods of warfare - what you aim at - to the jus ad bellum question of whether you are entitled to be fighting at all, i.e., aiming at anything or anyone at all. After all, if the mafia in the United States simply decided to announce that it was fighting a war and entitled to international law protections, no one would pay its claims any attention. The next step would be for it to announce that it was fighting for political goals, but still no one would pay any attention - it would not be regarded has having the political legitimacy to fight at all.

The Geneva Conventions seek to address this problem by saying, in effect, that if a conflict walks like a duck, and talks like a duck, then it must be a duck. If the objective level of conflict and fighting becomes widespread enough, rises high enough, to start looking like a war, then the rules of war apply. This has the virtue of seeking to maintain the strict separation of jus in bello from jus ad bellum - it has the disadvantage, however, that no clear practical line separates one level of fighting or attacks from another.

In any case, even if the fighting rises to a level high enough to trigger the rules of war, but the conflict is a purely internal one, it is covered only by the minimal protections of Common Article 3 of the 1949 Geneva Conventions, and not the full body of treaties. Common Article 3, note, does not prevent the legitimate government of a state from trying its insurgent for treason and insurrection and murder and anything else that might be a crime arising from armed conflict - it confers no prisoner of war protection or combatant's privilege on rebellion, only minimal due process protections and protection against summary execution. And there must be a certain level of conflict before even Common Article 3 applies; the point about terrorism is that even if the acts are carefully limited to what, in a legitimate war, would be legitimate military targets, they rarely rise to the level of conflict necessary even to invoke Common Article 3 (although the ICRC has had a long and dubious pattern of lowering the bar in its pronouncements on the status of conflicts).

When, therefore, the USS Cole was attacked, that attack could be viewed as either terrorism or a surprise attack by a new enemy engaging in war. The view of the US and nearly all sovereign states (unsurprisingly) was that the attackers had no right to be engaged in armed conflict at all, and thus although, if it were a war, it would have been exemplary in that it involved no civilians or collateral damage to civilians, that did not matter. Surprise attack by a legitimate adversary is no violation of international law, but since there was no legal right to attack these people at all, any attack on them was the same as though civilians had been attacked. This is how one treats it as terrorism. However, reaching that conclusion requires a conclusion about a core issue of jus ad bellum - viz., who has, in traditional just war terminology, the "right authority" to engage in war? This is not a question the ICRC or other guardians of jus in bello are qualified to answer, because it requires a judgment about jus ad bellum that these institutions are supposed deliberately to eschew.

I accept the position that past a certain level of fighting, seen on an objective, purely behavioral basis - sustained control of territory, for example, large numbers of fighters, and other such indicators - the rules of war apply, if only the minimal provisions of Common Article 3. Short of that, however, or if, in the case of transnational Islamist actors who attacked the USS Cole, one catches someone and has to decide what to do with them, then the question of who may legitimately make war and who is not will not go away in the question of defining terrorism. Jus in bello will not answer it. It is a question of right authority. Sovereign governments, pretty obviously, would prefer to limit it largely to, well, sovereign governments. The difficulty, going back to Locke at least, is that the leading democratic states - the US, France, even Britain - arise out of civil war and acts of rebellion and secession. It is what, after all, the Declaration of Independence is all about - justifying the use of force when you are not actually a sovereign. Drawing that line in today's world is no easier.

Yes, ruling out attacks on civilians and noncombatants is easy. Ruling out attacks on the armed forces of a state, however, against something that, in a state of legitimate war, would plainly be a legitimate target depends fundamentally on saying what parties are legally entitled to fight, and that is far harder. But unless one is willing to do so, it is not possible to capture what we mean by terrorism, because nearly all of us intend the definition of terrorism to include far more than just attacks on civilians.

This, the United States should take careful note, is not something on which the political actors in the world - sovereign states, the UN, NGOs, all the rest - will be able to agree. It is possible to imagine near universal agreement in ruling out attacks on civilians and noncombatants. It is not possible to imagine agreement, even agreement between the US and its European allies, on what parties are entitled to fight. And because there will be no agreement in moral and political principle on such an issue, it is a foolish and dangerous thing for the United States to pursue treaty discussions that would limit its scope of action with respect to what it would see itself morally and politically bound to regard as terrorism - including the attack on the USS Cole and the treatment of its perpetrators as terrorists. Lacking a principled ground of agreement on the outer boundaries of the definition of terrorism - even if there is agreement on the inner boundaries of no targeting civilians - the United States would be well advised to stay out of treaty negotiations over its full definition that will inevitably be weaker than what the US must regard as minimally required.

Clauswitz and the ghost in the machine of war

I mentioned in an earlier post the new Gary Becker - Richard Posner blog, and its discussion of preventive war, here. Notwithstanding my respect for both of them, I did not think it was that useful a discussion. In effect, it introduced some very basic concepts about probability of outcomes in a purely utilitarian, consequentialist discussion. The issue, as the blog entries saw it, is uncertainty in predicting outcomes. That is surely not all there is to it, morally, politically, or legally - even if, for example, one is a thorough-going consequentialist, and the rights of sovereign communities don't matter, there is a question as to whether the doctrine of preventive war is about the total consequences to everyone, or just those that affect my interests and those of my community. Even in consequentialist terms, there is more to consider - and I say this as someone who thinks that preventive war is a very good idea, thought it was a good idea in Iraq, and can think of some of other places where it would be a good idea as well.

One might look to Clauswitz, however, for a deeper sense of the uncertainty of war. I do not mean the famous dictum that war is the continuation of politics by other means. I mean, instead, his writing on the ways in which war becomes unpredictable and carries events in unintended, previously unimaginable directions. Clauswitz (it requires some parsing through his immensely mixed up prose) suggests two quite different ways in which uncertainty arises in war.

The first is that memorialized by von Moltke - strategic plans do not survive first contact with the enemy, and hence must be always open to revision. The point being that the clash of armies and forces produces contingencies and indeterminacies that cannot be anticipated fully in advance. This is approximately what Lincoln refers to in the Second Inaugural, when he notes that in going to war neither side anticipated the extraordinary political reshaping occasioned by the Civil War itself.

But Clauswitz also describes a second, and quite different, source of indeterminacy in war, a source that lies within an army itself. The nature of an army going into war is double. On the one hand, it seeks to operate on a purely instrumental, rationalist basis - a war machine, an infernal machine, efficient and wholly instrumental as a tool of political will. But on the other hand, winning war requires unleashing passions within men that are not machine-like, but which are organic and animal. Reason and passion struggle with each other within an army, within each army, and that struggle also introduces vast possibilities and indeterminacies that cannot be predicted and tamed. It is, so to speak, the passionate ghost within the war machine, the ghost that animates the machine.

UPDATE (Saturday, December 18, 2004): A good place to read about this concept of "friction" in Clauswitz's thought is Daniel Pick, War Machine: The Rationalization of Slaughter in the Modern Age (Yale 1993), chapter 3. The book is a kind of intellectual history of the concept of instrumental rationality in modern thought. It is not about theorists of war and strategy, but instead about intellectuals such as Cobden, Proudhon, Engels, De Quincy, Ruskin (to whom I earlier made reference in one of the posts re Walzer and the justice of war), and then the psychoanalysts. It has a noteworthy discussion of the correspondence between Freud and Einstein on the nature of war - noteworthy for how empty it is. Pick is best on the 19th century intellectuals, and his discussion of Clauswitz is especially good. I wrote a review of it back in 1993 for the Times Literary Supplement (a review so old, alas, it does not even show up on the TLS archive). It was at a period when I was working on the international ban landmines campaign for Human Rights Watch. I was given it by the TLS sub-editor at a conference sponsored by the International Committee of the Red Cross, dealing with very practical issues about landmines, and I'm afraid I was (in retrospect) far too uncharitable, completely impatient as I was with any book dealing with the abstract and high level theory of war and rationality. I was wrongly contemptuous of the whole approach and very dismissive - whereas, in fact, within the ambit of what it is trying to accomplish, it is a very good book, and I say this despite my reservations about the long term value of Freud or Engels except as intellectual archaeology of dead religions.

Thanks to Larry Solum at Legal Theory Blog

I'm grateful to Larry Solum at the indispensable Legal Theory Blog for his kind welcome to the blogosphere. I'm a novice at all this technology stuff, and entirely dependent on automated, idiot proof sites like blogger.com. Larry is an old and good friend - from our days as undergraduates in the philosophy department at UCLA, where our professors included Philippa Foot and Rogers Albritton, to Harvard Law School. But Larry has also been a very good friend in advising me on how to look for an academic position when I went on the teaching market in the mid-90s, and without his sound advice, I would not be here at American University law school. He is one of the smartest jurisprudes and legal philosophers around, and I have been following his legal theory blog for several years before deciding to stick my toe into the water with this law of war and just war theory blog. My thanks to Larry for mentioning this blog.

"Lawfare"

Here is the point I was trying to make in my discussion with Scott Malcomson in writing his short take on "lawfare" in the Sunday, December 12, 2004 NYT Magazine.

I agree broadly with John Fonte that there is a movement toward a certain globalized "new class" that cuts broadly across the international business and finance communities, the international NGO community, the international organization and diplomatic community. And I do indeed think it is a wrong headed and dangerous move. I've said this in many venues, including articles that can be read here. I have most recently and comprehensively expressed my skepticism about so-called Global Civil Society in a chapter written with David Rieff called, well, "Global Civil Society: A Sceptical View," which can be found in Mary Kaldor, et al., Global Civil Society 2004/5 (Sage 2004) (it is a yearbook on the international NGO movement, and whether one is an enthusiast or a skeptic, it contains utterly vital information, ranging from the conceptual to the statistical; for me it is an essential desk reference - you all should buy it).

In particular, I share Fonte's concern that the global "new class," the development of a transnational elite, is a threat to democracy in the only place it really matters, sovereign nation states. (Read Fonte's National Interest article here - slightly weird formatting, but the National Interest website requires a subscription.)

It is not that these emerging transational elites lack a morality. On the contrary, the development of a class and governing elite requires more than power, it requires a morality and an ideology from which to make claims to legitimacy. They have conveniently found one in the currently predominant form of human rights ideology - an ideology of human rights that conceives of human rights as being a species of international law and which locates the source of transcendent morality - the genuinely universal - as being (in my view dubiously) identical with the (merely) international. The general justification for this identification of the universal with the international is that any merely national or more local claim to the universal is inevitably not only partial and parochial, but partial in the sense of "interested"; only the international is truly "disinterested" in the way necessary for universal values. What this neglects, however, is the possibility that a global class might still have interests, even if they are not narrowly territorial ones; their interests, material as well as ideological, might equally well be interests but global ones. Global does not mean universal, and global does not mean disinterested.

This transcendent, transnational ideology is a risk to the universality of human rights - I am not a relativist, and I do accept the existence of universal human rights - because it makes false and ultimately fatally immodest claims about universality and the global class. But it is also a threat to democratic sovereignty which, in my view, does at least if not as good a job globally at supporting the values of human rights as internationalist ideology does. Why the human rights movement - the ideological guardians, Human Rights Watch or Amnesty International, for example - insist on tying the genuinely universal ideals of human rights to the mast of the ship of internationalism can only be explained, I think, in terms of the development of this kind of emergent transnational class. They need not commit themselves to the democratic nation-state, either; they need only be agnostic as to the source of universal human rights values. But they are have thrown themselves in with something that is not entailed by the concept of human rights as such, and only class consciousness of a certain type can explain it.

Very well. Why, then, do I describe this is a kind of Western hothouse flower? It is because it became possible as an ideology only with the end of the Cold War. But it also has an end as well as a beginning - if, as the Helprin article I posted earlier suggests, China continues to rise to genuinely world power pretensions rather than merely regional ones, to challenge, decades hence, the hegemony of the United States on which the ability even to engage in this sort of transcendental, transnational, global ideology of human rights as internationalism materially depends. Perhaps China will discover some form of idealism - about democracy, about human rights, about international law. Time will tell, and the future always holds great surprises. But it does not at this point appear likely, and if that is so, then the future discussion will not be with Europe still in thrall to the lawfare concept of liberal internationalism as against democratic sovereignty. It will be with a completely, thoroughly realist China.

One may complain however much one likes about a unilateralist United States pursuing its power interests, but as the last several years have shown, there is an irreducibly idealist core to American policy. It is scaring liberals into discovering their realpolitik inner child, and reducing them to a certain unattractive hypocrisy if one is so unkind as to remind them of all their brave speeches about the need to confront this dictator and that, and not to pay attention merely to stability when it comes to dealing with the wicked. It turns out that they didn't mean any of it or, at least, not a lot of it. Well, okay, everyone needs some realism to temper the idealism, even at the expense of embarrassing hypocrisy.

What has to be understood, however, is that on current indications that China, the nation-state most likely to challenge the hegemony of the United States - again, I stress, the hegemony upon which all the talk from Europe and global civil society and the rest depends - has expressed no interest in or awareness of any form of idealism whatsoever - whether the democratic sovereignty that I and John Fonte support or the liberal internationalism that Anne-Marie Slaughter supports. It is a realpolitik that is utterly tone deaf to any form of idealism. Perhaps that will change, but there is no indication of it. At that point, then the argument over lawfare becomes a good deal less important, because it is materially a function of American hegemony, even in apparently ideologically opposing it.

Scott Malcomson on "Lawfare" in NYT Magazine

The NYT Magazine, in its annual review of new ideas (Sunday, December 12, 2004), ran this short piece by Scott Malcomson (photo at left) on the Hudson Institute's John Fonte's critique of what he calls "lawfare." It reads in full:

Lawfare
By Scott Malcomson

"The Prussian military strategist Karl von Clausewitz never said that international law is war by other means. That distinction falls to the conservative pundit John Fonte, writing this year in The National Interest. In his article ''Democracy's Trojan Horse,'' he accused Human Rights Watch and Amnesty International USA -- standing in for the global human rights movement -- of waging ''what could be characterized as 'lawfare' against the exercise of democratic sovereignty by the American nation-state.'' Fonte worried that this century could become, in another coinage, ''the 'post-democratic' century -- the century in which liberal democracy as we know it is slowly, almost imperceptibly, replaced by a new form of global governance.'' Fonte paints a vivid word-portrait of a stateless, unelected class of ''transnational progressives'' who are quietly undermining democracy in the name of human rights (as they define them). Ultimately, he envisions the United States as locked in a two-front war both with post-democrats and with reactionary ''pre-democrats'' like Osama bin Laden, although he clearly finds left-leaning international lawyers more insidious and, over the long term, more dangerous.

Fonte is not alone in noting the rise of a new supranational class. His vision is echoed in an influential book by Anne-Marie Slaughter, ''A New World Order,'' published this year. Slaughter, a former president of the American Society of International Law and in no evident way a conservative, identifies an increasingly powerful transnational network of government officials, N.G.O. representatives and businesspeople that makes Fonte's nightmare seem rather modest. This network administers globalization, whether in trade, security or political idealism. Slaughter does not exactly champion her ''new world order,'' but she does present it as a reality of globalization. Better for a nation to, as Slaughter would put it, ''disaggregate'' some of its sovereign power now than to find itself cut from the global team later.

For Kenneth Anderson of American University, however, an aggressively international-law-based approach to human rights is something of a Western hothouse flower: it is able to survive only in the historical parenthesis between the end of the cold war and the coming rise of powers like China and India. ''No one's ever going to stop talking the language of international law,'' Anderson concedes. But in his view, a universal system of rules and values, agreed to by treaty and monitored and uniformly enforced by international bureaucracies and courts, will become a relic of elite utopianism -- regardless of whether it was considered a promise or a threat. Then the lawfare will end, while the real warfare will continue."

* * *

(I'll take up in a later post what I mean by that rather cryptic quote. But I think Malcomson has written an elegant, short summary of the idea of the rise of an international "new class." But more on that later - I really do need to explain what I meant, though. I'm surprised I haven't yet received waves of nasty emails in my school email account.)

A unilateral law of war?

The nature of asymmetric warfare today means that the weak party systematically violates the rules of war - hostage taking and execution, deliberate commingling of military targets and civilians and civilian objects, deliberately putting your weapons in the mosque, use of human shields, etc. It does so as a method of war - like the rest of the terrorism canon, in military terms it is a logistical raiding strategy, aimed at the logistical soft target of civilian morale. Morale, after all, is a resource which is treated by terrorists as though it were a war materiel like any other. (I discuss this in more detail in an article from the April 13, 2003 NYT magazine, Who Owns the Rules of War?)

The strong party, in intelligence wars such as those in Iraq and Afghanistan and the war on terror, responds by sometimes abusing detainees as a way of seeking actionable intelligence.

The claim from (some of) the rights groups is that a revision of the laws of war is necessary in order to constrain the strong party; the claim of the rights groups is that no matter what the violations by the weaker party in its exploitation of violations of the war rules, it is the strong party whose behavior must be improved. There is no expectation, except the most pro forma platitudes about how everyone is obliged to obey the laws of war, that the weaker party will obey anything; the rules of war are functionally an obligation only of the stronger party.

I have serious doubts, however, that there can be an international law of war which is so completely asymmetrical in its expectations and results. It is not just a question of why the stronger party would bother to follow the rules when, as in the case of the United States, the reality is that its soldiers have been abused in nearly every conflict since the 1949 Geneva Conventions. The United States no longer has a serious expectation that the other side will follow the Geneva Conventions and laws and customs of war, and neither does anyone else.

What this raises is the question of why the United States should even support a treaty law of war. If the result is so thoroughly asymmetrical, and there isn't really an expectation that one's enemies will follow it, then why not simply unilaterally define what the US thinks the proper and humane treatment of the other side is in war, its civilians and its fighters, and enforce that? If there really is no expectation and no reality of reciprocity - and that is functionally the situation now - then why shouldn't an individual state simply define for itself how its standards of justice and morality and humanity should be applied and do it - since it can't, looking at the record, have an expectation that a reciprocally based treaty regime will be respected?

This will seem outrageous to some after the revelations of US abuse of detainees. It did not sit well, I imagine, when I said this at a discussion seminar on a paper by Christophe Girod, the former ICRC delegate to the US, (December 7, at the Swiss Foundation and Johns Hopkins School for Advanced International Studies). But the abuse of detainees inevitably will raise pressure for the United States to agree to some form of revision of the laws of war to take into account the intelligence war that is underway. In that case, the not-so-minor matter of whether the rules are regarded as reciprocal must be addressed. And since they are not, then the question of why a treaty regime at all may as well be on the table.

A unilateral law of war? I think it is a bad idea, for many reasons. But I also believe that the US may find itself both pushed and drifting that direction, because long term there cannot be an international law of war where there is no minimal reciprocity.

Rene Char and 'This Time of Damned Algebra'

The working title of the book manuscript I am drafting is This Time of Damned Algebra: The Just War Tradition and Its Rivals.

The title phrase comes from the great French poet and Resistance fighter, Rene Char (1907-88). During the Second World War, this apolitical Surrealist poet joined the Resistance, one of the Communist units. He was not one of the "literary" resistance figures, writing the occasional article for the underground press, but rather one of the fighters in the field, eventually rising to become the Resistance commander in charge of reconnaisance for southern France at D-Day. He kept a cryptic poetic journal under his Resistance pseudonym, Hypnos, the god of sleep, and following the war it was published under the title Leaves of Hypnos.

I first became aware of it back in high school, in the early 1970s, when I had devised a curriculum for myself devoted to reading the sources mentioned in Albert Camus' The Rebel (a work which has had a lifelong impact on me). He mentions Char several times - Olivier Todd's recent biography, Albert Camus: A Life, explains their friendship at the end of the war - and begins the great closing section of The Rebel by quoting Char, rejecting abstract ideologies that kill vast numbers of people for the sake of a future end of the world; "Indifference to history and obsession with the harvest are the opposite ends of my bow."

Char had a long, productive life, on both sides of the Second World War, deeply involved with the leading artists and writers of his time, and although my focus has always been on his war writing, a good place to begin in studying his full life and poetry is with this brief biographical sketch here, and then continuing with Mary Ann Caws's book length study, The Presence of Rene Char (Princeton UP 1976). He was the subject of a famous poster by Picasso, and published many of his poems and collections in special collaborative editions with visual artists - with prints and special bindings. When I am in Paris or Geneva, strolling the booksellers, I am occasionally filled with envy on seeing in the window a first edition of some Char work that, rest assured, I cannot afford. I go in, look around; the proprietor, seeing I am American, is skeptical that I know what I am saying when I ask to see what they have in stock by Rene Char, especially as I can't speak French, but have learned to read certain works with a dictionary (you may as well, you see, if you have read The Red and the Black once a year since age fourteen and know you will likely be doing so for the rest of your days, and have been reading it to your twelve year-old daughter at night going to sleep (as a means of educating her in the personal relationships of pre-teen mean girls)).

But I am always a little surprised by how little Char is read or remembered today in France - especially Leaves of Hypnos. I would have thought he was as romantic a figure as emerged from the Resistance - the tall, imposing, powerful, charismatic man of action and leader of men in the field and in battle, and yet simultaneously the consummate man of letters and poet of the most introspective and intimate. Why no film? Starring Gerard Depardieu? But my dear friend, the French journalist Bernard Poulet, tells me that although my personal pantheon of writers is impressively French - Albert Camus, Rene Char, Blaise Cendrars, and above all Stendhal - somehow I am curiously obsessed with what he tells me are perhaps the least representative writers France has produced in two hundred years: never mind, he says, better to be one of the 'happy few'.

But when I first encountered references to Char, there was very little written about him in English, and although my German reading was good enough for Brecht, I couldn't manage the French until a couple of years later after learning Spanish as a Mormon missionary in Peru (violating all the mission rules on nonreligious literature, I had taken The Rebel with me to Latin America, eventually receiving a nasty reprimand, but by then I was reading Garcia Marquez' then brand-new El otono del patriarca in Spanish). Later, searching through the libraries, I found portions of Leaves of Hypnos translated in various volumes.

There matters sat until I was working as research assistant to the environmental gurus Amory and Hunter Lovins (of Soft Energy Paths fame) at their environmental institute, the Rocky Mountain Institute, in Snowmass, Colorado, one summer in the early 1980s. Hunter, whom I had long known through the Los Angeles ethnic dance scene, presented me with a book I had never heard of before, a full translation of Leaves of Hypnos (Mushinsha-Grossman Publishing 1973), translated with extraordinary care by the great poet Cid Corman (who, alas, passed away this year, 2004) and published with exquisite paper, printing, and binding by a quality Japanese publisher. Out of print now and very rare, I have the book in front of me - it is one of the most cherished books I own (Hunter Lovins, if you google yourself and find this, my thanks for your friendship over many years, although we've lost touch for no good reason, and my thanks for the gift of a book that has remained close with me during the twenty years since you gave it to me).

The book is written almost entirely in short aphorisms, short phrases, a sentence, a few sentences, a few paragraphs. Some of them are abstract, some are collections of images that seize the imagination, some are little anecdotes and stories. One is one of the great love poems of the 20th century, in French or any other language:

"My darling, lay your head upon my lap. I am not happy and yet you suffice. Candlestick or meteor, there is no longer a stout heart or future on earth. The course of twilight reveals your murmur, bed of mint and rosemary, confidences exchanged between the russets of autumn and your thin robe. You are the soul of the mountain with its deep sides, its rocks silent behind lips of clay. Let the wings of your nose twitch. Let your hand close the path and draw together the curtain of trees. My darling, in the presence of the two stars, the frost and the wind, I place in you all my fallen hopes, for one victorious thistle of the rapacious solitude."

Char is, you see, actually a deeply romantic writer - and, indeed, in assigning Char to some of my classes on war and ethics, both to law students as well as my high school students at NCS, I have sometimes been concerned that his picture of war is too romantic. So I assign them something from Paul Fussell's sketches of the boy-soldiers of the Second World War as prophylactic. But the passage from which the title comes, at no. 20:

"I think of that army of cowards with their appetites for dictatorship that will perhaps be seen again in power, in this forgetful country, by those will survive this time of damned algebra."

No love lost there for the Third Republic. But that is not really what interests me. It is, rather, the evocation of realism, consequentialism, necessity and, above all, calculation. War is a 'time of damned algebra'. At at no. 106, he simply notes, "Infernal duties."

But Char said many things on a less bitter note. One of his most famous aphorisms is simply this:

"Imagination, my child."

But Char has a very important intellectual and spiritual nexis with Michael Walzer - like Albert Camus, they are deeply committed to the idea of resistance. It is the underground river that runs through a volume called, in the second half, France-of-the-caverns and which is profoundly imbued with the metaphors of mountains, even in the love poem quoted above. "I'll not write any poem of acquiescence," says Char at no. 114, and then at no. 131: "At all the meals taken in common, we invite freedom to have a seat. Its place remains empty but it stays set." For Char, as for Camus, the concept of resistance is closely tied to hope; "Resistance," Char writes, "is only hope. Like the moon of Hynos full tonight in all its quarters."

And:

"We belong to none if not to the golden point of that lamp unknown to us, inaccessible to us, which keeps courage and silence awake."

Consequentialist or realist theories?

David Luban, in a paper on preventive war that I will discuss directly later (download from SSRN here), characterizes the divide of moral theories of war using the ordinary distinction in ethics between rights based theories, such as Walzer's, and consequentialist theories. One example of a consequentialist theory of jus ad bellum, resort to force moral theory, he observes, is the justification for a no-first-use-of-force rule in the general conception of the UN. Consequentialism - reducing the incidence of war - rather than Walzer's defense of sovereign political rights argument, according to Luban, is the actual moral basis of the UN charter on the use of force. Leaving aside whether Luban is right about that for a later discussion, it seems to me a better way to characterize the debate over moral theories about war as being

• nonmoral, such as what I described as amoral realism.
• consequentialist, including various versions of what I described as moral realism and with varying degrees of realism built in.
• rights based theories of the just war, including both Walzer's theory of self-determination, sovereignty, defense of political community, and resistance to aggression; but also more traditional Christian theories from natural law.
• pacifism and nonviolence, rooted either deontologically (e.g., a command from God), or consequentially, as in a thoroughly realist account of the horrors of any war outweighing anything else.
• the positive law domestic analogy.

I'm now thinking it makes the most sense to key off the traditional division in moral philosophy of consequentialism and rights based theories, and then fit realism into it, rather than sticking with Walzer's debate between realism and just war theory. The category of realism seems to me to be too heterogenous to be very useful in categorizing moral responses to the question of war. It works for Walzer in the context of a more narrowly focused essay, but doesn't seem to me the conceptually comprehensive approach.

Anne-Marie Slaughter's book on Thomas Nagel's books of year list

Thomas Nagel has named Anne-Marie Slaughter's A New World Order (Princeton 2004) on his list of books of the year in the Times Literary Supplement's International Books of the Year listings of December 3, 2004. I likewise recommend it highly. I have some fundamental disagreements with it and the world-view from which it comes, which I will explain in a review coming out in February in the Harvard Law Review, but it is a splendid book which will set the discussion on international order for years to come.

A tribute to Christophe Girod

Christophe Girod was, until a few months ago, the head of the delegation to the United States of the International Committee of the Red Cross (ICRC), based here in Washington DC; he has left that position and the ICRC, and I wanted to pay tribute to the impressive work that he did on behalf of the ICRC. He had the enormously difficult job of walking the line between the ICRC and the Bush administration on matters ranging from detainees at Guantanamo to keeping good relations with a government that provides some 25% of the ICRC's budget - a 25% of the budget, David Rieff has told me, in unrestricted, unearmarked funds. I did not at all agree with some of the ICRC's maneuvers on leaks to the press about its findings or necessarily with Christophe's views on what constituted abuse of prisoners, but Christophe performed a very necessary, utterly critical role, and he has my unstinting admiration. He was kind enough to come to a series of meetings organized by Tod Lindberg (Hoover Institution) and me on international law of war topics that often put him directly in the firing line from some very blunt-speaking conservatives, and he understood the great value of hearing the conservative American view directly rather than living in the echo chamber of the left, which would have been far easier to do.

He has now left the ICRC, after extensive work in the field, in many very difficult and dangerous places such as Botswana, as well as his time in Washington, and he and his lovely family are returning to Geneva. It would be a very good thing if he were picked up by an NGO or other agency, as he has a wealth of experience and good judgment that should not be lost.

Gary Becker and Richard Posner on preventive war

Gary Becker and Richard Posner have established a blog, in which they will discuss and debate various topics. They have taken up the question of preventive war, here (thanks Instapundit).

In a later post, I will discuss their views, as well as the views of Georgetown Law professor David J. Luban in his new paper in Philosophy and Public Affairs, Preventive War, which can be downloaded in pdf format from SSRN. (Thanks to Larry Solum's indispensable Legal Theory Blog.) The SSRN abstract of Professor Luban's thoughtful and careful paper:

"Abstract: A preventive war is a preemptive war in which the requirement of an imminent threat is relaxed. The present paper examines the justifiability of preventive war. First, it lays out the prevailing doctrine of just war and explains why preventive war does not fit comfortably within it. It then discusses the justification of the prevailing doctrine, first by examining Michael Walzer's rights-based justification for it, which it rejects, then by offering a broadly consequentialist justification, very close to the thinking of the U.N.'s founders. The most important point emerging from these arguments is that the real justification for the prevailing doctrine lies in the importance of a no-first-use-of-force rule for war prevention, not in the importance of protecting state sovereignty. The paper then turns to the question whether a general doctrine permitting preventive war to forestall immature threats is morally defensible, and answers no, arguing that giving a green light to preventive war would make wars too frequent and too routine. However, a more restricted form of the doctrine, which permits preventive war against serious threats posed by rogue states, is sound under certain conditions. The paper turns to the question of whether, given the incredible disparity in power between the United States and other nations, it makes sense any longer to ask about appropriate "general doctrines" of just war. Should we continue to think of just war theory as a collection of rules or principles that apply to all states, or is this legalistic model of political morality inapplicable in the dramatically altered political constellation we inhabit? Some prominent theorists and policymakers argue that in the current era a double standard is appropriate, in which the United States is not bound by rules of general applicability across all states. The U.S. gets to do things, like launch preventive wars or insist on its own military pre-eminence, that other states do not get to do. The paper concludes that to date proponents' claims that a Pax Americana would be generally beneficial have little to support them. "

I am still digesting this paper, and will hold off my comments until later, when I'll take up Posner and Becker as well.

Partial Consequentialism (Theory)

Further to what I described earlier as "partial (or parochial) consequentialism," as a form of realism, responding to the question of whether, and under what circumstances, war is morally permissible:

It is a peculiar category, and I might at some point be persuaded to abandon it. However, what it responds to is the view, usually regarded as realist, which says that war is not simply a matter of power or desire; it is not amoral or outside of the realm of morality in that sense. There is a morality at issue in engaging in war (whether the question of resort to force or conduct in war), but that morality is a matter of consequences - and, in particular, the consequences to you and yours. It is not a matter of all the consequences, but rather the consequences to those in whom you have an interest.

Is this actually a moral rather than a merely prudential approach to the question of the permissibility of war? It can be framed as a purely interest-based, prudential account, and in that case would be essentially outside morality. This is the usual way in which it is regarded as "realist" - as about power and interest.

But there is a second way of framing the question of "you and yours" which takes it beyond interest and prudence into a genuinely moral obligation to your own. Which is, I think, how most of us think of it. We do tend to regard ourselves has having particular moral obligations to those who are close to us, part of us, part of our political community, and society, even at the expense of others. If that can be counted as part of morality, then looking solely to the consequences for those relationships and obligations in war, while a "partial," in the sense of "partial to," morality, is a morality nonetheless. It is consequentialist in the sense that it looks to consequences rather than paying attention to rights, but it is concerned with obligations (and in some versions might be concerned with the rights of your political community, while not worrying about the rights of others).

What about this idea of a morality that is partial to you and yours? It is our everyday morality, but, as Peter Railton, among others, has pointed out, it is not accounted for in principle under either utilitarianism or Kantian morality, each of which is "universal" and "impartial" and, hence, as Railton pointed out in his article in Philosophy and Public Affairs, alienated from ordinary human relationships. An ethics which takes account of ordinary human partiality we might call "attachment ethics," and one of the many tasks for such an ethics is to describe when partiality is okay and when, instead, impartiality must apply. And, then, what of this question of partiality and impartiality in ethics and war?

It seems to me that many of the views that we lump together as "realist" would be better described as consequentialist-attachment ethics. At least part of what is treated as prudential interest on a realist account would be better described as communal attachments viewed as genuinely moral obligations - deep enough to cause people to sacrifice their lives and the lives of loved ones for them. Isn't this a better meaning for Hobbes' (and Thucydides') 'necessity of nature' than a purely prudential account? Maybe.

I realize it must seem that I am going very far off the beaten track of just war theory, but the question of what to defend, my community or something broader, and partiality versus impartiality, as a matter of not merely prudence but morality, is more important in war than in most matters, at least drawing on my field experience in human rights conflict monitoring. People don't tend to think of their struggles as mere interest or prudence or even amoral necessity, and I am not inclined to think that in many circumstances they should. For example, when I think of the many aid workers I have known in the field, or myself as a human rights monitor in various conflicts, this question of partiality was central. I write more about this question of impartiality and neutrality in the context of humanitarian relief work in war in an article on humanitarian neutrality and inviolability here, in .pdf format (see especially the last part of the article).

More to follow on this question.

Realism and Consequentialism and Just War (Theory)

Thinking over again my earlier post on how to categorize the just war tradition and its rivals. Traditionally it is divided into realism, just war theory, and pacifism.

I made things more complicated by adding a fourth category, the Positive Law Domestic Analogy, on which either war itself disappears into police action on analogy to a domestic society, or else becomes the exclusive prerogative of a political authority - e.g., the Security Council - that operates as a supreme authority in the question of the use of force analogous to political authority in a settled domestic society.

I also made things more complicated by subdividing realism into an "amoral realism" and a "moral realism"; and also by subdividing the just war category into traditional Christian theology of the just war and Walzer's resistance-grounded, modern secular account. And finally by breaking nonviolence into nonviolence and pacifism.

I am now thinking that although it breaks with how just war theory has traditionally conceived its categories, it would be better to rethink and rename the category of realism. I am beginning to think (I may change my mind about this again, although I have been thinking about this point for several years) that it would be better to regard the realist category as instead consequentialist. Or more exactly, and more complicatedly:

Amoral realism - its all just desire and your power to make it so, without reference at all to morality.

Partial (or paraochial) consequentialism, as a version of realism: Morality is relevant to war, but what matters are the consequences. However, the consequences that matter are those for your side, for your political community alone. This is a moral consideration in the sense that you owe special obligations to your community, rather than to the world at large, and so the consequences that matter are those that affect your community.

Impartial (or universal) consequentialism, as a version of realism: This is just pure consequentialism applied to ethics in war, but taking into account all the consequences for all sides and everyone, impartially and universally. It departs from just war theory in not taking account of rights at all, either rights of political communities, as Walzer means it, or even rights of individuals, either in the question of the resort to force or the question of means and methods of fighting.

A question, of course, is whether partial consequentialism is genuinely a consequentialist theory, or whether it is something else, given that it depends for its partiality on a notion of what you owe to you and yours and not to others.

I will revise this (and maybe throw it out) down the road. But I have never been very satisfied with the account of realism - it always seems to involve too many mixed up strands of moral and nonmoral thinking to be coherent. When Sherman says, "war is hell," it means many, many different things, and realism alone does not capture it. Walzer is right in his discussion of realism to point out that a large amount of bad faith enters the talk of generals on these matters, but if we try to take it seriously, the different moral considerations captured by a single concept, realism, appear to be quite different in origin and implication.

Ivo Daalder & James Lindsay on UN Reform Panel & Use of Force

Ivo Daalder (Brookings Institution) and James Lindsay (Council on Foreign Relations) write here in the Boston Globe, Saturday, December 4 on the just released report of the UN high level panel on reform of the UN. The report covers many topics, from HIV/AIDS in Africa to the structure of the Security Council, but Daalder and Lindsay - both prominent liberal internationalists - focus on the report's views on the use of force. (You can read Secretary General Kofi Annan's summary of it here in the Economist, December 4, 2004, p. 23.) As they note, the report endorses the concept of not only preemption but also preventive use of force. However, it does so only on the say-so of the Security Council: "Not surprising for a UN-appointed body, the panel vests the sole authority to decide on when to act on these principles within the UN Security Council."

Applied to Iraq, that makes many internationalists happy. Applied to Kosovo or Darfur, it makes them unhappy:

"The council failed to authorize NATO's intervention in Kosovo designed to prevent the ethnic cleansing of Kosovar Albanians. It failed to act in time to prevent the genocide in Rwanda, and is equally divided on how to respond to the genocide in Darfur. It has done nothing in response to North Korea's violation of its obligations under the nuclear Non-Proliferation Treaty."

Quite strikingly, Daalder and Lindsay endorse the idea of coalitions of the willing to deal with the world as it is:

"What, then, are states wishing to act on the principles of intervention the panel endorses to do if the UN Security Council refuses to authorize the use of force? The panel is right to say that unilateral action in such circumstances is a recipe for chaos and anarchy. But so is doing nothing. Had the panel's precepts ruled in the case of Kosovo, hundreds of thousands of ethnic Albanians would have suffered the same fate their fellow-beings suffered in Rwanda a decade ago or in Darfur today. What is wrong was not the decision to act in Kosovo; what is wrong is the decision not to do so in Rwanda and Darfur.

The NATO model in Kosovo suggests that in the real world, states have an alternative to going it alone or doing nothing when the UN Security Council cannot agree on action. And that is for like-minded states -- especially the world's great democracies -- to band together and act when the UN will not. Of course, every effort must be made to get Security Council authorization for using force to uphold international order. But when such authorization is blocked by a few states -- especially by states like Russia or China that do not share the values that unite democracies -- then the responsibility to act must devolve to the democratic states that depend on maintaining a just and secure world order.

The challenge, therefore, is not only to insure that the UN acts when it must, but to build viable structures of cooperation among democratic states to insure that there will be action when the UN does not."

A fair reading of the report would have to say that its fundamental goal is not to justify preemption or preventive use of force or really any of those concepts, but instead to assert the primacy of the Security Council in authorizing the use of force. It is rather late in the game to be doing so, in my view. As Tufts scholar Michael Glennon has pointed out, in a major article in 2003 in Foreign Affairs as well as in his recent book, Limits of Law, Prerogatives of Power: Interventionism After Kosovo (2003), since Kosovo at least, it is hard to argue that there is an international rule of law, the language of the Charter notwithstanding, giving the Security Council authority over the use of force. Certainly I share Glennon's view of the state of international law on the authority of the Security Council.

More broadly, I share the view that the UN is a failed institution, at least as far as use of force goes, and in much else besides. There will always be a use for a talking shop for states, with many different fora for discussion, from the Security Council to the various committees. And it can and does useful work in matters where great power interests are not at odds with each other. But the task at this point should be to build parallel institutions of coalitions of the willing among the great democracies to deal with situations that the UN cannot address. There is a bellicose way of framing that view, as American conservatives are wont to do, and there is a sympathetic way of framing it, as liberals such as Daalder and Lindsay do, and I am not so much concerned with tone as substance.

The differences between American liberals and American conservatives on this will be, first, how much consultation and discussion one must undertake before concluding that the Security Council ought to be left aside? Second, who and how many are required in order to leave aside the Security Council? What liberals Daalder and Lindsay have in mind is that a lot of consultation must go on before deciding to act as a coalition of the willing; I think that is a bad idea, set up as a requirement - it was a mistake militarily and politically to have waited as long as the US did before attacking in Iraq, trying to get the Security Council on board in order to make life easier for Blair. What Daalder and Lindsay also have in mind is that a coalition of the willing is not precisely ad hoc - it should be not Bush's Iraq coalition, but an entity like Nato (note, however, that Nato has no legal standing in international law, in the manner of the Security Council or other UN body). In practice they mean that France and Germany must go along - the world's "great democracies" - even if Russia and China do not. This is also a huge error, and one which is designed to allow future Kosovo's, but not future Iraq's. (Their liberal position is also approximately Princeton's Anne-Marie Slaughter's position on intervention without the Security Council - Nato can serve as a proxy of legitimacy.) In these two matters, I am with the conservatives. What is plainly not acceptable is any effort to assert a rule of the primacy of the Security Council, legally, morally, or politically, which is what the panel report seeks to do.

UPDATE (Wednesday, December 15, 2004): I agree with Glenn Reynolds' assessment of the UN, and recommend following the link to Philip Gourevitch's devastating liberal indictment of the UN as an institution and Annan as its leader in The New Yorker.

David Pryce-Jones on Islam in Europe

David Pryce-Jones, writing in Commentary, discusses here the rise of Islam in Western Europe:

"Only a few years ago, mass-murder attacks on the West in the name of Islam, like those of September 11, would have seemed like a thriller writer’s fantasy. Nor would anyone have imagined that a bombing by Islamists could swing a general election in a European country, that a Dutch movie-maker might be shot dead on the street for a film about the abuse of women in Islam, or that one might find oneself watching, on television, the beheading of Western hostages by men crying out Allahu Akhbar! over their savage deeds. Pakistan now has a nuclear bomb, and this weapon is widely described as an Islamic bomb. To judge by their pronouncements, the Islamist leaders of Iran can hardly wait to perfect and use their derivative of it.
At present, it is not clear whether the religious/ideological rage that is the motive force behind these developments has any limits, whether it may yet succeed in mobilizing truly huge numbers of Muslim masses, or whether it can be deflected or crushed. What is clear is that a phenomenon that at first looked like a cloud no bigger than a man’s hand has lashed up into a crisis with global implications.

Does this crisis amount to a “clash of civilizations”? Many people reject that notion as too sweeping or downright misleading. Yet whether or not it applies to, say, the ituation in Iraq, or to the war on terror, the phrase has much to recommend it as a
description of what is going on inside Europe today. As Yves Charles Zarka, a French philosopher and analyst, has written: “there is taking place in France a central phase of the more general and mutually conflicting encounter between the West and Islam, which only someone completely blind or of radical bad faith, or possibly of is concerting naiveté, could fail to recognize.” In the opinion of Bassam Tibi, an academic of Syrian origins who lives in Germany, Europeans are facing a stark alternative: “Either Islam gets Europeanized, or Europe gets Islamized.” Going still farther, the eminent historian Bernard Lewis has speculated that the clash may well be over by the end of this century, at which time, if present demographic trends continue, Europe itself will be Muslim."

The question of Muslim Europe, while still essentially a taboo in any meaningful discussion in Western Europe, governed by a code of politically correct multiculturalism, is starting to emerge slightly into polite discourse. The remarks by Bernard Lewis, noted above, were widely noted and quoted, especially. However, the Economist notes in its Charlemagne column of 27 November 2004 that Lewis' arithmetic is off: "At present there are not more than 13 m Muslims in the European Union, out of a total population of 457 m. Even if there is a massive surge in immigration and the fertility of white Europeans falls even further, it is difficult to see how this will lead to a merger between Europe and North Africa." ( p 56) However, by referring to the EU rather than Western Europe, the Economist tilts matters considerably - Poland has some 60 m people, and virtually no Muslim population - in Western Europe, matters are very different, as the Economist recognizes: "The demographic picture in particular places is admittedly more dramatic. The Muslim population of France is now nearly 10% of the total. And it is officially projected that the three largest Dutch cities will have 50% non-western populations (most of them Muslim) by 2020." (Id.)

Why does any of this matter? Well, it matters if you have reason to think that in the midst of that demographic shift, you are bringing in even relatively small numbers terrorists and terrorist ideologues.

It also matters if you think that the immigrant populations remain economically unintegrated, in large part because of a welfare state that supports them without drawing them into the productive economy (which, more than any other thing, socializes its participants by drawing upon their self-interest). The failure of Western Europe economically to integrate its immigrants, preferring them to remain on the margins, supported by the welfare state but unproductive, has been disastrous. Young men will seek some form of authority, power, legitimacy, status, importance, place in the world, a possibility to fulfil genuine ambition, and obtain respect - young men will go and seek their fortunes - they always have and always will. If they cannot get there by being socialized to enter the workforce, a workforce that actually accepts them but also disciplines them to accept society and its values, then they will get it by some other means, which may well mean a radical imam in a mosque preaching jihad. In which case they may well find the self-respect they seek - fighting in Afghanistan or Bosnia, preaching the religion of the despised and unassimilated to those who likewise have no place in regular society, or seeking to blow up symbols of the West. It is a wholly negative lesson from which the United States ought to learn deeply.

It matters, too, if you think that these immigrants remain unassimilated to a set of values of liberalism, tolerance, secular government and the separation of church and state, and respect for such things as the rights of women - and that the governments of these European countries do not believe it worth fighting for the inculcation of these values as part of economic and social assimilation, because they are in thrall, once again, to an anodyne but ultimately dangerous multiculturalism. Western Europeans are going to have to decide if they stand for their own values, within their own countries. They will very soon discover that they cannot elide the question or make it go away. It is not at all clear that they do stand for the things they like to say; Europe too often seems to be assertive about the value of its own culture only when speaking to Americans and the United States (in this they are like American feminists who have no difficulty trashing the easy targets of the Catholic Church, but cannot see their way to engagement in the struggle against the far more frightening forces of radical Islam - preferring, as Christopher Hitchens has noted, to let American conservatives fight those battles for them). It's the usual official multiculturalism that has the terribly corrosive effect of driving the concerns of ordinary Europeans (who, like the Americans, are rather patriotic even when it takes the unattractive form of anti-Americanism), underground where it risks taking dangerously nationalistic expression. But there is virtually no talking about this with most European elites, whose vocabularies cannot admit of a difference between patriotism and nationalism.

Finally, it matters in the longer term to US security policy (more on this in a later post). The rise of Muslim Europe changes drastically the Robert Kagan view that Europe has reached the end of history, and is in a kind of utopia, beyond war, beyond want, beyond genuine conflict. The demographic shifts in Europe mean that this Europe will last no longer than this generation, and the next generation will inevitably be part of history again. Dealing with Muslim concerns within Western Europe - whether integrated and so part of internal domestic democratic politics or whether unintegrated and so representing unassimilated pressure on existing political forces - may have the effect of greater tension and indeed conflict with the US. It is not impossible that the transatlantic alliance, in fifty years, might founder on that tension among others.

So, yes, this all matters a great deal.

UPDATE (Saturday, December 11, 2004). Victor Hanson Davis on Islam in Europe, here.

WSJ Editorial on the ICRC

Yesterday, Thursday, December 2, 2004, the Wall Street Journal ran an editorial criticizing the International Committee of the Red Cross (ICRC) over its criticism of the US government and its categorization and treatment of detainees, here (subscription required). Important points include:

"The latest salvo was Tuesday's front page story in the New York Times quoting
from an ICRC report complaining about the detention conditions and interrogation
practices used on Taliban and al Qaeda prisoners at Guantanamo Bay, Cuba.

For decades, the very core of Red Cross methodology has been strict confidentiality agreements with cooperating governments. The practice has obvious drawbacks. But it has helped the Red Cross get access to -- and help -- prisoners of genuinely repressive regimes like Nazi Germany and Saddam Hussein's Iraq and ensured that the organization's recommendations are not regarded as political in any partisan sense. But now the ICRC has thrown confidentiality aside to attack the U.S., of all countries. And it matters little that the original leaker in this case may have been in the U.S. government. Officials at ICRC headquarters were only too happy to confirm the document's authenticity, and quickly issued a statement complaining that "significant problems regarding conditions and treatment at Guantanamo Bay have
not yet been adequately addressed."

This follows a similar leak in May regarding the Abu Ghraib prison, as well as the CRC's unprecedented decision to publicly challenge the Bush Administration's original designation of the Gitmo detainees as unlawful combatants rather than risoners of war. What's more, the leaked ICRC documents themselves reveal nterpretations of the laws of war so contrary to what the Geneva Conventions actually say that it's hard to read them as other than products of anti-American animus.

In this latest case, the ICRC is alleging that the psychological conditions faced by Guantanamo detainees are "tantamount to torture." Why? Because -- we kid you not -- prisoners are being held for indefinite periods and the uncertainty is stressful. And because some prisoners are subjected to psychological pressure techniques during interrogations aimed at thwarting further terrorist attacks.

* * *
To unpack the absurdities here, it helps to understand what the Geneva Conventions say about legitimate prisoners of war. The basic idea behind granting POW status
is that soldiers who surrender or are captured are not to be punished so long as
they have behaved according to certain rules -- such as fighting in uniform and
doing their best to direct their own attacks at enemy soldiers rather than civilians. Part of their protection from punishment is that they not be subject to coercive interrogation; they are required only to give name, rank and serial number. They may, however, be held for the duration of the conflict so that they do not return to the battlefield.

The POW concept is certainly a great humanitarian advance, since the slaughter of captured enemies used to be routine and since it provides some incentive to fair battlefield conduct. But it is a concept in jeopardy thanks to its ostensible guardians at the ICRC . By demanding POW status for un-uniformed combatants who target civilians -- in contravention of the plain language of the Geneva Conventions -- the ICRC started the fight over Guantanamo by attempting to remove one of the few carrots we have to encourage humane behavior in war. Now it goes further and demands that these combatants get even more privileges than legitimate POWs. Has it occurred to no one in Geneva that indefinite detention can't possibly be
"tantamount to torture" for illegal combatants if it is the expected course of events for real POWs? The prospect of Guantanamo detainees returning to the battlefield is real, and more than two dozen of those already released have done so.

The ICRC also objects to interrogation pressure that is typically no more abusive than the good cop-bad cop routines common in American police stations. And where the interrogation techniques go further, they include nothing worse than loud music, temperature extremes, and uncomfortable positions. To call such discomforts "a form of torture" is to rob the word of all meaning and implicitly elevate the behavior of truly odious regimes. Finally, from the damned-if-you-do file, we have the ICRC complaining that U.S. doctors took the care to examine the detainees' health to determine if particular stress techniques might be too much for a given individual. This is alleged somehow to be a violation of "medical ethics" rather than the example of American humanity that it actually is.

* * *
Readers who doubt the ICRC's moral drift might want to consult the recent report from the panel on the Abu Ghraib controversy headed by former Defense Secretary Jim Schlesinger. It contains an excellent section on the ICRC's recent attempts to pass off as settled international law a radical document that is in fact aimed at assisting terrorists and so-called "national liberation" movements (see page 85 of the report, which is available at www.defenselink.mil/news/). That Red Cross document, known as Protocol 1, has always been rejected by the U.S. and other major governments, and the ICRC's attempt to pretend otherwise with its media spin is also a serious abuse of trust.

No longer careful, scrupulous and neutral, the ICRC has become just another politicized pressure group like Amnesty International and Human Rights Watch. ICRC President Jakob Kellenberger is reportedly planning to visit Washington soon to press the U.S. government on Guantanamo and other issues. We hope he is told that he is leading his organization toward the loss of its $100 million-plus annual subsidy from U.S. taxpayers, as well as its special status come future revisions of the Geneva Conventions."

**************

I will post later my own view of this. However, the link to the Schlesinger report is worth following.

Martti Koskenniemi (Theory)

Any discussion of Professor Martti Koskenniemi's work must begin by acknowledging the fundamental importance of his 1989 book, From Apology to Utopia. It is a brilliant book, a heady and intoxicating book, and I don't think anyone who was developing his or her views on international law during that period could help but be profoundly impacted by it. It was, to my mind, the book on international law that one had to come to grips with in setting out a view of international law during the first part of the 1990s. Recently I took the opportunity to reread much of it, to see how it had aged over the past 15 years. It remains immensely important - I realized that there were immediately usable ideas in it for my own work today, and was pleased to have picked it up again. I think it will be one of a small list of indispensable intellectual works of international law for a long time to come.

If From Apology to Utopia conveyed a sense of wonderfully intoxicating intellectual liberation in the midst of deep erudition, across a variety of fields, it is a fair question to ask what follows. I do not mean this in the sense that a brilliant first book is a hard act to follow - I think it is a perfectly good intellectual project to spend years working out the hard details and defenses of an initially brilliant idea, to respond as it is subjected to criticism once launched. I mean something much more specific in this case; From Apology to Utopia is a work with a devastating critical methodology, and there is a serious question as to where its method permits one to go afterwards. Professor Koskenniemi has serious political and policy commitments - and is admirably engaged in the professional world of academic international law - but it is not very clear to me how they connect with the critical method of his meta-theory. The meta-theory (as with all good meta-theories, it seems to me) does not specify outcomes at the normative level; it seems to me that it lends itself with equal aplomb to a conservative as well as progressivist agenda, John Bolton's anti-international law critique as well as Professor Koskenniemi's own policy views.

(There was also a long discussion at the time of publication as to how From Apology to Utopia fit with Critical Legal Studies during the 1980s; that whole discussion suffered from a peculiarity in that it was never exactly news that international law was also international politics. I think that the label of international law CLS was somewhat thrust upon From Apology to Utopia unfairly; it had a quite different intellectual formation, in part because of differences in the history of international law, and partly because of differences in comparative traditions between the civil and common law, among others. I did not find it a helpful way to conceive of Professor Koskenniemi's work, then or now.)

What followed, however, was a group of articles during the 1990s that seem to me curiously disconnected from the methodology of the 1989 book - certainly that was how they seemed to me when they appeared in the 1990s. They were skillful and learned. An example might be "The Place of Law in Collective Security," 17 MIJIL 455 (Winter 1996), a work amply informed by the history of collective security efforts but also especially informed by a knowledge of how scholars within the debate over collective security and international law saw themselves and their work. Yet in its methodology and conclusions, I found it hard to connect to the far more radical work on From Apology to Utopia; it does not seem to me so very different, in either form or substance, from Michael Glennon's far from radical (or, quite possibly, highly radical) conclusions on the rule of law and Security Council. I may be wrong in not seeing a connection, but that was my sense then and now. At the same time, Professor Koskenniemi was engaged in responding to the on-going discussion of his meta-theory, as in his meta-meta-challenge to the organizers of a symposium on methodology in 93 AMJIL 351 (April 1999), questioning whether the way in which the possible ideas of methodology could be reduced to a kind of cafeteria-style selection. This was certainly worthwhile work, even if it did not always connect with the meta-theory project of the first book. Yet it left a certain question dangling as to whether the meta-theory was destined to be, always, simply a critique, one that not only could not generate a positive project, but one which undercut the very idea of a positive project, at least within the formal terms of international law; there is, in this, a certain sense of sawing off the intellectual branch one is sitting on.

A purely critical method can be a perfectly good intellectual project. But it does suffer from a temptation, over time, especially if it is a highly formal critique, of turning into a sort of schtick – a method than can be trotted out for all occasions, a response that becomes increasingly mechanical over time. I have sometimes wondered if Professor Koskenniemi would fall to that temptation. Happily, however, it seems he has found an answer to this methodological dilemma in his 2001 book, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960. That answer is, in a word, history. This is an extremely elegant but also difficult work, best understood as a series of essays linked by a sort-of conclusion. It has two agendas. The first is to develop an intellectual history of international law, and to offer a critique of that history, its pretensions and assumptions. The second is to offer, on the back of that history of international law’s development as an intellectual pursuit, a sociology of the profession of international law.

The culmination of these two agendas is a sort-of conclusion about the current and future condition of international law – I say “sort-of” not as a criticism, but as a recognition of his highly ambivalent feeling about it – a highly pessimistic account of the independent intellectual content of international law, and yet wanting it to be more than he thinks it now is. This book is much less glittering than From Apology to Utopia; it is also more elegant and darker. It is something of an elegy for something that, on the book’s own argument, is dying if not dead as a formal, classical legal ideal. He wants to resist his own argument and so, in what seems to me a counterargument supported by idealism rather than his own method, he finally urges a positive argument. Professor Koskenniemi is being true to his own hopes, if not to his argument, in launching an apologia in the last chapter for a concrete form of legal analysis that, he says, cannot be captured fully by a formal legal theory such as his own. I find this positive argument difficult to follow, perhaps because coming on the earlier pessimism, it is hard see how it can reconciled to what went before; it seems to me notably weaker than the earlier pessimism. But it is, I think, mostly an expression of hope, rather than the conclusion of rigorous optimism, and I do not at all hold it against the book as a whole.

Reading Professor Koskenniemi’s work in large chunks over the last six weeks, I have come to the conclusion that he is not essentially an international law scholar. He is, rather, a sociologist of the profession of international law, and an intellectual historian of that tradition. His critique of the methodology of international law has led him to consider the methodology of the profession qua profession. This is impressive work, and although at the beginning of my reading I had questions whether the critique had ground to a halt, I think that the new book finds a new body of formal materials – profession and intellectual history – to keep the critique moving forward. It has not turned into a schtick, and I would say shows no signs of doing so. I have many substantive disagreement with his normative and policy conclusions, particularly in security matters - yet he continues to surprise me, with the open ended, supple nature of his thinking - see, e.g., here on the Bush preemption doctrine and the UN Charter. But the fundamental importance of Koskenniemi's work remains his theorizing.