Dominique de Villepin and Rene Char

The title of French interior minister (and foreign minister at the time of the Iraq war) Dominique de Villepin's new book is Le Requin et La Mouette, which translates as The Shark and the Seagull. (Photo at left.)

As reviewer Martin Walker notes in his The National Interest review, "French Without Tears," No. 79, Spring 2005, Villepin has "carefully avoided challenging the general view of his reviewers that the shark is a metaphor for the United States while the seagull represents France." Quoting Villepin, the shark "drives through the sea to snatch its prey ... a symbol of power, strength and the refusal to be halted by the complexity of the world." The seagull, by contrast, "watches, soars, approaches, climbs and swoops, turns suddenly. The straight line is seldom her course. She listens to the world."

It hardly bears saying that I am no fan of Villepin's - he incarnates the wild romantic and the romantic intellectual in power (if you think wild romantic - leave aside intellectual - is a description of George Bush, then see Villepin's book on Napoleon; Bush is not in the same universe of romance as this minister who hopes to replace Chirac). It is to our global benefit that he has been the faithful representative of a France largely without power save to ... well, swoop, soar, approach and turn suddenly. Fly around, in a word.

(Villepin reminds us of that epigram of Stendhal in the Red and the Black - "Julien fell asleep, dreaming of honors for himself, and liberties for everyone else.")

Nevertheless, the title of Villepin's book comes from none other than the great and, in English, almost entirely unknown, French poet Rene Char. I am using a phrase from Char, "this time of damned algebra," as the title for my book manuscript on the just war. So let it be said ... a man, even Villepin, cannot be wholly without merit who quotes from the very great Rene Char.

Christopher Caldwell joins NYT Magazine as contributing editor

Congratulations to Christopher Caldwell, senior writer for the Weekly Standard and columnist for the Financial Times, who has become a contributing editor of the NYT Magazine. This is one of the shrewdest moves the magazine, under the editorship of Gerry Marzorati, has made to broaden and deepen its intellectual range - well beyond that, one should add, of the rest of the paper. Caldwell is the best American writer today writing on Western Europe - his reporting on Islam in Holland, Sweden, France, and Germany is absolutely essential reading. Brilliant move by the NYT Magazine, congratulations to Christopher.

(You can get some idea of the depth of Christopher Caldwell's thought from his recent address at the American Enterprise Institute, on Raymond Aron and the Atlantic alliance, here, with thanks to RCP.)

Poverty reduction and global economic development principles

A principal area of work for me beyond the laws of war and just war theory is international development and development finance. As part of that work, I have been thinking about general principles of poverty reduction and economic development. This list is not complete, but I began thinking about these in the course of reading the not-very-useful discussion in Kofi Annan's UN reform proposals, the core of which is a grand bargain between rich and poor countries, facilitated by the UN itself. I criticize it a couple of posts back. Here I want to start sketching out a list - and I emphasize that it is not complete:

(1) Who should be targeted for global poverty reduction? Ans.: bottom 20% of income in the world, with special attention to particular regions where this is most concentrated, ie, subsaharan Africa. This should not mean the bottom 20% in each country, but instead the bottom quintile of the world taken as a whole.

(2) The issue of poverty is largely (although by no means completely) an issue of governance. Poverty cannot be solved by governance reform alone, and there are investments in public infrastructure that must be made in such matters as public health, education, etc. - but poverty cannot be solved in the absence of long term improvements in governance of societies and countries where poverty is most entrenched.

(3) We need for purposes of both analysis and action to divide societies mired in poverty as between those in war or war’s immediate aftermath, and those that are not.

(4) In the case of war, frankly little can be done on the long and even medium term issues – the issue has to be how best to deliver necessary humanitarian assistance, understood as being a band-aid and nothing more. It must also be done with a clear understanding, as has been seen in Sudan and elsewhere, how (disastrously) humanitarian assistance itself can be integrated into the economy of civil war.

(5) In cases not involving immediate war or its aftermath, then the focus needs to be on the right combination of public investments in such things as public health and education with governance reform and the building of infrastructure favorable to private investment.

(6) In the medium to long term, meaningful poverty reduction for large numbers of people comes through expansion of the private sector and private sector investment, and the creation of private incomes. Public infrastructure investments need to be conceived in terms of supporting that larger goal – such public investments are critical, but they must be a part of a larger and longer program of governance reform that will give the stability to make possible private investment and finally private incomes.

(7) The issue of poverty reduction is not, with respect to the world’s very poorest people, that they are exploited for their labor or, really, anything else. Secretary General Anan is right when he says that the problem is how to draw these people up into the process of market globalization. Put bluntly, if the poorest 20% of the world’s population somehow disappeared one day off the face of the earth, the world economy would not only not notice, a large number of people in the richest parts of the world would say privately, hooray, now we can turn Africa into a game preserve for animals. The real tragedy of the world’s poorest today is not that they are exploited - it is that they are too poor even to be worth exploiting.

(8) Concepts of “sustainable development” are used in two very different ways – one is that development has to be in such a way that war, drought, coup, corruption, and so on will not simply wipe it out. This is clearly sound. Sustainable development is also used to mean, however, programs in which it is assumed that economic development can be made compatible with the priorities of rich-country environmentalism. Sometimes this is true, but sometimes it isn’t. Sometimes – really, almost all of the time – economic development requires a willingness to make tradeoffs between such values as development and poverty reduction and environmental protection. The priorities of rich countries are sometimes – often - different with respect to those goals from those of poor countries, but if, in circumstances where they clash, rich countries want their goals to prevail, they should be willing to pay for them.

(9) Infectious disease - malaria and AIDS - are two of the very greatest poverty issues facing even that part of the developing world not overtaken by war. It is a moral imperative both to come up with new technological and biotechnological solutions to these diseases and, further, to use the necessary pesticide spraying to cut malaria. This is a clear cut case where the environmental priorities of the rich world - having already sprayed away its own mosquitoes - are in absolute conflict with the necessities of the world's poorest. Current waffling on this issue is simply unconscionable.

(10) Microenterprise works - provided that it is integrated into a program that includes necessary public investments in education, health care, transportation, communications and so on. Private investments in telecom infrastructure show special promise in contributing to economic activity.

(11) The Bush administration is absolutely right to focus on rewarding those countries which most respond with governance reform - it is critical to reward success and not reward failure.

(12) The Annan proposals for UN reform emphasize the .7% of GDP aid target for rich countries. This target has no basis in the reality either what the developing world needs or what it can actually use. It is, rather, an artefact of a long failed development strategy that assumed that the issue in development was income transfer from wealthy to poor states, based on Western European welfare state models ramped up to the whole world. Even in a development strategy based around rewarding improved governance and so on, considerable funds would be needed for public infrastructure, including mass projects such as innoculations, mosquito spraying, elementary education, etc. Whether this amounts to more or less than .7% GDP is not known - however, .7% GDP is an immense amount of money from the rich world, and it is inconceivable, following the oil for food scandal and all the rest, that any significant part of it should flow into UN coffers. Moreover, large-scale poverty reduction comes about through private investment, and to the extent that such public investment aid has the effect of substituting for private investment, rather than complementing it, then it is a mistake. The Annan proposals should be dismissed as simply a bid for the UN to play the role of gate-keeper and rent-seeker with respect to the .7% income transfer - a bid to play the role of transaction cost on the .7%.

I will add other things. The Copenhagen Consensus is a useful place to look, and there are other things, too. Of course, the Jeffrey Sachs book is worth reading - despite his irritating self-righteousness, his fanatical belief that if it's not his program it is obviously wicked and stupid, and his endlessly tiresome anti-Bush biases - much of what he says is right, despite Jeffrey Sachs.

As for this list, I am not speaking systematically, but just brainstorming. You can read more of my views on development here, in a 2002 paper on microcredit and development in the Yale Journal of Human Rights and Development.

Terrorism in Kofi Annan's UN reform proposals

One aspect of Kofi Annan's UN reform proposals (text here) that has tended to receive positive comment in the United States is his call for a convention on terrorism that eliminates one huge area of contention - state (read "Israel") terrrorism. As the SG says at paragraph 91, "It is time to set aside debates on so-called “State terrorism”. The use of force by States is already thoroughly regulated under international law." With respect to the definition of terrorism itself, he goes on:

"I endorse fully the High-level Panel's call for a definition of terrorism, which would make it clear that, in addition to actions already proscribed by existing conventions, any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act. "

I do not want to suggest that this is not a step forward. But before jumping aboard the road to a convention, the United States needs to be very clear about what this affirmatively says and what it leaves out or at least leaves in ambiguity.

Assume for a moment that the definition of terrrorism were what was cited above, without reference to "existing conventions." Would that be a sufficient definition of terrorism? Many would rush to say yes, but in fact it would not cover what we already now regard as terrorism. We do not limit the definition of terrorism to civilians and noncombatants. If we did so, we would have to accept the IRA's view that (a) it is okay to target British soldiers and police, security forces if you, the terrorist, have determined you are in an armed conflict with them and (b) collateral civilian damage that would be acceptable within the traditional rules of war is likewise okay provided that you did not target the civilians.

Obviously that is unacceptable - whether you are talking about the IRA or the attack on the USS Cole - the latter being an attack that, if it really were legitimate armed conflict, would have been exemplary in that it involved no civilians or noncombatants.

The point is that proscribing attacks on civilians only gets you part of the way in the definition of terrorism. If you want to cover attacks on security forces, you can only do so if you are willing to define who has the authority to determine to go to war. We deny that the IRA has the legal authority to be at war with the British state; we deny that Al Qaeda has the legal authority to be at war with the United States. Any attacks these groups carry out - any attacks - whether on otherwise legitimate military targets or not are all terrorism, because the group fighting the state lacks the legal authority to make war. But in order to draw that line, you have to be willing to draw at least some lines with respect to who has the right to make war. States, it is accepted, have that right - their cause may be unjust or illegal, but states can make war - but the question is how far it extends to non-state actors.

The world has gone through great spasms over national liberation movements, granting them the legal authority to make war. In overwhelming part those wars are over - the question of Palestine is really the only one left. (In reality, there is only that is really left, that of democratic Taiwan. But it doesn't get much attention as an issue of self-determination among the "international community," given that the world's progressives, the world's leftwing, especially in Europe, refuse any moral authority to the self-determination of the democratic state of Taiwan - seeing them as troublemakers who get in the way of European-China trade in arms that, the post-Christian God of Europe willing, China might someday use to humble the wicked United States.) Yet the fact remains that many of the world's democracies, starting with the United States, emerged from the point of the gun - and from Locke onward, the question has been how to legitimize authority that arises from rebellion, revolution, insurrection, sedition, secession, and insurgency. Under what circumstances can non-state actors legally make war?

I won't try to answer that question here, now. But I emphasize that the question of what constitutes terrorism cannot be settled without taking it into account - provided that you believe, as the United States must believe, that it can still be terrorism if you target not civilians but the sailors of the USS Cole.

The High Level Panel report fudged that issue by referring to "existing conventions," which deal with a variety of specific terrorist situations, such as hostage taking, aircraft hijacking, etc. But so far as I can determine, those existing conventions do not deal with the question of attacks on security forces of a state as such. Perhaps it can be said that the definition of terrorism, if it is the civilian-oriented definition of the High Level Panel report plus the existing conventions, covers these attacks on security forces. But that is far, far from clear to me, and that must be clarified in creating what Annan calls a "comprehensive" terrorism convention that the United States can join - if it does not include a clear treatment of attacks on state security forces, then it cannot be, from the viewpoint of the United States, "comprehensive."

Kofi Annan's UN reform proposals and terrorism

Kofi Annan has released his plan for comprehensive UN reform, based in very large part on the report of the High Level Panel. I have blogged on the High Level Panel report before, essentially to say that it is a non-starter for many, many reasons, not least of which is that it proposes to strengthen the role of the Security Council in approving the used of armed force. That reflect neither reality nor good sense; it is, however, fully restated in Annan's report.

In general, Annan's reform proposal is a supposed grand bargain between rich countries and poor countries; poor countries crave aid but instead export terrorism, while rich countries crave security while refusing to export needed aid. The answer will be to implement the .7% aid solution for rich countries, funneled through the UN and various aid agencies, and poor countries will thereby be bought off. It is a fantastically wrong understanding of aid and security worldwide. The best characterization is given by the Belmont Club, here:

"Kofi Annan's proposals are a recipe for disaster for two reasons. His entire security model is philosophically founded on a kind of blackmail which recognizes that the only thing dysfunctional states have to export is trouble. He then sets up the United Nations as a gendarmarie with 'a human face' delivering payoffs to quell disturbances. This is the "bargain whereby rich countries help the poor to develop, by promoting the Millennium Development Goals, while poor countries help alleviate rich countries' security concerns." Second, his model flies in the face of the recent experience in Afghanistan, Iraq and the entire democratizing upheaval in the Middle East. It is by making countries functional that terrorism is quelled and not by any regime of international aid, inspections, nonproliferation treaties, declarations, protocols, conferences; nor by appointing special rapptorteurs, plenipotentiary envoys; nor constituting councils, consultative bodies or anything else in Annan's threadbare cupboard. "

From both a security and development standpoint, the issue is not flows of aid per se. Vast flows have been undertaken, both at the official and NGO level. And to be sure, very large flows of aid will be needed even in an efficient and progressing development program. But the fundamental problem of aid and development is the question of governance. Countries in war, civil war, armed conflict, or disssolution cannot use aid - all that can be done is humanitarian relief on a purely band-aid basis, and understanding, as in Sudan, the aid itself can become a valuable commodity in the structure of conflict itself, an actual reason why fighting goes on. Countries that are emerging from civil wars, or in which the structures of governance are so weak that the may collapse into disorder cannot effectively develop - aid must be thought of as purely humanitarian, maintenance, not development.

You can only get development in places where the structures of governance are sufficiently developed that aid is not siphoned off in massive corruption at the official and unofficial level, where there is sufficient rule of law that private investors will invest - ultimately, the largest poverty reductions in the world have taken place through private investment, in India and China. Massive aid investments in public infrastucture - public health, education, and so on - have an important role to play, but what finally takes people out of poverty is private investment to produce private income. The Bush administration's view that you reward the societies where those conditions are met is the right response.

But this frankly has little to do with the questions of terrorism and security. The suicide bombers came out of Saudi Arabia, Egypt, Morocco - and the Western European welfare states. They did not come out of the poorest countries of Africa. That might happen in the future, but the reality is that the suicide Islamofascist terrorists are the product of a extreme reading of Islam combined with Western ideologies of resentment, victimization and colonialization - they are the product of badly educated, but still educated, alienated middle class Islamists. They are not the products of physical desperation, but rather of the profound spiritual malaise of their misgoverned countries, sending their alienated to attack the West rather than their own rulers, and their lack of assimilation in a post-Christian Europe that on the one hand despises and fears them but on the other depends on them to pay the social security bills of the aging and highly leisured indigenous Europeans.

Annan's grand bargain thus does not coincide with reality - either with the reality of poverty and development, or with the reality of security and terror. It does coincide, however, with the UN's desire always to be the essential middleman - in this case linking one phantasm to another, with the UN as the gate-keeper and rent-extractor in the middle.

Annan's proposal's should be rejected out of hand as not reform, but, astonishingly, even more chutzpah than he's ever shown before.

In consideration of the imperfection of the world

"In consideration of the imperfection inherent in the order of the world, he had been forgiven by all of them."

Heinrich von Kleist, The Marquise of O- (about 1805).

Dropping the atomic bomb in WWII

I received today a very kind invitation from the editor of the Bulletin of the Atomic Scientists to contribute a short piece - a couple of paragraphs, really - to a special section with many contributors addressing the question of whether, if it had been up to me and me alone, I would have dropped the atomic bomb in the Second World War.

I am terribly flattered by the invitation. I am often a critic of NGOs and civil society organizations, usually for overreaching their political legitimacy, to make themselves into something they are not in order to gain political leverage. I have frequent substantive and philosophical disagreements with the Bulletin. All that aside, however, it has been a profoundly important moral voice since the introduction of the bomb, and a particular voice for the idea that scientists should not see themselves as mere instruments, but as moral creatures. That fundamental ideal is more important than any disagreements about what the content of that morality should be.

I want to say yes - and plan to say yes - to the invitation. But it is quite difficult to figure out how to express one's ambiguity on the issue. I will muse further in this blog about this, but for the moment, I am trying to figure out how to express my sense - deepening profoundly over time and study - of how much on the cusp, morally, the Second World War was, in the sense of the laws of war, the morality of war, the means and methods of war. On the one hand, there were reservations expressed, even at the highest levels, at the Allied bombing of German civilians; on the other hand, bombings went forward. It was a world in which, after the firebombings of Tokyo and Hamburg, Dresden, the sieges of Leningrad and Stalingrad, and, most of all, the fact that the battles and casualties grew only more dreadful as US forces advanced across the Pacific, with only escalation of that to be contemplated in the assault on the home islands ... When I try to teach my students of what the carnage looked like to Allied civilian and military leaders and why, therefore, for them the destruction at Hiroshima and Nagasaki was a difference in efficiency but not a difference in kind from the firebombing of Tokyo - they cannot help but see it from the standpoint of the Cold War and its aftermath, from the standpoint of looking backwards from a world of thousands of missiles and warheads pointed at the opposed superpowers' cities. It is virtually impossible for them to see it from the standpoint of those looking backwards at the corpses of the tens of millions already dead in the conflict and what look to be millions more to come - if one can grasp that point of view, then Truman's seeming callousness seems quite different.

I am not quite with Paul Fussell's "Thank God for the Atomic Bomb," but the more I understand about the levels of carnage in the war, I do edge closer. Certainly it leaves me with less patience than perhaps I should have for those for whom the decision to not use the weapon was an obvious and easy moral call.

Coordinating long term US sovereignty issues

As I look at the increasingly wide range of issues raising long term questions about the protection of US democratic sovereignty interests - today, Kofi Annan's latest UN reform proposal; yesterday, the US Supreme Court in Roper; tomorrow, decisions in the Security Council over Darfur referrals to the ICC; and so on - I wonder whether there isn't some need within the Bush administration for an indentified person responsible for ensuring that across all the areas of government, genuinely long term sovereignty interests are represented in decision-making.

Yes, there is always John Bolton, willing to look long term on these matters. But I suspect in many agency and departmental decisions, it is much easier to look solely to short term considerations that have the tendency to undermine sovereignty in the long term. Suppose the Bush administration had someone whose job consisted in monitoring across departments - with the capacity at least to advise and raise long term sovereignty concerns and advocate for them within governmental decisionmaking, and to advise senior policymakers about the long term sovereignty interests at play in seemingly modest issues. And at the same time, coordinating a policy for strengthening the defense of US sovereignty cutting across departmental and agency lines?

Would such a position make any difference? Well, one place it might make a difference would be in encouraging the US to intervene aggressively in Alien Tort Statute cases. Another place would be in determining whether the US should get involved in treaty negotiations - for example, by asking the question of whether the negotiating process, leaving aside the specific issues involved, would likely result in wrongly empowering NGOs or other nonstate actors over democratic sovereigns. Or working with Congress to undo the damage done by Roper and its invitation to bring foreign law into US Constitutional adjudication.

I've never worked in government, so I am decidedly inexpert here. But I am convinced that there are long term sovereignty issues that are not being vigorously defended, in part because there is not enough incentive to look to the long term.

Claudia Rosett on SG's ill-conceived UN reform plan

Claudia Rosett - who is unlikely ever to receive a much deserved Pulitzer for having blown the lid off the oil-for-food scandal - says better than I what is so deeply, deeply wrong with Kofi Annan's new proposal for UN reform, in the Wall Street Journal, here. Her conclusion?

"How to reform the U.N. is a big question, in need of real debate and workable proposals from some quarter. What we got from Mr. Annan as he presented this latest menu for U.N. improvement was his warning that no one should pick and choose among his proposals "a la carte." Great. If he really wants all or nothing, the next move is to toss this report, and start looking for a secretary-general who can get it right."

Agent Orange litigation before Judge Jack Weinstein

Several people have asked me, after seeing various court documents, what connection I've had with the latest (and perhaps last) round of litigation over Agent Orange - this one being Vietnamese civilian claims against the US chemical companies that manufactured the herbicide. Judge Jack B. Weinstein issued a decision today dismissing the claim against defendants. I was an expert witness on international law claims (in the context of an Alien Tort Statute case) for the defendant corporations. I don't think the AP or NYT's stories, linked above, quite get the decision right, but they are the only media summaries at this moment.

(The other expert for the defendants was Yale's Professor Michael Reisman, while former Clinton administration war crimes ambassador David Scheffer filed an amicus in support of the defendants; on the plaintiffs' side were Columbia's Professor George Fletcher and U. of Houston's Professor Jordan Paust - so I was moving in exalted academic company on international law.)

Since the ATS requires as a predicate a violation of international law, I was asked to opine on whether there was a violation of international law as it existed during the Vietnam war in the use of chemical herbicides whether by the US government forces or by the defendant corporations. The principal situations I considered were:

• Were chemical herbicides such as Agent Orange per se prohibited by the laws of war in effect during Vietnam - rules such as the law of war rule against the use of poisons found in 1907 Hague Regulations 23(a) or the 1925 Geneva Protocol or derivative customary international law? (Ans.: no)
• Even if the herbicides were not per se prohibited by the laws of war, did the actual uses to which US military forces put such herbicides during the war violate such law of war rules as the rule of proportionality (ie, weighing up military advantage versus civilian harm)? (Ans.: no)
• Perhaps most interesting of all, during Vietnam or even today, under Nuremberg principles or later international legal developments, was or is there an international law rule allowing corporations to be held liable under international law - could corporations be held liable under international law, e.g., for criminal aiding and abetting? (Ans.: no)

Judge Weinstein's opinion today agreed with the defendants' substantive international law views on whether the US forces or the manufacturing corporations violated international law; he agreed they did not. This effectively killed the ATS claim, since plaintiffs were left with no violation of international law, as required by the statute. His views on corporate liability are more complicated and, truth be told, I am still reading them (the opinion is 233 pages long). There is a great deal in the opinion of interest, including corporate liability, issues of the meaning of the Supreme Court's recent Sosa opinion on the ATS, and much, much more. The NYT story is certainly right in saying the decision uses "sweeping language."

I have asked my school's tech staff to post my expert affidavits to my academic papers site (see links sidebar) but that may take a while; I'll be happy to email them to you if you want them - contact me at school, at kanders@wcl.american.edu.

John Bolton's nomination as UN ambassador

I applaud the Bush administration's decision to do the hard thing and put forward John Bolton as US ambassador to the United Nations. It would have been only too easy for the administration to choose some worthy, sound and ultimately irrelevant person for the post. Whereas the UN is in need of deep review and reform, ultimately downsizing its aspirations in the search for missions that it can carry out efficiently and well, within the limits of its legitimacy. Bolton, it seems to me, is exactly the person for the task of carrying this message to a UN bureaucracy that it both deeply anti-American while being deeply reactionary - reactionary, paradoxically, in its attachment to a vision of the UN that is inconsistent with its moral and political reality.

What is that vision? It is the vision of a sapling growing ultimately to be a towering tree of global governance; for the sake of the tree to come, we have to forgive any difficulties with the sapling. But this vision is morally dead, for a simple reason. The moral limits of the UN are the moral limits of an institution that deliberately withholds moral judgment on its members - the good are treated equally with the wicked, the democracies with the dictatorships, it's all the same thing. There are reasons why the world needs a forum that adopts this moral equivalence - but those reasons are entirely matters of prudence and pragmatism, a talking shop for the sake of a certain level of world order. But that means that the UN can never rise above a certain moral status - and, as expected, it has not. Much better if the US pushes a vision of the UN as institutionally good and efficient at certain narrowly defined tasks, and a place to discuss issues between sovereigns, but nothing more expansive than that. And within the UN and its sovereign members, a willingness always to be clear about who is democratic and who is not, who is a dictatorship and who is not, and the willingness to be frank about that as a condition of speaking with bad guys. If Bolton is able to push a vision of the UN as a limited institution - not a sapling growing into a big, overarching global governance tree, but instead as a set of low shrubs and hedgerows, for certain narrow tasks, then we will all be better off.

It is easy to imagine Bolton - a man who seems to be the anti-diplomat, a man unable, when he speaks, to do other than speak his mind, directly and without obfuscation - placed by the administration as UN ambassador in order simply to obstruct and block - threats to US sovereignty, the International Criminal Court, the Security Council and the use of force, and so on. I myself believe that the administration and Bolton have a much more ambitious agenda, one that is fundamentally about reform of a corrupt and misconceived institution - I believe Bolton has a firm positive agenda, one that starts with rescuing the UN by, in the first place, being willing to curtail its grandiose visions of everything. In that respect, the senior functionaries of the General Secretariat ought to be flattered that the administration would appoint someone who takes them seriously enough to tell them to rethink themselves, rather than a sort of Clinton-style "share your pain" type who says soothing things while the administration acts differently. The Bush administration had enough respect for the UN to say, we're taking you seriously - but that means reform and that means downsizing your sense of yourselves.

Just war theory notes

Thoughts on just war theory, in no special order:

Varieties of realism ... as I've noted various times on this blog, what is typically described in just war literature as the "realist" position actually breaks down into a number of different moral positions. I've sometimes described the range this way:

• Amoral realism. The realist part of this is the exercise of power - the reality of power - while the amoral part of it is that it is exercised without reference to a moral language. Instead it is a question of desire, glory, non-moral motivations. Could prudence be a motivation here? Perhaps, although prudence is often part of a genuinely moral language, about what is good for me and mine, for my people, my community. Glory, I think, is overlooked by we moderns, looking to purely material explanations for why nations and nation-states behave as they do. Whereas I don't think someone like Saddam is comprehensible except in terms of a quest for glory of a certain kind. Hobbes discusses this in the Leviathan, someplace, and I need to track it down.
• Moral realism. The realist part is, once again, the view that power can be exercised without any a priori restraints on the basis of rights - so that it is a consequentialist theory - but the ends to which power is exercised must themselves be framed in a moral language. This leaves a lot open, of course, as to the content of that moral language. The most important question is not whether we think that a lot might be brought in that we don't think is actually very moral - that is always possible - but instead the more difficult question of whether the consequentialism is one that looks to consequences for the world as a whole - all sides, the whole world - in a dispute, or merely to one's own side. Both are a form of moral language, but one privileges a political community, the people you are close to, family, nation, tribe, over anyone else in the calculation of consequences. The other version, the pure consequentialist version, frames the moral language in terms of the whole. I'll isolate the "partial" consequentialist view in a moment, but it is worth noting that the "stability" realist arguments about balance of power, stability, and so on found in places like Foreign Affairs are often presented, on the surface at least, as arguments from the interests of the world as a whole even if they call for action which, also on the surface, appears to be from the standpoint of the superpower. Pax Romana, Pax Americana are often argued in terms of stability benefits - a consequentialist argument - for the sake of everyone. Not everyone agrees, of course, that everyone benefits.
• Attachment ethics realism. Here is where things start to get very difficult. Whether one is talking about realism or a just war theory of rights a la Walzer, the theory that most people intuitively opt for, in my experience, is one which privileges one's own political community in some ways - defends its right to defend itself in some way. It may temper that with some version of universal consequences - such as the Christian just war requirement that overall greater evil not come about by, for example, a genuinely lost cause - but it privileges one's own community and its defense. The Melian dialogue features just such an argument from the Athenian generals - if we do not expand our empire, we will lost what we have - and, speaking no doubt generously, they were thinking about the defense of their families, wives, kin, and people even if it involved the defense of an unjust empire. (I will suggest that one difference, however, between Christian theory and Walzer and, for that matter, my own modest theory of just war is that Christian theory, in speaking to a just cause, really does universalize it as a matter of natural law and so does not privilege one's political community in the final analysis even if it grants to one's political community much leeway in determining if its cause is just.) The justification for privileging one's own is a much broader problem in ethics than simply war, although war is a stellar example of one part of the problem - and I have called it "attachment ethics" or the "ethics of affection" because it goes to the question of when is it okay or not okay to favor one's own, however one defines it. (I will argue at some point that the best way to draw the line involves a public -private divide, and that this is an important part both of the story of how Western civilization developed the concept of the rule of law and of the failure of governance in various places, but I will leave that aside for now.) The point is, for now, that most of us tend to accept some sort of attachment ethics when it comes to an ethics of war - not everyone does, and many of them live in Geneva, or more broadly in Europe, where the question of being attacked is not really at issue and hence permits you to live on a highly abstract, highly univeralized plane in which neutrality and genuine impartiality in conflict is the most admired virtue. (I attack the primacy of that concept in the last part of this article on humanitarian neutrality, here.) I do not think you can justify this attachment, whether in a realist mode or rights based just war theory mode without some ethics of attachment and affection - which will als0, however, require that you set out the moral limits to such attachment. That has to be a central problem of any theory of war ethics.
• Empirical moral realism. Sherman said "war is hell." He favored the most violent, unlimited means and methods of combat in order to shorten the duration of that hell. Interestingly, Sun Tzu says much the same thing in The Art of War. What makes this version of realism "real" is that it says that any exercise of power - any means and method of warfare - is acceptable, and that no a priori constraint can be placed upon the exercise of that power by concepts of rights and natural law. What makes it a "moral" language is its assertion that it does this for a moral purpose - shortening the duration and consequences of the hell of war. What makes it "empirical" is that its means and methods reflect empirical, factual judgments about what the true horrors of war are. In Sun Tzu's case, it was a view that the greatest disaster of war in his day - around the fifth century BCE - was the disaster to subsistence peasants of not being able to plant or gather the harvest and this to face starvation - this led Sun Tzu to the conclusion, in his day and circumstances, that a short, even if much more intense and brutal, conflict was morally preferable to a protracted one that starved society. Sherman made much the same judgment (although he offered as well an entirely different kind of argument. These judgments may be right, they may be wrong - they are factual in nature, although they are factual predicates in a moral argument with moral ends about the use of power.

These are the realist theories - theories of power that do not admit of a priori, rights based restrictions on the exercise of power, either in the sense of constraining the resort to force or in the means and methods of using force - jus ad bellum or jus in bello. Beyond realism, we have next theories of nonviolence:

• Duty based nonviolence - absolutist nonviolence. (I won't say more for the moment.)
• Pacifism with respect to war, although not necessarily about all forms of violence, such as domestic police protection.
• Realist pacifism. I want to distinguish out one important strand of pacifism - one that is not necessarily based on an a priori conception of duty and right, but which is instead based on a severe realism - you can reach, that is, pacifism if you conceive of the risks of warfare to be such that it cannot be constrained and hence will always flunk some consequentialist test of what is good for everyone. The Catholic bishops used some of this reasoning in reaching what George Weigel has called their "functional pacifism" in just war language in the bishops' 1908s pastoral letter on nuclear war - essentially, any conventional war can easily lead to nuclear conflagration, hence no war will meet the test of consequentialist good over evil, or at least the chance is too great to take. The position is a prudentialist one - which is my sole point for the moment - and depends upon a particular reading of realism.

We can also add two more theories in a category that we might call "execution of justice" theories:

• Sherman's "it's your fault" argument. In addition to Sherman's "war is hell" empirical moral realism, he also offers a quite different argument. It is that he cannot be constrained a priori by rights in his means and methods of warfare - not because of an argument from realism - but by an argument from rights and justice themselves. The war is your fault, Sherman says, and I am merely responding. Whatever I do to respond to your aggression is not really my doing, in a duty and rights and justice sense, it is your doing by having violated natural law and justice. This is, importantly, an argument for the moral inability to limit war not on the basis of realism, but on the basis of pure justice, untempered by anything else.
• There is a recent version of this theory offered with the attempt to introduce constraints, whose author I forgot at this very moment , in which just war is explicitly framed as the carrying out of God's justice. It has certain constraints built into the theory, but it is essentially a theory of just war which makes you the executor of God's will. I will discuss this later, too.

What I want to note about the two preceding theories is that Sherman's, at least, allows for unlimited war, total war, and yet they are not realist theories. They are rights based, justice based theories. What I want to suggest is that justice based theories - whether these or more traditional just war theories of constraint of war - must be modified by a certain appeal to what we might call a "provisional morality" - a morality that calls upon you artificially to suspend your sense of justice for certain purposes - e.g., they are all wicked and aggressing against us and no constraint on war is possible - and yet which permits you to fight in the view that your side is indeed right. In offering my own addition to just war theory, I want to focus on this "double" moral obligation - to fight, yet to fight with a certain reservation about one's own virtue. Quite possibly this is merely an attempt to square the circle, but I will suggest that this is at the heart of Lincoln's view of war in the Second Inaugural Address, as well as at the heart of the "provisional morality" championed by the two great French moralistes who emerged from the Second World War, Albert Camus and Rene Char. (I have written on Rene Char a bit in this blog earlier; the draft title of my manuscript on just war is taken from Char's wartime notebooks; it is "This Time of Damned Algebra.")

This leads us to the two great theories of the just war, one religious and one secular:

• Christian war theory, with its traditional 5, 6, or 7 criteria, aggression as contrary to God's justice, and the defense of the just community for the sake of tranquillitas ordinis being blessed by God, as an act of Christian love.
• Walzer's secular theory, based on the view of war as tyranny, contrary to liberty and freedom, and not merely contrary to justice. The question, beyond particular questions one might have about Walzer's conclusions about particular matters, is whether, in the defense of political community, even to the point of a "supreme emergency" that allows for the override of rights and justice based norms in how one fights, it turns into simply a theory of realist attachment ethics with stringent conditions attached. The question about Walzer's view, in other words, is essentially the question of attachment ethics and the defense of political community - in one understanding of it, does Walzer's theory privilege the liberty of a political community over everything else, justice and consequences?

I have various normative points about different matters in just war theory as presented both by traditional Christian theory and Walzer. But those are points within the broad framework - in particular, I stress, following the very important work of James Turner Johnson, that the fundmental question of just war theory today is actually not "just cause," but "just authority" - who has the right authority to fight? But do I actually have anything to add or criticize about the fundamental structure of just war theory? It is precisely this point about "provisional morality" - I hope to use this idea as a way to bridge the gap between the liberties of particular political communities and their defense and universal justice. We shall see.

But finally, the greatest conceptual threat (if I can put it in those terms) in the real world today with respect to just war theory, whether traditional Christian theory or Walzer, is not actually realism, but instead what we might call:

• Positive international law/the domestic analogy. The basic idea is that positive international law, through the UN Charter and other sources, has essentially replaced with positive law the older, moral strucutres of natural moral law and, by extension, the necessity to appeal to moral concepts of the just war. In the same way that you do not appeal to natural law to discuss the morality of a conventional, positive law device such as a stop sign, we no longer have a need to appeal to moral "law" - morality, in a word - in order to deal with aggression, war, conflict and so on. A positive law structure has replaced it. Indeed, it goes a step further than that - the positive law that has replaced it essentially eliminates, properly understood, the very concept of war, because this global rule of law means that the use of force is a police power, on analogy to the use of police force in a domestic society - and fundamental concepts of the just war, indeed of traditional legal concepts of the law of war, should over time disappear. I don't think the domestic analogy works - I don't think we have such a structure of law in the world, and don't think we should be working towards it, either, for reasons of the value of democratic sovereign political communities, but I will leave that discussion for later.

(My kid is bugging me to come fix dinner, so that, as they say, is that. In fact, she is banging on the top of my head with pencils. At age 12, no less!)

Doesn't Justice Kennedy's language in Roper carefully limit use of foreign and international materials?

Arthur of Ad Populum makes an important comment to my post yesterday regarding what I see as the baleful effects of the Supreme Court's use of foreign and international legal materials in deciding the juvenile death penalty case, Roper v. Simmons (and see his further comments on the Powerline discussion and others at Ad Populum). Arthur writes:

"Ken: I'm confused. I've seen similar critiques in a bunch of places, but they seem to me simply anti-textual:

This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. (Kennedy, J., writing for the majority, at 21).

That's Kennedy, before discussing foreign law, making clear that the references to foreign law are not by any means dispositive in the case. Why doesn't that ameliorate your concerns?"

***
It's a fair question. The problem, I think, is that although the majority says that it is not controlling, the problem of these materials in US Constitutional adjudication is problematic long before it becomes an issue of being "controlling" legal authority. The problem, as Justice Scalia put it at the Scalia-Breyer debate on this issue at American University in January (you can find a link to the transcript at the Washington College of Law homepage, here), in the first place is not whether it is controlling legal authority. It is that by allowing in a body of material that can be used to justify a judge's decision as "persuasive" or the "reality" or the "consensus" of things as amorphous as the opinion of the "international community," it opens up large new ways in which a judge can simply decide according to his or her subjective predilections. This was Justice Scalia's point - you can find anything you like to justify anything out there in the broad world, and it does not have to be controlling authority, controlling precedent in any strict sense, to give you license to do what you would like to do. Yes, it might be harder if you are a lower court judge (and easier, if you are a Supreme Court judge) to avoid higher US court precedents. But of course many, many cases can be plausibly distinguished from the precedents, and the introduction of these legal materials - their introduction as politically and legally legitimate materials - opens new avenues for reaching conclusions that might not have been so easily justified absent their use. I don't think it's an answer, if one accepts that their use and effects will be more diffuse and subtle, to say that, well, at the end of the day they are not controlling precedential authority. So many cases are decided (and necessarily decided) on the basis of materials that are well short of that standard because facts differ from case to case.

This is essentially Scalia's argument in the American University debate. There is a different kind of argument against these materials, based on fundamental notions of fidelity to the sovereignty of the people who have entered into a particular constitutional arrangement a formed, in Lincoln's phrase, a "political community, without a political superior," fidelity to the ideal of democratic self-government. Scalia comes closer to that argument in parts of his dissent in Roper; fundamentally that argument is a political one with legal effects rather than a narrowly legal one, and it is one that I will take up more extensively in my Policy Review essay. Whereas his argument from what we might call "authorizing subjectivity" in the American University debate is one about legal rhetoric and the role of a judge - an argument about legal justification and legal language more narrowly. It was striking that he declined (perhaps because the hour was late) to take up the broader sovereignty and democratic legitimacy argument when posed as the final question from the audience in the American University debate.

Let me add, too, that Justice Kennedy's language that it "remains our responsibility" sounds much like an echo from Anne-Marie Slaughter's vision in her book A New World Order that judges in national courts around the world should develop a kind of dual role in both interpreting their national constitutional order while simultaneously drawing it into a kind of globalized, "transjudicial" order, a globalized jurisprudence. She argues that such a system is not really a set of dual allegiances, however much it sounds like exactly that, but instead protects the core of sovereignty because, after all, however much something like the death penalty or America's "outlier" (her term) protections of free speech is criticized by foreign opinion and legal materials, and however much US judges must take those views into account by at least recognizing them and responding to them, at the end of the day it is an American judge's responsibility to interpret the American Constitution.

As I argue in my Harvard Law Review review of Slaughter's book, here, however, that strikes me as implausible in the extreme. And it seems to me that Justice Kennedy is echoing exactly that sort of dual allegiance, dual function, transjudicialism line here. At the end of the day, those professing dual allegiances in things that really matter face hard choices, and they must finally tip in one direction or another. As Lincoln well knew, the United States is either a political community without a political superior, or it is not.

(Arthur, thanks for the comment - it is an important one, and I'm sure you have more to say about it.)

(Update: see Julian Ku's post at Opinio Juris.)

(Update: All my worst fears realized! Heh. Thanks Instapundit.)

Foreign law and international opinion in the US juvenile death penalty case

If you have read my earlier posts on the Scalia-Breyer debate over foreign law in US courts, here, you will have guessed that I am neither surprised nor pleased at the US Supreme Court decision, issued yesterday, in Roper v. Simmons, striking down the death penalty for those who committed their crimes as juveniles.

(I am in fact opposed to the death penalty in domestic criminal actions, but think this is not something for the courts to legislate - the Court's reference to a "consensus" on the juvenile death penalty issue can only be, I think, some kind of very arch joke - I do accept the death penalty in such matters as war crimes, crimes against humanity, and genocide, but let me leave aside all the complicated discussion about the death penalty itself.)

The majority opinion, written by Justice Kennedy, went wildly farther than any other case in invoking international opinion, foreign law, and international law, and I find that very disturbing. It is particularly disturbing in that this is no longer merely a hobby-horse of Justice Breyer's, but something joined by Justices Kennedy and, remarkably, by Justice O'Connor, who dissented from the holding on the death penalty but specifically joined the majority in its reliance on international opinion.

Press coverage has been focused on this practice as though it will remain limited to Supreme Court cases. It will not. The language of the majority approving the practice of paying attention to foreign and international sources is more than broad enough to constitute an invitation to litigants in matters ranging from run of the mill statutory cases to the most profound Constitutional "values" cases - abortion, the death penalty, firearms, church and state issues, and free speech. Both ordinary lawyers and the whole human rights NGO community will now gear up to introduce all these materials into all levels of court cases in this country, with the blessing of the Supreme Court. The other side will have no choice but to respond in kind, seeking vindication of its own side in the same foreign and international materials. Judges will rapidly become used to the idea that this material is as good as any other.

I would predict that, unchecked by an explicit rejection of this material by the Supreme Court itself, the use of this material will spread throughout the US judicial system like an internet virus - because both sides will have to assume in any litigation that it now matters. Corporate defendants will have to search through all this material to find material for their own side; conservative legal groups will have to be able to come up with their own citations from this material, because they will have no surety that such material will not persuade the judge. Certainly numerous activist judges will find it a potent source of material for reaching their own subjective conclusions - just as Justice Scalia predicted and as the Supreme Court just did. But that won't be the worst of it. The worst of it will be the speed with which these materials and their invocation become utterly routine, far outside cases of judicial activism, with the strong possibility of a sea change in the nature of legal authority in this country. Indeed, I think the shift will at least begin to become widely noticeable up and down the court system - and essentially unstoppable - even by the end of Bush's second term.

There is really only one solution to a problem invited from the top, and that lies with a shift in the balance of power in the Court. I would say that attitudes toward foreign law and international legal materials in US constitutional adjudication has now risen to be at the very top of questions for prospective court nominees, and not just Supreme Court nominees. It is also time for Congress to take up specific measures to ensure that Article III courts are limited to US legal materials in Constitutional adjudication. This is the kind of long term, fuzzy, domestic issue that the Bush administration has shown itself frankly unable to focus on - too abstract, too long term, too indirect in its bad effects, and beyond the political event horizon - but it needs to understand the extraordinary nature of the end-run around US law that the Supreme Court has handed activists and NGOs, by handing it to everyone. It is actually a much more important long term issue than tort reform - yet it seems to me highly unlikely that the Bush administration will understand that the Supreme Court has essentially tossed down the gauntlet and that it must act, with Congress, now if it hopes to avoid, twenty five years from now, the conclusion that a sweeping invigoration of the legal materials underlying judicial activism of the Left took place on its watch.

(I will say more about all this is in an article later this year in the Hoover Institution's Policy Review. I also discuss the issue in my review of Anne-Marie Slaughter's book in the Harvard Law Review, here, at pp. 1286-1291, and 1304-1310. But it is important to understand that the Roper doctrine, with the support of the majority plus Justice O'Connor, goes far beyond anything I had contemplated in my earlier writings. I should add that the best MSM article on this issue - indeed, the best reporting on the Supreme Court - comes from Charles Lane of the Washington Post.)

Book review of Anne-Marie Slaughter's "A New World Order"

I realize it is tackily self-promoting to announce your own papers on your blog but I am, well, very pleased finally to have this book review of Anne-Marie Slaughter's book, A New World Order, out in the February 2005 issue of the Harvard Law Review. It can be downloaded from SSRN, here, and the SSRN abstract is below:
***
Abstract: Anne-Marie Slaughter's widely noticed book, A New World Order (Princeton UP 2004), proposes that the emerging form of global governance is neither a world government nor global governance by partnerships of public international organizations and global civil society, yet neither is it the existing relationship of sovereign states. Slaughter's concern is to resolve the governance dilemma of global governance, which is in essence that while we collectively recognize the advantages of global government, we also fear its anti-democratic and unaccountable concentration of power. A form of global governance is emerging, she argues, which can resolve this dilemma in the form of global government networks - networks of national agencies (and courts) working with their counterparts and homologues worldwide to deal with a wide variety of global concerns. Fundamental to this conception of global government is Slaughter's view that the unitary state is becoming disaggregated into its constituent parts, which increasingly act on their own account in the wider global environment.

This (lengthy) book review summarizes and critiques A New World Order, offering both an internal critique of the argument's consistency as well as an outside critique of the argument from the standpoint of the value of democratic sovereignty. The review locates Slaughter's argument within the debate over international relations realism and idealism, and further locates it within a continuum of seven idealized positions in the debate between global governance and sovereignty, with pure sovereignty at one extreme and world government at the other, with the most relevant positions of democratic sovereignty and liberal internationalism located in the middle. The article concludes that Slaughter's vision of global governance through global government networks, ingenious as it is, does not finally avoid spitting us on at least one horn of the global governance dilemma, because ultimately it privileges global networks over democratic sovereignty.
***
Citation:
Anderson, Kenneth, "Squaring the Circle? Reconciling Sovereignty and Global Governance Through Global Government Networks (Review of Anne-Marie Slaughter, A New World Order)." Harvard Law Review, Vol. 118, No. 4, pp. 1255-1312, February 2005. http://ssrn.com/abstract=669842

Calling international lawyers: Darfur and the ICC

The live possibility now exists that the United States will face the issue of whether to support, abstain, or veto a move in the Security Council to refer the situation in Darfur to the International Criminal Court for investigation and action.

For a long list of reasons, which I won't go into here, I am firmly opposed to the ICC, and firmly in support of US measures to de-legitimize it. In addition, I am also skeptical about the reflex action of the "international community," so called, to call for tribunals and criminal trials in circumstances where they are not willing to intervene. After all, the Yugoslavia tribunal was the product in no small part of the Clinton administration, along with a large chunk of Europe, wanting something that could be presented to public opinion as "doing something" while, in fact, doing nothing at all.

Tribunals, in other words, are an easy way to salve one's public conscience without committing troops. The leading human rights organizations - Human Rights Watch or Amnesty International, for instance - go along with the charade because they have long since committed themselves to the creation of supposed structures of international justice rather than the actual actions required, in places such as Darfur, to protect human rights; their commitment is rather more to a concept of internationalism than human rights. I think a better idea would be a moratorium on calling for tribunals to act if you are not willing to commit troops - in recognition of the fact that justice is necessarily post hoc, and you don't get to the post unless you do something ante. As a British military lawyer once put it to me, back during the Bosnia war, even Nuremberg was "a lovely hood ornament on the ungainly vehicle that liberated Europe, but it was not a substitute for D-Day." The Wall Street Journal editorial page was, I think, right in saying that the attempt by countries such as France to shift the discussion from intervention to the ICC was yet another instance of bait and switch.

All that said, the practicalities of the moment are that the United States does not have the ability to move the Security Council to intervene - hell, it can't even get Darfur described as genocide, as the experts at the UN have somehow, suddenly rediscovered the specific intent for genocide after years of pooh-poohing it. I am not in favor, myself, of giving into the bait and switch game, abandoning the discussion of genocide and intervention to instead discuss the ICC. It's merely a way to get the pressure off Russia and China and back into the usual UN game of blame the US, this time for resisting the ICC. The ICC - and any tribunal - is about as useful at this point, not even contesting its legitimacy, as a bucket of water in a power plant meltdown. Nonetheless, people I respect, and whose anti-ICC credentials are impeccable - Jack Goldsmith and Lee Casey, for example - have given serious thought to the practical requirement that the US not oppose or abstain from a Security Council referral to the ICC in the matter of Darfur.

***
Here is my question for all you international lawyers. Assume for the moment that you represent a client, the United States, which for imperative and, in this exercise, unchallengeable political reasons has concluded that it must support a Security Council resolution referring the Darfur situation to the ICC. You have been asked by your client, the United States, to set out the statements accompanying that assenting vote that will best protect the long term legal position of the United States, in international law, from any future claims that it has assented in some fashion to the operations of the ICC. What is the opinio juris that ought to accompany a yes vote in the Security Council on this matter to protect the United States?

Darfur and genocide

I want to go back to something that everyone has already talked to death - the UN report from a week or two back concluding that although Darfur involves mass murder, it does not meet the legal definition of genocide.

The reason why the UN experts concluded that it does not meet the definition of genocide was that, in their view, it did not meet the requirement of intent - an intent to destroy an ethnic, religious, etc., group in whole or in part.

My view of this is pretty simple. The term genocide has been morphed during the 1990s, essentially to vitiate the intent requirement. That is, I do not believe that the Bosnia war, for example, fit the definition of genocide, because it did not have the requisite intent. But everyone in the "international community" concluded, on grounds that I thought at the time were quite weak, that it did constitute genocide. With so many of the great and good having concluded that, then the defintional ball under international law shifted somewhat. Then along came Rwanda, with mass atrocities that clearly fit the intent requirement as genocide as clearly as any since the Holocaust. Then comes along reports on places such as, for example, Guatemala, where the UN report - with no new evidence not already known from the 1980s - concludes that it, too, was genocide - again, I would have said that the intent requirement was not met. Once again, however, the chorus of great and good in the international community says that it was. And then Samantha Power's Pulitzer-winning book, which pretty much walks away from the intent requirement - in any sense of specific intent - and turns genocide into any mass murder of an identifiable group of people.

Okay, I'm not in favor of this redefinitional trend - I think there is value to identifying a specific crime that is not just mass murder, but extermination with a group in mind to exterminate. But that will always have an inconveniently high threshold of specific intent - as even the Yugoslavia tribunal, with its relaxed view of proof against defendants, has found in trying Milosevic. This is partly what caused Power and others in the human rights community to move away from anything so demanding in the definition of genocide.

Along comes Darfur, however, in the context of reflexive anti-Americanism on the part of the so-called international community - if the US is for it, we must be against! - combined with the real politik, which will increasingly rear an ugly head, of commercial interests of China and Russia. And all of a sudden, somehow, mysteriously, the great and good of the international community suddenly rediscover a high threshold of specific intent for genocide. Mind, I was never in favor of lowering it. But if you do lower it for Bosnia, Guatemala, and elsewhere, then you have an obligation not to arbitrarily raise it again when you take up Darfur.

(The best place for updated web information on Sudan is at the Rift Valley Institute links page on Sudan, listed at right on the links.)

Moral realism in just war theory

I am not finally persuaded that moral realism - in the sense that term is used in just war theory discussions - is sufficient as an ethics of war. The issue is how to build in what is right and necessary in its consequentialism into a fuller theory of the just war.

And the best definition of this moral realism, the most sympathetic and persuasive, comes, curiously, from Thomas Berger's marvelous Arthur Rex, in which the Lady of the Lake says to the dying Arthur, just before he goes to slay his son Mordred, "Thine obligation was to maintain power in as decent a way as would be yet the most effective." I am not aware of any definition of moral realism which improves upon this.

(I'm afraid I've been away from blogging here a bit; I will be more attentive, although I will be focused increasingly for a while on some theory issues rather than day-to-day events.)

John Hutton and Heather MacDonald debate Gonzales' fitness to be AG

Read the online debate at legalaffairs.com, here.

Heather MacDonald responds to Andrew Sullivan on torture

Heather MacDonald responds to Andrew Sullivan's New York Times Book Review commentary on torture this past Sunday, in City Journal, here.

Interpreting the Scalia-Breyer debate

The transcript of the Scalia-Breyer discussion on the role of foreign law in US courts deserves careful study, and I am sure it will prove to be an enduring document for scholars, in no small part because each Justice used the occasion to go beyond the narrow question of foreign law to make a statement about his respective philosophy of judging. In Justice Scalia's case, of course, that was a restatement of his familiar views on originalism.

Justice Breyer's remarks on his philosophy of judging, however, were especially important. He reinforced the view, I think it fair to say, that his philosophy of judging is characterized by not differentiating between the Constitution and other legal texts that a judge must use in order judge. He emphasized this when he spoke about the day to day work of judges, reading briefs and, as he joked, "doing homework." For most judges - for reasons that are a matter of a philosophy of judging arising from a political philosophy that privileges the Constitution as the constitutive text binding together a political community - the Constitution and its interpretation are different from any other kind of text. The difference is in kind and not merely degree. It cuts across political views and temperments - liberal as well as conservative judges, political liberals, political conservatives, judicial liberals, judicial conservatives - see the Constitution as different in kind from other texts with which a judge must grapple.

Justice Breyer, by contrast, suggested otherwise for his philosophy of judging. The Constitution is a sacred text in our political culture, yes, and worthy of our highest respect, and so on - but in terms of its interpretation in the process of judging, it is not different from other texts. Moreover, it is mediated in reaching a judge by the process of litigation itself - lawyers' briefs, lower court rulings, etc., all intermediate the Constitution in the process of what a court does. It does not lower the status of the Constitution nor does it underestimate it - but Justice Breyer says, in effect, we must recognize that the Constitution in a particular case, about a particular subject matter, in a particular litigation, comes to the judge already highly interpreted, packaged, mediated - and indeed only particular bits of the Constitution. And it is dealt with as other legal materials offered by litigants - something that the judge takes in through the process of judging.

I've sometimes seen it remarked that Justice Breyer does not really have a theory of the Constitution as such - he treats it in the same way that he treats other legal materials, on the theory that he laid out in his rightly famous scholarly work, Regulation. Justice Breyer's theory of the interpretation of regulation and ordinary statutes works, for him, quite well for the Constitution. One can see how originalism holds little attraction for him - but equally, the transcendental view of the Constitution, of a Justice Brandeis, for example, holds little attraction for him.

But this view of judging and the Constitution does have a bearing, I would suggest, on his view of foreign law. It is a view of constitutions that is extremely congenial to the legal status and stature of most constitutions in most legal systems. They are constitutive documents in one sense, and higher law, but not much higher. Easily amended, highly programmatic - they are not seen in the way that the Constitution is typically seen in America - the compact which established the political community, with all the sacred and transcendental overtones accompanying the forging of a political community. Justice Breyer's view of constitutionalism is much closer, it seems to me, to the view of constitutions that do not have the transcendental overtones, the foundational mythology, the sacred text that the US Constitution has. It means that it is far easier for him to import legal materials from outside the hierarchy of US law culminating in the Constitution itself, even in interpreting the Constitution, because for Justice Breyer, the Constitution more like a constitution. It is not a transcendental, sacred document the nature of which serves to exclude materials that do not arise from within the political community whose boundaries it sets, and exists to set.

***
That said ... in studying the Scalia-Breyer transcript, I am struck by how remarkably substantive it is. It is hard, reading the document, to believe that these two Justice were speaking extempore, off the cuff, in conversation and wholly unscripted. But they were. And because they were, it is important that the individual words and phrases used not carry more weight than can be put on off the cuff and unscripted phrasing. It is not a document for which it is fair to go after "gotcha" phrases and sentences. This is not the Federal Reserve, issuing delphic statements, the placement of each comma of which is fully intended to carry weight. This is an informal discussion, in which, if one is willing to read it charitably to each party, yields a great deal about judicial philosophy. But it must be read holistically, in the context of an informal discussion and, above all, charitably.

(Update, Friday, January 21, 2005. Julian Ku at Opinio Juris blog has a very interesting comment on the same question, here. Opinio Juris (in my links list) is a wonderful blog, btw.)

UN reform and Mark Malloch Brown

Judith Miller has an important story in today's Monday, January 17, 2005 New York Times, "Annan Planning Deep Changes in U.N. Structure, Aide Says," at A4. The WSJ has a similar story - the hook is a press briefing by Mark Malloch Brown, who is moving from being head of the United Nations Development Program to Kofi Annan's chief of staff. What interests me particularly in Miller's story is the comment by John Ruggie, a former assistant SG at the UN and now Kennedy School of Government professor. Ruggie notes that pressure from the oil-for-food scandal has made real reform possible at the UN. Allegations of fraud and abuse, Miller reports him as saying, had

"shifted power decisively within the United Nations, out of the hands of what he [Ruggie] called the "traditionalists," who see the organization as being primarily beholden to its member states, to the "modernists," who believe the institution's mandate requires accountability to its own agencies, nongovernmental organizations and the public." (Emphasis added.)

Certainly this is in line with everything I have ever known about Malloch Brown. (I severely criticize him in connection with the 2003 UN headquarters bombing in Baghdad in an article on humanitarian neutrality, available at SSRN here, Humanitarian Inviolability in Crisis: The Meaning of Impartiality and Neutrality for U.N. and NGO Agencies Following the 2004-2004 Afghanistan and Iraq Conflicts, 17 Harvard Human Rights Journal 41-74 (2004).) My work with international NGOs has frequently put me in contact with his agency, the UNDP.

This "modernist" vision of UN reform is a very, very bad idea. Why? First, because its underlying assumption is that the problem of the UN is its accountability to sovereign states - the modernist vision instead wants to empower the UN as not the servant of states, but as an institution legitimate solely on its own and accountable to itself. Malloch Brown believes that the fundamental problem of the UN, the one that needs reforming, is precisely that the institution is too much a creature of states. He wants it to be ideologically, institutionally, morally, and politically a genuinely independent player, and he couches it as a means of reforming the institution's corruption by sovereign states such as France or Russia in the oil-for-food program. Sounds attractive, to get the UN out of bed with France or Russia - but what Malloch Brown has in mind also gets it out from under the thumb of the United States. Above all, Malloch Brown believes in the "unique legitimacy" of the United Nations - but that hubris of "unique legitimacy" is precisely the problem.

Second, this vision of UN reform aims at replacing accountability to sovereign states, and the United States in particular, with accountability to the UN's own agencies and, worse, to NGOs and the public at large. The point, once again, is to bypass sovereign states and, in particular, the United States. NGOs are an extraordinarily attractive pairing for UN "reformists" for whom reform means UN independence from the United States. The fundamental problem of UN legitimacy vis a vis democratic sovereign states is that the UN has no democratic legitimacy. What NGOs - the private do-gooder organizations - provide to the UN is a veneer of democratic legitimacy. NGOs during the 1990s styled themselves as "global civil society," as though they, rather than governments, were the legitimate representatives of the "people" of the world. They lent a sort of faux-democratic "representativeness" to the UN, and the UN in turn elevated them and gave them much special access and attention, always with an agenda of undermining the authority and legitimacy of democratic sovereigns. It was a kind of love affair - the NGOs and the UN locked in a passionate embrace, each giving the other the legitimacy it lacked.

(I talk about the embrace of NGOs and international organizations in Kenneth Anderson and David Rieff, Global Civil Society: A Sceptical View, in Mary Kaldor, et al., eds., Global Civil Society 2004/5 (Sage 2004); The Limits of Pragmatism in American Foreign Policy: Unsolicited Advice to the Bush Administration on Relations With International Nongovernmental Organizations, 2 Chicago Journal of International Law 2 (2001) fulltext at SSRN here; and The Ottawa Convention Banning Landmines, the Role of International Nongovernmental Organizations and the Idea of International Civil Society, 11 European Journal of International Law 1 (2000), available full text here.)

Much of this fell apart after September 11 when, with security back on the table, so was the authority of the sovereign state. But for people like Malloch Brown, the dream still persists, and has been reinvented as a narrative of precisely the UN "reform" that ought to satisfy the United States. Modernist view of the UN? Malloch Brown represents, rather, the oldest and most "traditionalist" dream of all, that of the United Nations growing from little sapling of global governance to majestic, overarching tree of global government.

Whereas what is needed is a thorough pruning, one that reconceives of the UN as a much smaller, much more confined organization. The dilemma is this. On the one hand, the UN is a failed organization, root and branch, and yet on the other hand, there is a need for a UN. (See my earlier post on the High Level Panel report, here.) The UN needs to be reconceived, however, not as an overarching tree of governance, but instead as a set of narrow, low, but sturdy and, above all, useful and competent, hedgerows, serving particular purposes - and jumpable as occasion occasionally demands. This reconceived UN would not the kind of organization, I would venture - quiet, competent, small, confined - that would attract men of such hubris as Malloch Brown who, having achieved fortune, now seek glory.

(I am getting involved in some UN reform studies; more posts later on what that would actually entail, such as caucuses of democratic sovereigns, the chastened role of NGOs no longer conceiving of themselves as global civil society representing the peoples of the world, etc.)

Happy MLK Day

There are two, perhaps three, others in the history of the United States to add to the Founding Fathers - as though they had been present at the founding. I don't merely mean great leaders or even indispensable leaders of the United States. Nor do I mean those that brought the reality of the country closer to its ideals, indispensable as that also is. I mean, rather, that they reforged those ideals - reformed the ideals themselvs - in a way that should have been the ideal at the founding, but wasn't. The first of these is, of course, Lincoln. And possibly Roosevelt. But without question Martin Luther King.

WaPo editorial today gets Geneva Conventions wrong

The Washington Post, in its Sunday, January 16, 2005 editorial today opposing the confirmation of Alberto Gonzales as attorney general, gets it wrong on the Geneva Conventions. My guess is that the editorial writers have never actually read the relevant article of the conventions, but instead have simply relied on press releases from various rights groups that tell the WaPo what it wants to hear. The editorial reads:

"In fact, the White House counsel [Gonzales] endorsed the view that the hundreds of combatants rounded up by U.S. and allied forces in Afghanistan, who included members of the Taliban army, foreign volunteers and a few innocent bystanders, as well as al Qaeda militants, could be collectively and indiscriminately denied Geneva protections without the individual hearings that the treaty provides for." (Emphasis added)

The Post's editorial writers might have troubled themselves to read what Article 5, paragraph 2 of the Third Geneva Convention actually says:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Emphasis added)

It has long been my view, in scholarly and other writing, that sound policy urges the US to give each detainee a tribunal to determine their status, at least if it is proposed to deny someone Geneva protections. This is the view in 1997 Department of Defense regulations that afforded a brief, three officer panel to make such determinations and which was informally regarded, according to my understanding, by the ICRC as beyond the standard required by the Third Geneva Convention. I believe the decision of the Bush Administration not to apply those regulations was inappropriate and unwise. But it was not a violation of the Convention.

The Bush Administration was - and is - not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a "competent tribunal" shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open - it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required.

This was a bad - very bad - policy judgment by the Bush Administration in these circumstances. It should have gone with DoD's existing regulations; I agree entirely with Tod Lindberg's analysis in the Weekly Standard, here. But it is not a violation of the actual language of the treaty. The consistent inability of MSM such as the Post - slamming this at the administration in article after article for now several years - strongly suggests to me that few, if anyone, in MSM have actually read the text. Instead, I suspect, reporters and op ed writers find it easier to rely on various highly unobjective and partisan NGOs. But reading this one sentence is not rocket science; even a Post editorialist ought to be able to parse it without deferring to Amnesty International or Human Rights Watch. (Note to MSM reporters: Groups such as AI and HRW perform an invaluable service. But their legal analyses are not objective; they are lawyers' briefs, aimed at reaching a particular, foreordained conclusion. I understand that, being MSM, you like analyses that reach foreordained conclusions; it's a process only too familiar to you, and it's especially congenial when it reaches your foreordained conclusions. But don't forget, somewhere in the back of your mind, that it is not, and never was intended to be, objective. Lawyers write briefs - just as, alas, so many of you do.)

But it is not merely through a technical oversight that Article 5 was drafted this way, as the treaty drafting history indicates. It was designed to take account of the following kind of situation. Suppose the US Navy picks up drug smugglers with tons of cocaine onboard their vessel, out in the Caribbean. One of them claims POW status - "I am a FARC member from Columbia! I am a POW!" Now, if a hearing were held, obviously that claim would be rejected forthwith. (Or would have been. By reason of the Bush administration's very poor lawyering in front of the Supreme Court, overreaching on a constitutional theory of unitary executive power that didn't even win over Justice Scalia and taking down a perfectly defensible interpretation of the Geneva Conventions with it, fullblown and perhaps even civilian court hearings may now be required, in place of the informal, battlefield 1997 DOD regulations' hearings. But that's another post.) Should that claim by drug smugglers to be entitled to POW treatment pending a fullblown hearing be required? Article 5 was drafted precisely to make clear that you do not have to afford a hearing in every case, only in those cases where some doubt has arisen - and it is not required, under the language of the treaty, for a tribunal to make that determination. In the case of the drug smugglers, it makes perfectly good sense for the commanders to make the determination that doubt has not arisen. It does not make sense, nor is it fair, in the case of fighters picked up in Afghanistan - but it is within the literal wording of the text. It is not a violation of international law.

One of the few commentators to have picked up on this is jurisprudentialist Ronald Dworkin - scarcely a friend of the Bush administration. Nevertheless, with admirable objectivity, his analysis of the detainee cases in the Surpreme Court, in the New York Review of Books, carefully avoids the claim that this action by the administration violates the Conventions, although he slams the administration on nearly every other matter. Read his article here. (Dworkin makes the same point in an earlier article in the NYRB, but it is only subscriber available.) The key excerpt (emphasis added):

"The Geneva Conventions draw a fundamental distinction between two classes of people that a nation might capture in war or other military action. One class must be treated as prisoners of war, which means, among other things, that they may not be punished simply for bearing arms against the capturing nation, that they must be held in conditions comparable to those of the soldiers guarding them, and that they may not be exposed to coercive interrogation. The second class includes not only civilians fighting independently of any government but soldiers in a more organized action who do not wear uniforms or other identifying badges or who fight with a force that does not respect the laws of war. They are not entitled to prisoner-of-war status; they may therefore be prosecuted and punished as criminals for acts of war, though the Geneva Conventions require that they be treated humanely.

The Bush administration claims that these provisions allow it to detain some prisoners, whom it calls "unlawful combatants," indefinitely without charge or prosecution, even though they are not treated as favorably as prisoners of war and may be subjected to coercive interrogation. It claims that Hamdi, Padilla, and its other prisoners belong to that category, and it may continue to do so if, as seems likely, they are unable successfully to challenge their detention before military commissions or in habeas corpus proceedings. In an earlier article in these pages I argued that, whether or not this option is permitted by a strict understanding of international law, a decent respect for human rights requires that the administration set it aside and choose between prosecuting its prisoners as criminals, with the normal safeguards of the criminal process, and treating them as prisoners of war, which would mean an end to round-the-clock interrogation, sensory deprivation, humiliation and other forms of coercion. I said that the administration's present policy shows an impermissible contempt for the rights and dignity of its victims.

The Court's recent decisions suggest that a new and stronger claim can now be made: that the government's treatment of prisoners it calls "unlawful combatants" is not only morally indefensible but forbidden by the Constitution as well."

Note that although Dworkin severely criticizes the administration on moral and even, finally, on Constitutional grounds, he is careful to refrain from declaring that it is in violation of international law - i.e., Article 5 of the Third Geneva Convention.

***

The point, then, is that the Post editorial repeats a error oft-heard across MSM, that by failing to provide individualized hearings, the US is in violation of the Geneva Conventions. As a policy matter, and indeed as a matter of basic fairness, it should do so. As a matter of international law, that, I'm afraid, amounts to a MSM urban legend.

(I discuss Article 5 of the Geneva Conventions in more detail on this blog here.)

Full written transcript of Scalia-Breyer debate on foreign law

The full written transcript of the debate between Justices Scalia and Breyer on foreign law in US courts is available here.

My thanks and congratulations to the law school for getting it transcribed and available so quickly on the web. I recommend, by the way, not neglecting Justice Breyer's very interesting, indeed moving, closing statement, at the very end of the transcript:

MR. ANDERSON: Last question that we're going to take is actually from outside this room. There are many people who are actually in other rooms in the building, and I've taken one question out of the ones that have been passed up here. So this will be the last question. And it is that Justice Scalia has raised the concern, and has really put centrally, the concern that citing foreign law is an invitation to judicial elites to impose their own moral and social views.

MORE And yet neither Justice Scalia nor Justice Breyer has directly addressed a deeper concern about these materials; namely, that's it's not about elite imposition as such, but instead that these legal materials have no democratic provenance, they have no democratic connection to this legal system, to this constitutional system, and thus lack democratic accountability as legal materials. Let me put that out as a question, I guess. (Pause.) (Laughter.)

JUSTICE SCALIA: They're your materials; you defend them. (Laughter.)

JUSTICE BREYER: I mean, it's an interesting point. You're always referring to materials, even if it's Blackstone or whoever. The material doesn't have to have a democratic base. You reason all the time. You read law professors. They're not elected. (Laughter.) I mean, to try to understand, to try to understand, it's not necessary that the origin of the material be democratic. That's normal, and of course these, where they're relevant, it's an effort to understand.

But there is a deeper meaning to that question which is very interesting to me, very interesting. When people think about the foreign court institutions, it's sometimes very hard for -- say for Europeans, to understand why Americans sometimes react negatively, so negatively to the thought that some foreign judges would be able to tell Americans what to do. They find that hard to understand, because they're judges, after all. I've even been saying -- I haven't said about telling us what to do, but I have pointed out that they're judges. But you can understand it; there is something deep in this reaction, and not entirely bad.

And it comes back to our being a democracy, as the questioner said. One of the most interesting phrases that I read -- to me -- in Madison is, if I can remember it -- and as I bring up at this moment, I usually forget the quotation -- but he said the American Constitution is a document of power granted by liberty, not a document of liberty granted by power. And what he's driving at is even if we end up at the same place as many European countries, the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government.

That changes the cast of mind, and it helps to explain why it's so deep in America to say, "But who are those people? We had no say. We had no say in them, in their position."

And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining -- too much -- by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That's a good thing.

But, of course, I don't think it stops me from looking at the foreign opinions -- (laughter) -- and even citing them. (Applause.)

MR. DORSEN: Justice Scalia.

JUSTICE SCALIA: I think it's fine to conclude on something that we undoubtedly agree upon. (Laughter.)