Sunday, February 27, 2005

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.
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.

Thursday, February 17, 2005

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?

Tuesday, February 15, 2005

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.)

Sunday, February 13, 2005

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.)