Thursday, November 30, 2006

Final paper topics for my NCS students in Just and Unjust Wars class

I volunteer to teach a class at my daughter's school, the National Cathedral School for Girls, in Washington DC (wikipedia article), on ethics and war, Just and Unjust Wars. It is essentially a stripped down version of a class I teach at my law school, and have taught over the years at Fordham, Columbia, and Harvard law schools. The students I get from NCS are very good writers and thinkers - so are the boys who come over from St Alban's. They are usually seniors, and I get several of the best students in the grade. Actually, some of the youngest students have been among the very best - two girls, then sophmores, for example, who gave me amazingly subtle readings of Lincoln's Second Inaugural, both of whom are now at Yale, and I have one extremely good sophmore this year. I feel like I can give them pretty difficult material to work with in ethics. So here are the final paper topics for the class; pick one or design your own question:

1. We have spent a lot of time in this class discussing the differences between moral realism and the just war tradition. Pick one or the other and defend it. I mean by that offer a definition of each, assert that one or the other is a better moral theory, and defend that assertion. Assume you propose to defend just war theory against realism. In order to mount a defense, you want to do two things. First, what do you believe is affirmatively correct about just war theory, on its own terms? On what grounds do your support those claims? Second, on what grounds could just war theory be attacked by a supporter of realism – and how do you respond to and answer those attacks framed specifically from a realist perspective? Or flip this around and defend realism against just war theory.

2. Who has right authority to fight a war? Are there any limits on who morally is entitled to take up arms to fight against a political authority in a political cause? If there are limits, what are they? What reasons can you give in favor of any limits you might propose? What objections can be made to your proposed limits? How do you respond to those objections?

3. The great military historian John Keegan wrote this past week in the British magazine Prospect on the question of whether Iraq has now become a civil war. He believes that it is close but not yet there. He might or might not be right about that. More importantly, he offers historical criteria for what constitutes a true civil war as distinguished from more minor internal armed conflicts. Offer a reconstruction and critique of his argument, applied to Iraq but also taking into account other historical wars, such as the American Civil War. The question that I want you to address is, in the first place, whether you accept the criteria he offers for what constitutes a civil war historically, leaving aside whether he is right about Iraq. On the basis of what you know about other wars, are his criteria correct or not. You may express your view as to Iraq, but the question for the paper is whether the criteria against which he purports to examine Iraq are the correct criteria. Give arguments in favor of his view, against his view, and reach a conclusion. The article is here:

4. In saying “war is hell,” Sherman asserts (one of several ways of glossing the phrase) that because his side did not start the war, and because it was aggressed against by a South seeking unlawfully to secede, any action he takes to correct that fundamental injustice is moral, justified, and indeed is not really “his doing” because he is simply taking corrective action, responding, as it were, to an action taken by the other side. Partly he is saying that the non-aggressor side is entitled to any action to correct the injustice of aggression and partly he is saying that the unjust action by the aggressor creates a sort of “opposite but equal reaction” for which the non-aggressor is not morally responsible. This moral view shares with realism a rejection, in principle at least, of any limits in war, but I have characterized the position not as “realism,” but instead as a kind of “super-justice” position, one which relies on a view that what the aggressed-against is entitled to do knows no limits in order to respond to the unjust aggression, because the aggression was unjust. Leave aside the question of whether the South was actually the “aggressor” or not in the Civil War; assume for purposes of the discussion that it was. Is Sherman’s moral argument for potentially unlimited war in the name of righting a wrong morally correct? Assert a view, offer arguments for and against, responding to your arguments, and responding to the critiques, and reach a conclusion. (One source to draw upon by way of critique of Sherman's position is just war theory and the criteria of balance of good over evil and proportionality. But are these criteria of justice, and if not, how do they weigh - how can they weigh? - against Sherman's claims of justice?)

5. Walzer says at page 51: “The wrong the aggressor commits is to force men and women to risk their lives for the sake of their rights. It is to confront them with the choice: your rights or (some of) your lives! Groups of citizens respond in different ways to that choice, sometimes surrendering, sometimes fighting, depending on the moral and material conditions of their state and army. But they are always justified in fighting; and in most cases, given that harsh choice, fighting is the morally preferred response.” (emphasis added)

Focus on the final judgments that Walzer makes – that they are “always justified in fighting” and that in most cases, fighting “is the morally preferred response.” (a) Is this consistent with the Christian criterion of the just war, that one weigh the balance of good over evil in the overall circumstances, including those of your enemy, in deciding whether or not to fight? See the materials in James Turner Johnson and the Stanford Encyclopedia to help sort out the meaning of that Christian criterion. (b) Whether this is consistent or not with Christian just war theory, is Walzer right or wrong in your view in the two statements that I asked you to focus on? Why or why not? What are objections to Walzer’s view and responses he might make to the objections?

6. Consider the definition of a legal combatant eligible for POW status and the combatant’s privilege under Geneva Convention III, Article 4. I have indicated in class that POW status gives a detainee significant benefits – interrogation must be limited to merely name, rank and serial number; treatment in detention must be generally as good as that of soldiers of the “Detaining Power,” trial for war crimes or other matters must be (with some legal limitations; I am sliding over some things legally) the same as court martial for the Detaining Power’s own soldiers, etc. On the other hand, as I have also indicated in class, if one flunks the test of being a legal combatant – because, especially, you belong to a group whose methods of war are the systematic violation of the laws and customs of war, such as Al Qaeda or, back in the Yugoslavia wars, massive ethnic cleansing and massacre such as the Serbs undertook at in Bosnia and especially Srebrenica – then one is an illegal combatant (or “unprivileged belligerent”). The rights of an illegal combatant are far more limited than those of POWs and are those found (more or less; I am fudging some important legal complications here) in Common Article Three of the Geneva Conventions (p 151-2 of our materials). It affords important protections – no torture, summary execution, etc. – but falls very far short of the standard of full POW protection.

Is this distinction morally correct? Assume for this purpose that we are in a war – ignore debates over whether the war on terror legally constitutes a war. Should every detainee be afforded full POW protections, irrespective of whether he or she meets the legal requirements of Article 4? What are the arguments for and against giving every combatant detainee in war full POW rights? Is it morally just or even morally required to give all detainees the same rights, or is the distinction as it stands morally justified? Beyond the moral arguments over whether justice requires giving all detainees the same rights in detention – the Serb militias whose systematic modus operandi was rape, pillage, and massacre as much as the honorable soldier – what incentives, good or bad, are created by one policy or the other? If your views about what incentives are created differ from what you believe the just policy to be, which takes precedence?

(Bear in mind that even a POW can be tried for alleged war crimes – indeed, every state has an obligation to do so, whether its own soldiers, those of the enemy, or civilians of either side. But the procedural protections for a full POW in a trial are very different from those under Common Article Three, which affords only a “regularly constituted” court. So the issue of war crimes is not that either legal combatants or illegal combatants are excused from trial for war crimes; the question is whether you have all the trial protections of a POW.)

7. What is the doctrine of the double effect? Describe it and give an example of what it claims. How does it relate the concept of “collateral damage”? (See page 184, my NYT magazine article on the laws of war.) What is the legal expression of it in the law of war? (See Protocol I, Article 48, 51 (4) and (5), 52.) But what are the consequences if you give up the distinction and say that it is morally invalid or false? Is it still possible to remain within the framework of just war theory if you deny the double effect doctrine? What position(s) might giving up the distinction between “intended” and “merely foreseen but not intended” lead you towards? Why, in other words, is the double effect doctrine – whether it is valid or not – understood to be so essential for the jus in bello limits upon fighting of just war theory? With that as the very profound background consequences of your answer - does the double effect principle seem to you a valid moral distinction or merely sophistical? Argue for and against.

8. Should blinding laser weapons be allowed as a means of warfare? Or should they be outlawed, in favor of weapons that “merely” kill people? Are there any other weapons that you think should be outlawed as a matter of law even for use against combatants alone – chemical weapons used tactically in combat only against combatants, small exploding bullets, poison, or anything else? Why or why not?

9. What is siege warfare, and why is it so horrible? Read the account of the acquittal of von Leeb at Nuremberg, in Walzer, pp 166-7. In particular, what is the special role of civilians in siege – as reflected in von Leeb’s cruel yet (then) lawful behavior? What is Walzer’s view of how siege should be handled with respect to civilians and noncombatants. Now read Article 54 of Protocol I (p 163). Describe the differences between the two. (In a roundabout way, Art. 54 seeks to outlaw siege warfare – how? Parse Article 54 and compare to Walzer.) Which is morally the better approach? What as a practical matter is likely to be the result of Article 54 – is it likely to achieve its legal aims? Assume that as a practical matter, Art. 54 is not likely to be effective, even though you believe it is the morally best approach. How do you reconcile the difference between the morally best approach and the practical consequences likely to result from it? (The core of this question is to parse both Walzer and Article 54, and then compare. It is an exercise in close textual reading.)

10. Read Lincoln’s Second Inaugural Address and my commentary on in it in the TLS. Focus on the phrases in the last paragraph of the Address beginning “with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in,” ie, finish and win the Civil War though it might mean more bloody battles. Many have taken those phrases and the phrases in the preceding paragraph “both read the same bible and pray to the same God, and each invokes his aid against the other” as an argument that Lincoln essentially accepted that right and wrong in the war was merely how one side saw things against the other side. It is to suggest that Lincoln here espouses a form of moral relativism – we see it this way, they see it that, who is to say who is right, except power and the force of arms? I argue against this in the last two paragraphs of my review. Make the argument that these sections of the Address espouse a moral relativism. Reconstruct my argument that they do not, but instead point to Lincoln seeking to do something morally quite different. What do I argue that he seeks to do, rather than relativism? Agree or disagree with me, offer reasons for your view, offer objections to your view, and then answer them.

11. Should the two sides in a war have to obey the same rules? Suppose one side is significantly weaker technologically and materially than the other side. Why shouldn’t it take the few advantages it has – such as the ability to hide among civilians and to use human shields, to target civilians in terrorist attacks in order to break the morale of the stronger enemy? This is not to suggest that there should not be rules – but that the rules should take into account how strong your side is. The weaker side should not have to fight according to the same rules as the stronger side – the rules simply favor the stronger side, and the weaker side is morally entitled to a more limited set of rules. Agree or disagree with this position, taking into account both moral arguments as well as a discussion of the practical incentives likely to result from such a “non-reciprocal” rule.

12. Ye have heard that it hath been said, An eye for an eye and a tooth for a tooth, but I say unto you, That ye resist not evil: but whosoever shall smite thee on they right cheek, turn to him the other also ... love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you. Luke 6:38-48.

Jean Bethke Elshtain, among other Christian theologians, and drawing upon Augustine among others, has said that under some circumstances, even war can be seen as an act of Christian love and charity. How do you reconcile Elshtain’s view with the above passage of Jesus preaching, in the Gospel of Luke? Can they be reconciled? Or is the attempt to do so simply hypocrisy? If you think they can be reconciled, what role might the just war tradition play in that reconciliation?

13. Evaluate the following passage from Blood and Belonging (1994) by the (cosmopolitan) Canadian scholar-activist turned politician Michael Ignatieff, reconstruct its several arguments and claims, and extend its meaning to the place of soldiers and armies in relation to cosmopolitanism and those who would claim that they are only incidentally citizens of a particular nation-state, but are instead "citizens of the world."

It is only too apparent that cosmopolitanism is the privilege of those who can take a secure nation-state for granted. Though we have passed into the post-imperial age, we have not moved a post-nationalist age, and I cannot see how we will ever do so. The cosmopolitan order of the great cities - London, Los Angeles, New York, Paris - depends critically on the rule-enforcing capacities of the nation-state ... In this sense, therefore, cosmopolitans like myself are not beyond the nation; and a cosmopolitan, post-nationalist spirit will always depend, in the end, on the capacity of nation-states to provide security and civility for their citizens. In that sense alone, I am a civic nationalist, someone who believes in the necessity of nations and in the duty of citizens to defend the capacity of nations to provide the security and the rights we all need in order to live cosmopolitan lives. At the very least, cosmopolitan disdain and astonishment at the ferocity with which people will fight to win a nation-state of their own is misplaced. They are, after all, fighting for a privilege cosmopolitans have long taken for granted.

Friday, November 24, 2006

Happy Thanksgiving, 2006!

Happy Thanksgiving Day, 2006 - just a day late! Here is a picture of the turkey breast I cooked. I only cook turkey breast now - the whole bird is too hard to balance, white meat and dark meat. The breast was brined overnight, then cooked for a couple of hours face down in a mixture of chopped prunes, apricots, dried cherries, onions, garlic, and carrots, with vast quantities of herbes de provence, extra sage, lots of rum, and lots of butter pats inserted under the skin and then rubbed across the surfaces, at 400 F. Then when it almost done, I flipped it over to brown the top. Some folks find the resulting stewed fruit compote too cooked out, others like it; I serve a bit well drained with dinner. I also made mashed potatoes - lazy mashed potatoes, jackets on, cooked in microwave in olive oil, white wine, garlic, and salt, then loosely choppped with lots of butter, cream, half and half, olive oil, garlic, and more salt added.
Heart-stopping, it has to be said of this whole meal.
Jean-Marie made green beans, sausage and cornbread stuffing, creamed corn from Amish dried corn, and cranberry relish. And pies: pumpin, cherry, maple syrup cream pie - and Kathleen made apple-pear and pecan.

We were settling down for a low key Thanksgiving, with just Uncle Jack joining Jean-Marie, Renee, and me, and then we were on the phone with our friends Kathleen & Chris and their two kids - their parents suddenly couldn't make it over - so they brought food to our house and we all sat down together. It was really lovely.

It all has been very low key because I am in the midst of rewriting the text of my short book on global governance, legitimacy, and the UN, which is going to the editors on January 2. So I am doing nothing, nothing, nothing that is not utterly essential and devoting myself to this writing project. So you won't see much blogging from me until after this ms. is turned in.

But a lovely Thanksgiving holiday weekend to everyone from all of our family!

Getting quoted in the dispute between HRW and NGO Monitor

Someone has pointed out to me that I have been quoted from this blogpost by NGO Monitor in an exchange over Aryeh Neier's piece in the New York Review of Books (November 2, 2006) defending Human Rights Watch from attacks by NGO Monitor. The letter responding to Aryeh is here.

Well, I certainly have criticisms of HRW - I make some of them in the blog post - but I do find that the quotation in the letter is taken more than bit out of context. It does come, after all, in the middle of a paragraph defending HRW as nonetheless the most scrupulous of the human rights monitors. I can't address the specific factual issues in the Lebanon war that got this dispute underway. I criticize below HRW's tendency to present to the public and press what are essentially lawyers' briefs that shape the facts and law toward conclusions that HRW favors without really presenting the full range of factual and legal objections to its position. I think this is tendentious because these brief-reports are not addressed to a court that would receive briefs from both sides and so have access to the point of view of each side, but instead to a credulous press that has no real basis for understanding the debate on both sides. I think - and have repeatedly told people at HRW - that it has an obligation to present fairly the entire debate; I can say categorically that it has never paid the slightest attention and that its reporting continues to be as tendentious as ever. But that's something quite limited and does not take a position on the current argument between HRW and NGO monitor, which, truth be told, I had not been following until someone mentioned that my blog post had been quoted.

Friday, November 17, 2006

Milton Friedman, 1912-2006

I learned with sorrow of the passing of Milton Friedman yesterday at the age of 94. He was and continues to be an inspiration to me - as a political thinker of individual freedom, as one of the two or three truly great economists of the last century, and as an academic who was able to translate his work into policy and into a language comprehensible by non-economists. He was also a kind of patron saint of the Hoover Institution, where I am a research fellow, and when I was out there during the summers, I would occasionally spot him there although I never would have dreamed of disturbing him. The Financial Times had an outstanding obituary by Samuel Brittan and of course there is the widely noted Wall Street Journal interview from July 2006. But I thought Ilya Somin's brief post at Volokh Conspiracy captured my own feelings best, here.

Saturday, November 11, 2006

Venture Philanthropy

The Skoll Centre for Social Entrepreneurship (Oxford University, Said School of Business) has published a working paper by researcher Rob John titled Venture Philanthropy: The evolution of high engagement philanthropy in Europe (June 2006). It does not seem to be available online (which is strange). The Media Development Loan Fund (MDLF), from whose board meeting I am now returning home, is one of the case studies featured in the paper.

The paper defines venture philanthropy as providing a “blend of performance based development finance and professional services to social purpose organizations … analogous to the practices of venture capital in building the commercial value of companies.” That definition seems pretty good to me. The movement toward venture philanthropy arises largely in the United States and in particular from venture capitalists seeking to apply not only their fortunes but their methods into philanthropy and charitable organizations.

One important issue in venture philanthropy is whether it seeks to apply these methods of venture capital merely by analogy or in fact. Meaning, when venture philanthropists fund an organization, do they seek to apply venture capital methods of assessing return to calculate a “social return” on investment that is analogous to private equity’s return on investment, or do they intend to invest in that (relatively narrow) range of charitable activities that can actually generate a genuine return, to then be recycled – as in microfinance sometimes, though not very often – back into the charitable activity?

There are some areas of charitable activity that actually generate revenues, of course. Education, higher education especially, is one. Health care, eg nonprofit hospitals, is another. These are two leading areas in which fees by users of the nonprofit services are expected ordinarily to cover costs of doing business. Microfinance sometimes, though not very often, can generate a return on investment – and in a wider range of cases if one excludes from inclusion in recovery of costs foreign organizations that provide set-up funds and background services, in order to focus on the recycling of funds. There are some other areas, such as community economic development, where real estate developments and small business development can generate revenues that – again, often using a deliberately narrowed definition of costs to be recovered – can generate a return on investment. (You can either include all the background costs in the amount to be recovered as capital investment against revenues, in which case your rate of return is actually a rate of loss, but you can still measure how small the rate of loss is as against other things. Alternatively you can exclude certain costs from the amounts to be recovered and have a positive rate of return, although not one that captures the full implicit subsidy.)

MDLF invests in private media businesses in the developing world, with the social and charitable mission of promoting independent media around the world that provides populations with access to objective news and information. It invests in newspapers, radio, TV, and new media such as internet, and ancillary businesses such as printing presses. It is a paradigmatic case of venture philanthropy actually seeking a real rate of return, not simply trying to measure social return. Because it undertakes regular commercial investment in private businesses, it seeks to recycle its funds and increase its actual commercial portfolio. This is the consequence of a very special charitable mission – the propositions that editorial independence of independent, objective, news-providing is an important feature of a liberal democratic society, and that the best way to achieve that editorial independence is by financial independence of the media company. (Something similar operates in community economic development – a condition of a socially healthy neighborhood is small business ownership and the investment of local individuals in local housing, real estate, etc., thus justifying the investment of charitable organization funds into commercial businesses as a charitable end in itself.)

As a consequence of investing in commercial ventures that have the possibility of generating a return on charitable investment, however, the relationship of MDLF to sources of capital is potentially different. It is able to mobilize a special source of funds within the so-called “non profit capital market” of donor, foundation, philanthropic funds – loaned funds, so-called (originally in the tax law but now a widely used term) “program related investments” in which a foundation lends sizable funds to MDLF, expecting repayment and (below market) interest. MDLF then on-lends those funds – also technically program-related investments. (MDLF, it turns out, is the largest maker of program related investments among all US charities, which astonished me, but apparently this has been true for years.)

Is it also able to mobilize, on account of its ability to generate returns, funds from genuinely commercial sources – the real capital markets, in other words? Well, yes and no. The difficulty is that MDLF’s rate of return on its investments in its clients – all told, all costs in, including the costs of capital, administration, and monitoring of its portfolio – does not fully cover its costs. The interest rates it charges are themselves below local market, and insufficient to cover MDLF’s own costs fully. So in that sense, without access to grant funds from the nonprofit capital market to subsidize its operations and administration, if it sought all its funds in the commercial markets, it would eventually go out of business because its all-in cost of funds would be below the all-in rate of return on its portfolio.

On the other hand, MDLF has made landmark entry into the commercial capital markets. It has entered the US commercial markets through the “socially responsible investor” market – offering, through the SRI Calvert Fund, “press freedom notes.” Here. Essentially, investors can buy the press freedom notes and accept a lower than market return on them. So far MDLF has not sold a vast amount of these notes, which typically are marketed toward the middle income investor in the US who is willing to forgo a certain amount of return that might be had on a purely commercial note.

But MDLF has also done this year a first-ever deal in Switzerland. MDLF is, I am pretty sure, the first nonprofit to have issued a derivative security that is publicly traded on the Zurich stock exchange. You can read more about it here and watch its trading history on the market. The derivative is a genuine landmark in nonprofit finance – and owes much to MDLF’s own (quite remarkable) staff – working with a new and highly, highly innovative SRI organization in Europe, ResponsAbilite. They partnered with a leading Geneva private bank, Vontobel, to create the derivative. Eventually, the Swiss government development agency joined the effort, offering a guarantee on a part of the security. But of course a good question is why a nonprofit would seek commercial market access if the cost of capital would turn out to be higher than its rate of return. Well, two answers. One is that the cost of capital on these instruments is still within the SRI model – commercial in one sense but still subsidized in another, including the Swiss government guarantee and a SRI cost of funds (one percent) to MDLF. The other, however, is that circumstances could arise in which commercial funds might be attractive for particular projects where investment requirements simply outstrip available funds in the nonprofit market. (Much of MDLF’s loan pool comes from European aid agencies, such as SIDA.)

But this is all, well, finance finance. It is about real money and real returns. There is a portion of the nonprofit world for which that can make sense, and in fact it is wider than often appreciated. There are certainly ways in which, for example, investment in vaccine development – malaria, AIDS, etc. – can be about real rates of return because if someone can develop it, governments will provide a market ready to pay for it. The concept of venture philanthropy, however, is most interestingly and controversially applied in areas where it is necessarily by analogy – the concept of the “social return.” How do you measure that elusive thing? You can’t look on the Zurich stock market and track the price of your very cool, very innovative derivative security. The theory is very persuasive in the abstract. The problems of application make you wonder, though, how useful the concept can be at the microlevel. Can the theory generate a usable model?

The train is arriving in DC… so I will leave this here. Our board meeting dealt with issues of mission – what kind of media organizations should be supported with our limited funds, limited staff? Should an organization like ours adopt a global approach or should it seek to specialize in regions? And also real, live money issues, returns on investments, performance of our portfolio. Lots and lots and lots of numbers this weekend. Going closely over our audited financial statements. Going over reports by the finance director on portfolio performance. Discussions of financing mechanisms for new and old clients. M&A. Many of my students, I notice, who tell me they are interested in nonprofits and saving the world, somehow lose interest when it comes to numbers. Anyone who has worked very long in the nonprofit world will tell you, however, that numbers are critical for, well, everything. Likewise some minimum knowledge of accounting and finance. And as venture capital concepts take hold in the nonprofit world, those ways of thinking about the traditional charitable mission of saving the world become ever more important.

Saturday, November 04, 2006

The false academic divide between international public and private law, and the imperative to include international development in that curriculum

Although this blog is mostly about international public law matters, ethics of war and just war, and, well, idle chit-chat, my teaching as a law professor is actually in the areas of business and international business. I ordinarily teach international transactional business courses.

These days I normally teach international business transactions - which I've very happily taught at WCL for the past ten years - corporate finance, and private equity-venture capital (which some years is a general private equity class and other years, depending on other course offerings, specialized in international and cross border private equity). I used to teach the standard business organizations class and the basic nonprofits course, but I haven't done either for a couple of years now.

My fourth class varies greatly from year to year. Sometimes it is a class in international development issues, such as microcredit and development finance. That class draws on my experiences as board chair and counsel to the Media Development Loan Fund, a nonprofit private equity fund that invests in objective and independent media in the developing world, as well as my academic work on both international NGOs and international development finance.

Sometimes it is a class on advanced nonprofit business entity issues (not so much tax, as we were privileged to have the basic nonprofit course taught by a WCL alum and former IRS exempt organizations head) - the nonprofit as a form of business organization and the anomalies created by having a business organization that does not have a profit motive. (The conceptual basis of the nonprofit enterprise, is utterly fascinating from the economic, rational choice, history, sociology - all of it is unbelievably interesting. If I weren't so busy doing it daily in my pro bono work and busy writing on NGOs as part of the international global governance debate, I would and should write about it.)

Sometimes I teach a seminar on just war ethics and the laws of war - Walzer, James Turner Johnson, the moral basis of the laws of war, etc. I have a book ms in very slow progress, a restatement and reconsideration of just war theory. (For the last couple of years, I have been volunteering to teach a course in just war theory - a sort of stripped down version of my law course - to seniors at the National Cathedral School, where my daughter goes to school, and St. Albans, the associated boys school. The high school students have been some of the best students I have had in these areas - they do not know, naturally, the details on very many wars - although they have been taught the history of the Peloponnesian War, the Civil War, and the Second World War very well - meaning that we have within our grasp Thucydides, Lincoln, and Churchill. The subtlest readings I have ever had articulated in a class anywhere (including Harvard, Columbia, Fordham, and WCL law schools, with apologies to all my students there) on the ethics of war in Lincoln's Second Inaugural Address have come from students in that class, and remarkably enough, two of them then-mere sophmores with amazingly well-honed abilities to find different glosses in Lincoln's phrasings (Ann A, Austen K, and Brooks S - all currently undergrads at Yale).)

Sometimes that fourth class at the law school is a class on some highly technical aspect of the laws of armed conflict - proportionality, for example, or targeting rules.

Last spring I taught a seminar on global governance and UN reform, as I had just been deeply involved in a US Institute for Peace study of UN reform (all this part of a short book project that should have been done a while back on global governance and the UN).

Does anything besides my catholic interests link these teaching areas?

Well, I realize it runs against the specialization of international law scholars in today's academy, but I think there should be room for scholars who consciously seek to bridge the academic divide between international public law and international private, economic, business, and finance law. In my own mind and work they are both seamless parts of the study of globalization, and in that sense can benefit from being pursued together. As aspects of the study of globalization, this seems like a very contemporary way of viewing private and public international law on a single continuum.

Yet in fact the "continuum" also harks back to an older model of academic international law - the generation of my great professor, mentor, and friend Henry Steiner and my dear friend Detlev Vagts, both of whom thought there was nothing strange in teaching and writing and creating casebooks on international transactional law, while writing and teach on human rights and other public law topics. In the generation that followed them, a much greater specialization occurred among scholars, and I think there is something lost, as well as gained, in the specialization.

Am I right in believing that among the newest generation of international law scholars, there is a coming together of private and public law topics, a tendency to see them as all aspects of globalization? In this there is a peculiar bridging role played by trade law, which is public law in one sense but about global markets in another. When I say 'seeing public and private law topics as a single continuum in the study of globalization', trade law is not precisely what I have in mind, because drawing conclusions from trade law and trade organizations such as the WTO about the whole matter of globalization and international law - whether in the public law direction or the private transactional direction - can be quite misleading.

The reason, of course, is that trade law, while public law, is about a set of economic concerns that, while hugely important to global and national prosperity, are not typically "existential" issues for nation-states in the way that security issues are. Yet many of the most visible and most contentious issues of public international law are indeed about war and peace, the use of force, security issues, and everything that goes along with that. Drawing conclusions about how nation states behave in the security arena (broadly construed) on the basis of how they behave in game-theory of international trade rules is highly questionable.

The other area that has a marked tendency to be left out of account in the international law curriculum is international economic development. I understand that this is subject to the objection that there is not that much "law" to teach in the area of international development, and such law as there is derives from public law and human rights - social and economic rights, rights to development, etc. I understand that others have strong reasons for approaching these questions from the rights perspective, but my point here is somewhat different. My own experience, both as a practitioner in the field as well as teacher/scholar, suggests that development work is equally well-considered as a matter of business, finance, rational choice theory, a peculiar species of foreign direct investment, and law and economics in the matter of how aid is provided, used, and its outcomes. It can be approached as business law, with huge benefits.

Much of basic IBT, after all, is essentially teaching students the structures of fundamental transactions - sale of goods, provision of services, payment mechanisms such as letters of credit, international licensing, and so on - every single one of these plays a significant role in the increasingly sophisticated world of international development and development finance. I have long found that teaching examples of these transactions developed in the context of the world of development are often very compelling for students, who are interested in it as a policy matter - and additionally because the risks in such transactions in the developing world are often much more visible to students because of the political and legal risks of the situation. (For example, here is my final exam in IBT from last year, which focused on conflict diamonds and financing post-civil war reconstruction in Africa - and yet was a financially sophisticated finance question.)

At bottom, though, I grant that I am making a moralistic plea that international development not be invisible in the international law curriculum. But if you see international legal studies as, today, really the study of contested issues in globalization, then it makes reasonably good sense to say that globalization includes private transactional business issues, public law security and related world order issues, bridging public-private regimes such as trade - but also the moral question of the universalizing of globalization, ensuring that its benefits flow to the world as a whole, including the very poor. In that case, the study of development is a necessary part of the whole.

(This argument linking development and universalizing the moral claims of global markets is partly drawn from an article of mine on microfinance and globalization, here.)

Friday, November 03, 2006

John Keegan predicts renewal of Israel-Hezbollah war, sooner rather than later

When John Keegan speaks, I listen closely. Here. In this Daily Telegraph column, Keegan talks about the Hezbollah underground tunnel and bunker system - impervious, he says, to Israel's air force and only subject to destruction by ground forces. Keegan talks about the hitherto underestimated role of tunnel systems as a counter to more sophisticated forces, including their role in the Vietnam war. His conclusion is sobering:

What is certain is that – probably before the year is out – Israel will have struck at Hizbollah in south Lebanon. And the strike will come even sooner if Hizbollah reopens its missile bombardment of northern Israel from its underground systems.

Moreover, he says:

There will soon be another war in the Middle East, this time a renewal of the conflict between the Israel Defence Force (IDF) and Hizbollah. The conflict is inevitable and unavoidable. It will come about because Israel cannot tolerate the rebuilding of Hizbollah's fortified zone in south Lebanon, from which last year it launched its missile bombardment of northern Israel.

Hizbollah has now reconstructed the fortified zone and is replenishing its stocks of missiles there. Hamas is also creating a fortified zone in the Gaza Strip and building up its stocks of missiles. Israel, therefore, faces missile attack on two fronts. When the Israel general staff decides the threat has become intolerable, it will strike.

What happened in south Lebanon earlier this year has been widely misunderstood, largely because the anti-Israel bias in the international media led to the situation being misreported as an Israeli defeat.

It was no such thing. It was certainly an Israeli setback, but the idea that the IDF had suddenly lost its historic superiority over its Arab enemies and that they had acquired military qualities that had hitherto eluded them was quite false. Hizbollah suffered heavy losses in the fighting, perhaps as many as 1,000 killed out of its strength of up to 5,000 and it is only just now recovering.

What allowed Hizbollah to appear successful was its occupation of the bunker-and-tunnel system that it had constructed since June 2000, when the IDF gave up its presence in south Lebanon, which it had occupied since 1982.

Although the IDF had got into south Lebanon, the casualties it had suffered in entering the fortified zone had alarmed the government and high command, since Israel's tiny population is acutely vulnerable to losses in battle. Israel's plan was to destroy Hizbollah's tunnels and bunkers, but the sending of a United Nations intervention force did not allow the destruction to be completed before the IDF was forced to withdraw.

Tunnel systems have played a crucial part in many modern campaigns, without attracting much attention. That is a serious oversight. The success of the Viet Cong in sustaining its war effort in Vietnam in 1968-72 depended heavily on its use of the so-called War Zone B, a complex of deep tunnels and underground bases north of Saigon, which had been begun during the war against the French in 1946-55.

War Zone B provided the Viet Cong with a permanent base of refuge and resupply that proved effectively invulnerable even against a determined American effort to destroy it. War Zone B has now become a major tourist attraction to Western visitors to Vietnam.

In its time, however, War Zone B was very far from being a holiday facility: it assured the survival of the Viet Cong close to Saigon and their ability to mount operations against the government forces and the Americans. Hizbollah, either by mimicry or on its own account, has now begun to employ a tunnel and underground base strategy against Israel. It was for that reason it was able to confront Israeli armoured forces in south Lebanon earlier this year.

The adoption of a tunnel strategy has allowed Hizbollah to wage asymmetric warfare against Israel's previously all-conquering armoured forces. The tunnel system is also impervious to attack by the Israeli Air Force.

Since Israel's reason for existence is to provide a secure base for the Jewish people, and that of the IDF is to act as their shield and safeguard – functions that have been carried out with high success since 1948 – it is obvious that neither can tolerate a zone of invulnerability occupied by a sworn enemy located directly on Israel's northern border.

It is therefore an easy prediction to foresee that the IDF will – at some time in the near future – reopen its offensive against Hizbollah in south Lebanon and will not cease until it has destroyed the underground system, even if, in the process, it inflicts heavy damage on the towns and villages of the region.