Comments on: Bloggingheads, cont’d.

By: Weekly Web Watch 10/26/09 – 11/1/09 « EXECUTIVE WATCH

Weekly Web Watch 10/26/09 – 11/1/09 « EXECUTIVE WATCH — Tue, 03 Nov 2009 06:31:23 +0000

[...] Posner and Henry Farrell have had a running discussion on the laws of war and how they should be defined. The key point of disagreement appears to be [...]

By: There Has Been A Lot Of Debates About The Goldstone Report And Here’s One More « Around The Sphere

Sat, 31 Oct 2009 18:03:41 +0000

[...] Posner responds: Henry Farrell continues our conversation about my book. One thing he says is that international law should not be regarded as a single entity, which is either “good” or “bad,” but is a label attached to a multitude of cooperative arrangements undertaken by states, which should be evaluated on their own terms. Security Council resolutions have no inherent moral valence, even though they are issued pursuant to the legal authority created by the UN charter, and are legally binding themselves. The Security Council is a club of great powers, after all; it has no democratic (or other) legitimacy. The resolutions are valuable just insofar as they alert other states that the great powers agree on a course of action, which is a useful thing for states to know. The resolutions have pragmatic value, then, not moral value. By contrast, the laws of war really do have moral value because they serve a moral purpose—the reduction of suffering during wartime. Unlike the UN charter, the laws of war reflect moral norms that cross borders. [...]

By: Donald Johnson

Donald Johnson — Sat, 31 Oct 2009 00:14:43 +0000

” For the Gaza War, it’s hard to avoid the conclusion that observers’ positions on the law-of-war violations of either side is colored by their sense of the justice of that side’s cause. ”

Funny. I have very definite sympathies on the Israeli/Palestinian conflict, yet I think both sides violated the laws of war, both in the Gaza “war” and in fact all along, going back before the state of Israel existed.

So it is possible for someone to have sympathies on one side of a conflict and yet think both sides are guilty of war crimes. Perhaps I am the only person in history to think this. That seems unlikely. Judge Goldstone apparently thinks the same way. So already we’re up to two.

By: Dilan Esper

Dilan Esper — Mon, 26 Oct 2009 22:58:41 +0000

I think you confuse the fact that people often violate the laws of war with the laws of war not actually having any preclusive effect or not having been agreed to.

These are two different propositions. I doubt the authors of the Geneva Conventions, or the Convention Against Torture, to name two particular examples, had any illusions that from time to time their provisions would be violated. The point was to put in place a regime where such violations might have consequences, from being called out and identified as a lawbreaker all the way to, in some circumstances, prosecution.

You can certainly contend that international law is of limited utility. But limited utility does not equal no utility, and these bodies of law surely deter some people from taking some inhumane actions they would rather take, and further have provided a basis for reprisal against some violators. The world that Professor Posner advocates would seem to be a world where that thin line that keeps at least some actors in line and deters some bad conduct would be eliminated. And for what benefit? So that we can commit the same sorts of inhumane acts that our adversaries do?

By: jcm

jcm — Mon, 26 Oct 2009 21:12:58 +0000

A violation of the laws of war endanger american soldiers because soon or later , they can become POW and suffer retaliation. Of course japanese soldiers didnt follow the golden rule, they even ate their enemies( Bush father survived because his faked been death, his companion were eaten . But german soldiers did , at least with Anglo-Saxons. They treated badly russians and eastern europeans because they see them as superior to the slavic people

By: Lance Cahill

Lance Cahill — Mon, 26 Oct 2009 21:02:37 +0000

This isn’t related to your post, but I wanted to say I recently finished the book you co-authored with Jack Goldsmith (“The Limits of International Law”), and thought it was great.

By: dpinkert

dpinkert — Mon, 26 Oct 2009 18:37:25 +0000

Is it possible Henry would argue that the difference between U.S. and EU privileging of domestic law over international law is that, unlike the U.S. behavior in question, EU privileging as in Kadi can be universalized (or at least globalized)?

I think this would be a difficult argument for him to sustain. . .

By: jeffry house

jeffry house — Mon, 26 Oct 2009 18:29:28 +0000

“The laws of war imagine a relatively morally neutral war—for example, where two powers fight it over some piece of territory that has been in dispute for reasons that no one any longer remembers. They make little sense for wars where, morally speaking, one side really should win and the other lose. Unfortunately, it turns out that many wars have this character.”

I guess that would mean that police officers don’t have to obey the law, because they, too, “really should win” when they contfron criminals.

I don’t think this is right, especially for war. Every war involves combatants who each think they “really should win”. To exempt the morally superior combatant from the laws of war is to insure that the laws of war become a dead letter. Neither non-combatant civilians, nor soldiers hors de combat will benefit from that.