The article in Der Spiegel today that Co-Conspirator David Bernstein criticizes below has received a lot of deserved pushback. My feeling overall about this kind of analysis – as well as Mary Ellen O’Connell’s analysis and my own and that of others – is that what we call international law has been fragmenting for some time now into different “communities of interpretation and authority,” as I somewhere called it.
Those communities have moved sufficiently far apart that they no longer share a common basis for authoritative interpretations of international law. Rather than taking the tack of Der Spiegel and tacitly asserting the authority of professors of international law at the University of Cologne to declare the right and wrong view, a better approach would be to speak more modestly in terms of “plausibility” – “more” plausible and “less” plausible views of international law. Der Spiegel would do well to adopt a more modest and less categorical view. The US view of this is, in my estimation, vastly more plausible than Der Spiegel’s. One reason for that is that the US government has skin in the game. It matters what the US government thinks, because if international law is to remain relevant to anything besides professors in Cologne or, for that matter, Washington DC, it cannot depart too far from the views of the great powers.
International law is grounded in the practice of states, and the practice of some states matters more than others. One might think that wicked or unjust or what have you, but if one wants international law to be something more than law professor fantasies, it has to be grounded in how states behave. International law can get a little bit ahead of where states want to go, but not very far ahead. It is not just the United States that matters, quite true. I sorrow to say it, but it is true that China’s views of human rights law and internal interference matter a great deal.
I wish it were otherwise, but China’s views matter a great deal more than Ireland’s or Germany’s or many other countries. There is room for some push-back against dubious great powers like China, but in the end the law is not set by NGOs or academics or international commissions, but states in their behavior and opinio juris. This is not realist cynicism; it is, rather, the pragmatism that the US government’s approach to international law has always taken. This pragmatic approach is always infuriating to believers in international law as the beauty of the spheres.
But the US government’s pragmatic view – long at the center of State Department legal approaches, including the one that authorized the killing of Bin Laden as a lawful attack against a lawful target in an armed conflict – is best seen as protecting this important, but fragile, category called international law … from itself. From its most enthusiastic supporters, who are always willing to purify it into a form of law suitable only for uninhabited planets or maybe heaven.
I’m a believer in international law – as a pragmatic activity that inevitably fuses law, politics, state practice, and diplomacy. International law can be the the natural law of the moon if it wants, and it can get there by paying too much attention to professors and too little to how states on earth actually behave.
(Note: I’ve edited this to take out a couple of cheap shots; I was annoyed at the article’s tone, and still am. My thanks to an unnamed friend for raising this with me. As Bobby Chesney’s post at Lawfare points out, there is a lot of convergence between the US view and Professor Kress’s view. My point is less with respect to substance than to a certain superciliousness and condescension about the approach to international law. Even if there is convergence on the substance, the American approach to getting there is not really plausible, because it is not sufficiently legal; the American reply would be, referring the the “pragmatism discussed below, what you seek is not an approach that is more legal over political, but merely legalistic.
But yes, I do think the tone of the Spiegel article was sneering in parts, came close to suggesting that the Obama administration acted in bad faith in its version of international law and, in my view, would have taken that next step of flat out saying bad faith had it been other than President Obama. To put that on the table two days after the killing of Osama Bin Laden, of all people, in an operation as cleanly executed as this requires an approach to international law that I, at least, would regard as otherwordly at best, even if it has convergences on points of substance with the US government’s view.)
Hm. says:
I always thought this description of international law was universally accepted by all the factions within IR academia. From Wendt to Koehane to Waltz, there always seemed a pretty tacit understanding(/admission) that international law means what Great Powers say it means and that, in reality, it can’t mean anything else. Even the idealist Wendt (whose course I’m currently in) acknowledges the importance of Great Powers in decided what international law means.
Maybe there’s a divide between international law professors and international relations theorists? Or maybe it’s some kind of American-European cognitive divide.
May 4, 2011, 1:10 amSoronel Haetir says:
Maybe it’s a divide between those who used to be great powers (Germany certainly used to be) and those who still are.
May 4, 2011, 1:27 amSteve says:
In other areas of law we have things like the Uniform Commercial Code, which is deliberately designed to address and facilitate the reality of how commercial actors operate in the real world, as opposed to some legal fantasyland of formalism where the acceptance perfectly mirrors the offer, etc.
But in contract law we can study the behavior of countless commercial actors and develop all the empirical evidence we need about which systems work most efficiently. In international law, we currently have a single superpower. If we’re going to be realists about the development of international law, how do we avoid it becoming nothing more than “rules to justify whatever the U.S. feels like doing”?
May 4, 2011, 1:36 amSoronel Haetir says:
Steve,
There may only be one superpower, but the lesser powers (or even a fraction of them) combined have more might. So the issue then is whether those lesser powers have enough interest in common and whether the US cares enough to call them on it and all sorts of other realpoitik considerations.
Which, as far as I can tell, is pretty much as it should be.
May 4, 2011, 2:09 amLior says:
@Prof. Anderson (emphasis added)
In this case picking on Germany (unlike, say, France) is unfair. At the end of WWII US enforced a deal with Germany and Japan: since militarization in both your countries has been bad for world security, you will give up on your militaries. In return the US will take your defence. Both sides have kept up the bargain since, but given this bargain you can’t criticize the Germans for free-riding — they didn’t really get a choice (nor did the rest of the world want them to have a choice). You can criticize them for antagonizing the army that defended their Eastern border from invasion for 50 years, but not for free-riding on this defence since they weren’t given a choice in the matter.
I agree that today’s Germany and Japan are different than the Germany and Japan of 1945. The time has indeed come to renegotiate this deal. However, until a new agreement is put in place Germany and Japan should be mainly demilitarized and dependent on US defence and can’t be blamed for it.
May 4, 2011, 3:40 amDoc Merlin says:
Who says they need justification? I think you have the wrong idea here. If the law can be routinely and continuously ignored by those who wish to without consequence, then its no law. Anything else is wishful thinking. I would like to point out that it isn’t just the US, but China, India, and really any large power can ignore what europeans think is “international law” pretty much at will.
Anyway, nowadays, when I hear the phrases “the world” or “international law” it usually means “europe” and “european law” but the speaker is too provincial to know better. Europe just has to realize that its a small and politically not so important part of the world now, and either come to grips with that or do things to improve their power.
And yes, as I said earlier, its not just the US… any large (or really even medium size) power can do whatever they want, unless the US wishes to actually make them do something else.
May 4, 2011, 4:50 amWas “Justice” Served? : Lawyers, Guns & Money says:
[...] out punishment, which explains the focus on the legality of the killings (Ken Anderson’s post here considers what the debate means for international law [...]
May 4, 2011, 5:46 amRagebot says:
I am old enough to remember the three mile limit, based on the range of shore guns being three miles. While I am not old enough to remember summary execution for pirates as a kid growing up and sailing in foreign waters I still assumed the penalty was an on the spot execution if you were caught pirating.
Now it seems 200 mile economic zones are the rule and pirates are flown thousands of miles to NY, NY for a trial.
But the biggest change I have seen is in international trade. Modern day pirates are not teenagers off the coast of Africa who demand millions in ransom; rather they are IP pirates in Asia who sell pirated copies of software, movies, music and the like, or drug companies in India who manufacture drugs developed mainly in the US and sell them for pennies because there is no R&D cost.
Say what you want about US domination, but Asia and the sub continent are what matter in international trade law.
May 4, 2011, 6:51 amMartinned says:
Actually, no. As the ECJ established in Kadi, European law is not international law, and international law is European law only in the same sense that it is US law, etc.
The only thing that International law and European law have in common is a desire to silence the guns, to substitute talking (and occasionally litigating) for shooting.
May 4, 2011, 8:11 amBrian Thomson says:
Prof. Anderson, this is an intriguing statement.
May 4, 2011, 8:16 amFrom Roman times Western societies have recognized the principle of nemo iudex in causa sua, that determinations of law should be made by people who do not have skin in the game. By that principle, shouldn’t the opinion of a professor of law in Cologne carry more weight rather than less?
RocketScientist says:
In my mind, there are really two questions here: what should international law look like and who should enforce the law? It appears that few people in the world agree on the answers to either of the questions. The UN is a small step in that direction, but it’s effectively powerless.
I don’t agree with international law being made by by ivory-tower academics or otherwise described by highly theoretical frameworks. On a practical level, we’ll never figure out what the right answer is.
I also don’t agree with the approach that the US can do anything we want. Law works both ways: When the US sets a precedent for action, the same legal interpretations that benefit us now will also benefit other actors when they’re in a position of power. I’d prefer the US unilaterally set-up a practical, fair, defendable and usable framework for the future.
Second, one aspect of law is having a way to enforce the law or otherwise compel compliance with the law. If we view the countries of the world as individual actors, where are the law enforcement or court officers to enforce the law? Lacking an strong international law-enforcement agency, it appears that individual actors (countries) have to enforce compliance, kind of like a citizen’s arrest of the guy that just mugged you.
Finally, OBL was grabbed in Pakistan. Whether or not there’s a concern with any international law violations should come from Pakistan. If the victim (Pakistan) says there’s no harm done, what law is there to enforce?
May 4, 2011, 8:16 amDYSPEPSIA GENERATION » Blog Archive » Der Spiegel and International Law says:
[...] Read it. International law is grounded in the practice of states, and the practice of some states matters more than others. One might think that wicked or unjust or what have you, but if one wants international law to be something more than law professor fantasies, it has to be grounded in how states behave. International law can get a little bit ahead of where states want to go, but not very far ahead. It is not just the United States that matters, quite true. I sorrow to say it, but it is true that China’s views of human rights law and internal interference matter a great deal. [...]
May 4, 2011, 8:22 amJoe says:
to be grounded in how states behave. International law can get a little bit ahead of where states want to go, but not very far ahead
Is studying the New Testament’s ideals and promoting them as ideals that it is troubling on some level to not follow a problem because real life is so much less?
Each time we move on in international law, including back in the day when faithfully regulating the international slave trade was seen as problematic (a threat to U.S. sovereignty, even though on the books, the U.S. opposed the practice), it is in the teeth of resistance of those who ridicule the good doers for being naive.
IL is the result and practice of people of the world. They know reality. Some push by a few law professors, picked out for their easy targeting apparently (who around here truly cares what someone says in some German newspaper? people don’t care much about what is said in the National Review!), in support of “too high” of ideals is something we can readily live with.
May 4, 2011, 8:50 amKatja says:
Actually, Germany currently has the third-most troops on the ground in Afghanistan (after the US and UK) and has contributed more troops to KFOR than the United States. China has sent a fraction of those troops on international missions, but has more than 15 times the population of Germany.
Ireland, of course, is a small country with 4.5 million people, but has always taken part in international missions to the best of its abilities. For example, until recently, they had deployed 411 troops to the conflict in Chad. An equivalent commitment by the United States, based on relative population size alone (not the relative size of armed forces), would have been some 27,000 troops.
Obviously, there are massive policy differences (such as the United States putting an emphasis on projecting military power, while the same thing in Germany would be pretty much a violation of their constitution). But that’s not the same thing as “pulling your weight”.
I think a more honest answer would have been that China has nukes and Germany and Ireland don’t.
May 4, 2011, 8:51 amAssistant Village Idiot says:
I think you are underrating the importance of law professor’s fantasies, and Brian Thomson neglects the idea that law professors in Cologne have a great deal of skin in the game: vindication of world-view, career, reputation. Do not allow such to ever claim objectivity or disinterest in these matters. Once you have penetrated the idea that getting to be the judge is of enormous importance to many, and noticing where their principles just happen to coincide with more authority and prestige for them, you are well armed. Not that such persons cannot be wise, objective, reasonable judges. They can. But it should never be assumed.
I confess a bias against principles of law which sound noble but end up with more innocent people being dead. I have tried to locate the quote for years, and someone may be able to help me here, but I recall an Hassidic saying that being more just than God leads to injustice.
May 4, 2011, 9:00 amKenneth Anderson says:
Apologies to commenters, I’ve taken out a couple of the passages that people would most focus on. I’ll find another day to discuss Germany’s relative weight in the international security system, my bad for inserting in here. Apologies for making some of the comments no longer relevant.
May 4, 2011, 9:03 amJoe says:
Prof. Charli Carpenter, linking this post in her remarks, provides interesting commentary on her own blog. It provides a discussion that some might be interested in.
http://www.lawyersgunsmoneyblog.com/2011/05/was-justice-served#more-21617
May 4, 2011, 9:06 amlgm says:
Anderson’s rambling verbose posts are normally skipworthy. But this one is breathtaking, not in a good way. America killing Bin Laden without trial in a sovereign country is legal under international law — because what big militaristic countries do by definition is international law. Does this apply to the Soviet invasion of Afghanistan, or Czechoslovakia?
With no visible irony in a blog run by Hayek quoting libertarians. Someone else is too categorical and philosophical and immodest?
May 4, 2011, 9:13 amburrow owl says:
That’s what law by custom means. I agree that it’s hard to make out how international law is even law in any meaningful sense, which is why we should ignore the babbling about the legality of OBL’s death.
May 4, 2011, 9:29 amMartinned says:
O, and just to clarify, this is what prof. Bernstein’s arch-nemisis, Kevin Jon Heller, posted on Opinio Juris about this issue:
May 4, 2011, 9:32 amMartinned says:
Actually, no it’s not. State practice is only one ingredient of customary law. The other one is opinio juris. (Hence the name of the blog…)
More importantly, custom is only one source of international law. Conventiently, art. 38(1) of the Statute of the International Court of Justice sums them all up:
(Note that sub b the statute speaks of custom “accepted as law”, i.e. custom + opinio juris.)
May 4, 2011, 9:36 amSteve says:
I think you are doing a poor job of restating KA’s argument. The concept is that if the major powers of the world generally regard X as acceptable, it is futile to argue for some theoretical conception of international law that claims X is illegal. But it does not follow that everything done by a single major power must be okay.
Let’s try to apply this standard. Imagine that 9/11 had occurred in Russia or China or Germany. And then 10 years later, a squad of Russian or Chinese or German commandoes conducts a raid in Pakistan and kills the terrorist responsible for 9/11. Would we, as Americans with no particular stake in the controversy, say “Wow, that’s an outrageous thing to do!” Or would we say, “Gee, that’s pretty understandable.”
May 4, 2011, 9:39 amHouston Lawyer says:
I want to know what international law is in this context. In my view, if you can’t enforce it in court, it is not law. It may be a statement of principles or good intentions, but law it is not. And if you have to conquer a country to enforce the law, that’s just a war, not law.
May 4, 2011, 9:44 amMartinned says:
So half of the US Constitution, including many applications of the establishment clause, aren’t law either? (Here’s Dworkin discussing Winn, for what it’s worth.)
May 4, 2011, 9:48 amJoe says:
The concept is that if the major powers of the world generally regard X as acceptable, it is futile to argue for some theoretical conception of international law that claims X is illegal.
If that is the concept, I tend to oppose it. How does international law develop if it is “futile” to even in theory challenge the legality of actions of major powers?
May 4, 2011, 9:57 amBrian Thomson says:
I’m not sure where this leads other than to disqualify law professors, everywhere, as a class. Do you believe that the prospect of being quoted in der Spiegel may have influenced Prof. Kress’ position?
May 4, 2011, 10:07 amMark Field says:
Actually, pirates were sent to London for trial when practicable. A good example is Capt. Kidd.
Two footnotes: I say London because, as a practical matter, it was the British Navy which captured most pirates. There are debates about whether Capt. Kidd was actually a pirate, but he was arrested for piracy, convicted of that offense, and hanged for it.
May 4, 2011, 10:19 amSteve says:
I’ll say it again. No one is arguing that everything a major power does is automatically legal. The argument is that it is futile to challenge the legality of an activity that every major power agrees is okay.
I’ll go back to the Uniform Commercial Code. The drafters started with the reality of how merchants do business in the marketplace and then went from there. They didn’t try to hand down a set of formalistic rules from the ivory tower and then expect the whole world to alter its behavior to fit those rules.
If every major power would do the exact same thing to kill Osama bin Laden under the circumstances, you can still argue that it’s wrong or immoral, of course. But arguing that it somehow violates international law is a futile argument if every major power thinks it’s okay. What is the source of your authority, other than “international law should mirror my personal preferences”?
May 4, 2011, 10:31 amcaptcrisis says:
Bulletin: U.S.A. is not the center of the universe.
Germany has had more problems with terrorism than we’ve had, going back to the 1970′s, and has dealt with them more maturely and effectively. So has the U.K.
May 4, 2011, 10:34 amAssistant Village Idiot says:
Brian Thomson – not disqualification, but an alert skepticism. I wrote “Not that such persons cannot be wise, objective, reasonable judges. They can. But it should never be assumed.” Perhaps my tone put you off unnecessarily and I am only reaping what I sowed, but it does seem to are caricaturing my point, turning it into a false choice. Similarly, with the single instance of being quoted in Der Spiegel as determinant of the professor’s opinion. Of course not. But to be that guy, to be one of the go-to people that Der Spiegel will hold up as an authority before the world and quote – that is very precious indeed, one of many types of prestige that people have modified their views to acquire or maintain since the beginning of human society. It is not too much of a stretch to say that all humans likely do exactly this, many times in their lives. I see no reason to exempt German professors from the frailties of us all. If fact, the more precious the position, the more we should expect that people have sold at least a little something to get there. I don’t kick professors or arbiters in general on this, until someone claims that they are the neutrals here. Then my antennae go up.
Developed in more detail in CS Lewis’s “The Inner Ring,” though there are dozens of authors who capture this well.
May 4, 2011, 10:45 amSteve2 says:
International law does not and cannot exist in any form except treaties, which are contract law. Everything else – custom, opinio juris, “soft law”, etc. – is just sound and fury signifying nothing.
May 4, 2011, 10:49 amMartinned says:
I realise that you Americans are still hung up on the Statute of Frauds, but we civil law jurists are perfectly OK with oral contracts. So what’s wrong with customary law again?
May 4, 2011, 11:07 amHm. says:
Your definition of law depends on the existence of a state. While there are international courts, there is no world state that can enforce universal jurisdiction for those courts. International law is distinct for a reason. The way the international system is organized means that international law cannot be analogous to domestic law. The only cases in which I can see it ever being analogous is (a) if there is a world state or (b) there’s a hegemon that volunteers to act as a world state.
… International lawyers, the United Nations, the International Criminal Court and many states would beg to disagree. Indeed, many treaties themselves would disagree that customary law signifies nothing. Treaties may be the best source of international law, but they certainly aren’t the only source.
May 4, 2011, 11:39 amRoscoe says:
One of the problems with this international law stuff is that its impact is limited to open societies that make at least some attempts to follow the rule of law. The Chinese and Russians don’t give a rat’s ass for what law professors in Cologne think of their actions. We sometimes care about that sort of thing, which leads to Marines on a “peacekeeping” mission patrolling downtown Beirut with unloaded M-16s (as happened back in my time).
May 4, 2011, 12:19 pmBrian Thomson says:
I assume that anyone who chooses action over inaction feels some incentive to do so. But motivation to participate, even to show off how perceptive and influential one is, does not imply bias. Disputing neutrality does imply bias, and I am trying to understand whether this is systemic suspicion on your part, or if there is some specific logic at work.
May 4, 2011, 1:06 pmMy original post meant to say that, all else being equal, I would be more suspicious of bias from law professors at US or Pakistani universities than those from uninvolved countries.
Katja says:
Well, a German professor as reported by the Spiegel. I am not sure how familiar you are with German newspapers, but the Spiegel is quite the sensationalist magazine. It doesn’t report falsehoods (at least not knowingly), but it likes to report with a megaphone. Amplifying contentious statements and reducing nuanced paragraphs to soundbites is business as usual. So, for now, I’m taking the quotes with a fair amount of salt.
If you want to read a quality German center-left weekly, the Zeit is probably a much better choice.
Looking at what those German newspaper talk about that DO discuss the matter in more detail, the major point of contention seems to be whether the War on Terror does actually qualify as a war under international law; if not, then bin Laden was not a military leader against whom military action could customarily be taken according to the laws of war, but a fugitive criminal, and the question shifts to whether the special force teams were sent with the intent to kill him or to apprehend him.
May 4, 2011, 1:13 pmSarcastro says:
Either it can send you to jail, or it’s useless! This is why I never pay any attention to manners or courtesy – who cares about daily washings if it’s not going to get me imprisoned?
Similarly, I never care about philosophy, since it’s all about toothless ‘oughts.’
May 4, 2011, 1:58 pmAnton’s Weekly Digest of International Law, Vol. 2, No. 17 (5 May 2011) | Anton's Weekly Digest of International Law says:
[...] Anderson, Der Spiegel and International Law, Volokh Conspiracy (May 4, [...]
May 4, 2011, 3:42 pmSteve2 says:
No, either it can send you to jail or it isn’t law.
You’ve just said why “international law” is a contradiction in terms. Laws are rules codified by a state using its authority as sovereign. The international system doesn’t have that, therefore it doesn’t have law. The closest it has is treaties, which are formal agreements between states that are akin to contracts.
I think it’s more a matter of the principle embodied in Draco posting the laws of Athens than of the Statute of Frauds. Also, if you didn’t write it down, it didn’t happen. An “oral contract” isn’t a contract at all, it’s a gentlemen’s agreement – which is what customary law is. Also, customary “law” is not statutory in nature or origin, so it isn’t law. I would think that would be obvious and familiar to a civil law person like yourself.
May 4, 2011, 4:43 pmSarcastro says:
This is very important, as all semantic arguments are. We really need to cut down on the overuse of the word law. Customary law, physical law, the law of cosines, laws of attraction, calling them law is really awful and needs to stop.
May 4, 2011, 5:06 pmAssistant Village Idiot says:
Brian Thomson “My original post meant to say that, all else being equal, I would be more suspicious of bias from law professors at US or Pakistani universities than those from uninvolved countries.”
I partially agree, but not entirely. Global point: Germany is not an “uninvolved country,” not even close. Yes, US or Pakistani sources (university, media, governmental, individual) should be immediately held up to the light. Not that their views would be automatically disqualified, but it pays to be aware of what possible benefit any agent might have from expressing an opinion.
Yet I think we very quickly assume, and perhaps conveniently, that when someone can be made to look impartial for our purposes (The Czechoslovakian judge awards a 5.7 to the Romanian skater…), that they actually are impartial. In a situation such as killing bin Laden, there really aren’t many countries which don’t have something tied up in the answer, and even within countries there are factions jockeying for position. Thus while I consider that there is an increased chance that the German professor is an evenhanded and impartial arbiter, I don’t think it is a much greater chance. The Germans are in this game as well, with their own factions and friends to please; if nothing else, posing as a nation that handles these things better than the Americans has psychological value and perhaps more. Note that captcrisis has already fallen for that, above.
If you are wondering whether there is something underneath this that I am hinting at but will not say, I will be blunt. Europhilia, especially when restricted to specific classes in Western Europe, is a recipe for insanity. It should be absolutely reflexive that when anyone speaks about such matters – an Iranian journalist, an Argentine businessman, an Australian author, a German professor – they have an axe to grind and it pays to find out what that is. Yet for some reason, many Americans suspend this rule when it comes to Western Europeans who might come from their social class. This applies to the UN by extension. They are perceived as wise arbiters who see these things better than “we” stupid Americans (by which the speaker never means himself, but only those other Americans). It’s a SWPL thing, and it’s been going on for decades. I think it’s rubbish, and the 20th C is a solid a body of evidence as one can imagine. In any given random year of the 20th C, if one drops down and notes what Western European intellectuals were thinking, one sees that it proved spectacularly wrong later.
Even among our allies, even among good allies such as the UK, it is very common in the intellectual classes to have a strong anti-American streak. The European exceptions to this generality will often use even stronger words than I did: that “it is a condition of membership” (Jean-Francoise Revel; similar sentiments, not as a compliment, from Gunther Grass, NT Wright). The only folks who miss this obviousness are the Americans who agree with that class. A German professor might indeed be an honest broker. But the last thing I would do is assume that from the outset.
May 4, 2011, 5:20 pmCrunchy Frog says:
The fact that the UK and Germany have had much more problems with terrorism rather belies their effectiveness, doesn’t it? If they treated the subject with a bit less “maturity” and more cojones, perhaps they would have less of a problem, natch?
May 4, 2011, 5:45 pmHm. says:
Laws, broadly speaking, are simply the rules imposed by an authority. International law depends on two things to be authoritative: (1) the Great Powers, or at least enough of them, agree that the law exists in a certain way and (2) the Great Powers are willing to punish violators. I would be surprised to find an IR scholar who disagrees with this assessment.
With regards to how international law affects the Great Powers if it exists only at their behest, you have to get into some theory. Some people make self-interest arguments, others make normative arguments. The fact is, however, that most states follow most international law most of the time, including Great Powers that could otherwise ignore the law with little material ramifications.
Treaties aren’t even the most compelling of international law. Jus cogens has way more power and you can argue that it’s an authority in and of itself.
May 4, 2011, 5:53 pmSarcastro says:
Silly Frog, cojones are for empires only!
May 4, 2011, 5:54 pmmariner says:
You left out Charles’ Law, an attempt to explain the behavior of heated gases.
May 4, 2011, 5:56 pmHm. says:
I think this is a false characterization of customary law. Not all customary law is codified, but all customary law has more power than statutory law. Not more power as in customary law would take priority in court hearings — although, this is certainly true for the jus cogens — but more power as in social power. Violating customs almost always comes at a higher cost than violating a treaty.
May 4, 2011, 6:03 pmCrunchy Frog says:
and Cole’s Law, which is thinly sliced cabbage.
May 4, 2011, 6:24 pmCrunchy Frog says:
You forgot to put brackets around that.
There are reasons that former empires become former empires. Losing the will to act in their naked self-interest is one of them.
May 4, 2011, 6:27 pmMark Field says:
Given the history of Germany, I’d think we all should be very glad that they now bend so far in the opposite direction.
May 4, 2011, 6:41 pmSarcastro says:
[Yeah, shoulda half-bracketed that or something, it does have more of a grain of truth in it.
Though I do think the cause and effect are a bit more murky than you think.
It's hard for England to be a big man on campus these days, even if they wanted to. So they don't want to. Or is it vice versa?]
May 4, 2011, 6:42 pmPiet says:
On the basis of what at this moment appear to be the facts Osama could easily have been captured alive (in fact he WAS captured alive). Killing him under those circumstances was clearly illegal.
Does anyone here seriously think that if the question was put to the ICJ whether it is in accordance with international law to kill an unarmed person who has already been captured, the answer would be “yes, provided that the person is called Osama bin Laden (and because the US says so)” ?
I know, this question will not be put to the ICJ.
The only possible justification that I see is that transporting him alive could have somehow endangered the operation. I think that if anything that’s a very weak justification and as far as I know it’s not being made anyway.
Anyway, it is interesting to hear that the old Soviet practices were in accordance with international law when the Soviet Union was still a super power.
Of course one could argue that international law is completely irrelevant for the US. But then we don’t need this discussion at all and one should not care about what a professor of international law thinks.
May 4, 2011, 8:09 pmStash says:
What convinces me this is axe-grinding rather than argument is the flimsy thread which underpins the argument:
Things that occur to me:
1. It seems to me that when one kills a soldier on the battlefield, it is “in no way certain” that 10 seconds earlier he did not suddenly decide to become a conscientious objector and was going to immediately defect, desert or resign his commission. Hence, if we can only kill those whom we are “certain” have not clandestinely changed their status, any war is criminal.
2. Perhaps more analogously, we must keep track of the internal workings of the enemy, particularly which commanders of the enemy, who despite continuing to claim their rank, and without formal demotion or retirement, have lost any real influence over the course of a war. They must now be treated as “non-combatants.” The argument is facially ludicrous.
3. OBL never took off his AQ “uniform” or declared himself a non-combatant civilian. Whatever his status or influence, he remained a self-declared combatant and I see no basis for distinguishing that from continuing to wear a combatant uniform. Once you declare a war, you are at war until you are either killed, surrender or declare the war over. Neither OBL personally, nor AQ generally did any of these things.
4. And, even assuming that his continuing active participation in AQ was a prerequisite, it is by all means certain that it that he still participated. The super-secret couriers were for what–handing out birthday greetings and maintaining social correspondence? And the phone call with the other terrorist that finally located the super-secret courier was just a “Hello, how are you? Just thought I’d risk my deep cover to chat a bit. How are the wife and kids?”
5. The argument that we could not go into Pakistan is equally fallacious. First, it is dependent on OBL just being a civilian. Second,it suggests that Pakistan would need to request us to come in, rather than consenting. And it apparently assumes that the request/consent must be for a specific operation, as opposed to a general “yes, if you find OBL, you can kill him.” I won’t even go into the fact that it is painfully obvious that yes, Pakistan is a base for combat against the US. And, as someone pointed out–absent Pakistani objection, nobody has standing to complain that it is illegal. Consent is a defense to most crimes. Volenti non fit injuria.
7. Finally, the most telling thing, I think, is this:
In this view of international law, there is a “loophole” for non-traditional “network” combatants. You can be the self-proclaimed and publicly undisputed leader of the combatants, but your enemy may not attack you unless it is “certain” that you are more than an inspirational figurehead. The network organization makes it impossible to determine who issued what order, therefore you are immune from ever becoming an enemy combatant. Sweet. Even better, this is true regardless of your or the combatants’ claims to the contrary.
Finally, is the standard in war really “certainty” as opposed to say a reasonable, or even high degree of confidence? In that case one cannot avoid committing war crimes unless one always has perfect intelligence. In other words, one cannot legally fight at all–which is, I think the real thesis of the article.
May 4, 2011, 9:08 pmSteve2 says:
The only legitimacy jus cogens has is the legitimacy that treaties assign to it.
I’ll be honest, though, I’m coming from the viewpoint that there should not be international law besides treaties – and that a great many treaties and conventions currently in force should never have been entered into and should be mutually dissolved by all parties.
May 4, 2011, 9:33 pmStash says:
It certainly may be the case that he could have been captured. I doubt very much that he was put in cuffs and custody before he was shot. Surrounded, unarmed, and outgunned perhaps. That does not mean “captured.”
I think the legal (as opposed to moral) question is whether he surrendered. I do not think you are obligated to capture unless an unconditional surrender is offered.
Hence, if OBL was on his knees with his hands in the air, yelling “I surrender” I’d probably reluctantly say you were right. But that does not appear to be the case. Footage of OBL begging to surrender to Americans would have probably been worth keeping him alive.
Could they have obtained physical custody of him by force? Probably, but I do not think they were obligated to do so under the laws of war. How would they know he did not have a concealed weapon or bomb vest under his robes, and were they obligated to take that risk in a war situation against an avowed enemy who had not surrendered? I do not think so.
May 4, 2011, 9:38 pmStash says:
Der Speigal article now supports killing bin Laden:
Compare article’s statement:
with this:
Phew. Glad that’s cleared up. Much ado about nothing. Herr Professor Doctor must now agree that OBL was a legitimate enemy combatant and not a harmless retiree who had given up his terror command. See, no disagreement on this issue after all.
May 5, 2011, 12:34 amNeal Deesit says:
@ Steve2 “No, either it can send you to jail or it isn’t law.”
Tort law. Google it. You might be surprised.
“An ‘oral contract’ isn’t a contract at all, it’s a gentlemen’s agreement”
Oral contracts not within the Statute of Frauds are the basis of countless civil suits, in which standard contract law applies. Nobody adjudged to be in breach will go to jail for it, another counterexample to your first statement above.
May 5, 2011, 3:30 amRagebot says:
Actually William Kidd is a terrible example. He is usually viewed as a privateer, not a pirate; not that he could not have been both. He was not really captured by the British Navy, rather he was lured into a trap in Boston by one of his backers, Bellomont, who was afraid of English retribution if his true role was known; Bellomont then turned Kidd over to the English and he was returned to London for a trial.
Blackbeard may be a better example of a real pirate killed while fighting to avoid capture. But there are also questions about his role as a pirate as opposed to a privateer. There is also the issue of his duplicity in asking for, wanting, rejecting, and playing the system that was granting clemency if pirates gave themselves up.
May 5, 2011, 10:06 amAssistant Village Idiot says:
Steve – excellent points.
May 5, 2011, 10:32 amHm. says:
Jus cogens does not require a treaty to exist. Treaties are mostly banal legal documents that assign obligations to party states. I remember one of my professors saying that treaties aren’t even considered international law unless they start affected non-party states. In which case, the statute itself has become a norm/custom.
In my study experience, statutes carry the least weight in international law. They’re just words. If you’re stronger than your treaty counterpart(s), you can violate a treaty with little to no consequences. Norms, however, come with the consequence of losing legitimacy. If you want don’t want to be seen as another North Korea, you don’t violate treaties. That is a norm and it’s the reason why, I believe, most international law is followed by most nations most of the time.
I think your idea that international law should exist only in treaties is radical. The laws of war existed long before they were ever written down in a treaty. I think that you’re idea requires the assumption that the international system is not anarchic. In domestic arenas, laws only exist when they’re written because the state has to let its people know what they can and cannot do. In the international system, law only exists when states — at the very least, Great Powers — recognize and legitimize the law. This is fundamental to understanding international relations.
If states didn’t exist in a system of anarchy, then I think international law would begin to resemble domestic law. But even people who think a world state is inevitable will say that it’s not going to happen for a very, very, very, very long time.
May 5, 2011, 1:00 pmEpstein's Mother says:
@Neal Deesit, I think you are missing Steve2′s point. International relations theory is based on recognition of an anarchic, “self-help” environment. Contracts, oral or written, are enforceable in a domestic context only insofar as there is some kind of recognized arbiter and enforcement mechanism. There is no such thing in the international context. Even the UN and the ICJ are not universally recognized as legitimate (the US thumbed its nose at the ICJ decades ago); and certainly no enforcement. So, in reality, all public international law is a set of self-enforcing gentlemen’s agreements. And like the gentlemen’s agreements of old, they are enforced either through shunning and in-kind retaliation (which is why everyone recognizes diplomatic immunity — because everyone needs it in their own situation), or via duels (i.e., wars).
As the Athenians told the Melians:
May 5, 2011, 4:10 pmHm. says:
I would disagree even here. I think legitimacy plays a huge part in domestic law. Not only does the law need to be seen as legitimate for people to follow it, but it also needs to be seen as legitimate for the enforcers to enforce it.
The existence of the state is really a gentleman’s agreement, if that’s the term we want to use. Revolutions have happened against armed states. What is a revolution if not a declaration that the laws of a state (or the state itself) are not legitimate? I think you tacitly acknowledge this when using the term ‘recognized.’
The problem with viewing law through the lenses of first-face power (coercion) is that people have violated and continue to violate law regardless of the enforcer’s coercive power. I think this applies to international law, as well. Coercion is really a background element. The real power of international law is in legitimacy.
May 5, 2011, 4:24 pmSteve2 says:
What you describe just seems more to me like voluntary self-restraint on the part of the Great Powers than actual “law”. And with a treaty, at least you’ve made a formal promise to do or not do something, which you can be held to, and you’ve got the elements of a contract: a meeting of the wills and a consideration. Customs and norms, on the other hand, are just other people’s expectations that you’ll do something. If it’s convenient for it to do so, seems like a Great Power is just as able to violate those expectations with little to no (material) consequences as it is to violate a treaty.
And I’m not assuming the international system isn’t anarchic. Quite the opposite: I believe it is anarchic, it should be anarchic, and non-statutory/treaty international law is an illegitimate effort to make it non-anarchic.
Basically… unless a country’s signed a treaty saying they won’t conduct wars of aggression in Imperial Mongol style, I don’t think there’s a valid basis for saying it’s illegal if they do it. Of course, I also don’t think there’s any reason they shouldn’t do it if they can get away with it.
May 5, 2011, 6:51 pmEpstein's Mother says:
I don’t disagree with you there, but that doesn’t contradict my point. Legitimacy is important: enforcement is not just important, it is sine qua non. In addition, for international law, you don’t even have any legitimacy, except where treaties and customary international law (very broadly understood) are concerned: unless a state is party to an agreement or it reflects national interest, there is no reason to expect that the citizens of that state will view the international precept as legitimate (e.g., the United States or China — take a poll on anything other than the fuzziest concepts and I doubt you’d see much support for international law where it conflicts with national interest in either of those countries). So you have no legitimacy, no shared philosophy, and no enforcement. That’s not even a gentlemen’s agreement — that’s at best a bromide.
Further, without enforcement, any legitimacy you have will rapidly evaporate. It’s a little like the quote from Jack Handey: “I can imagine a world without wars, a world without hate. And I can imagine us invading that world because they’d never expect it.” If you’ve got no enforcement, all you need is one “defector” from the consensus and the consensus falls apart.
May 5, 2011, 7:24 pmHm. says:
I disagree. I think it’s almost the exact opposite. Norms are expectations not rooted within law, but within consciousness itself. I think that necessarily puts it ‘above’ statutory laws in a kind of power hierarchy. We didn’t really need a law against genocide for that act to be illegal.
In fact, the Holocaust wasn’t statutorily illegal, as the Convention on the Prevention and Punishment of of the Crime of Genocide wasn’t written until 1948. But I think it would be difficult to argue that people didn’t think the extermination of Jews was illegal just because Germany hadn’t signed a treaty about it.
Yes, there is a hierarchy of norms, where some aren’t as powerful as others. But a Great Power is not likely to violate a norm that it has internalized. There are some things that the United States doesn’t do simply because they’re uncivilized or “the wrong thing to do.” Even if there was incentive to go against a norm, especially the jus cogens, it’s unlikely for a state to do so.
You don’t think that’s an incredibly unwise and dangerous system? That kind of system did exist in the world at one point. We base the legality of wars on the illegality of actions to which wars are responding. In a system when illegality of an action can only be determined on the basis of a treaty — in other words, an action would only be illegal if the perpetrator says so — then the likelihood of being punished for any act is nearly zero.
I agree that enforcement is important in and of itself to punish defectors, only so far as defectors are by and far a minority.
I disagree that there’s no legitimacy in international law. Just speaking of first-face power, legitimacy would come from the hegemon or from the Great Powers via their coercive abilities. For other faces, namely the fourth face (being able to label things as legitimate or illegitimate), I think you have to be ignoring a lot of things — namely, the existence of norms — in international relations to come to conclude that there is no legitimacy-type power going on.
It is probably too theoretical to place so much emphasis on coercion/enforcement for the validity and agency of law, either domestic or international.
Domestically, it’s a fact that police and other law-enforcement agencies are absent in every-day life more than they are prevalent. Each day, I could break any number of laws — traffic laws, vandalism, etc. — and not face any consequences. But how many people actually do that? It’s the classic scenario of whether or not you would run a red light if there were no police, no children, or no animals around to cause any kind of consequence. The only consequence would be you knowing that you broke the law.
When you think about that scenario, most people tend to come to the conclusion that they would conform to law in cases like that. In these cases, there is no coercive enforcement going on. They follow the law because they view the law as legitimate. In that same way, millions of people illegally download music, TV shows, and movies, because they don’t view it as wrong. It’s certainly true of career pirates that they don’t see the copyright laws as legitimate, so they don’t follow them, regardless of the presence of ICE and the multi-million dollar lawsuits that get filed periodically against illegal file-sharers.
Enforcement is only as powerful as (a) the enforcer’s willingness to go to great lengths to enforce the law and (b) the peoples’ willingness to view the law and its enforcement as legitimate. To take this to a serious level, we can discuss civil uprisings. In some cases, enforcers won’t be willing to violently crack down on civilians. After all, they’re never viewed as the good guys in that case. But to a greater extent, civil uprising can turn into revolutions when enforcers lose their legitimacy, regardless of the enforcer’s coercive power and ability. (Though, that obviously doesn’t speak to the success of revolutionary movements.)
May 5, 2011, 9:07 pmSteve2 says:
See, I don’t think the Holocaust was illegal at all, as the Convention wasn’t written yet (and shouldn’t be binding on non-party states since they’re outside its jurisdiction) and so genocide has only been a crime since 1948. The Holocaust was mean, bad, cruel, unjustified, etc. – but I think to say it was illegal is wrong. I think the Allies were right to kill Nazis after the war and I think they were right to do it specifically because of acts they’d determined those particular Nazis had done, but I think they were wrong to say that those Nazis had violated any laws.
Whether it’s “unwise” or “dangerous” doesn’t concern me – I believe that system was valid and I want that system back. May be related to my social Darwinism, I don’t know, but I see the current system as prey dictating terms to predators and I don’t like it. And, I don’t see increasing “the likelihood of being punished for any act” as a desirable outcome on the international level. That may be related to a different part of my worldview, which is that on an individual level there are exactly three types of people in the world (1, yourself; 2, your friends; 3, people who don’t matter) and those three categories transfer to the state level (1, your own populace; 2, your allies’ populaces; 3, people who don’t matter).
For what it’s worth, I run that sort of red light (and stop sign) routinely.
May 5, 2011, 9:44 pmSpecial Edition Roundup: OBL’s Killing under International Law (**UPDATED**) « The Lex Specialis says:
[...] Der Spiegel and International Law: Kenneth [...]
May 6, 2011, 8:17 amEpstein's Mother says:
You’re absolutely right on that point: There are some things a state — particularly a liberal democracy like the United States — would never do because they are uncivilized and wrong. You know, things like torture; invading other countries without serious provocation; withdrawing from treaties with no notice even when the terms of the treaty mandate 6 months; etc.
No offense, but seriously?? I’m not suggesting that the United States is psychotic and violates international “norms” for kicks. But can you think of even one situation where the long term national interests of the US ran one way but the US failed to act in those interests because of international law? Because I can show you an awful lot of cases running the other way: torture (check); unrestricted submarine warfare (check); bombing population centers (check); blockading a country without being at war with it (check); mining a country’s ports without being at war with it (check); withdrawing from the ICJ (check); invading neighboring countries without being attacked first (check)(check)(check)(check)(check).
May 6, 2011, 11:44 amEpstein's Mother says:
I think you are also misunderstanding how international law used to work and how current interpretations are so problematic. My views perhaps differ from Steve2′s a bit, because I will accept that international norms exist. But they are also self-enforcing or else relatively meaningless. Diplomatic immunity existed as an international norm for hundreds of years, because it was self-enforcing; you don’t respect it with our diplomats, we won’t respect it with yours. Where invading your neighbors is involved, this is also self-enforcing — do it too much, and all your remaining neighbors are going to join forces against you. After all, Britain, Austria and Russia didn’t need a treaty to join forces against Napoleon, nor did Britain, the US and the Soviet Union need some kind of international legal framework to unify against Nazi Germany.
But that also underscores part of the current problem. International law since the Treaty of Westphalia revolved around the concept that states interact with each other, that states are the premier legitimate international actors, and one of these ways of interacting is through war. Since war is so destructive and we want to avoid it, international law built in also sorts of protections — the requirement that soldiers wear uniforms; that violence against a country emanating from another is imputed to that other; that where a country can’t keep violence from spilling across its borders, that other countries can invade and “clean the place up” (as Britain did with Madagascar); that you don’t put war materiel on a hospital ship; etc. After WWII, there was an idealistic attempt to “outlaw” war, and the creation of new institutions. But wishing don’t make it so, and the result was that we’ve undermined many of the protections for civilians that were built up over the past 400 years (such as, in an attempt to be kind to third world revolutions, relaxing the uniform requirement or recognition of states as the premier international actor). At the same time, these new institutions fail to address Clausevitz’s fundamental point that warfare is a natural form of interaction between states and you aren’t going to eliminate it with just pretty words.
May 6, 2011, 11:56 amHm. says:
You’re playing with semantics, then. Nazis were punished for behaving in a certain way. That sounds an awful lot like Nazis violated law. In an anarchy, ‘law’ doesn’t have to be written down to exist. International criminal law was formed in part through the Nuremburg Trials. The actions taken by Nazis were illegal on the basis that those who mattered believed that they were illegal. Could you really imagine any other system existing? Is anybody going to seriously argue that the Nazis would (a) sign a treaty preventing them from massacring Jews or (b) find the treaty legitimate and applicable if it was signed before their rise to power?
Yes, in principle the system of Great Powers determining international law is not good. But there’s little alternative available. The formation of institutions and the increasing relevance of institutions is the only way to move the system away from Might Makes Right kind of thinking. Your ideas, however, would simply turn the world into a lot of isolated nations.
So much work has been done to reverse the kind of thinking that people who aren’t your friends don’t matter. I seriously doubt that when you see videos of people in non-US allied countries being beaten to death, gassed, and generally massacred, that you think, “Pfft. They don’t matter.” And if you do, that simply means there’s still more work to do to rid the world of outdated thinking.
Yeah, I’m not sure why I would be surprised by that. I’m sure you’d also murder a stranger if nobody would ever find out about it.
Regarding torture, I think you’re not looking at it close enough. First of all, the Bush administration wasn’t exactly a fan of international law (or international anything), so arguing against a fairly well-established principle in international relations (both theory and practice) on the basis of that administration is not the strongest argument that could be made.
Second, look at the lengths to which the Bush administration went to prevent the public (and other nations) from finding out about ‘harsh interrogation techniques.’ The fact that the administration went through a long process of legal loopholes to convince themselves they weren’t actually committing torture speaks to the idea that ‘torture’ is normatively reprehensible.
Furthermore, torture (and for that matter everything else you listed) is not part of the jus cogens. There may certainly be norms associated with those acts, yes. And I still maintain that it is unlikely for a state to go against a norm, especially the jus cogens. You’ve shown aberrations, but you haven’t shown the whole picture. It’s correct to say that people are not likely to commit murder or any other serious crime. You can’t invalidate that by listing a few serial killers.
I’m not sure what you’re trying to argue here, if you’re trying to argue some opposing viewpoint. I don’t think wars are ever going to stop. No serious IR scholar does. The goal of international institutions is to foster and strengthen cooperation so that wars are less likely. There will always be outliers and war will always be a legitimate response to them. However, the laws of war, IHL and IHRL have advanced tremendously since the first two World Wars. It’s silly to take the position that international customary law (or any other law than treaty (contract) law) doesn’t matter and doesn’t count as ‘law.’ How much non-banal international law started off as customs and norms?
May 6, 2011, 8:14 pmEpstein's Mother says:
Again, and no offense, but from a historical perspective, that’s just silly. The United States government has used torture in one form or another through most major wars. The only difference with this one was: (1) it wasn’t kept secret, and (2) the administration in question tried to justify it in legal terms. In previous wars — particularly WWII — the government would just do it and never talk of it again.
And, of course, Bush was not the only US president with considerable disdain for international law. Reagan, Nixon, Johnson, and Kennedy also fall into that category, with only Kennedy attempting to use semantics to get around the issue (“it’s not a blockade — it’s a quarantine!”)
And Steve2 is not alone. If it’s a deserted street and there’s no one around, I go through stop lights and signs as well. Why the hell not? Do you really equate legality and morality like that?
May 7, 2011, 12:41 amEpstein's Mother says:
Come to think of it HM, on that list of presidents with obvious disdain for international law (in practice, if not in words), I forgot to add Clinton and Bush I. Clinton fired missiles into a variety of countries — or, in the case of Pakistan, over a country — in direct violation of international law. And Bush I, of course, invaded Panama and arrested a leader with clear sovereign immunity. So, in the post WWII era — the era I believe coincides with a clear overstepping of the bounds of traditional international law, we’ve had 12 president and only Truman, Eisenhower and Carter seemed to have any real regard for international law. 3 out of 12 isn’t much of a track record.
May 7, 2011, 12:48 amGogo Erekosima African Innovation Project says:
I have no academic background in international law, and my exposure to international relations and legal frameworks is limited to a few 400 level college courses in Government & Politics and International Economics.
As much as your article irritated me, I’ve also found it liberating. You see, up until I read your article and an article (on ProfessorBainBridge.com http://www.professorbainbridge.com/professorbainbridgecom/2011/05/the-germans-are-annoying-me.html) that led me here, I was under the impression that “international law” had to operate under the semblance of an abstract legal framework, whether it actually is or is not.
You have disabused me of that mistaken notion. If I’m understanding your article correctly, it is generally understood that at its core, international law is a political framework (not just in spirit, but maybe even in “the letter?”).
I believe that Obama made the decision he had to make. I have no qualms about that…my concern as an African thinker, and as a moral but pragmatic human being is the precedent for another leader who IS NOT Obama, who may or may not be American…
Chinese, Russian, African or other autocratic regime…. Where will they pick and choose to “drop in from the sky”?
Will African or other developing world cities be the common “Abbottabads” of the future?
My assertion in a recent post on the African development facebook blog was that “There is no rule of law in international relations”… I meant that statement and I thought I was delivering “news”.
Instead, if your assertions in this article are to be believed, these German commentators (who also irritate me with their “moral righteousness” but who I believed to be correct) are actually on the “dreamer” edge of international law.
May 8, 2011, 6:58 amEpstein's Mother says:
Gogo Erekosima, I believe you are touching on the difference between the post-1945 framework and the pre-1945 Westphalian framework. Post-1945 is a mess (in my opinion) — a very idealistic framework with no bearings in how states actually interact with each other, predicated on the UN having a role similar to a super-national government that, by 1949, it was clearly not going to have. The pre-1945 framework was predicated on a few very simple points: (1) states are sovereign, and other states do not have a right to interfere in the domestic affairs of a given state (regardless of how atrocious); and (2) states are responsible for any activity within their control that has a “spill over” effect on other states, and any such activity can be imputed to that state (hence mercenaries, pirates, rebels, etc. based in one country can open that country up to attack by another). WWII changed that paradigm, mostly because the same gov’t that clearly violated the “rules” by invading its neighbors with no provocation (and keep in mind that Hitler actually tried to “play by the rules” with some of his invasions) also “shocked the conscience” of so many via the Holocaust. In the good old days, of course, (and the way the Soviets would have preferred to play it), the Nazi leaders would have just been executed without trial, as was the traditional way of handling these things. But, given the times, a trial was decided to be best, even though it very much did not fit the framework.
Given your question, would an African or other developing world city be the next Abbottabad? I suspect that would depend on whether that city is hosting someone or something that is acting in a warlike manner against another state and the African country in question is either unwilling or unable to do anything about it. That’s a longstanding international “rule” that goes back 200 years to Madagascar’s (unwilling) hosting of pirates preying on British merchant ships. The current raid in Abbottabad is based on that same precedent. (The same precedent, incidentally, which underlies why Swiss mercenaries protect the pope — part of the treaty prohibiting Swiss mercenaries, which used to be Switzerland’s primary export, included a carve-out for the Vatican.)
As for China, Russia, etc. — they already do. See “Georgia, invasion of.” See also “Sino-Vietnamese War of 1979.” It’s like the Thucydides line I quoted above: “…it is not as if we were the first to make this law, or to act upon it when made: we found it existing before us, and shall leave it to exist for ever after us; all we do is to make use of it, knowing that you and everybody else, having the same power as we have, would do the same as we do.”
May 8, 2011, 1:18 pmRedBaron says:
To the author: judging by tone and argumentary line of ur comment one could get the idea that the tickle u got from der spiegel was not so much the legal opinion expressed but the mere fact of some “old europe” professor critisizing the “pragmatic” approach to justice chosen by the US administration.
May 10, 2011, 11:35 pmAs to the academic esssence of ur commentary, it seems u are lacking the basic understanding of rule of law, left aside knowledge of IHL.
Good night and good luck.
The International Jurist › Osama Ben Laden’s Demise and the Urgent Need to Clarify the International Law of Counter-Terrorism says:
[...] a post reacting to a Der Spiegel article unequivocally critical of the United States’ killing of Ben [...]
May 11, 2011, 9:32 amEpstein's Mother says:
RedBaron, speaking of academic essences, you might want to check on that. Under most theories of rhetoric and logic, an assertion is not itself an argument. Even under a civil law tradition, evidence is helpful.
May 11, 2011, 10:53 am