The Volokh Conspiracy

U.N. Security Council Resolution passes 10-0. Live feed from Benghazi on Al Jazeera English. The Resolution authorizes “all necessary measures” except military occupation of Libya. By my reading, the authorization includes destruction of Gaddafi’s anti-aircraft defenses, and of his air force and its mercenary pilots. As President Reagan once said, “We begin bombing in five minutes.” I hope.

UPDATE: Wall Street Journal reports that Egyptian army is shipping arms to the Libyan “rebels.” Which is to say, to the legitimate government of Libya. As the Declaration of Independence affirms, the only legitimate governments are those founded on the consent of the governed. Accordingly, the Gaddafi gang was never a legitimate government, merely a large gang of criminals who controlled a big territory. The French government’s diplomatic recognition of the legitimate Libyan government reflects this fact. @liamstack reports that France says it will be ready within hours to fly over Libya. @lilianwagdy says that Libyans in France are chanting “Zanga Zanga, Dar Dar, We will get you Muamar!” Vive la France! Vive Sarkozy! Vive les droits de l’homme!

Right here, provided by the Inner City Press, which has long been the best English-language media covering the United Nations. The resolution authorizes member states–acting either through regional organizations or nationally–to “take all necessary measures” to establish a no-fly zone over Libya. It further authorizes the member states to enforce the arms embargo against Libya by interdicting ships on the high seas. The resolution forbids the establishment of an occupation force. A vote is set for 6 p.m. Eastern Time. On Twitter, @SultanAlQassemi writes that according Al Arabiya’s UN correspondent, China, Russia, and South Africa (in other words, the pro-dictator caucus on the Security Council) and two other countries will abstain.

(Update: Pleased to see that the Journal has appended the following correction to the online edition:)

An earlier version of this story mistakenly reported that the Obama Administration is sending Additional Protocol 1 for Senate ratification. It is treating Article 75 of Protocol 1 as legally binding, though it has not been ratified by the Senate.

(Update 2:  John Bellinger, who knows this matter better than anyone (possibly excepting Matt Waxman), has a must-read post on the Obama administration’s international law framework in the “fact sheet” at Lawfare.  Among other things, he points out (and I stand corrected in my post below) that the administration has not claimed that Article 75 is actually customary international law:

It is also important to note that (contrary to the views of four present or past justices of the Supreme Court) the Administration has not concluded that Article 75 already constitutes “customary international law.” This would have required the Administration to determine that almost all the states in the world accept Article 75 as a legally binding obligation, which would have been difficult to do. Instead, the Administration has announced that it will “choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual detained in an international armed conflict, and expects all other nations to adhere to these principles as well.” In other words, the Administration is saying (appropriately, in my view) that it will lead by example by attempting to create customary international law through state practice.

In addition, he comments on the question of whether the administration will apply Article 75 to non-international armed conflicts and non-state actors such as Al Qaeda:

The Administration states that it will apply Article 75 only to individuals detained “in an international armed conflict.” The Supreme Court in Hamdan, by contrast, concluded that the U.S. conflict with al Qaida is a “non-international armed conflict.” Accordingly, it is not clear whether the Administration disagrees with the Supreme Court’s characterization of the conflict or whether it actually intends not to apply Article 75 to current al Qaida and Taliban detainees. If the Administration does not, in fact, plan to apply Article 75 to current Al Qaida and Taliban detainees (or to other non-state actors captured in non-international armed conflicts), then the White House’s announcement, while still laudable, is considerably less significant than it first appears.  My assumption is that the Administration does plan to apply Article 75 to al Qaida and the Taliban and that it does not agree with (or overlooked) the Supreme Court’s conclusion that the conflict is a non-international armed conflict.

(Update 3.  International law scholar Marko Milanovic, writing at the EJILTalk blog, offers a very useful discussion of John Bellinger’s post, above, running both to the status of Article 75, and more generally about the nature of opinio juris.  Let me just add in passing that I haven’t cross-posted this to the Opinio Juris blog as it is in the middle of a symposium that I don’t want to interrupt with outside posts.)

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Unless I seriously have misread something in either today’s Wall Street Journal editorial on the Obama administration’s new executive order on detention, or else the Obama administration’s “fact sheet,” released yesterday with the text of the executive order, the Journal editorial is seriously factually mistaken as to the adminstration’s international law position.  The Journal editorial says, with respect to its “one exception” to the general praise it bestows on the policy:

The other note of trouble is Mr. Obama’s decision, also announced yesterday, to seek Senate ratification of a radical 1977 revision to the 1949 Geneva Conventions known as Additional Protocol 1. President Reagan repudiated Protocol 1 in 1987 because it vitiated the distinction between lawful and unlawful enemy combatants. Terrorists fight out of uniform and target civilians and thus do not deserve traditional prisoner-of-war protections. This was the two-decade political consensus until the Bush Presidency. Both the New York Times and the Washington Post editorialized in favor of Reagan’s Protocol 1 decision.

Our guess is that Mr. Obama has adopted Protocol 1 to appease the domestic left and especially the “international community” that will be dismayed by his new embrace of Gitmo and George W. Bush’s policies. Remember the moralizing Europeans? (See here.) Mr. Obama is nonetheless complicating the task of U.S. terror fighters, and encouraging further barbarism, by extending the laws of war to terrorists who hold combat restrictions in contempt.

The problem is, that is not what “fact sheet” says.  (The Executive Order on detention does not address these broader policy issues at all, and is confined to the internal workings of detention and hearings.)  The “fact sheet” gives a broader statement of US views and policies, including what it describes as a commitment to the international law framework that informs the law and policy.  In its section on international law, it commits itself to two things, neither of which is “seeking ratification of … Additional Protocol 1.”

The first is a commitment to seek ratification of Additional Protocol 2 (not 1).  This second additional protocol to the 1949 Geneva Conventions (like Protocol 1 opened for signature as treaties in 1977) addresses aspects of non-international armed conflict.  The United States government under President Reagan did not have a problem with this protocol overall – the Reagan administration in 1987 submitted it for Senate ratification.  The Obama administration has merely called for the Senate to go forward with a ratification process initiated by the Reagan administration.

This is by sharp contrast, as the Journal editorial has said, with the Reagan administration’s views of Protocol 1, which provides a redrafting – in some ways good, but in some enormously important things bad, as the Journal correctly says – of the law of international armed conflict.  But the fact sheet nowhere calls for ratification of Protocol 1, and indeed says that the “Administration continues to have significant concerns with Protocol I.”  A straight reading of the fact sheet says that the Administration would like to see a relatively uncontroversial and uncontested treaty on non-international armed conflict that was endorsed by the Reagan administration finally ratified, and that the Administration continues to have problems with Protocol 1 and is not pursuing ratification now any more than it or any administration subsequent to the Reagan administration has done.

Second, what the fact sheet does say about Protocol 1 is that the United States will embrace one article of it, Article 75.  The US government embraces Article 75 as something it has long done and accepted, and therefore the United States will

choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

The fact sheet does not say that the US will regard Article 75 as “customary law,” but that is the effect of the US saying that it will adhere “out of a sense of legal obligation.” Meaning that the US will follow this provision because it believes that it is binding law and on that basis expects other states to do the same.

What is Article 75?  It is a provision of Additional Protocol 1 applicable in “international” armed conflict that provides for certain basic minimums, so called “fundamental guarantees.” It repeats language in many other conventions concerning torture and what was at the time of drafting understood as a reference to rape and sexual assault – “outrages upon personal dignity” and “indecent assault,” and provides special protections for women held in detention.  (I’ve put the text in full below the fold.)

Article 75 has particular reference, however, to trials of a person detained under the laws of international armed conflict.  Its most basic provision is that there shall be no summary execution, and that prior to the imposition of a penalty, the accused be afforded a hearing and certain other minimum protections.  But it is pretty minimal.  It specifically contemplates that a Party to a conflict might impose the death penalty; it requires some additional process, but not really very much.  It provides for counsel – but does not assume that the counsel shall be a lawyer, but might be a fellow detainee.

Article 75 came to prominence as a source of law that might be applied in the Bush-era detainee cases as a set of minimum standards of hearings, and so on.  The difficulty on its face is that this is a provision in a treaty applicable to international armed conflict, and the conflict with Al Qaeda was rapidly being characterized as a non-international armed conflict.  There was a move to treat Article 75 as “customary” law that could be somehow treated as applicable across all forms of conflict.  The Supreme Court, in its Hamdan and related decisions, raised these possibilities without actually settling anything about Article 75.

I myself do not have a problem with treating Article 75 as a source of law that the US should use to guide all hearing processes of detention, in international or non-international armed conflict.  But that is a matter of choice by the United States, not in my view compelled by a provision of a treaty governing international armed conflict to which, additionally, the US is not even a ratifying party.  I am okay with the US applying this as a standard in non-international armed conflict on a voluntary basis, provided however that the standard of care taken be the same for all parties as the minimum.   The problem with how some discussion of Article 75 proceeds is that the assumption is one of “greater capacities, greater obligations.”

In this, the underlying assumption goes to a larger discussion today over the laws of war – viz., if you have greater capabilities or capacities, whether to use precision weapons, to hold more “formal” and “lawyerized” trials, etc., you have a legal obligation under the laws of war to do so, even if your enemies on the other side, lacking the capacity, do not do so and are not required to do so. This “each according to his capacities” re-write of the laws of war seems to me a terrible idea.  It gives each side, but particularly the weaker side, incentives never to develop such capacities, to start with – not just in technology, but in the ability to hold prisoners, conduct hearings, etc.  It similarly disincentivizes the more sophisticated side from developing such things as better precision weaponry, if the effect is to tell you that now you’re required to use it irrespective of what the other side does or your own concerns about resources and application of them.

I wondered about this trend back as precision weapons were becoming cheaper and more available, while working for Human Rights Watch in the early 1990s, and asked senior people at the International Committee of the Red Cross whether there would be an obligation upon one side, but not the other, to use such weapons: the capacities approach, creating unequal obligations upon the sides.  And I was told in no uncertain terms that this would never be the case – each side held to exactly the same standard was firmly asserted as the only sound basis for holding sides accountable. Well, time passes. I’m not entirely sure where the leading monitors are on this question, these days, but the hot discussion in cutting edge academic circles is, indeed, toward a capacities approach overall to the laws of war.  To which I am unequivocally opposed.

However, whatever risks one sees in a capacities approach combined with a view that Article 75 is customary law applicable in all forms of conflict, international and non-international, that is not actually what the Obama administration embraces in the fact sheet.  The fact sheet takes Article 75 on its own terms and in every instance refers to “international armed conflict.”  That’s it.  It embraces Article 75 on its face, as an obligation of states in international armed conflict.  That is not even addressing the kind of non-international armed conflict references that surface in the Supreme Court opinions or the concerns about non-international armed conflicts and terrorist detentions that the Journal mentions.  It is a position urged by Bush administration State Department Legal Advisor John Bellinger and numerous others, including me.

I am not exactly a cheerleader for the Obama administration, and my view of ratification of Protocol 1 is probably identical to the Journal’s.  But I think the Wall Street Journal editorial simply gets its facts wrong in this case.  My recommendation to the Journal is not to try and bluff and bluster out of it – claiming that what is said about Article 75 is enough to justify what it says about Protocol 1 in total, for example.  Better in this case to admit that it read, and wrote, too quickly, and made a mistake about what the Obama administration has said and done.

(And who knows, maybe I have read the editorial too quickly, or the fact sheet and order too superficially and have missed something major, in which case I am happy to be corrected and will says so.  But at this moment I don’t see it.)   Below the fold, the text of Article 75. Continue reading ‘Wall Street Journal Mistaken About the Obama Administration and Protocol I?’ »

A few days ago, I asked the question (over at the international law blog Opinio Juris), what are the best legal arguments that would permit or preclude military intervention in Libya, by the US or some other party or parties, on humanitarian grounds (other than rescue of one’s own nationals)?  The question generated an illuminating array of responses, which I wanted to categorize and expand upon here, but starting with some observations on the law and politics of US policy on intervention, as touching on Libya and beyond. (You should also check out Jack Goldsmith’s discussion of US domestic law relevant to intervention at Lawfare.)

I.  Intra-USG Politics

So far as I can tell as an outsider to government, the appetite inside the administration, DOD, DOS, or anywhere else where I’ve been able to glean, for any military action on the ground is way, way, way less than zero.  Since that almost certainly mirrors US public opinion, that is not a surprise.

But even limited to air action, my personal impression, fwiw, is that the appetite inside the administration to try and undertake a no-fly zone, by ourselves or in coalition, is also zero. The military is deeply opposed (and not just Gates).  I’ve informally spoken with a number of officer friends who think the US trying to do this, whether alone or with the blessing/participation of other parties – including, interestingly, even if blessed by the Security Council – is prudentially a terrible idea.    The idea of the US involved militarily in conflict in yet another Muslim country seems to them a very bad idea, resources are already stretched thin, and no fly zones lead to many unpredictable and unanticipated entanglements. (But maybe this is changing and the administration is swinging round to support a no-fly zone, as Jack’s citations to various administration spokespeople might suggest.)

Calls to create a no-fly zone have been expressed loudly by Republicans and “revived” neoconservatives; the Wall Street Journal has an editorial calling for exactly that this morning. As widely noted, it has revived a sharp debate over Bush-era neoconservative foreign policy idealism, grounded in pressing for democracy and liberty for the Middle East.  It is a position long ridiculed by conventionally realist conservatives including George Will, but more importantly also attacked by what I have sometimes called the Obama administration’s “New Liberal Realists.” (I explain these categories in more detail in a long review essay, “Goodbye to all that? A requiem for neoconservatism.”) There have been some calls for the creation of a no-fly zone by liberal American foreign policy idealists, notably former Obama administration DOS official, Anne-Marie Slaughter – now out of the administration and back at Princeton (and of course her views on this are evolving with the situation; this should not be taken as necessarily her last word).

I am no expert on Libya and express no view at this point on the prudential or strategic aspect of this.  However, the most striking comment I’ve heard came from a military officer who (like numbers of officers I’ve known) has always been skeptical of the CIA using force, including Predators in targeted killing.  This officer said to me, somewhat tongue in cheek, “Where’s the CIA?  Isn’t this what we’ve got a CIA for?  Isn’t this what you think the CIA is supposed to do?  Covert or at least deniable ops? Why don’t they go support the rebels and not pull us into an overt conflict?”

II.  The CIA, “Deniable” and “Covert”

Strategypage, as it happens, has an interesting report (H/T Insta) on special forces, commandos, and intelligence personnel on the ground in Libya now – saying in particular that Egyptian special forces teams are assisting the rebels now, and that some US personnel are on the ground, partly for intelligence but also to protect diplomats and other “nationals” assistance.  (It would be astonishing, of course, if many countries did not have intelligence agents on the ground in Libya, whether strictly to gather intelligence or to pursue particular country interests.) According to Strategypage:

The rebellion against the Kadaffi dictatorship in Libya has not produced any official outside help, but Egypt has apparently sent some of its commandos in to help out the largely amateur rebel force. Wearing civilian clothes, the hundred or so Egyptian commandos are officially not there, but are providing crucial skills and experience to help the rebels cope with the largely irregular, and mercenary, force still controlled by the Kadaffi clan. There are also some commandos from Britain (SAS) and American (Special Forces) operators are also believed wandering around, mainly to escort diplomats or perform reconnaissance (and find out who is in charge among the rebels).

Part of the question, if you want to intervene at all, is whether to do so with an overt military act such as a no-fly zone (including potentially having to attack air defense, aircraft, bases, etc. to establish it) – or instead to use “non-overt” intelligence agents or special forces.  It depends partly on what signal you want to send to other actors internationally. Continue reading ‘The Law and Politics of US Intervention in Libya’ »

Last week, I noted that Human Rights Watch had appointed Shawan Jabarin to its Middle East Advisory Board. Jabarin runs a Palestinian human rights NGO based in the West Bank. He also has been found in a series of Israeli Supreme Court opinions to secretly lead a double life as a top official of the Palestinian terrorist group, the Popular Front for the Liberation of Palestine.

Iain Levine of Human Rights Watch responds to the criticism here. (I find it interesting that HRW has decided to let Mr. Levine speak for the M.E. division; I think their p.r. people have realized that Ken Roth and M.E. director Sarah Leah Whitson are so hostile to Israel that they just add fuel to the fire whenever a controversy erupts). The thrust of his remarks is that HRW chose to disregard the Israeli Supreme Court opinions because they were based on secret evidence. (Since when is “secret” a synonym for “baseless?”)

Critic Stuart Robinowitz, who has longstanding ties to HRW, responds to Levine here. Robinowitz points out that Whitson and Roth, when recommending Jabarin to the HRW board of directors, asserted that he had discontinued his ties to the PFLP more than twenty-five years ago. Whitson and Roth failed to even mention the Israeli Supreme Court’s findings to the contrary.

Robinowitz concludes: “In 2006, Jordan barred [Jabarin] entry for security reasons. Do staff members of HRW have more reliable information about Jabarin than the supreme court and security services of Jordan and Israel?”

Understating matters considerably, Robinowitz told the Jerusalem Post that “the Jabarin incident, I believe, is part of a pattern of conduct that casts doubt about Mr. Roth’s and Ms. Whitson’s ability to deal with matters affecting Israel in a balanced and objective manner.”

[The comments section on the previous thread on this matter was far from enlightening, so I'm not going to bother with comments here.]

UPDATE: Anne Herzberg of NGO Monitor emails to point out a series of misstatements (i.e., lies) in Levine’s defense of Jabarin.

The most telling one relates to this claim by Levine: “In addition to his criticisms of Israeli violations, [Jabarin] has been one of the leading Palestinian voices condemning … suicide bombings and rocket attacks against Israeli civilians by Palestinian armed groups in the West Bank and Gaza.”

Hertzberg retorts: “I have been personally monitoring Al Haq [Jabarin's NGO] and Jabarin for nearly 5 years. I have never seen any evidence that either has condemned suicide bombings or rocket attacks.” I (Bernstein) checked Al Haq’s website, searching for, among other things, “rocket” and could find no criticism of Palestinian rocket attacks, suicide bombings, or other attacks on civilians.

And here, an official Al Haq statement explaining Jabarin’s position sure seems to try to differentiate between “Palestinian resistance” (i.e., Palestinian terrorism), and other forms of terrorism:

After the events of the World Trade Center on 11 September 2001 the United States succeeded in establishing linkages between legitimate resistance against occupation and terrorism. She has imposed its own definition of “terrorism” and considered the Palestinian resistance against the Israeli occupation as a form of terrorism. Such a position by the United States was in the interest of Israel and gave her an opportunity to relate the Palestinians legitimate resistance to terrorism also.

While there is no explicit defense of the suicide terrorism that was plaguing Israel at this time, it’s hard to read this statement as anything other than a claim that this suicide terrorism was in fact a form of legitimate “resistance.” Of course, this is hardly surprising for someone who is entwined with the PFLP terrorist group.

FURTHER UPDATE: I sent a polite email to Al Haq via its website asking for evidence that Jabarin has ever condemned Palestinian rocket attacks or suicide bombings. I’d be happy to publish such evidence if it were presented, but it hasn’t been.

Meanwhile, Kevin Jon Heller finds that Al Haq has, in fact, pointed out that Palestinian rocket attacks are illegal, albeit in one line out of thousands published in the last several years, so I hereby acknowledge that Al Haq has done so. Heller also finds one ambiguous paragraph in a press release that may or not mean that Al Haq claims to have criticized Palestinian rocket attacks.

Even reading these statements generously, they still don’t come close to justifying Iain Levine’s claim that Jabarin “has been one of the leading Palestinian voices condemning torture by the Palestinian Authority, and suicide bombings and rocket attacks against Israeli civilians by Palestinian armed groups in the West Bank and Gaza.” Indeed, the only statement I’ve found attributed to Jabarin himself is his claim that “Palestinian resistance” is distinguishable from “terrorism.” And of course, the most relevant point remains Jabarin’s ties to the PFLP.

You can’t make this stuff up.

Daily Beast:

The man at the center of the dispute, Shawan Jabarin, runs the human rights organization Al Haq in Ramallah on the occupied West Bank. In 1985 he belonged to a Birzeit University student group associated with the PFLP, indicted as a terror group, by 30 countries including the U.S., the European Union, and Canada. He was convicted of recruiting members for terrorist training outside Israel and served nine months of a 24-month jail sentence….

In its 2007 judgment, the [Israeli] Supreme Court found that alongside activity in [peaceful NGO] Al Haq, Jabarin was also a senior figure in the Popular Front terrorist organization: “This petitioner is apparently active as a Dr. Jekyll and Mr. Hyde. In part of his activities, he is the director of a human rights organization, and in another part he is an activist in a terrorist organization.”

Ken Roth, head of HRW, first denied that Jabarin was ever a member of PFLP, then claimed that if he was, it was ancient history, and then added that he had no such affiliation since he joined Al Haq in 1987, though Roth refused to comment on the Israeli Supreme Court ruling to the contrary.

HRW, of course, rests much of its criticism of Israel on “international law,” or at least its dubious interpretation thereof and of the relevant facts. Let’s note, meanwhile, that terrorist bombings of the sort that the PFLP has been guilty of for decades are against international law.
Where does that leave HRW’s vaunted concern for international law?

H/T: NGO Monitor

UPDATE: I’m not sure how to make this clearer, but given the initial comments let me reiterate that the Israeli Supreme Court found in 2007 that Jabarin was, at that time, a senior official in the PFLP. The issue was whether Jabarin could receive an entry visa into Israel. It was denied. He appealed to the Israeli Supreme Court. The Court found, based on intelligence information provided by the government, that he was in fact a terrorist, and barred him on that grounds. The Israeli Supreme Court, as is well-known, leans left on the Israeli political scene, and is not known for accepting government claims at face value (as when it ordered the government to change the routing of the security barrier, rejecting government claims that the barriers routing was all for security, and not at all political).

And Anne Hertzberg from NGO Monitor writes in to note that the Israeli Supreme Court reiterating its findings in ’08, ’09, and ’10, finding additional, “compelling” evidence.

FURTHER UPDATE: Dear Human Rights Watch: Given that you are being so very ecumenical about who is on your advisory board, I hereby submit my name for consideration. Or do I have to conspire to kill a few children first? Sincerely, David Bernstein, George Mason University School of Law.

Global philanthropy is a topic that invites examination across disciplines, including law, ethics, economics, sociology, political science and more – particularly as activity in the field grows in a globalized world.  So I’d like to welcome a new volume of essays, Giving Well: The Ethics of Philanthropy, edited by Patricia Illingworth, Thomas Pogge, and Leif Wenar (Oxford 2011).

Although the title is philanthropy generally, the essays in the book tend to emphasize global and cross border philanthropy, with all the attendant issues of cosmopolitanism, community, etc.  The contributors include major figures such as Jon Elster, Peter Singer, and Alex de Waal.  Like many readers, I  resist edited books, but this one is finely edited and the contributions fit together well.  It would make, for example, a useful book of readings in courses in international relations, law, economics, etc.  I think general readers would find it a coherent volume.

I have a contribution in the volume, “Global Philanthropy and Global Governance: The Problematic Moral Legitimacy Relationship Between Global Civil Society and the United Nations.”  I’m afraid it is the outlier essay in the book with respect to the admirable coherence otherwise noted above – the one that least connects to the topic of philanthropy in a specific sense of philanthropists and their ethics.  It is an essay instead fundamentally about the role of NGOs in the global political space, and a challenge to some of the legitimating roles assumed even at this late date for NGOs.  I’ve been making this critique for a long time, of course.

Cover flap description, below the fold. Continue reading ‘The Ethics of Global Philanthropy’ »

Back in September, I wrote a post about historian Frank Dikötter’s excellent new book on Mao Zedong’s “Great Leap Forward” terror famine of the early 1960s. Dikotter recently published a New York Times op ed summarizing his thesis:

The worst catastrophe in China’s history, and one of the worst anywhere, was the Great Famine of 1958 to 1962, and to this day the ruling Communist Party has not fully acknowledged the degree to which it was a direct result of the forcible herding of villagers into communes under the “Great Leap Forward” that Mao Zedong launched in 1958.

To this day, the party attempts to cover up the disaster, usually by blaming the weather. Yet detailed records of the horror exist in the party’s own national and local archives…..

Historians have known for some time that the Great Leap Forward resulted in one of the world’s worst famines. Demographers have used official census figures to estimate that some 20 to 30 million people died.

But inside the archives is an abundance of evidence, from the minutes of emergency committees to secret police reports and public security investigations, that show these estimates to be woefully inadequate…..

In all, the records I studied suggest that the Great Leap Forward was responsible for at least 45 million deaths.

Between 2 and 3 million of these victims were tortured to death or summarily executed, often for the slightest infraction….

The term “famine” tends to support the widespread view that the deaths were largely the result of half-baked and poorly executed economic programs. But the archives show that coercion, terror and violence were the foundation of the Great Leap Forward.

Mao was sent many reports about what was happening in the countryside, some of them scribbled in longhand. He knew about the horror, but pushed for even greater extractions of food.

At a secret meeting in Shanghai on March 25, 1959, he ordered the party to procure up to one-third of all the available grain — much more than ever before. The minutes of the meeting reveal a chairman insensitive to human loss: “When there is not enough to eat people starve to death. It is better to let half of the people die so that the other half can eat their fill.”

Even the previous estimates of 20 to 30 million dead qualify the Great Leap Forward as the biggest single case of mass murder in world history. If Dikötter’s revised figure of 45 million withstands scrutiny, Mao will have definitively surpassed Joseph Stalin’s overall record as a mass murderer (Stalin’s death toll was more evenly spread between several different episodes of mass murder than Mao’s).

Even if the earlier figures turn out to be more accurate than Dikotter’s, it is still inexcusable that the mass murders inflicted by Chinese communism remain so little known in the West. As I noted in my earlier post on the subject, Dikotter’s study is not the first to describe these events. Nonetheless, few Western intellectuals are aware of the scale of these atrocities, and they have had almost no impact on popular consciousness.

This is part of the more general problem of the neglect of communist crimes. But Chinese communist atrocities are little-known even by comparison to those inflicted by communists in Eastern Europe and the Soviet Union, possibly because the Chinese are more culturally distant from Westerners than are Eastern Europeans or the German victims of the Berlin Wall. Ironically, the Wall (one of communism’s relatively smaller crimes) is vastly better known than the Great Leap Forward – the largest mass murder in all of world history.

Hopefully, Dikötter’s important work will help change that.

UPDATE: In this series of posts, I described the similar terror famine that occurred in the Soviet Union in the early 1930s and its implications for international law; see also this post on whether Stalin’s crimes qualify as genocide.

In some ways, Mao was an even worse oppressor than any of the Soviet communist leaders. He combined Lenin’s role as the founder of a totalitarian state with Stalin’s role as the implementer of its largest-scale atrocities. Having a larger population to work with, he also (if Dikotter’s figures are correct) managed to kill more people than all the Soviet leaders and Adolf Hitler combined. There’s no one quite like him in all of world history. Let’s hope there never will be again.

Kevin Jon Heller, Roger Alford, Julian Ku, and Peter Spiro – who represent a wide range of political and legal views – offer up analyses of legal questions surrounding Wikileaks and Assange over at the international law blog Opinio Juris.  The posts at OJ are thoughtful and legally informed, and the comments are well worth reading as well.  They cover such questions as whether Assange could be prosecuted under the Espionage Act, extradition questions, and somewhat overlooked question of whether the US government policy of collecting biometric and other stuff re the UN violates the US-UN treaty.  Among other things.  The comments are well worth looking at, too. Go to OJ and scroll through the last week of entries.  Add those to Co-Conspirator David’s post here on Interpol, and you have a pretty good handle on somewhat overlooked legal issues arising from Wikileaks.  Also, not a lot of attention has been paid to the Espionage Act, but my Washington College of Law colleague Steve Vladeck has two of the relatively few articles on it, here and here.

Co-Conspirator Jonathan has already remarked below on the seeming collapse of the media-academic-NGO-international organization-et al. global warming coalition in-between last year’s Copenhagen meeting and this year’s much-subdued Cancun event.  I broadly agree with Jonathan, and with Margaret Wente, on whom he comments, on the policy merits.

I also think the right approach to climate change is not some massive project for the most far-reaching, long-term, costly, uncertain attempt at governance through the demands of climate for the whole globe.  It is wrong as a global political project, doomed not to just fail but to transmute into some set of spectacularly bad unintended consequences, and wrong as a question of management of long-run uncertainties.  It is noteworthy that even the voice of the global establishment, bien pensant global opinion, the Economist, is now saying what should have been said a decade ago – you have to manage the problems as they arise through mitigation, not some exercise in doomed global political glory to seek to head it off on the front end.

I say all that as background, not to try and persuade anyone, but simply to be clear what the starting point of the discussion is for me (be warned, this is a long post).  As far as the future of the global project over climate change is, I would point you to Walter Russell Mead’s new blog essay on Cancun (h/t Instapundit) (for the glass-half-filled view, see this news story from the NYT; note that it is filed from DC and NY, not Cancun).  It is useful in large part because it lays out something on which I have commented occasionally in the course of writing about the UN and its member states as a (non-) governance mechanism, and its “public choice” pathways of rent-seeking, income extraction, and wealth transfer under the banner of climate change.  Mead offers a comprehensive essay in a relatively short space and it is worth reading closely.  But on the daunting problems of collective action at Copenhagen and UN mechanisms generally, Mead notes, a Copenhagen climate treaty

was intended to be the successor to the ineffective and expiring Kyoto Protocol, and was conceived of as a ‘grand bargain.’  The US Senate had in effect rejected Kyoto 95-0 because the Protocol limited US emissions without placing restrictions on the rapidly growing economies of the developing world.  Son of Kyoto (call it SOK for short) would get around this by placing limits of some kind on all the world’s countries.  The geniuses behind SOK framed the problem this way: how do we get the developing countries to sign on to carbon limits strict enough that the US Senate would ratify the next global treaty?

The answer was obvious: bribe them.  Put enough rich country taxpayer money on the table and even the most corrupt and shortsighted rentier regimes in the developing world will experience an extraordinary upsurge in green conviction.  The dream was that the developing countries properly and appropriately compensated would sign on to emission limits of their own, the US Senate would ratify and as Barack Obama explained it to us, the earth would begin to cool and the seas start to recede.

In the diplomatic negotiating event, the “experts and enthusiasts” of the northern environmental lobby departed, predictably, from anything the rich country publics, in the midst of financial crisis on top of everything else, might have been expected to support.  The elites of the climate change movement, raised on the statist milk of the EU breast, figured they were doing God and Gore’s work on behalf of once and future voters, and devoted themselves to negotiating with the developing countries, seemingly without regard for the willingness of said publics to pay the price.  On the developing country side, the question was how much and how fast:

Northern green activists lobbied to get strict carbon targets adopted.  Developing country diplomats focused on ‘appropriate compensation’.  Just how green did the North want the South to become, and just how much money was the North willing to pay to make this happen?  Negotiators played with rich country aid budgets like kids with Monopoly money, and issued vague and intoxicating pledges that, in an era of austerity, will never be honored.

In the hothouse fantasy land of UN negotiations, the path to compromise looked simple.  Soon enough, the numbers began to come clear: northern activists developed a formula for carbon restriction that they liked and the southern diplomats found a number that worked for them:  a $100 billion sweetener to start, ultimately rising to $100 billion a year to be paid by the advanced countries to the developing ones in order to compensate them for pain and suffering.

But now a couple of additional observations that take things a step further than Mead does.  In the past I have remarked (and say in my little book manuscript now in copy editing on UN-US relations) – that the environmental intellectuals and campaigners might have done better to have paid less attention to their own favored issue and more attention to the incentives as evidenced by the history of the UN not just on this issue, but a long list stretching back decades.  They might have learned that the UN follows a well-laid out path of embracing an issue to see how much institutional leverage toward “governance” it might yield, combined with the rent-seeking interests of the UN-complex and member states.

The UN believes – Ban Ki Moon, for example – fervently that climate change is every bit as important as it is to Al Gore.  And, “serial absolutist believer” that the UN is, it will believe so … until it perceives that it has got whatever it can get in the way of leverage toward its own notions of global governance at the UN, and member state rent-seeking.  Whereupon – as is unfolding now – this issue is down the memory hole that is so crucial to being a “serial absolutist” and on to the Next Big UN Thing that promises an accretion of global governance at the UN and more money for member states.  The environmental lobbyists could have learned from considering their issue as the UN does – not as the sole issue in the history of the human race, but instead as simply a succession of possible political levers for the UN. Continue reading ‘Cancun and Copenhagen, and Carbon as Pure Regulatory Object’ »

Over at Opinio Juris, a scholarly exchange on the question of space tourism and the law that would underlie it.  Steven Freeland, commenting on his own article in the Melbourne Journal of International Law, Frans G. von der Dunk responding, and Freeland’s final comments.  Meanwhile, I hope everyone had a lovely Thanksgiving; we had family over, but posting has been light for me on account of computer problems, I hope soon resolved.

Update:  My own view of the space tourism and law question is … it is one of those speculative, somewhat sci-fi, debates that is more an indication of where one stands on the virtues, or not, of public international law than anything else.  The tenor of the treaties to which the articles refer about outer space is that of the outer space “commons”; the shared inheritance of human kind, etc., etc.  The problem with the commons, as we know, is that they are tragically exploited and that the solution is the assignment of private property rights to address the externalities.  I suppose that might be possible with respect to parts of space that are close by and crowded with satellites.

But I rather doubt that is the case with respect to the rest of it, which is far away and hard to get to.  Exploitation of those parts depends crucially on someone finding a way to make it pay, and if the assumption is the Little Red Hen one that she bakes and everyone else eats, then there will be no exploitation at all.  Which is to say, the tragedy of the un-commons.

The United Nations General Assembly Third Committee recently passed another resolution urging nations to ban defamation of religion [HT: Elizabeth Cassidy of the US Commission on International Religious Freedom, which criticized the resolution here]:

A U.N. General Assembly committee once again voted to condemn the “vilification of religion” on Tuesday, but support narrowed for a measure that Western powers say is a threat to freedom of expression.

The non-binding resolution, championed by Islamic states and opposed by Western countries, passed by only 12 votes in the General Assembly’s Third Committee, which focuses on human rights, 76-64 with 42 abstentions.

Opponents noted that support had fallen and opposition increased since last year, when the Third Committee vote was 81-55 with 43 abstentions. The 192-nation General Assembly is expected to formally adopt the measure next month.

The resolution was amended from versions passed in previous years in an attempt to secure support from Western nations. Instead of defamation of religion, it speaks of “vilification.” It also condemned acts of violence and intimidation due to “Islamophobia, Judeophobia and Christianophobia.”

Senior Conspirator Eugene Volokh and I explained why previous incarnations of this resolution pose a threat to freedom of speech and religion here, here, and here. As I have pointed out previously, this is an excellent example of the ways in which repressive governments seek to use international human rights law to suppress freedom rather than protect it, a problem I have written about in two articles coauthored with John McGinnis (see here and here). Most of the support for this resolution comes from authoritarian and repressive regimes, many of which have terrible records on religious freedom. The resolution was sponsored by the Organization of the Islamic Conference. Most OIC members are authoritarian states, and many are notoriously intolerant of non-Muslim religions, secularism, and even versions of Islam at odds with that espoused by their rulers.

The new text of the resolution is slightly altered from previous versions, this time targeting “vilification” of religion rather than “defamation.” Advocates claim that this change represents a concession. In my view, it actually makes the resolution worse. At least in Anglo-American and European law, the term “defamation” implies a false statement. Truth is a defense to a defamation action. By contrast, “vilification” may encompass even true charges against a religion. Whether intentionally or not, the sponsors have managed to make a bad resolution even worse. Moreover, the new text still explicitly urges states to “prohibit the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence.” Almost any strong criticism of a religious organization or its beliefs could qualify as “incitement” to “hostility” or “discrimination.”

Although the resolution is nonbinding, many scholars and advocates of broad interpretations of international law see such UN resolutions as contributing to “customary international law” norms that all states must obey, even if they have not explicitly ratified them. There is little danger that the resolution will undermine freedom of speech or religious freedom in the US in the near future. But it poses a greater threat in nations where resistance to domestic incorporation of customary international law norms is weaker. More generally, the debate over this resolution highlights the need to forcefully oppose efforts to use such dubious “norms” to override the domestic law of liberal democracies.

In his excellent recent book Stalin’s Genocides, Stanford historian Norman Naimark argues that Joseph Stalin committed genocide and not “merely” mass murder. Few any longer deny that Stalin’s regime slaughtered millions of innocent people. But the Russian government and some Western writers continue to argue that these murders were not genocidal, and that Stalin therefore cannot be classed in a category with Adolf Hitler and others who slaughtered entire racial, ethnic, or religious groups.

Back in 2008, I blogged about the debate over the question of whether the Soviet terror famine of the early 1930s (in which some 6 to 10 million people died) was a case of genocide or mass murder (see here and here). Many Ukrainians and some Western scholars argue that this was a case of genocide because Soviet dictator Joseph Stalin specifically targeted Ukrainian peasants for extermination. By contrast, the Russian government claims that Stalin was an equal opportunity mass murderer. The distinction matters because international law defines mass murder as genocide only if it was the result of an “intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.” It also matters because of the ongoing debate over whether communist mass murders deserve as much opprobrium as those of the Nazis.

Naimark concludes that both the terror famine and various other Stalinist atrocities qualify as genocide. His book is the most thorough and compelling study of the subject so far. In the end, however, I am not so much persuaded that Stalin committed genocide as reaffirmed in my view that the genocide-mass murder distinction isn’t a morally meaningful one. Moreover, Naimark overstates Stalin’s personal role in the mass murders committed by his regime and understates the impact of the communist system.

I. Was it Genocide and Should it Matter if it Was?

There is no doubt that at least some of Stalin’s crimes were genocides. The deportation and partial extermination of ethnic groups such as the Crimean Tatars surely qualifies. These indisputably genocidal crimes, however, accounted for only a small fraction of Stalin’s victims. Naimark’s main objective is to prove that Stalin’s much greater mass murders – the terror famine, the killing of millions in Gulag slave labor camps, and the “Great Terror” of 1937-38 – should also be considered genocidal.

Here, Naimark runs into the problem that most of the people killed in these mass murders were targeted not on the basis of race, religion, or ethnicity, but because of economic class or political background – or just being in the wrong place at the wrong time. As he points out, the Soviet Union and its allies successfully worked to exclude “political” murder from the international law definition of genocide; they did so to insulate their own crimes from potential condemnation. This is one of the most blatant examples of the extent to which international human rights law has been perverted by the influence of nondemocratic and totalitarian governments . In effect, Naimark argues that the international law definition of genocide should be read to cover precisely the kinds of crimes that it was deliberately crafted to exclude. In legal terms, the text, original meaning, and legislative history of the international law definition are all against Naimark.

In the case of the early 1930s terror famine, Naimark also argues that Stalin intended to target the Ukrainians as an ethnic group. If so, then this counts as genocide even under the traditional view of international law. Naimark notes that the impact of the famine was greater in Ukraine than in most other parts of the USSR, and that the region was treated with special harshness. On the other hand, it is also true that the main goal of the famine was to exterminate the independent peasantry regardless of ethnicity and carry out the forced collectivization of agriculture. Ukraine may have been targeted as much because it was the USSR’s most important agricultural region as because it was populated by Ukrainians. Moreover Ukraine had large minority populations, including millions of ethnic Russians (my own grandmother, was one of the many non-Ukrainians living in the region during the famine). Many of these people also died in the famine. Stalin’s motives were probably mixed. His main goal was to crush the peasants and collectivize agriculture. But he was also happy to deal a preemptive blow to Ukrainian nationalist aspirations (which he feared because they were the USSR’s largest minority group).

Ultimately, the distinction between genocide and “mere” mass murder should not matter. For reasons I explained here and here, it doesn’t make any difference whether the Soviet regime killed millions of innocent people because they were “kulaks” and “class enemies,” because they were Ukrainian, or for some combination of both reasons. In all three scenarios, innocent people were slaughtered for no good reason, in most cases on the basis of immutable characteristics that they could not change (“kulak” status was determined primarily by family background).

II. The Role of Stalin.

Naimark’s book is also interesting in so far as he blames Stalin personally for most of the crimes committed by the Soviet government during his rule. Absent Stalin’s malign influence, Naimark contends, the regime probably would not have committed mass murder or genocide on such a large scale. There is little doubt that Stalin’s paranoia and sadism influenced Soviet policy. Nonetheless, I think Naimark overstates the importance of Stalin’s personal role. Most of the major repressive policies and institutions – including the secret police and the Gulag slave labor camps – of the Soviet state were begun by Lenin, not Stalin. As historians such as Richard Pipes have shown, even the terror famine was a reprise of the first Soviet effort to collectivize agriculture in 1918-21 (which also led to a famine in which millions died). Leon Trotsky, Stalin’s main rival for power after Lenin’s death, attacked Stalin on the grounds that his policies were too generous to “bourgeois” elements and otherwise not repressive enough. Had Trotsky defeated Stalin, life for most Soviet citizens might have been just as bad or even slightly worse. One of the very few ways in which Stalin was harsher than Trotsky was in his much greater willingness to kill and imprison members of the Communist Party elite. Here, Stalin’s extreme paranoia about possible rivals for power really did make a big difference. Under Trotsky, the party comrades would have suffered a lot less; the rest of the population would not have been so fortunate.

More generally, Stalin’s policies were far from unique in the communist world. Almost every other communist regime engaged in very similar mass murders, including in countries like China and Cuba where the rulers had a high degree of autonomy from Soviet control.

In sum, evidence from both the Soviet Union and elsewhere suggests that Stalin’s deranged personality was probably only a secondary factor in explaining the crimes of his regime. “Without Stalin,” Naimark writes, “it is hard to imagine the genocidal [Soviet] actions of the 1930s.” By contrast, I find it all too easy to imagine communist mass murder even with a less maniacal leader at the helm. In fact, not a lot of imagination is necessary, since the same policies were promoted by Lenin, Trotsky, and other communist leaders with very different personalities.

Despite these reservations, Naimark’s book is a great analysis of both Stalin’s crimes and the debate over the meaning of genocide under international law. Anyone interested in the subject should definitely check it out.

Tod Lindberg, editor of the Hoover Institution’s Policy Review, reports in the Weekly Standard on a blunt message delivered by Senator Lindsey Graham (R-SC [corrected]) at a discussion meeting of senior transatlantic policy makers, the Halifax International Security Forum. It’s not a forum that would attract a lot of attention, but the attendees are very senior in transatlantic relations and NATO. Quoting from Graham:

Nobody would like to see the sanctions work any more than I would because I’m still in the military [Graham is a colonel in the Air Force reserves who has served active duty during Senate breaks in Iraq and Afghanistan] and I get to meet these young men and women on a regular basis, and I know what it’s been like for the last nine years. So the last thing America needs is another military conflict. But the last thing the world needs is a nuclear-armed Iran. And if you use military force, if sanctions are not going to work and a year from now it’s pretty clear they’re not going to work, what do our friends in Israel do? So I would like the president to make it abundantly clear that all options are on the table. And we all know what that means.

Tod LIndberg’s report adds that Graham was just winding up:

And if that day ever came, my advice to the president, in open session here, if you take military action against Iran as the last effort to stop their nuclear ambitions, you do open up Pandora’s box. But if you let them acquire nuclear weapons, you’ll empty Pandora’s box. So my view of military force would be not to just neutralize their nuclear program, which are probably dispersed and hardened, but to sink their navy, destroy their air force, and deliver a decisive blow to the Revolutionary Guard. In other words, neuter that regime. Destroy their ability to fight back and hope that people .  .  . inside Iran would have a chance to take back their government and be good neighbors to the world in the future. So that’s what I mean by being tough, sir, that everything is on the table and that we need to start talking more openly about that because time is not on our side.

From the standpoint of international law, I’d note this as being in the long tradition of state practice and opinio juris on what the use of force under the UN Charter at Articles 2(4) actually means. Some of the diplomats and officials in the Halifax meeting might have been shocked and disturbed at the prospect that the US might decide to attack Iran and seek to end its ability to acquire nuclear weapons. That some international lawyers might regard it as per se illegal under the Charter does not seem to have been the source of their dismay.

In other words, one can continue to argue the literal words of the Charter and express concern about violations of them, but it seems to me that one has to do it taking serious account of state practice and declarations that are plainly not about defending against an attack that has taken place across one’s borders.  One can go that way, and somehow account for the obviously different and extensive state practice.  One can go with the Justice Sima route (in a famous concurrence in an opinion of the International Court of Justice) and note that state practice suggests that literal reading is not plausible any longer, and so “de-fang” the literal language of the Charter while not throwing that particular clause out as irrelevant. Or one can go full-on “desuetude” as Michael Glennon does, and say that this particular clause of the Charter has fallen into “desuetude” over time and is no longer the actual rule of international law.

What I don’t think works is simply to ignore the record of state practice and recite the formula of the Charter, with a sort of magnificent disdain for what states actually do and say – and states that actually engage in uses of force or are in the “international security” business, not Luxembourg or Belize.  I accept the Glennon view, while others might sharply disagree, but in any case, it seems to me not possible now, if it ever was possible, not to address the facts of how states behave and how they account for their behavior in this of all matters.

ps. A friend emails with a question what state practice I am referring to, other than the Israeli bombing at Osirak.  Meaning, is the state practice all that extensive?  Apologies if I wasn’t clear what I was referring to here.  I don’t mean state practice related to cross border bombing of allegedly threatening facilities (although as I start to think of them, there are more than one have thought at first blush).  I mean the broader proposition of the literal language of Article 51 in the Charter, referring to “armed attack” occurring against a member state, in connection with Article 2(4) and the obligation to refrain from the “threat or use of force.”  I was here referring to the proposition that Michael Glennon puts out in his recent book, Fog of Law, referring to the rule of the Security Council under the Charter language as in “desuetude.”  Referring to situations in which states resorted to force in ways that would not appear to be consistent with the literal language of the Charter provisions on the use of force, and not simply to cross border attacks of a narrower kind against threatening facilities, the list is pretty long, as many sources have agreed, without agreeing on what it means or what to do about it.

I’m at Penn Station, waiting for the train from New York City back to DC, happy but slightly dazed after the intense three day conference in celebration of the 35th anniversary of Michael Walzer’s Just and Unjust Wars that I mentioned in an earlier post. My thanks and congratulations to Gabby Blum, Ian Scobbie, and Joe Weiler for organizing it, and to NYU for hosting it. I was humbled to be in the presence of so many great intellectuals, not just in law, but in moral philosophy – Professor Walzer himself, Jean Elshtain, Thomas Nagel, Paul Kahn, David Luban, and many other luminaries in philosophy and other disciplines.

Three intense days, with Professor Walzer offering a few short comments at the end. I think it is okay to paraphrase them from my notes. His final comments go to a running theme of the meeting – the distinction, and its persistence or not, of a moral and legal independence of jus in bello from jus ad bellum. He says that even though a defender of their independence, they come together in the following crucial and urgent moral way. (This is my paraphrase, not a direct quote, and should not be quoted as something directly said by Professor Walzer or taken as suggesting that he has approved any of this as a quote):

The worry is that if you fight in accordance with the legal regimes of international law, you can’t win. That is a major challenge, and I was very happy that General [Charles] Dunlap denies that and says you can. Still, it is a worry. It must be possible for the good guys to win within the rules, at least as a possibility, but also as a real possibility. That’s where ad bellum and in bello come together: to win a just war fighting justly.

But suppose it isn’t possible. That’s what moral philosophers partly do – worry. What follows if it is not possible, or not a real possibility? What then? Well, the rules would have to be changed. We would have to reconsider the content of the rules jus in bello if we could not live within jus in bello and still have the just side win on the battlefield.

In my own crude, unphilosophical way, I suppose this means … jus in bello is not a suicide pact.

A general observation about the tenor of Professor Walzer’s (paraphrased) remark here. Just and Unjust Wars is taken in the United States academic and human rights advocacy community as the manifesto of the introduction and, more emphatically, the triumph of individual human rights in war. In part that is right. But it is correct in the sense of rejecting “realism,” in the amoral Hobbesian “by a necessity of nature” sense, on the one hand – but not thereby embracing a genuinely full Christian view of just war as an expression of immanent natural law, on the other hand.  The meta-theory underlying Walzer’s normative ethics of war is one of making it secular and an expression of modernity (and the touchstone for modernity, something quite alien to Catholic ethics in any very strong sense, the hegemony of consent, and its obverse, something central to Walzer’s ethics, resistance to coercion, or resistance to ‘un-consent’).  But it does so by giving up the full, immanent ground of God’s natural law. In the full Christian just war ethics, justice as such is the key concept, because it is an expression of the love of God for all his children, and not the far narrower and circumscribed (because “merely” human) notion of rights upon which Walzer relies, the obligations which we owe to one another because man is the measure of all things.

Rights gives up the fully foundational, fully immanent understanding of justice of Christian just war ethics.  It does so not in favor of relativism as to right and wrong in war, but in favor of something that seeks moral grounding and judgment in fact – and yet still vastly more contextual, contingent, and human than a fully realized theory of justice in war would offer. We see through a glass darkly, etc. – and, alas, that’s all we ever hope to do. And yet practical reason requires, as Walzer emphasizes in the opening chapters to Just and Unjust Wars, that we make moral judgments as best we can.  It is both what (descriptively) we do, even Athenian generals embarked upon atrocity and speaking in bad faith, but also what, in genuinely good faith, we ought to do.  Hence our need to argue about war and not merely pronounce upon it.

But that is a long ways, I at least would suggest, from the way in which the rights theory of war has taken Walzer’s work in its long elaboration in politics and institutions. Walzer’s remarks above point to something that I would see as a theme profoundly present in Walzer’s opening chapters in Just and Unjust Wars.  Viz., the book offers a theory of rights, yes, but a theory of human rights in war in the service of a moderate moral realism.  The qualifier is not unimportant.

Walzer’s original theory, as found in the book, is not a theory of rights in war that is somehow opposed to moral realism; quite the contrary.  Human rights in war is offered as a way give content to moderate moral realism, one that fills out (“does real work,” as Walzer puts it at the beginning of a later work, the marvelous Spheres of Justice) to the “moderate moral” part of that formulation.  But the formulation, moral realism, is itself a conjoining of “moral” and “realism.”  In that regard, it puts forth plural and not necessarily consistent demands, and sometimes those inconsistent demands will require tradeoffs and sometimes they will require genuinely tragic choices.  We usually think of this sense of pluralism of values leading to tragic choices in the tradition of Isaiah Berlin, and that is true, but I actually have something different in mind.

Pluralism of tragic choices that strives to avoid the trap of relativism on the one hand, and an angelic purity of rights to elide the tragic choices, on the other, leads to Walzer’s theory of rights – rights that are in some sense universal, but also contextual and contingent, which is to say, a human institution to human ends.  ”If it is not possible to win just wars fighting justly, then we will have to revise the jus in bello.”  Yes.  I myself have always linked Walzer’s view, not to the purist theories of rights which many rights advocates and academics seem to think that it is, but instead to sources that Walzer himself would probably find idiosyncratic (everyone else does), but I think fit.

When I read the opening chapters of Just and Unjust Wars, leading through the attack on amoral realism and the embrace of a certain rights-defined moral realism, and finally to the assertion that this is a theory of resistance to aggression in which, all other things being equal, one ought to resist, I find it wholly natural to think of the great French moralistes of the 20th century, Albert Camus and the poet and Resistance leader Rene Char.  Char, after all, referred to the war in his diary as “this time of damned algebra” and captured, haiku-like, the essence of the tragic choices of moral pluralism in one of his most famous expressions:

Bitter future, bitter future, a dance amongst the rosebushes.

The problem is, however, Walzer of Just and Unjust Wars – a book offering a moderate moral realism in inevitable tension with itself – is not how much of the world has read and “operationalized” the theory in the decades since.  In the public version of the theory of Just and Unjust Wars that has, so to speak, come to “own” the book, it is a theory of some quite (and increasingly) strident, if not absolutist, version of individual human rights in war, triumphing over the part about winning.  As Walzer seems to suggest above, that was not quite what he intended.

News services report that President Obama, speaking to the Indian Parliament, has endorsed India receiving a permanent seat on the UN Security Council. The AP story adds that this was the biggest applause line in the speech, fully consonant with the rise of Indian nationalism within India, and its rapidly increasing sense of importance in the broader world. What of this nationalism? And the rise of national pride of place among the newly rising great powers, not just India?

I continue to find mystifying the Western academic international law world’s infatuation with the ideals of the diminishing importance of states and membership in states. Particularly when that mostly seems to refer not to a universal aspiration, but only to the inability of the leading Western-states-in-decline to persuade themselves to exercise the coherence that makes states socially useful – and that largely through the cultural and class predilections of the elite political classes of those societies. When are we going to see proper analytic attention to the Globalized New Class as a phenomenon? In any event, the rising new powers understand that states are about coherence, and that the constant struggle of most states, most of the time, is to remain coherent and prevent “disaggregation” of the state into internal groups of power and “public choice” struggles for primacy and the resources of politics to economic ends.

Disaggregation is attractive to many Western intellectuals, I’d suggest, however, because our species-being, so to speak, has gradually come to be purely contractual free agency. We gave up on any kind of “fiduciary professional” model of the intellectual when we discovered that we could leverage our knowledge skills, at least until China and India caught up, across a needy global economy. It required freeing ourselves from the strictures of local communities; but the opportunities for globally marketizing our professional expertise being very large, we have moved a long, long way from RH Tawney’s post-war British model of the professional as community leader through expertise.

That’s not how we academics pronounce the disaggregation of the state. Our favored trope is to declare disaggregation of the state as an enabler of individual freedom. We mean by that, of course, particularly market freedom of the academic free agency market (best of both worlds: free agent competition as academics and tenure). The coherence of states is seen by us as an inhibition to individual freedom in some cosmopolitan, fully-marketized, free-agent status for every individual in the world.

Disaggregation, in corporate law terms, represents a peculiar kind of management-led leveraged buyout of the state by its leading expert elites, who then see the opportunity to break up its cohering power centers, in order to free up the value of political power in their hands, and for their benefit. To the polity as a whole, the whole of an ordered state power in service to ordered liberty is greater than the sum of the parts; to Globalized New Class elites, break-up frees up value for them in parts – for a while. Until the commons are over-fished and the available political power dissipated and monetized. Christopher Lasch had it right when he called it the “revolt of the elites.”

Thus a better way to understand disaggregation of the state is as the mechanism by which those able to take advantage of globalized economic activities free themselves of obligations to the specific states and polities that, through their coherence as expressed through governance and the rule of law, enabled those activities in the first place. What emerges from this free form disaggregation is a class of free global agents who, in classic public choice mechanisms, manage the terms of political disaggregation because, while their affiliations in an economic sense are global, they also manage the political commons. Disaggregation of the state becomes a crucial mechanism by which the Global New Class becomes the oligopoly that results from the “public choice” leveraging of global economic benefit by disaggregating state power. The result, however, is a tragedy of the commons in which the Global New Class internalizes benefits from the dissipating power of the Western states, and externalizes the costs on those who, so to speak, do not live in the blessed jet stream but have to deal with life on earth, within states that are less and less able to provide effective governance.

One might actually define geopolitical decline as being the disaggregation of the state; and geopolitical rise as achieving governance coherence. That’s too extreme, but there is an important element of truth in it. China has coherence of an ugly kind; India, of a largely attractive kind. Thus leaving the question, what does this mean for liberal democracy? Coherence and disaggregation do not track authoritarianism and freedom; far from it. A better way to understand governance and coherence is, instead, to use a framework that Francis Fukuyama discusses in one of the books a few years ago on governance and development. It consists of a two axis model – strong and weak governance, on the one hand, and broad versus narrow, on the other.

Authoritarian states are those which feature strong governance on a broad range of matters, including those that foreclose individual rights and liberty. Ungoverned states are those have weak governance on broad matters. Liberal democracy works best when it is strong governance, but within a relatively narrow range; within the areas that it governs, it is clearly supreme and coherent, but that range of things is both limited – and, importantly, revisable through democratic means. Interestingly, Fukuyama points out, China’s authoritarianism is of a particularly unstable kind – an attempt to have strong governance over a wide range of things, but failing; and yet, with respect to the outside world, and largely through cultural mechanisms, able to operate with authoritarian coherence.

Disaggregation is not that to which India aspires internally or externally. On the contrary, its constant struggle has been to maintain internal coherence and avoid disaggregation, and to make membership count for something. Its external goal is to act coherently in the world and so ratchet up its effective power. This is true of all the rising great powers, for obvious reasons. I tracked the Indian English language press during the 2005 UN reform debates. The fantastic importance attached to it in Indian public opinion was not surprising to those who see India as a strong force in the rise of the New Westphalianism of rising great powers and jostling, competitive multipolarity – states with external coherence in their ambitions joining the club of declining Western states that are disaggregating, and mostly going in for an apparently permanent global nap. Thus, Security Council status was the only issue of any importance within India related to the UN and UN reform. This was also true of other contenders to permanent places on a reformed council – so much so that a worried Kofi Annan had to plead with states to back away from so much focus on the actually-quite-unlikely prospect of Security Council reform (in any deep way) in order not to lose what might be achieved in more realistic matters.

The Obama endorsement is less than meets the eye. It is an endorsement in the context of a larger Security Council reform settlement in which, to start with, permanent membership would likely mean something different from what it means for the P5 now – which is to say, most of the (quasi-) plausible proposals for SC reform, in one version, envision a new group of permanent members who are permanent but lack the veto. That proposal is the most likely to actually work its way through UN reform. But the US is already on the record as favoring a deal that would have included India in that in any case. Among the most likely contenders, there is always the problem that existing members do not want to dilute their club. There is also the problem that every new contender has some reasonably powerful state or group of states that would oppose its elevation: India by Pakistan, the Islamic Conference, and perhaps China; Japan by China; Brazil perhaps less than others, but perhaps not; Germany by, well, everyone contemplating another EU seat on the Council. The US – which, ironically, is so obviously a member as the (still) hegemon that it can actually function in this as a kind of good faith referee among the mob – is primarily concerned about the dilution of effectiveness of the Council, rather than a dilution of its own power and status.

But what might push the Council finally to allow reform to the extent of allowing an additional tier of veto-less permanent members? Well, a perception that the Council might become sufficiently irrelevant in the future, as states essentially “contract around” it through other mechanisms, that it would be prudent to allow certain reforms to forestall greater irrelevance. That seems to me the most likely reason why some form of Council reform would actually take place.

Interest in targeted killing and drone warfare is not letting up in intensity – at least to judge by the pace of events on the topic. Right on top of my debate with Notre Dame’s Mary Ellen O’Connell on this at Washington University two weeks ago, Professor O’Connell and the Brookings Institution’s (and Hoover Institution’s) Benjamin Wittes undertook another one, this past Saturday at International Law Weekend in New York. It was considerably more testy than the Washington University debate. Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate. I’m sure it will generate a lot of interest and a lot of pushback in several directions. Ben (I’m going to use first names in this post for both of them and hope they don’t mind) has posted up video of the event at Lawfare.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter. Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”

One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well). His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator. Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law. Crime is a charge of more than mere non-compliance. If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States. Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA. Yet they are not acting as rogues in this, but rather under direct orders of the President. If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes. So what is it to be? I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both. I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.

I have another concern beyond this, however. It goes to one of the responses in the debate from Mary Ellen when Ben insisted in pressing the point. It is that it would be politically unrealistic to consider going after Barack Obama or Harold Koh, so there is no point to raising the issue of criminality and, I took by implication, Ben was engaging in a strawman argument to do so. But why should it be seen that way? Ben did not assert the question of criminality in the first place, and then suddenly or unreasonably put it on the table, after all; it is not a proposition tossed up by Ben. “Crimes” as an issue were raised in the first place by Mary Ellen against CIA officers. Ben has pointed out that they are acting under perhaps the clearest, deliberately and (admirably, in my view) least deniable set of orders from the President of the United States in a long time on contentious national security matters. If there is a crime, there must somewhere be a criminal or else it is merely a series of unfortunate events; if there is a criminal, he or she did not act alone, because these agents acted under instructions from a principal.

So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason (or a big part of it) for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic.   Continue reading ‘Targeted Killing and Drone Warfare Debate between Mary Ellen O’Connell and Benjamin Wittes’ »

I was privileged yesterday to take part in an exciting conference in New York yesterday at Brooklyn Law School, Governing Civil Society: NGO Accountability, Legitimacy and Influence. Congratulations to Professors Claire R. Kelly and Dana Brakman Reiser at BLS for putting it together. I was on one of the panels at this one day session and there were many other terrific people who represented a quite fascinating and too-rare mingling of the international law and nonprofit law worlds. As someone who cuts across both, I thought this was a great conference.

The issue that drove it was to ask (this is my summary) whether there is a way to bring together two basic questions about non-governmental organizations and nonprofit organizations in the international world, the transnational world, the global space: accountability in the sense of large political legitimacy, and accountability in the sense that is usually meant in non-profit and charitable organization law. So one panel addressed the interactions of NGOs and international organizations; a second addressed models of governance and regulation of NGOs; and the last panel asked whether and how legitimacy and accountability might be linked.

One of the takeaways for me was that the question of the legitimacy and governance function of international NGOs, global civil society, is still a salient question. I have long criticized (very sharply) the suggestion that international NGOs ought to have a legitimacy function within the international system, which is to say, a role in governance, even if you think, as I do not, that liberal international global governance is a good idea. But I had mostly stopped writing on this theme, except when specifically invited (here and here, for example), because I had thought that the idea had died away. That was something I thought I had learned from Anne-Marie Slaughter’s impressive A New World Order; she specifically rejects the global civil society-international organization partnership in governance as failing basic tests of legitimacy (I discuss this in a long review of the book). Instead, focus seemed to have shifted to the also important question of NGO accountability with respect to the performance of their own missions – internal governance of international NGOs, their relationships with governments in their operational work, and questions that implicate accountability and governance about them as institutions, not global governance.

More recently, however, I have realized that something that I thought had faded away as a model project in global governance is still around, somewhat incorporated into some of theories of global constitutionalism that have been a staple of European academic writing on global governance for many years. But definitely active once again as a proposed theory of global governance and legitimacy. So I guess I am back writing about it again. I am no more in favor of it than I ever was, I’m afraid. Of the academic international law writers in this area, the one who seems to me the most important is Steve Charnovitz of GW, who presented a very interesting paper at this conference. Steve always offers a careful and measured view, and this paper was exactly that, but also exceedingly interesting not just in the critique of critics like me, but in offering a step forward in a positive account of NGOs in governance. Indeed, in some respects it was quietly the most audacious of the papers at the seminar, because Steve set out the form of an argument for asking how anyone could propose to leave the NGOs out. I will very much look forward to reading the essay when published in the symposium issue.

At the broadest and most abstract level, I found that the crucial legitimacy issue was leading, as Weber said that it must, to questions of society and not just politics. That is, if legitimacy is the quality of a social order, and not merely a quality of a politics existing “interstitially” between political communities, then a crucial question will be, well, what society do you mean? Where is it to be found? Who are its members? How do they interact, reproduce, socialize each other – questions of sociology and social theory, in other words. My view is that governance is limited in international affairs to that which can be accomplished through a politics, not a society, and with the sharp limits on legitimacy that exist when all you have available to you is are political relationships, and not the deep, embedded, thick relationships of society.

The response from many people – I emphasize people as such – in the elite worlds of international organizations, international NGOs, international business, international academies and universities is that their relationships are thick enough to organize a society by which to govern the planet. If global governance does require a society, it it does not require a society of the whole world, the whole planet, of ordinary people, and their consent and participation. A society of the elites, moving horizontally among themselves, life in the jet stream, occasionally dropping down to earth in Geneva and New York and London, is enough to achieve both governance and legitimacy based upon their intrasocial relationships. (I do realize I’m not giving the idea its full due; particularly if your lens is the rise of the European Union, the idea of scalable governance based around the development of an elite bureaucratic class does not seem as implausible as my little insinuations above might suggest.)

I’d also add that it often seems most plausible to those whose formation and professional field of study and work internationally lies in trade and international economic law: those are the areas in which governance has achieved its most robust and binding results.  Part of one’s view of the achievability of global governance is premised upon whether and to what extent one believes that it can reach beyond these areas of high-shared-interest among parties to areas in which those shared values and interests are much harder to discern.  The model of governance is partly one of scalability from the model of the regional EU to the planet, and partly one of “bleed” from economic matters to such things as security.  None of this seems to me remotely plausible, but I also understand that if you’re a European theorist whose frame is the success of the EU, you see things differently.  All of that is quite apart from the role of NGOs in governance, as legitimacy providers and intermediaries to global communities.

In any case, the social theory to which I am accustomed would call this, even if it were possible, a theory of governance based upon the globalization of the New Class; speaking not as descriptive social theorist but moraliste, I’d say the global management of the planet by a Globalized New Class, or the attempt to socialize an elite to think it could do that, would be a … very bad idea. No a la rebelion de los elites, as Ortega y Gasset or Christopher Lasch might say.

(Still, it is yet another reason why the reassertion of robust social theory and the theorizing of the global New Class are crucial in the intellectual agenda that needs to move beyond hard but exceedingly narrow thinking of social theory = microeconomics, which is more or less where we are now. I proposed about five years ago to organize a conference in DC on elites and New Class theory, and apart from the editors of Telos, for whom this is bread and butter when not doing Schmitt, and Matthew Continetti of the Weekly Standard, the interest was a resounding zero. True, I had no travel funds to fly people in for a meeting, but it was remarkable to me how little interest there was just five years back. Would it be the same today?)

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met.  But this is in the context of understanding that in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  No safe havens has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and consistent state practice.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

The great international law scholar Louis Henkin passed away two days ago; for many decades he taught at Columbia Law School, which released a note from the dean on Professor Henkin’s passing. Over at Opinio Juris, Harold Koh, currently Legal Adviser to the State Department, has a lovely tribute to him.  I have come not to share Lou’s views on some things related to international law and human rights, but that’s neither here nor there; Lou Henkin is one of the giants of international law and the human rights movement.

For me personally, however, what I will most recall about Louis Henkin is something altogether different.  When my wife and I lived in New York, we would occasionally run into Lou and Alice Henkin, walking hand-in-hand along the streets of the Upper West Side near Columbia.  It was this then middle-aged couple strolling hand in hand that always caught my wife’s attention, and mine; I hope we can be like that, said My Beloved Wife on one occasion.  Ave atque vale.  And deepest sympathies to Alice Henkin and all their family.

Congratulations to Judge Diarmuid O’Scannlain of the 9th Circuit, who has been named chair of the Judicial Conference Committee on International Judicial Relations by Chief Justice Roberts.  It is a three-year term, and Judge O’Scannlain is a terrific choice to chair it.  The 9th Circuit announcement notes that the Committee was

formed in 1993 to respond to increasing demand from newly emerging democracies and developing countries for information about judicial independence, legal traditions and effective court administration in the United States. Assisted by staff of the Administrative Office of the U.S. Courts in Washington, D.C., the committee is currently involved in activities in Africa, Asia and the Pacific Basin, Latin America and the Caribbean, the Middle East, Europe, and Eurasia …  the Committee on International Judicial Relations works with the U.S. State Department, the U.S. Agency for International Development, the U.S. Department of Justice, the World Bank, the Federal Judicial Center, other committees of the Judicial Conference of the United States, and various non-governmental organizations.

On occasion, I have lamented what I perceive as the lack of due attention in the scholarly literature to the actual circumstances of international organizations, starting with the UN. One of those fundamental issues concerns accountability, in the special sense that there is no obvious judicial forum for reviewing actions even of individuals alleged to have engaged in serious misconduct, such as fraud, embezzlement, etc.

On the one hand, the treaties put the organizations and their civil servants beyond the reach of national courts.  On their face, they seem to leave at most, in some cases, the often highly unlikely possibility of a prosecution or civil action in the person’s national jurisdiction.  Given the politics, let alone the legal questions, home jurisdiction prosecution of one’s own nationals is out of reach in many if not nearly all cases.   On the other hand, such accountability as supposedly exists rests in various internal review processes. These internal review processes vacillate, however, between being tools by which senior managers are able to punish whistleblowers and so protect themselves or their underlings or their national confreres or what have you; or else being captured by the other side of the process through what amounts (in my jaundiced view, admittedly) to the world’s strongest public employee union.

It’s not really surprising that legal academics find it hard to get too interested in the hard material facts of UN budgets and fiscal accounting – although as Marx often advised, follow the money. But it is more surprising to me that so little attention has been paid to the legal issues involved in the accountability-jurisidction questions.  These include particular whether and, if so, which courts might have jurisdiction in the remarkably varied cases that, in an accountable domestic society, might have attracted the attention of regulators or prosecutors or someone; actions by agencies and organizations also remarkably varied; and finally actions by individual actors who also vary quite a lot in their legal situations, perhaps diplomats, perhaps not, and so on.

At the height of the Oil-for-Food scandal at the UN, when the General Secretariat was at its politically weakest (as the reach of the scandal went all the way up to Kofi Annan, whom the Volcker investigation reports left seriously wounded, with clear implications of some level of culpability, while leaving a barely sufficient shred of cover to not force a fight over pushing Annan to resign), there were calls for someone to prosecute someone for something. It was not just the Oil-for-Food scandal, however, as those familiar even superficially with the opportunities for fraud, self-dealing, and rent-seeking, in a system at once as byzantine and unaccountable as the UN’s, would recognize. As more rocks began to be overturned in other UN programs and organs, evidence  of serious graft, embezzlement, kickbacks, and other financial fraud of a kind that would plainly be criminally prosecutable, if only there were someplace to prosecute it, began to emerge in other UN programs. The procurement program for the politically crucial peacekeeping operations – in my view, one of the (very few) UN activities worthy of serious support by the US – was particularly at risk, for example, as its budget has ramped up in recent years, outstripping the regular organization budget.  And to be clear, I do not raise here disguised political or policy questions – just “simple” fraud by well-placed officials that I don’t imagine anyone in the upper tiers of the organizations at issue would defend in substance.

In the midst of this turmoil at the UN in 2005, the then-Manhattan DA, the legendary Robert Morgenthau, announced an investigation into the senior UN official in the Oil-for-Food scandal, Benon Sevan (who departed to his native Cyprus, and, if I recall correctly and I might not, following “internal reviews” at the UN, had his legal fees paid and saw no reduction in his pension benefits). The legal basis for this was never exactly clear to me, however. Because the UN is located in Manhattan? Because some of the conduct involved might have taken place in Manhattan but outside of the UN territory, or involved non-UN assets such as telephone lines, etc.? This is, after all, an investigation by a state DA, and not even a federal prosecutor. Although somewhat weirdly, given the politics at that moment, a local level investigation by a state DA of unimpeachable integrity and also a stalwart of the Democratic establishment – rather than a DOJ investigation by the then-Bush administration – turned out to be far more politically palatable.

In any case, the weakened Annan did not do what might otherwise have been an inflexible and categorical response of the UN – quite natural and routine, to be sure, for any sovereign – and robustly disclaim any jurisdictional basis for a Manhattan DA to get involved at all. Benon Sevan had diplomatic immunity, but the General Secretariat indicated that it would waive it if requested by a prosecutor – clearly meaning Morgenthau. Perhaps the senior UN management understand perfectly well that Sevan would depart to his native country which of course would do nothing.  Perhaps some small number of top UN leaders understood that this lack of accountability was a genuine problem and that Morgenthau was a decent option. (I skip over some other Manhattan DA investigations, particularly involving corruption in UN peacekeeping procurement.)

It is not hard to see, in other words, that international organizations such as the UN have massive structural agency failure problems. That is a somewhat anodyne way of putting it; the problems range from rent-seeking to major criminal corruption and fraud. They arise from a treaty structure deliberately designed to shield the organization and its agents from judicial accountability – for perfectly understandable reasons, to be sure. And from the predictable “capture” of internal review mechanisms. The result is to put the UN and international organizations and their agents in fundamental ways outside of the rule of law in the most ordinary sense. That’s not too strong a way of putting it. But again, this receives remarkably little attention from academics. The reflexive position of observers tends to be to define today’s deviancy down, discounting today against the glorious, but always-receding, always-promised future of international institutions. Mostly, I think, people just want to focus on the idealistic stuff about tomorrow and plug up their ears about anything that actually happens today.

So let me welcome a new paper up on SSRN by Matthew Parish, of the British Institute of International and Comparative Law, writing in the International Organizations Law Review, “An Essay on the Accountability of International Organizations,” offering a detailed look at the problems of legal accountability for a wide variety of international organizations and their agents. It is a fine paper on a neglected topic. I don’t say this from complete agreement; I have reservations about the paper’s proposals for accountability for national peacekeeping forces on missions in the field, for example. Nor does Parish share my fundamental skepticism about the UN and its imagined mission; far from it, he is looking for ways to make it better on its own terms. But overall I think it has many sensible things to say, and in any case offers a cogent account of the many agency failure problems at issue, from the standpoint of legal jurisdiction. I’ve put the abstract from SSRN below the fold (crosspost at OJ). Continue reading ‘Agency Failure, Legal Liability and Jurisdiction, and International Organizations’ »

The American University School of International Service (not my law school, but SIS) is holding a conference on global governance on Friday-Saturday, September 24-25, at the spanking new and quite lovely new SIS building at AU. It’s a great line-up of speakers and panelists; kudos to the organizers. One of the convenors is David Bosco, whose book on the Security Council, Five to Rule Them All, is essential reading for those who work on international organizations, and whose new blog, The Multilateralist, is hosted at Foreign Policy.

I will be on a Saturday panel on “How to Govern.” It raises delicate questions for me. As regular readers here are only too aware, I’m no fan of global governance in the sense usually meant by that term, a broad sense of liberal internationalism in which (as Frances Fukuyama once put it and I slightly extend) the anarchy of international politics will be replaced with the ordered relations of international law and organizations, leading finally, I would add, to some form of global constitutionalism.

As I’ve said numerous times before, I think it is problematic on realist grounds of achievability, but also on idealist grounds that it is the wrong ideal vision. But it is a dream facilitated by certain crucial ambiguities in international law and politics – ambiguities in the meaning of terms such as multilateralism and governance. Anyway, all that is the basic topic of my (arriving from the Hoover Institution Press in 2011) policy essay on US-UN relations, Returning to Earth (not an academic work, I should add, certainly not in the way that David’s Security Council book is; it’s a sometimes polemical argument aimed at the general reader. But the basic points are there about the ambiguities of governance, engagement, multilateralism, and so on.)

I’m not a (pure and complete) rejectionist, however. I think there are important roles for coordination, harmonization, and multilateralism in that non-governance sense – but they are only possible if one gives up the grand dream of global constitutionalism that corrupts the present tasks with glorious dreams of the future. The Basel III agreement, for example, might or might not succeed even in being followed as set down, and it might or might not be substantively the right formula – but it was an impressive instance of multilateral cooperation through technical networks.

That’s good – provided one does not make the mistake of assuming that because people worked really hard and came up with a statement, that is the same as coming up with a statement that will have effects in the real world or that the content of the statement is good.  As I said in a review of A New World Order, the “processes” undertaken to achieve substantively good outcomes are often identical with the “processes” undertaken to achieve substantively bad ones – people talk a lot, write memos and white papers, etc., etc., so it is hard to impute quality from surface processes.

But in any case, the outcomes of the technical coordination meetings of governmental expert networks – bank regulators, for example – will emphatically not likely be a success if it these networks of homologous national regulators are then re-imagined (to the dismay, has been my experience, of those who actually serve in those technical networks) to function as the vanguard for genuinely political global governance down the road in some wished-for future. Enough networks of technical regulators will eventually coalesce, as their social identities and personal identities shift away from their national governments to the “transnational,” that they will decide and “govern” in the interest of the whole, or something like that.

Technical networks scale up to political governance? Seems to me wrong in fact, and wrong in principle – and fatal to what transnational networks can actually hope to accomplish today. (Rene Char captured my sentiment very well in some poem I can’t offhand recall – “obsession with today’s harvest and indifference to the grand designs for history are the two ends of my bow” or something like that; if Dominique de Villepin can quote Char to his purposes, I guess I can too.)

And in any case, the smart part of this new way of thinking about global governance is that it acknowledges frankly that the issue is fundamental social – the formation of a society – rather than merely political, and so the questions of social integration, personal identity with the project, all the problems of Weberian social legitimacy, are squarely on the table in all this talk about how people will identify with their networks over their national governments (A New World Order goes to this question, for example.) It’s smart in the sense that it correctly comprehends the problem as being a matter of social legitimacy; it is not Thomas Franck’s legitimacy among nations, but rather legitimacy on a much more globalized, transnational basis among individuals who comprise these groups, not nations. Unfortunately, seeing the problem is not the same as solving it (if one thinks it is a problem to be solved, which I do not). The reality and the ideal is ‘a politics, not a society’.

So if the question is, how to govern? My answer would be, you don’t govern. Governance is an inapprorpriately glorious, tony, high-falutin’ idea. The problem is to accomplish a relatively narrow set of tasks competently, today, without thought of what great things it will be tomorrow. Whatever one thinks the list of tasks that the UN – focusing on the UN in particular, as an institution – can competently perform, one would do well to immediately cut it by two-thirds (nine-tenths?) and start from there. Sufficient unto the day is the evil thereof, &tc., might be a good watchword for Secretary General Ban.

That all said, however, I have also looked with some surprise and dismay at the relatively little attention that the institutional UN gets these days from international law academics. The cool things are, as I’ve said many times, international criminal law. And global constitutionalism that, much of the time, has relatively little to do with international organizations and is mostly dreaming about how great things will be if one could only ramp up the model of the EU to the world (which is to say, a way of talking about the vision of the EU rather than talking about the actually, really existing UN). Or alternatively transnational regulatory networks and global administrative law (whatever their virtues, one implicit feature is that they by-pass the “political” UN). The relative lack of scholarly attention suggests to me that our profession has largely given up on the institutional UN, whether as a locus of idealistic dreams of liberal internationalism, or even as a topic of research interest.

My perception is that international law scholars nonetheless like the UN as an ideal and a symbol.  It’s part of the non-falsifiable faith of international law.  But we don’t want to have to confront it as an actual institution.  To the extent we want to get involved with it, we prefer to do so as a branding organization, one that essentially franchises the UN name over to essentially outside, “other-governed” activities, such as international tribunals, in which the influence of law professors is much greater than it is in things controlled by the General Assembly.

(There are some links I’ll go back and add later.  Time to teach international business transactions.)

Columbia University historian Samuel Moyn has a new book out, The Last Utopia: Human Rights in History (Harvard/Belknap). I haven’t read it – but I have ordered it from Amazon! – and I’m sure I’ll have more to say about it once I’ve read it. However, it received a positive (and quite interesting in its own right) review from Brendan Simms, a well-known Cambridge international relations professor, in the Wall Street Journal. And Professor Moyn has written a summary of the book’s argument that appears as an article in this week’s Nation. The Nation piece is good reading on its own, and this part drew my attention:

Beginning in the 1990s, when human rights acquired a literally millennial appeal in the public discourse of the West during outbreaks of ethnic cleansing in Southeastern Europe and beyond, it became tempting to treat 1948 as a moment of annunciation, with large political consequences. Carter, and the 1970s, were rarely mentioned. It became common to assume that, ever since their birth in a moment of postgenocidal revulsion and wisdom, human rights had become embedded slowly but steadily in humane consciousness in what amounted to a revolution of moral life. In a euphoric mood, high-profile observers like Michael Ignatieff believed that secure moral guidance, born of incontestable shock about the Holocaust, was on the verge of displacing self-interest and power as the foundation of international relations. In Samantha Power’s “A Problem From Hell”: America and the Age of Genocide (2002), Raphael Lemkin, who crafted the draft resolution of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was dusted off as a human rights sage and hero, with Carter earning attention only for failing to intervene against Pol Pot’s atrocities.

In fact, when “human rights” entered the English language in the 1940s, it happened unceremoniously, even accidentally. Human rights began as a very minor part of a hopeful alternative vision to set against Adolf Hitler’s vicious and tyrannical new order. In the heat of battle and shortly thereafter, a vision of postwar collective life in which personal freedoms would coalesce with more widely circulating promises of some sort of social democracy provided the main reason to fight the war.

It’s important to enumerate what human rights, in the 1940s, were not. Ignatieff was wrong. They were not a response to the Holocaust, and not focused on the prevention of catastrophic slaughter. Though closely associated with the better life of social democracy, only rarely did they imply a departure from the persistent framework of nation-states that would have to provide it.

Above all, human rights were not even an especially prominent idea. Unlike later, they were restricted to international organization, in the form of the new United Nations. They didn’t take hold in popular language and they inspired no popular movement. Whether as one way to express the principles of Western postwar societies or even as an aspiration to transcend the nation-state, the concept of human rights never percolated publicly or globally during the 1940s with the fervor it would have in the ’70s and the ’90s, including during negotiations over the Universal Declaration.

What if the 1940s were cut loose from the widespread myth that they were a dry run for the post–cold war world, in which human rights began to afford a glimpse of the rule of law above the nation-state? What if the history of human rights in the 1940s were written with later events given proper credit and a radically different set of causes for the current meaning and centrality of human rights recaptured? The central conclusion could only be that, however tempting, it is misleading to describe World War II and its aftermath as the essential source of human rights as they are now understood.

From a global perspective, the brief career of human rights in the 1940s is the story of how the Allied nations elevated language about human rights as they reneged on the earlier wartime promise—made in the 1941 Atlantic Charter—of the self-determination of peoples. Global self-determination would have spelled the end of empire, but by war’s end the Allies had come around to Winston Churchill’s clarification that this promise applied only to Hitler’s empire, not empire in general (and certainly not Churchill’s). The Atlantic Charter set the world on fire, but because similar language was dropped from the Universal Declaration, human rights fell on deaf ears. It is not hard to understand why. Human rights turned out to be a substitute for what many around the world wanted: a collective entitlement to self-determination. To the extent they noticed the rhetoric of human rights at all, the subjects of empire were not wrong to view it as a consolation prize.

Without, as I say, yet having read the book, I find this intriguing. No, more than that – it accurately captures in my own experience as an NGO person who first volunteered to do work for Human Rights Watch in 1983 when it was still two somewhat separate organizations, Helsinki Watch and Americas Watch. This was a time when Aryeh Neier was operating out of a tiny dark office in the New York City Bar building, and the organization was not in its current position of glorious NGO hegemony and a $44 million annual budget – meaning, an offer from a Harvard Law student bringing his own funding was not an occasion to giggle at the presumption. Ken Roth was still working as a Federal prosecutor.

Continue reading ‘Samuel Moyn on the History of the Human Rights Movement’ »

Chief Conspirator Eugene mentioned the dismissal of the piracy case (US v Said) in US district court yesterday, along with some important initial commentary by piracy law expert (i.e., universal jurisdiction law expert) Eugene Kontorovich.  Over at the international law blog Opinio Juris, Julian Ku and David Glazier comment further.  Like Eugene, they think the District Court dismissal was on weak grounds.