International law

2004 06 10
Here come the lawyers, Part II

Those interested in the legal questions relating to Abu Ghraib will want to read an Op-Ed appearing in the New York Times today:
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A single voice crying in the wilderness (1)

2004 05 17
High Crimes and Misdemeanours

Here is Fred Kaplan summarizing the recent allegations in the New Yorker and Newsday:

Read together, the magazine articles spell out an elaborate, all-inclusive chain of command in this scandal. Bush knew about it. Rumsfeld ordered it. His undersecretary of defense for intelligence, Steven Cambone, administered it. Cambone’s deputy, Lt. Gen. William Boykin, instructed Maj. Gen. Geoffrey Miller, who had been executing the program involving al-Qaida suspects at Guantanamo, to go do the same at Abu Ghraib. Miller told Brig. Gen. Janis Karpinski, who was in charge of the 800th Military Brigade, that the prison would now be dedicated to gathering intelligence. Douglas Feith, the undersecretary of defense for policy, also seems to have had a hand in this sequence, as did William Haynes, the Pentagon’s general counsel. Lt. Gen. Ricardo Sanchez, commander of U.S. forces in Iraq, learned about the improper interrogations�from the International Committee of the Red Cross, if not from anyone else�but said or did nothing about it for two months, until it was clear that photographs were coming out. Meanwhile, those involved in the interrogations included officers from military intelligence, the CIA, and private contractors, as well as the mysterious figures from the Pentagon’s secret operation.

That is how it looks, though I’m still waiting for confirmation on some of the details. Kaplan is curious about what this means for Bush. I’m curious about what it might mean for certain high ranking administration figures in their life after government. It’s only a matter of time before, say, Cambone passes through Belgium or Spain. It is only a matter of time before someone in one of these countries decides that taking “universal jurisdiction” seriously means that he can be charged with war crimes. And then we will find ourselves in the middle of a whopping diplomatic mess.

I would not underestimate the tenacity of the administration’s critics in going after U.S. officials they believe are war criminals. And I would not – ever – underestimate the intensity of the response within the U.S. when that eventually happens. It may be that the real diplomatic fallout of the Iraq War is yet to come.

UPDATE: OK, I took the dog for a walk and mulled it over a bit more. It occurred to me that I really ought to know more about the relevant legal issues here. These get complicated awfully quickly. There are legal questions about the International Criminal Court that I don’t know the answer to, and there are also interesting issues about possible prosecutions outside the ICC but drawing on the notion of universal jurisdiction. And different legal issues arise at different levels in the chain of command. If anyone knows enough about the legal issues to predict the likelihood of an attempt to prosecute a high-ranking Bush administration official in the next few years, please do let me know. As things are now, I don’t believe I’ve seen anyone seriously discuss this possibility. So my question is: Is that because it isn’t at all plausible or because we’re so used to thinking that prosecutions for war crimes are reserved for countries like Yugoslavia?

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2004 03 03
[International law and the Iraq War]

Just a short post to make a point I’ve been meaning to make for a while. During the buildup to the war, the dialectic often went:

ANTI: The war is wrong because it violates international law.
PRO: Ah, but is international law really an absolute value? Would you oppose any war that violated international law? Is international law really the argument stopper you claim it is? Don’t you know that international law contains the following absurdities . . . ?

ANTI: The war is wrong because it lacks a Security Council resolution backing it.
PRO: Ah, but is every war lacking a SC resolution illegitimate? Would you oppose any war waged without SC backing? Don’t you know what a joke the SC so often is?

ANTI: The war is wrong because it is waged without international support. It is deeply unpopular.
PRO: Ah, so you would support it if it were popular? How much stock do you really put in other people’s opinions? Is a war necessarily unjust if it lacks international support?

And so on. There’s a lot to say about each of these (idealized) exchanges. But today I just want to make a fairly basic point about the nature of reasons.

I think a great many anti-war protestors (not all, of course!) did their side a disservice during the debate over the war by relying uncritically on each of these three strategies of argument. For of course it is possible to imagine just wars that violate international law. And of course it is possible to imagine just wars lacking in popular support or the support of the security council. If we frame our rejection of the war simply in terms of the failure of the war to meet these criteria, and insist that they hold no matter the circumstances, then the anti-war position begins to look a lot less plausible.

The obvious rejoinder to each of the PRO responses above is that a reason doesn’t need to be an absolute reason (i.e., one that always defeats other reasons) to be a good reason for something. What is important here is that on top of everything else the war violated international law, and so on. And all other things being equal that’s a negative, something that ought to be weighed into the balance in deciding whether to support it. That doesn’t mean I commit to reject every war that violates international law, because there may be extreme circumstances in which I will accept illegal wars. But don’t try and twist that admission into the claim that the whole matter is irrelevant.

An analogy with domestic law is appropriate here: All things being equal it’s bad to break the law. But there are sometimes unjust laws that ought to be broken. By accepting that I don’t concede that lawbreaking is morally irrelevant. It ought to be weighed in the balance. In normal circumstances, it ought to count quite a bit.

It is surprisingly hard to find reasons which defeat other reasons regardless of the circumstances. Most of our decisions involve reasons which are not decisive, but which, in combination with other reasons, yield plausible answers about what to do. The need for eggs by itself may not be enough to get me to the store, and neither might the need for bread. But if I’m out of both, I might find myself with good enough reason to go. Reasons are like that.

At any rate, as I said, I think many anti-war protesters botched things by imprecisely describing the moral and prudential significance of three reasons to avoid the war: that it violated international law, that it lacked the backing of the SC and that it was deeply unpopular. For they often suggested or implied that each of these by itself was a perfectly decisive reason to reject the war.

But not everyone who complained that the war on Iraq was an illegal and unpopular war left themselves open to the PRO responses I mentioned above.

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2003 03 24
The Geneva Conventions

The Bush administration has a reputation for unilateralism, but one international convention has made an astonishing comeback over the last two days: The Geneva Convention. The Geneva Convention has been greatly honoured lately: it’s invoked regularly by officials, touted by experts, excerpted and put up in flashy graphics on the television screen, etc. This is all to the good, though the circumstances of its return are deeply unfortunate. It’s really awful to think of what captive American soldiers in Iraq are having to endure right now.

As long as the Geneva Convention has the country’s attention for the moment, its supporters ought to try to use these 15 seconds of fame to urge that the U.S. come back into full compliance with it. Now, I admit that:
a) Even when the U.S. has not fully complied with the GC, it has often still observed (relatively) humane standards of treatment of prisoners. Guantanamo Bay isn’t much fun, but it sounds like more fun than an Iraqi prison. And although the U.S. has repeatedly insisted that it doesn’t need to bring captives in Guantanamo Bay before a tribunal, as (I think) is required by the GC, it has released some prisoners. At least they’re not forgotten and their status does seem to be a matter of some concern.
b) There are real and special legal, moral and practical difficulties raised by sub-state actors like terrorist organizations.

Still, much of the commentary so far on POWs has stressed the full and complete compliance with both the letter AND the spirit of the GC. In contrast, with both A.Q. and the Taliban, the attitude of the administration was a bit more fussy, as though officials were picking through dishes at a buffet and rejecting ones they didn’t fancy.
There is also now outrage at the expectation of torture and abuse of U.S. soldiers. Rightly so, to my mind. U.S. soldiers will always be entitled to protection from this kind of treatment, even if their own government has not fully complied with the GC, and even if the war is waged in violation of international law. But it’s also worth recalling that this country has spent the last year and a half seriously debating the morality and practicality of torture, and the media has largely winked at the exporting of suspects to countries where torture is practiced routinely. (Go to for details). And the same officials which have held suspects incommunicado for over a year are now pointing to sections of the convention which prohibit this.

Again, terrorism may well raise specific moral and practical difficulties. But part of the point of the convention is that countries agree to forego advantages they might gain from ill-treatment (e.g., extra information) of prisoners. The ill-treatment of U.S. soldiers clearly does (from its point of view) the Iraqi regime a world of good: it’s demoralizing for the U.S. and encouraging to its own soldiers and citizens. But we won’t accept that as an excuse. And we shouldn’t. The lesson is not just one for Iraq, though. Now that the U.S. has rediscovered the charm of the GC, it ought to respect it in its own conduct. No exceptions allowed.

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2003 01 28
[Roth on the Iraq War]

Human Rights Watch, an organization I admire very much (though occasionally dissent from), has released an interesting paper by Kenneth Roth (their head honcho guy) on the Humanitarian argument in favour of the war in Iraq.

Despite a touch of lawyerprose, it’s a good, solid piece, and it deserves to be widely read.

The piece is all the more striking because HRW usually declines to take a position on jus ad bellum (the justice of the case for war) issues, preferring to focus on jus in bello (the justice of the actual fighting) stuff. They stuck to that during the Iraq war, declining to take a position on the justice or legality of the U.S. cause and instead focusing on violations of the laws of war during the fighting. But HRW has decided to weigh in publicly on the humanitarian justification for war, partly out of fear that the Bush administration is badly discrediting an argument which sometimes desperately needs to be made.

I agree with almost the entire piece. But agreement is boring. So here’s a passage I thought was a bit silly:

In noting that prosecution was not tried before war, we recognize that the U.N. Security Council had never availed itself of this option in more than a decade of attention to Iraq. The council’s April 1991 resolution on Iraq (resolution 688), in condemning “the repression of the Iraqi civilian population in many parts of Iraq,” broke new ground at the time as the first council resolution to treat such repression as a threat to international peace and security. But the council never followed up by deploying the obvious tool of prosecution to curtail that repression. Yet if the U.S. government had devoted anywhere near the attention to justice as it did to pressing for war, the chances are at least reasonable that the council would have been responsive.

Whatever. The corruption and cynicism of the French and the Russians and the Chinese appears to have escaped Roth. (Earlier in the piece, he praises French motives (!) in their 2002 humanitarian interventions in Africa. Ugh.)

Roth also has interesting things to say about the role of intentions in judging the humanitarian justification for war. Roth does not insist that intervening countries have pure motives. Still, he thinks that motive counts. I find this interesting because I spent many hours discussing questions about motives and the issue of hypocrisy in general with my students last year when I was teaching a class on the war. Roth’s argument for insisting that motive counts doesn’t depend on claims about their intrinsic value. Rather, he thinks that bad motives tend to have lousy consequences. In principle, I’m open to this line of attack. But I think Roth is wrong here:

To begin with, if invading forces had been determined to maximize the humanitarian impact of an intervention, they would have been better prepared to fill the security vacuum that predictably was created by the toppling of the Iraqi government. It was entirely foreseeable that Saddam Hussein’s downfall would lead to civil disorder. The 1991 uprisings in Iraq were marked by large-scale summary executions. The government’s Arabization policy raised the prospect of clashes between displaced Kurds seeking to reclaim their old homes and Arabs who had moved into them. Other sudden changes of regime, such as the Bosnian Serb withdrawal from the Sarajevo suburbs in 1996, have been marked by widespread violence, looting, and arson.

That just doesn’t seem right to me. The best explanation for what happened was sheer incompetence, since there’s no satisfactory hypothesis connecting motives plausibly ascribed to the admin with what actually happened.

Roth speaks with rare sanity about the significance of international approval for the war:

There is considerable value in receiving the endorsement of the U.N. Security Council or another major multilateral body before launching a humanitarian intervention. The need to convince others of the appropriateness of a proposed intervention is a good way to guard against pretextual or unjustified action. An international commitment to an intervention also increases the likelihood that adequate personnel and resources will be devoted to the intervention and its aftermath. And approval by the Security Council, in particular, ends the debate about the legality of an intervention.
However, in extreme situations, Human Rights Watch does not insist on Security Council approval. The council in its current state is simply too imperfect to make it the sole mechanism for legitimizing humanitarian intervention. Its permanent membership is a relic of the post-World War II era, and its veto system allows those members to block the rescue of people facing slaughter for the most parochial of reasons. In light of these faults, one’s patience with the council’s approval process would understandably diminish if large-scale slaughter were underway. However, because there was no such urgency in early 2003 for Iraq, the failure to win council approval, let alone the endorsement of any other multilateral body, weighs heavily in assessing the intervenors’ claim to humanitarianism.

I think that’s exactly right. The anti-war crowd got awfully worked up about the failure to get a SC resolution prior to the war, though that would likely not have satisfied many of them. It sometimes got so that the backing of the SC seemed to be the sole criterion on which many people would judge the justice of the war. Nuts, I say. There are unjust international laws, just as there are unjust domestic laws. In addition to what Roth points out, the real significance of the failure to get SC backing was this: That on top of everything else that was wrong with the war, it violated international law. Unfortunately, it was difficult to make that point without sounding as if international law were all important.

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