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Monday, February 17, 2003

INTERNATIONAL LAW, MORALITY, AND THE ICC: EXCHANGES WITH THREE OTHERS

The three others here are a former student who prefers to remain anonymous. Then Jeff Farrah, a senior political science major at UCSB --- and the head of the campus Republican Party organization, and a doughty critic of politically correct orthodoxy and dogma in all its forms on campus --- and then Michael Jabbra, a recent graduate with a quick, responsive mind, wide reading, and a ranging curiosity. The Buggy Prof thanks all three, whose comments --- just in from the first correspondent, a little dated from Jeff and Michael but fully apropos to the topics raised in John's thoughtful comments about the international law, international morality, and the pros and cons of the new International Criminal Court that the Bush administration has refused to sign, with the backing of Congress.
FROM A FORMER STUDENT

Professor Gordon:

I've been passing on word about your site to everyone I know. I'm really enjoying your insights (and tremendous humor!), and I know that my friends will too. I read Josef Joffe's excellent editorial in Die Zeit, and I had had begun translating it for you until it got late and then I got pulled into a new deal with a crazy timeframe. Joffe is always insightful on German-American relations.

I was wondering if you could write your views about the International Criminal Court. I think it would be apropos of your postings regarding anti-Americanism and Iraq. The ICC keeps me up nights because it sounds great in theory (who doesn't want to bring war criminals to justice?) but in practice it's likely to be used to attack or humiliate the US. Why else would the Europeans refuse to exempt US citizens-- particularly military personnel-- from prosecution under the ICC? They assume US courts are incapable of rendering adequate justice, a preposterous and insulting notion. Who would the French rather try first for human rights abuses: Rumsfeld for calling France "Old Europe" or Hussein for gassing thousands? That Belgium wants to try Sharon for war crimes is a case-in-point of the potential for abuse. And with Libya head of the UN's human rights body, it's easy to imagine a Mugabe heading the ICC.

While at NYU I heard many influential American lawyers-- who are typically idologically alligned with the European left rather than America's mainstream-- advocate that American judges should reach beyond our own jurisprudence to (of course, more leftist) international norms and laws to inform their decision-making. I view these activist lawyers as looking to an international court system to enforce US uniformity with a European political agenda that is near and dear to such lawyers' hearts but anathema to a majority of Americans. Such influential lawyers' motivations are no secret: they've already sought to impose a political agenda through the US courts that they know would never be successful if pursued by democratic means. That's why Washington has made judicial nominations so viciously political. Such lawyers clearly don't view blatant judicial activism as I do: that it always risks deligitimating the judiciary when it's clearly an end-run of democratic choice.





THE BUGGY PROF'S FIRST COMMENTARY IN REPLY

1) Robert Kagan, a good IR analyst, sets out the reasons why the Bush administration rightly refuses to underwrite the new treaty that establishes an International Criminal Court --- given the record of the UN Human Rights Commission where a bloc of many of the most systematic and brutal human rights violators vetoes any effective condemnation of themselves, given too the frivolity of the Belgian courts arrogating power to themselves unilaterally to try anybody around the world for human rights violations . . . a frivolity criticized openly by the Belgian Foreign Minister a few months ago.

As Kagan notes, in the Kosovo war, there were lots of people -- not least in Europe -- who raised war-crimes charges against the US when we were dealing with the Milosevic government, itself repudiated not long after the war by the Serb people. And the EU media gobbled naively Taliban lunchtime news reports about thousands and thousands of civilian casualties last fall. The AP sent reporters about two months ago to do on-site interviews and inspections. Their conclusion? About 500 civilian casualties. Then too the EU media repeatedly like so many Charley McCarthys the PA line that there were first thousands and then hundreds of civilian casualties in Jenin two months ago. The reality? 57 civilian deaths according to the PA itself, with 27 on the Israeli side.

We're either doing with incredibly naive and stupid reporters throughout the EU media or ideologically biased ones --- more likely, both.

2) Until the US government has guarantees that its soldiers in any peacekeeping mission won't be subject to war crimes charges before the new court, it is right to refuse participation in such missions.

We use force all the time around the world --- repeatedly in the Clinton administration, repeatedly now; and the US is the target of every brutal tyrannical regime fearing that it might be toppled or its turn is next, as it is of all radical leftists who have their own reasons to hate the US --- including many in the EU. And since the US military carries out the vast majority of military missions in peacekeeping exercises or war-fighting missions to topple a bad government, that means American soldiers -- not French or British, and certainly not Swiss or Swedes --- will be the most vulnerable and exposed to politically motivated accusations.

Consider. In Kosovo, despite French, British, and Italian participation in the war (NATO approved), US bombers dropped 95% of all bombs -- the European planes not even carrying night-fighting equipment in most instances, let alone the electronic devices to evade Serb radar and missiles --- and US ships were responsible for 90% of the cruise missiles used. That meant Americans soldiers and sailors were 90-95% more exposed to war crimes charges than our NATO allies.

3) Another example, this one historical.

Go back to 1942-45, and take Vichy France. Its industries were critical to the German war machine, and so both British and American bombers repeatedly attacked them --- just as, when we landed on Normandy and broke out in June and July 1944 -- we ended up fighting in urban areas, house to house, again and again . . . the civilians having to take care of themselves as best as they could. Without such fighting and bombing, there would have been no liberation of France --- period. Suppose some war crime court heard accusations from Nazi-sympathizers or neutrals like Switzerland or Sweden that were tilted toward the Nazis (Switzerland especially, its banking system laundering Nazi gold and money so that Germany could purchase raw materials around the world still, and its factories supplying German munitions factories without being exposed to allied bombing) --- suppose they had accused the US and the British of war crimes.

Might be worthwhile for the French and others to think this through, assuming they're capable of rising above their biases (which means recognizing them in the first place).



From the Washington Post "Europeans Courting International Disaster"

By Robert Kagan Sunday, June 30, 2002; Page B07

[Americans and Europeans are once more divided over international order, in this case the value of an International Criminal Court. The Bush administration sees it as a danger: The Buggy Prof lead-in here]

" . . . It's a legitimate concern. In 1999, during the war over Kosovo, there were some in Europe, and in the United States, who accused the American military of war crimes when it bombed http://www.washingtonpost.com/wp-dyn/articles/A64316-2002Jun28.html Milosevic's Serbia. Starting tomorrow they would be able to bring charges against American soldiers at the ICC. So the Bush administration has threatened to veto renewal of the peacekeeping mission in Bosnia in the U.N. Security Council if the necessary protections are not put in place for American peacekeepers serving in that mission. The Europeans so far have refused to make any concessions. The dispute highlights much of what divides Americans and Europeans these days. Europeans, along with many other less influential and less worthy nations, are trying to advance their vision of international civilization, with a web of international laws and institutions assuming authority over individual nation-states. Not surprisingly, the world they're trying to create looks an awful lot like the European Union, where rules and laws are more important than military power. And not surprisingly, they're none too happy about the militarily dominant United States placing itself above or outside their new international legal system before it's even begun.

"Americans are hardly hostile to international law -- the United Nations was their idea. But the United States has a special problem, one that its European allies ought especially to appreciate. As the world's most powerful democratic power, the United States is called upon -- yes, called upon -- far more frequently than any other nation to dispatch its troops overseas for any number of purposes. To liberate nations that have been invaded -- like Kuwait or, say, France. To defend other nations threatened by invasion -- like South Korea and Saudi Arabia or, not so long ago, Germany. Or to defend people threatened by genocide or ethnic cleansing, as in Bosnia and Kosovo. Unlike even the strongest European powers, which have trouble projecting military force even on their own continent, America's entire global strategy is built around projecting military power anywhere at any time, which means the United States is always going to have far more soldiers vulnerable to some misguided ICC prosecutor than any other nation.

"But that's only one way the International Criminal Court will have a disproportionate impact on America. It's no secret that the United States, precisely because it is the dominant economic, political, cultural and military force, is more often the target of ire around the world than, say, Luxembourg. Impoverished Egyptians and rich French farmers tend to blame America first. So whose troops are most likely to be hauled before the ICC on some war crimes charge? Even those who believe the ICC is a good idea have to admit, if they're honest, that the United States is going to be more vulnerable than other powers . . . ."




THE BUGGY PROF'S SECOND COMMENTARY ON INTERNATIONAL LAW

You'll find at the end of this commentary some excerpts from an intelligent editorial that appeared not long ago in the WSJ European edition on the US stance toward the ICC --- especially our differences with our European NATO allies, some of whom initially shared the same reservations as we still do: especially the French and British, the only two countries to use force extensively in peace-keeping missions (or unilaterally). That's a key point, the deployment and use of military forces. As long as the US is involved energetically 20 or so peacekeeping missions around the world right now --- and as long as its airmen, sailors, and soldiers, never mind special forces, carry out the huge bulk of military missions as in the Gulf War, Bosnia, Kosovo, and Afghanistan --- then American soldiers, sailors, and airmen will draw the most attention and ire of the members of the ICC . . . a court that will be administering laws composed of judges that will likely hail from dozens of thuggish national societies around the world, many hating the US and enemies of it, where no rule of law even remotely prevails.

US Stance

The US, remember, has supported ad hoc war crimes trials in the past --- Bosnia (Kosovo too now) and Rwanda -- and for that matter the Nuremberg trials. The latter illustrate both the need to deal with exceptionally monstrous regimes, in that case the Nazis, and the politicized absurdities that could easily find American military personnel and political policymakers in Washington indicted before a politicized ICC. For in the Nuremberg trial, Soviet judges also sat and passed judgment; and they found -- with a straight face --- that the Nazi leaders and military were guilt of aggressive war, such as invading Poland. No mention was made of the simultaneous invasion of Poland from the East by the Soviet Union, which had just finished invading Lithuania, Estonia, and Latvia, and was about to invade Finland three months later (1939).

As I mentioned the other day, would the French pc-types and others be so enthusiastic about the ICC were they still living under the Vichy Nazi-collaborating government because American bombers couldn't smash to smithereens (with the British) French factories working for the German war machine, or American infantry and armor fighting house to house, city after city, to destroy heavily fortified German position, with the civilians left to fend for themselves --- and the reason the US command wouldn't plan these missions is that pro-Nazi countries like Switzerland were protesting before the ICC in Rome (itself liberated by American forces doing the same thing in Italy) because civilian casualties were being caused, and after all the French workers in the French factories were innocents?

Why Laws Are Generally Observed in a Solid Democratic Country

More generally, laws are respected in a democratic country not because of fear alone -- or mainly because of it --- if the laws are transgressed, but out of respect for their constitutionality and moral rightness, even when we individually disagree with certain laws . . . and can press our legislators to change them. Somehow I'd have no respect for a ICC court filled with judges from mobster-states around the world --- or pc-inspired judges from even the EU. And doubly so if they're from stalwart defenders of democracy and universal human rights like the Swedes who have done nothing in the last 100 years -- shedding not one soldier's blood -- to destroy Nazism, Japanese militarism, Italian Fascism, and Soviet totalitarianism. Even the government there is worried, rightly, about the growth of neo-Nazi groups, and has recently started pushing for an open examination of Swedish pro-German sentiments and behavior in WWII. As for Switzerland -- which doesn't participate in any peace-keeping or done nothing either for a century on these scores (except roll in the bucks from the Nazis and every dictator and Mafioso around the world) --- the notion of a Swiss judge on the tribunal seems derisory to me. And at least Switzerland and Sweden are countries where a rule of law prevails (or in Switzerland, usually it does except where the bankers are sometimes concerned).

Or maybe we could be treated to the spectacle of EU media-pundits who assured us in great numbers --- including Der Spiegel's cover story complete with a picture last fall on it of US bombers "destroying" Afghanistan --- that there were thousands and thousands of Afghan casualties . . . a piece of information courtesy of Taliban evening news broadcasts. The actual number according to a team of AP reporters who investigated this in the winter: 500. Or those same pundits who said that yes, there had to be thousands of civilians massacred at Jenin, or at least later several hundred --- caused extraordinarily by Israeli forces that didn't use their helicopter gun ships --- because the PA said so. The exact number: 57. On the Israeli side, 27 deaths.

If any of this sounds exaggerated, you might recall who was slated to head the UN Conference on Disarmament next month, March 2003? Believe it or not, Iraq and Iran! And, in case you think this might be a quirky aberration, you do you think chairs now the UN Human Rights Commission? None other than that stalwart defender of freedom and due process, Colonel Khadaffi's Libya. Had any of this been dreamed up by a sci-fi script writer for a low-budget TV diversion and actually shown on screen, we'd probably suggest that she change drugs before it's too late and she donned a cape and red-white-and-blue panty hose and cape and leapt off the Empire State building claiming she was Wonder Woman. http://www.pinchbeckcomics.com/ (Note in passing that Iraq's government, couseled by you can guess who in West Europe, it seems, has decided to pass on its jointly chaired global responsibilities on pushing for world-wide disarmament.")



Hot Air on the ICC

FROM THE WALL STREET JOURNAL

"The hysteria over America's attitude toward the International Criminal Court this week reached new heights. The U.S. not only threatens the cause of human rights but also peace world-wide. Or so the (Manchester) Guardian, the New York Times and a host of others would have you believe . . . .The U.S. chose Bosnia as a test case because the U.N. renewal came up the same week the ICC opened its doors in The Hague. The Bush administration opposes the ICC out of concerns about its democratic legitimacy and jurisdiction, concerns that we share. The EU, for its part, refuses to do anything that undermines the court. Hence the stalemate. . . .At the U.N., the Bush administration stood up for a principle that American citizens -- particularly its soldiers who are called on, often by others, to deploy in faraway countries -- deserve the protections of the U.S. Constitution and the U.S. legal system. The ICC, based on the idea of a "universal jurisdiction" without a sovereign state as its master, provides neither.

"The court's defenders argue the chamber wasn't created to target Americans but war criminals in countries unable or unwilling to prosecute their own. Then why not stick to ad hoc tribunals for specific cases? As is, the ICC lacks sufficient protections against politicized prosecutions of Americans or other nationals from democratic nations . . . .In fact, the Europeans share the very same concerns about the ICC. France held out the right to "self-defense" during the negotiations over the Rome treaty. . . . As Robert Kagan pointed out in the recent edition of the journal Policy Review, the EU and U.S. have increasingly divergent conceptions of power. The EU relies on multilateral agreements to make up for a feeling of military insecurity. The U.S. feels confident in asserting itself globally with a first-rate military.

"This divergence in views seems behind the latest dispute over the ICC. . . . Yet the two sides need each other more than ever. The recent efforts to revitalize the trans-Atlantic link through a commitment to meet new threats such as terrorism together risk becoming hostage to European political gamesmanship over the ICC. The EU is defending a principle that in practice it doesn't believe in. So who's really being bull-headed here?"



THIRD COMMENTARY WHY MORAL JUDGMENTS IN INTERNATIONAL LIFE HAVE LESS IMPACT AND ARE FREQUENTLY HARDER TO MAKE PERSUASIVE THAN IS THE CASE IN A SOCIETY LIKE OURS

1. Legality and morality tend, generally, to converge in democratic societies like ours under a rule of law and a clear sense of consenual government, even though there will be room for disagreements about morally charged controversies like abortion and profiling in criminal cases by police. And of course the political and left continue to disagree about the relative merits and tradeoffs between equality and freedom, with equality itself a noticeably contested concept: does it mean legal equality, political equality (one man, one vote), equal opportunity, equality of outcomes, and are the subjects individuals or groups.

Still, anyone who knows anything about the history of class and ethnic conflicts and violence, revolution, and civil war in the 19th and first part of the 20th century of European democracies and the US --- which led by the late 1930s to extremist ideologies of the left and right dominant all over the Continent of Europe save for the lowland countries (Holland and Belgium and Luxembourg), Switzerland, and Scandinavia, with France itself in a condition of latent civil war that would spring out into the open after German occupation in June 1940 --- also knows that the sharp conflicts that divided left and right have blunted noticeably, with the once major ideological conflict here --- statist socialism vs. capitalism --- practically disappearing from the political agenda. (Whether the degree of political consensus and civility will prevail in West Europe in another 10 to 20 years, what with the rapid growth of alienated, increasingly fundamentalist Islamic populations resistant to secularism and assimilation, and rife with violent crime and likely terrorist networks, is another matter.)

2. When, by contrast, morality and legal norms diverge sharply -- as they do in much of international law and its ability to regulate and channel the behavior of states and trans-national terrorist networks like Al Qaeda, Hamas, Hezbollah, and others of that ilk --- then the gap between moral judgments and legal interpretations opens up a wide spectrum of disagreement. At times, too, that disagreement can be fundamental. This is especially the case when great powers with different political systems and ideologies are at war with one another, mobilizing allies where they can: WWII the most blatant example in recent history, 50 million dead the price of the conflicts, with the cold war another such clash but fortunately, owing to nuclear deterrence and effective diplomacy and containment by the Western alliance, kept from erupting into a new hegemonic struggle. 3. Something else. Moral judgments in international relations are far harder to make than in domestic life in countries like our own, and for several reasons that have been set out by a variety of specialists over the centuries, most recently and with skill by Joseph Nye, Understanding International Conflicts: An Introduction to Theory and History, (Fourth Edition, Longman's)

  • Moral consensus is far more fragmented across 190 countries with different cultural traditions than it is in a society like ours. In many instances --- say, the treatment of women in Arab societies (justified by Islamist radicalism) compared to the positions of women in California (where abortion on demand is a lively issue) --- the gap is huge. The same pertains to "terrorism": witness the radical fundamentalist justifications of attacks on Israeli citizens or Jews or even by secular terrorist groups like Al Asqa Martyr's Brigade (a Arafat spin off).
      • By contrast, in a society like ours, most people don't even reflect much in their moral behavior. We know reflexively, through socialization and reinforcement, what is morally right or wrong in almost all situations.


  • The foreign events that prompt moral judgments are distant and remote and involve various degrees of ignorance on the part of almost all people. Most Americans and Europeans couldn't find Afghanistan on the map before last Sept 11th, let alone tell you what the population of the country is, how it's divided into major conflicting ethnic groups (themselves fragmented along tribal lines), who the Taliban were, what their links to Al Qaeda might be, how they came to power, and the like. Scarcely any of the journalists pontificating on the Middle East -- other than a few dozen working for papers like the NY Times or operating as investigative reporters --- could give you a coherent half-hour analysis of the origins and evolution of the Israeli-Palestinian conflict of the sort set out in Commentary magazine by Efraim Karsch, the Univ of London professor who heads a prestigious institute there, that I sent a few days ago.

  • Then, too --- a source of moralizing righteousness --- most people have no idea that international law and ordinary morality as understood within a society may diverge markedly


  • As a further twist, international events -- like the Israeli missile attack on Hamas last spring ---distant, remote from most people's daily experience, involve complex causal chains that few of us can unravel and make sense of. How many people, say -- take just the vocal demonstrators world-wide last weekend --- can even remotely tell you the population of Iraq, its ethnic divisions and breakdown in population, how modern Iraq was created by the British, why they put a Saudi prince, Sunni in religion, on a throne to govern a largely Shi-ite country, the origins of the Iraqi and Syrian Baath parties and the big impact of Nazi ideology on both. Or how Saddam came to power, and with tactics; or when and how he went to war with Iran, etc, etc, to say nothing of any knowledge of past grandiose leaders in power anywhere, high risk-taking gamblers even when on the defensive. Or why he has spent more than $100 billion over the last 25 years building weapons of mass destruction, defying the UN, bankrupting his country in the process, and how they relate to his wider, overwrought ambitions.


      • In the Israeli case last spring, was Hamas about to launch a major terrorist wave against Israel as the Israeli government claims? Were there mistakes in the targeting? Was there a deliberate change in Israeli policy toward family members of terrorists? More generally, all the loose talk to the effect that terrorism can't be defeated this way --- or by our efforts around the world -- ignore the cumulative evidence that specialists in anti-terrorism have developed that show that defeating terrorism requires a lengthy period, uprooting the networks one by one, maybe over years --- exactly as President Bush has repeatedly said --- and that the leaders of these networks are themselves not necessarily either suicidal or inclined to send their own family members to do the dirty stuff. That applies not just to Hamas, but to bin Laden and Mullah Omar and all the other women-whipping murderers who fled Afghanistan rather than commit suicide bombings against American and opposition Afghan forces.
      • Or global warming. Or globalization and development. Or missile defenses. Or managing the NATO alliance, etc etc. All involve very complex causal chains, and require a great deal of background knowledge --- factual and theoretical.
  • The institutions that regulate various areas of international life --- themselves overwhelmingly "liberal" in our democratic understanding (conceptions of human rights -- the UN, market economics -- the WTO, IMF, World Bank, and the like) because of the enormous power and victories of the British and then the US in the 19th and 20th centuries against Napoleon, Imperial Germany, Nazi Germany, militarist Japan, Fascist Italy, Maoist China, and the Soviet Union --- are relatively weak and few in number, and hence the formal rules (legally codified or customary) are themselves much more vague outside of some specific areas such as trade (with service industries not even included in large number).


  • Conflicts between justice and order -- a major tension in even democratic societies like ours under a rule of law --- are much more common in IR for the reasons mentioned. In the US, the behavior of the police in trying to contain violence crime in crime-infested inner city areas is exactly the sort of issue that generates these tensions even here. In the international system, the tensions and conflicts are multiple and much more weighty and complicated.


  • 4. The moral to be drawn?

    Simply this: short of effective, legitimate, consensual world government --- a prospect hardly on the horizon, not now; maybe never --- there will always be some gap between morality and international law and the application of either to the full range of state behavior.

    That said, it's useful to remember something about how power politics, international order, and international law interact today. Since 1945 and again since the end of the cold war, to put it bluntly, there's a much higher degree of correspondence between moral norms and international law of a liberal sort --- liberal conceptions of human rights enshrined in UN documents (not necessarily followed or taken seriously by all or most states), liberal views of globalization and rule-based international trade and investment flows of a market-oriented sort, international organizations like the UN (a creation of the US and the UK at the end of WWII, with the Soviets joining in), and notions of collective security and peacekeeping --- than at any time in history. The reason? By far the most successful great powers of the last two centuries --- which ushered in the era of the industrial revolution and modern democratic revolutions (and counter-revolutions) --- have been the two great liberal sea-powers, the British and the US. They have defeated all major challengers with differing ideologies: Napoleonic France, Imperial Germany, militarist Japan and Nazi Germany and Fascist Italy, and the Soviet Union and its Communist bloc . . . defeated and destroyed them.

    It isn't hard to imagine what the dominate rules of the game in international order --- for power politics and cooperation alike --- would amount to had, say, Nazi Germany and its fascist and militarist allies won the war. No UN, no rule-based free trade and commerce, no human rights enshrined in international declarations, no collective security and peace-keeping; rather, a racial hierarchy of allegedly superior races and countries that exterminate, enslave, or dominate all others.

    Of course, this international order and the two major liberal allies -- together with Australia and most West and East European democracies, plus increasingly India --- is now being assaulted by radical Islamist fundamentalism and terrorist networks and terrorist-supporting states aligned with it or using them for their own purposes . . . states like Iraq, Syria, and Iran, cruelly ruled and run in one case by a megalomaniac and in the other by clerical fascists who have beaten back moderate elected forces (Iran), pursuing actively programs to build and deploy WMD. And there is North Korea, with its missiles and nuclear programs, the last of the Communist totalitarians, desperately poor and starving its people and with no export capacity at all save nuclear and missile technologies. Not hard to imagine which groups and states in the world would be willing to pay handsomely to get their hands on those weapons.



    THE FOURTH COMMENTARY: Exchange with Jeff Farrah on the Impact of Terrorism and International Law Since 9/11

    Jeff Farrah, a senior majoring at UCSB in political science, took ps. 121 and 129 --- IR theory and the US,Asia, and Europe ---and contributes frequently to the exchanges in the Buggy Professor's listserver with it several hundred subscribers (now largely transferred here). In his commentary below, he sets out some observations and prompts some queries about international law, morality, and terrorism --- whether terrorist networks or terrorist-supporting states like Syria, Iran, and Iraq that are also simultaneously ruled by brutal blood-soaked dictatorships and the secret police and pursuing energetically programs to develop and deploy and maybe use weapons of mass destruction.


    Prof. Gordon:

    In your view, do increasing amounts of terrorist groups make establishment and enforcement of international law more difficult? On the one hand I can see that it is impossible to hold terrorist regimes and groups accountable for their actions and try and make them act morally. One point I found interesting in this article was how the article explained "perfidy" in war, and used improper use of the "white flag" as an example. Obviously, the Taliban would have gladly used the "white flag" improperly if it meant murdering more Americans.

    Does this mean that enforcing international law is a wash now and that our time should be better spent going after terrorists?

    On the flip side of the coin, I can see where someone might argue that the stronger institutions highly developed democracies create on the international scene together, the likelier they will act as a unified voice and not be forced to "go it alone" against terrorist regimes. For instance, with low level integration, demoratically elected governments might see it in their interest to wipe out dictatorships and despotic regimes that support terrorism. However, many EU countries are not as ready as we are to go after terrorism supporting regimes. So I wonder, does the problem of terrorism call for increased human rights among first world countries as a means for leading by example and raising the bar of achievement for the rest of the world? Or does the lessoning of international law and moral norms seem more attractive so that states can pursue their interest (which you've pointed out, is what states do).

    A parallel involves global pollution. Many critics of ultra-enviromentalism leading to programs like the Kyoto Treaty think that the U.S. should not sign and administer such treaties, given the cost/benefit ratio, the likely harm to the US economy, and the scientific controversies about global warming that you have repeatedly noted in your listserver arguments: there has been no warming trend detected in the last 30 years by satellite measurements in the lower atmosphere taken daily, and confirmed by radio sound balloons; no warming trend before 1979 anywhere on earth or in the atmosphere the previous 40 years either; no warming trend anywhere over the Continental US, where meterological stations have been fully corrected for urban heat effects; no ability of the IPCC Kyoto models to predict retroactively the big changes in climate that we have independent data for over the millienia and longer; no agreement what is actually causing global warming despite claims to the contrary if it does exist (water vapor amounting to about 90% of alleged greenhouse gases effects on the ozone); and no reason to think that predicting what the earth's and atmosphere's temperature will be like in a century makes any sense, given the millions of variables that are potentially involved, all with complex feedback mechanisms both of a positive and negative sort. True, you don't deny global warming is occurring. As you have noted, no policy scientist can do this: only climate scientists, a discipline that spans dozens of other disciplines, and their ability perhaps in the future to reach a clear consensus that is persuasive. And you have also noted that we should begin encouraging a variety of technological R&D as well as implementing cost-beneficial environmental programs that will accelerate a shift away from our dependence on fossile fuels by 2030 or so. That, you said, would also reduce our dependence on fickle, despotic oil producers in the volatile region of the Middle East, and obviously I concur.

    So the question becomes in both cases, do our own personal needs conflict with the international communities needs? Will there ever be a time where states will, on a large level, want to adhere to international law. Or, is the post WW2, post Cold-War integration we are seeing now as far as it will go?

    I have a feeling, as a realist, that you will argue that international law inherently clashes with state self interest at times, particularly when a great deal is at stake --- security and wealth above all. I agree. However, like many notions states expirement with, I believe states will test out ideas in theory and then be forced to reject them when they do not pan out. For instance, Germany may pressure the U.S. to adopt additional international law, that is until the Reich Stagg is blown up by some despotic regime and the Germans have to go against their EU friends in fighting the War On Terrorism. Your thoughts will be appreciated,






    Jeff: Many thanks again for this intelligent and useful contribution. Maybe others will follow suit. A few responses now: FIRST: WHY INTERNATIONAL LAW AND INFORMAL INTERNATIONAL RULES VARY IN THEIR IMPACT ON REGULATING AND CHANNELING STATE BEHAVIOR.

    International law reflects the codified rules of international order: lots of the rules-of-the-game for both cooperation and conflict (diplomatic, warfare: eg, combatants vs civilians, treatment of prisoners, prohibitions on certain weapons are traditional and customary and aren't codified. In the end, whether any of the rules --- say, in trade or in diplomacy such as how to exchange ambassadors and treat embassies --- have much impact on power politics and warfare, never mind these more limited areas, depend on four things that we emphasize in ps121:
    1. Is there major religious or ideological conflict between states (and now terrorist groups)? If so, written international law and customary rules will be interpreted differently, applied differently, and -- where morality is invoked -- probably accentuate the conflicts . . . as opposed to traditional balance of power conflicts of the 18th century sort, say, among European imperial states.


    2. Is war regarded as low-cost or high-cost by the main states (and obviously now, terrorist warfare by terrorist networks and states that support them)? The more costly it's seen, the more likely aggressive actions can be deterred. Making terrorist attacks -- which are almost always aimed at civilians (in order to spread fear and terror, among other goals) --- much more costly is therefore a major priority for the US. Hence the solid rationale of the Bush administration's unilateral shift toward a pre-emptive strategy. Simultaneously --- a moral problem to be sure --- targeting the families of terrorists for retaliation would make terror that more costly for the leaders, none of whom ever sacrifice deliberately their own immediate family members.


    3. Are there numerous international institutions setting out detailed procedures and conflict-resolution methods in specific areas such as trade, investments across borders, treatment of multinational firms, accounting procedures, developmental aid, carving up the electromagnetic space, flight rules, the environment etc. The more detailed, the more explicit and codified the obligations, and the harder it is for states to fudge here.


        • Thanks to the enormous influence of the US in the last 57 years, whose administrations traditionally built a vast network of liberal institutions (WTO, IMF, World Bank, the UN, etc), plus our democratic allies, there's been a big expansion of such institutions since WWII's onset. They once numbered a few dozen. Now they number almost a thousand.


        • That said, setting up ambitious institutions like the ICC -- the International Crimes Commission --- is much harder because security concerns touch much more the core national interests of countries. Even Tony Blair said in an interview (sent yesterday) that US objections to the ICC are valid. In the US, we elect all judges directly or indirectly: even federal judges and the Supreme Court nominees have to be approved by Congress. Most of the US government and Congress seem to worry, rightly, who exactly would be the judges in an ICC that the American people and their representatives haven't examined in detail or approved.


    4. Is there a dominant country -- a hegemon, plus many some likeminded important countries of the second tier -- to act as institutional managers and kept the existing rules of the game going? This is the power side of international rules. Those rules and the institutions they reflect (the WTO, conceptions of human rights in the UN etc) are liberal in nature, and they are precisely that way because the two most powerful and successful countries in the last two centuries, the British and ourselves, have vanquished all the major rivals in hegemonic wars: Napoleon, Imperial Germany, Nazi Germany, militarist Japan, Fascist Italy, the Communist Soviet Union. Had, say, Nazi Germany and militarist Japan won WWII, the rules and institutions of international order would be drastically different, based on various racial categories and involving various levels of enslavement and extermination for those not at the top.

    This is the power-infused side of international rules. Note that those rules and the international institutions they create and influence ---the WTO, conceptions of human rights in the UN, rule-based market trade and investments, freedom of the seas and airwaves among them -- are liberal in nature. No surprise. The dominant rules and institutions are liberal precisely because the two most powerful and successful countries in the last two centuries, the British and ourselves, have vanquished all the major rivals in hegemonic wars: Napoleon, Imperial Germany, Nazi Germany, militarist Japan, Fascist Italy, the Communist Soviet Union. Had, say, Nazi Germany and militarist Japan won WWII, the rules and institutions of international order would be drastically different, based on various racial categories and involving various levels of enslavement and extermination for those not at the top.



    FURTHER REASONS WHY STATES MAY OR MAY NOT FOLLOW INTERNATIONAL LAWS AND INFORMAL RULES OR NORMS

    Whether any of the rules are followed depends, additionally, on the expectations of various state leaders regarding their obligations and rights and what would happen if they don't follow them, especially when major national interests are at stake. In certain situations, any state will give priority to its interests of survival and independence and victory in, say, war. Hence the US government repeatedly criticized Japanese bombing of Chinese cities before Japan attacked us in December 1941; too it criticized the Nazis for doing this in Poland, Holland, Belgium, France, and Britain before Hitler declared war on us the day after Pearl Harbor. In the wake, we firebombed German and Japanese cities to the ground, using nuclear weapons against Japan.

    This responds, Jeff, to the query you raised in your comments: won't there be times when even status-quo states like the US prefer to ignore or transgress international law when the stakes are vast and major national interests of a clear security sort are involved . . . sometimes, too, of a major economic sort.




    WHO ARE THE SUBJECTS OF INTERNATIONAL LAW

    The subject of international law in matters of warfare and diplomacy are strictly those of recognized sovereign states. Terrorists, like pirates (or pirate states like the Arab states in North Africa that we warred against under Jefferson, sending the Marines to Tripoli), have no legal standing and are treated as essentially criminals and murderers with no rights. So yes, obviously, terrorism these days of both a transnational sort like Al Qaeda and terrorist-supporting states considerably complicate the application of traditional international law.
    MORALITY VS. INTERNATIONAL LAW

    Moral judgments are not the same as legal decisions. In a country like the US -- or other major democracies where a rule of law prevails, supported by a widespread political consensus and constitution (written or traditional) --- the two normally coincide to a large degree. Where they don't --- as, say, in regard to Prohibition in the 1920s --- the citizenry will largely ignore them and contribute to growing lawlessness at least in that era (reinforced by the emergence of organized crime).

    Most of the time, In the democratic societies with a rule of law, almost all of us know what is morally right or wrong. Even criminals generally don't want their children to become criminals (though with no decent family structure -- say, the pathological kind that has emerged in some parts of the inner cities, where gangs socialize more effectively than parents for far too many young people who grow up callous and violent and predatory -- this may have changed if there's no father around, and the mother is overwhelmed or bewildered or whatever). We don't need to have new moral institutions, and we don't deliberate at length: we just do what we think is moral, or we feel GUILTY.

    This is not the case, however, in most societies where the rule of law in key sectors is regarded as a joke --- with corruption, nepotism, Mafioso-family clans and networks pervasive, reinforced by major mistrust and suspicion and even fears and conflicts across ethnic or sectarian lines, or class lines, or family-clan-tribal lines. Morality is essentially that of what strengthens the dominant group you belong to -- say, the family-clan or family-tribal-clan or family-sectarian-clan; and what is good is anything that strengthens the group, and what is bad is what hurts it, and hence is evil and must be avenged.

    Generally, in such societies, GUILT is not a pervasive response to infringing moral rules. Instead, the social norms encourage SHAME or HONOR: what is shameful is not avenging harm done to your group or your reputation --- you've lost face, revenge is necessary, honor (power, wealth) must be displayed, potential enemies must know what will happen. Shame or Guilt Cultures


    MORALIZING SELF-RIGHTEOUSNESS: GENERALLY A THREAT TO GOOD STATECRAFT

    In international relations, lots of moralizing humbug pervades the journalistic commentary and even political views in every country --- with of course the media in most countries not free of censorship and secret police controls (the degree of repression varies even in the Arab world as we've noted). Democratic countries encourage a more open debate, but the degree of humbug seems rife in proportion to the extent that the media are controlled by pc-types, such as those we've repeatedly found in the EU dominant media. Such self-righteousness, far from helping to improve international relations, only encourages moralizing rigidity. I add that the US government, now or in the past, isn't free of self-righteousness, but unlike our EU allies, we have a much more vigorous, informed media, a far more wide-ranging dialogue about international life, and a legislature that can hold the executive accountable for its actions and get at the information through Congressional inquiries -- not just regarding the Bush administration (witness, the Cheney documents about energy talks last year), but the behavior of Enron and dozens of corporations now.

    That said, there are times when designating an enemy as evil --- as Reagan did in the evil-empire days of the 1980s (immediately switching tactics when Gorbachev came to power), or even Bush in the evil-axis speech last year (which may have backfired in stoking North Korean paranoia) --- may be useful. It should be used, however, with care.


    FIFTH COMMENTARY ON INTERNATIONAL LAW: An Exchange with Michael Jabbra

    Dr. Gordon,

    So now we are hearing talk about "international law". Interesting to hear that from the left: they want to use international law to shield someone who uses chemical weapons on his own people. Last time I checked, using chemical weapons is a big violation of international law. Oh right, I forgot: Saddam Hussein is standing up against the white male capitalist US establishment. That means he's a great guy.

    Which brings me to my next point. International law DOES NOT have the force of domestic law in a stable, democratic country. There is no world government and no world armed forces; just a debating body with a pretty blue-and-white flag. Right now, international law is the law of the gun. The Golden Rule of international relations is this: do unto others whatever you can get away with. And we can get away with a lot.

    So this country should do one of two things: Admit once and for all that international law is a great big joke and tell its defenders to shove it, or cite Article 51 of the UN Charter which allows states to do what they will do anyway: take any and all measures necessary for national defense. That's international law -- how could they possibly quibble.

    And we have to keep the people of UC Berkeley happy by giving them something to protest about, anyway.

    Michael Jabbra -- Professional Cynic Amateur Mountain Biker Pessimist Philosopher


    THE BUGGY PROF'S REPLY:

    Michael: As usual, I appreciate your comments and queries. In effect, three sound views in your commentary can be fleshed out:

    1. It's true that international law differs from domestic law in a system like ours in numerous ways: no compulsory adjudication, no institutionalized police power to enforce judicial decisions that are submitted to international courts (at least in major political and security issues), no authoritative legislature to change or update laws in constitutional manner, far more disputes about what international law permits or prohibits (outside concrete and detailed treaties of multilateral nature, international law embodying lots of traditions and customs). And also a clear use by states, when it suits them, to use or twist legal obligations or rights for propaganda purposes.

    2. It's also true, as you note, that the pc-left and others-- who seem to know little about the substance of international law when it comes to warfare and targeting --- don't seem particularly concerned when it involves, say, Palestinian suicide terrorism (only Israeli defense forces go after the terrorists in Jenin and elsewhere, where horrifying scare-scenarios will be immediately invoked by these pc-imbeciles, especially from the EU where professional journalistic standards are lamentable), or when it involves, say, Saddam Hussein targeting Israeli cities in 1991 with Scud missiles that were illegal (Israel wasn't a belligerent state, the missiles were inaccurate and hence were terror weapons). And what the left does is duplicated a thousand-fold by thug-o-cratic states and their secret-police controlled media.

    3..Finally, it's true too that in total war -- WWII, say --- the US, which condemned Japanese bombing of Chinese cities as immoral and illegal, and then Nazi bombings in Europe, changed its policies immediately upon entering WWII, and eventually bombed their cities to smithereens. That's what total war does to international war. Interestingly, in this connection, the British -- who knighted or awarded higher titles to the head of the RAF fighter heads --- didn't do this for "Bomber Harris," the head of the very efficient and very deadly British bombers that began leveling German cities before we joined the war. As with our bombers, so with the British: these were dangerous missions, and unlike us, the British generally moved to night-time bombing to reduce the carnage to their fliers, whereas we continued to bomb in daylight, and by 1944 -- until we had Mustang planes that could accompany the bombers all the way over Germany and back to Britain or bases in Sicily or North Africa -- the attrition rate for our B-17 and B-14 bombers was usually about 15% . . . which meant that on an average, after 7 missions, you had a good chance of being killed.

    That said, the fact that Bomber Harris never was awarded a peer-ship indicated that after the war many British politicians had misgivings about the terror bombing.

    Come to think of it, add a 4th comment here before we move on: as Victor Davis Hanson notes, no militaries are so lethal and effective in full war as democratic countries, whose populations are mobilized to the full, convinced they face evil enemies.

    It's something that Saddam Hussein didn't believe in 1991, or the Taliban-Al Qaeda religious mobsters in Afghanistan, or President Milosevik in Yugoslavia in 1999. No doubt the cut-and-run strategy in Mogadishu in 1993 reinforced their disbelief about American will-power, as did the divisions in the US about the wisdom of fighting a limited war in Vietnam . . . or any war. (American forces, especially after 1968, faced mainly regular North Vietnamese forces, not the Viet Cong, and invariably inflicted huge losses on them . . . at far higher rates than we did in WWII on German soldiers, and that was the case right down to our withdrawal after the Paris peace talks in early 1973. The war, though, couldn't be won that way, and extending it into North Vietnam wouldn't have done the trick either. Only an effective political system in Saigon and an efficient South Vietnam army would defeat the North, given American objectives and divisions at home.)


    THE DANGERS OF TOO MUCH SKEPTICISM, NEVER MIND CYNICISM

    That said, your skepticism here goes overboard and turns into cynicism that's regrettable . . . or so it seems.

    For one thing, we don't usually fight wars of total unrestrained capacity, where national independence is at stake as in WWII. All the wars since then have been of limitation scope and objectives, and only with the breakthroughs in communications and information technologies, together with smart weaponry and the use of special-ops, have we finally developed effective ways to overwhelm states like Saddam's Iraq , Milosevik's Yugoslavia or the Taliban in Afghanistan, with a corresponding ability --- which will be used far more effectively in Iraq if there's a new war than in far more backward, decentralized Afghanistan last year --- to undermine command-and-control and communication systems, rendering the dictator at the top blind. As for urban war, Saddam will likely make the same mistake as the Taliban did in Afghanistan: just as they thought we would do a re-run of the Soviet strategy with similar disastrous results, so Saddam obviously is thinking in terms of Mogadishu. Very wrong. The electricity in his cities will be cut, all communications among and between his main forces will be destroyed (save for runners, a very haphazard and hazardous tactic), special-ops and local Iraqi forces will penetrate the cities in ways similar to what the Israelis did in Jenin, only with less restraint, and as his forces get destroyed, very likely --- speculation, pure and simple here --- there will be a quick breakdown of morale and huge desertions. Saddam himself will likely end up living like a mole. And dying that way too.

    For another thing, in such limited wars, we need to follow international law about targeting and treatment of prisoners for two reasons: to ensure domestic support in a democratic country where the war needs such support (and if it goes on very long, beyond a few weeks, all the more so), and to gain support among certain states we care about: European NATO countries, certain Arab states (despite their double-dealing), and maybe Russia.

    That means the US government should clearly undertake the necessary PR to inform the world what exactly international law happens to be in these matters. To repeat, there is widespread ignorance among the loud-mouthed types in the EU media or in left-wing pc circles here -- witness either their stupidity about Israeli operations in Jenin (never mind Palestinian terrorist bombings of Israeli citizens) or cynical ideological pablum --- while most citizens don't seem to know that common morality and international are two different things.


    Finally, the Bush administration will have to present a persuasive case -- invoking international law --- why Iraq should be attacked (and maybe a moral one for US domestic audiences), and I'd be surprised if it couldn't do this. Even Bush has recently acknowledged the need on both scores here, and he has promised to consult with Congress carefully.





    LAST COMMENTARY: MORALIZING UTOPIANISM a la GERMAN THESE DAYS, WITH OTHER EU COUNTRIES ONBOARD, IS ALMOST ALWAYS A DANGER

    1, No doubt the students in global peace & security, a program of slack intellectual standards and moralizing utterance whose point seems to be to make the students enrolled feel righteously superior --- a program I was once asked to head, setting off howls of laughter from you know who that left the administrator asking me to stomp out in indignation – will be the main ones unhappy on campus with this information.

    The rest of us, wondering why Sweden and Finland and Austria and Ireland, all European neutrals who've done nothing to defeat the mass-murdering totalitarian systems that thrived in Europe and Asia since the start of the 1930s, have some moral right to pass judgment on American soldiers fighting against clearly non-democratic and violent regimes and terrorist movements . . . just in case their judges get to sit on the ICC. And then you're left wondering about the impartiality of governments that can demand sudden changes in international law by singling out one military tyrant – Pinochet of Chile– without promulgating or drawing on some general principle that is the essence of all legal systems if they're not hoaxes: impartiality and universality. A military tyrant, by the way, whatever the blood on his hands, who held elections under US pressure in the late 1980s and, losing, retired from power .. . . something that Dr. Castro, who obtained his honorary doctorate from a Spanish university while the Spanish judge initiating the Pinochet extradition case was passing judgment, has never contemplated. Never ever . . . the dictator-for-life now half way through his fifth decade of arbitrary rule that has ruined the Cuban economy and bankrupted the Cuban people while maintaining a huge insular prison for the 10 million inmates, who are told daily what they can or can't read or say or do – or even pray – without official secret police approval.

    Chile today has recovered its long constitutional traditions going back to the middle of the 19th century. It is governed by Social Democrats, including a former Socialist who supported Allende (the radical president, never obtaining a majority, who Pinochet overthrew 29 years ago), who was an American professor and who has explicitly said that the Allende coalition made big mistakes in its period of rule. Dr. Castro's socialist-paradise is , , , well, one huge island prison where the inmates trying to escape are shot or imprisoned if caught.

    And Castro isn't alone. There are dozens of equally bad or worse tyrants and collective dictatorships whose leaders are received with open arms in the EU capitals, including by far the bloodiest and most dangerous of the Arab countries, Iraq and Syria.

    2. Then, too, you look at the UN Human Rights Commission – where Libya, a pillar of democratic rights; Colonel Quadaffi's nightmarish nutbin-state is the head this year --- it seems, thanks to the 15 or so other thuggish regimes, some so brutal that nightmarish is too kind a tag to stick on them, to be little more than a forum of Orwellian Newspeak and systematic efforts by these brutal states to prevent the UN from ever censuring them. Interestingly, those moral humbuggers in the EU refused even to criticize China the last two years on the Human Rights Commission despite US efforts to rally them. Apparently, self-righteous utopians don't like to flay out at potentially hostile states with lots of economic interests at stake.

    As for the UN Security Council, 2 of the 5 permanent members have no established rule of law whatsoever --- China under the control of a Communist dictatorship, and Russia an electoral democracy that has no traditions of independent judiciary or impartiality, and where institutional rules over the executive are hardly even recognized (save for the need to get re-elected). Then there's France. What about France?

    Though it's a democracy, it has undergone 4 changes of regimes in my lifetime, the first three undermined by war or military takeover (the collapse of the 3rd Republic in June 1940 after it surrendered to Nazi Germany; the Nazi-collaborating dictatorship of Vichy France; the 4th Republic that collapsed under a threat of military coup out of Algeria by the French military in mutiny; and the 5th, founded in 1958 by de Gaulle, moving to establish a popular vote for the president in 1963 that was ruled unconstitutional by the French equivalent of our Supreme Court). It is also the country where the investigating magistrates into the rife corruption in the country, his target Chirac himself, quit in disgust last spring, after declaring that there was no rule of law . . . or rather two rules of law, one for the average citizen and one for the powerful. These three magistrates, I add, signed public statements last April, a month or so before the French Presidential elections started, using exactly these terms --- "Tales of Sleaze Cloud French Elections: Reuters". Earlier that year, the chief investigating magistrate into Chirac's long trail of corruption, seven years of systematic work stonewalled at every turn, resigned in frustration, declaring that, "in his view, justice does not exist in France." More specifically, former judge Eric Halphen went on to say in his first interview ever (to a French newspaper) that"

    "... he was followed, filmed and bugged during the seven years he worked on a number of highly sensitive corruption cases. Many of those date back to the period when Mr Chirac was Mayor of Paris - and the current French leader has been accused of if not benefitting from, then at least knowing about kickback schemes. Mr Halphen alleges that he was sabotaged at every turn of the investigation and compares cases involving French politicians to those involving the Italian mafia." See Chirac Judge Claims Sabotage


    The problems of corruption, sleaze, and two standards of justice --- one for the rich and powerful, the other for the rest of Frace --- didn't end with the elections last spring (where, to repeat, the electorate's slogan on the left after Jean-Marie Le Pen beat out the socialist candidate, Lionel Jospin, in the first of two electoral rounds for the presidency, became "Votez l'Escroc, Pas le Facho"). Built into the institutional heritage of the country and reinforced by long-lived understandings among those in power --- including existing Ministers, former Ministers, Opposition politicians, and top bureaucrats ---the double standards flared up again at the end of this January in another well publicized case of sleazy slush-funds, wire-pulling, and money-laundering, this time involving a former Foreign Minister and an ex-head of the Conseil Constitutionel (roughly, the French Supreme Court) --- when a trio of magistrates limited their punishment to a fine for Roland Dumas for all of this involving Elf oil company when he did hold office and managed to get a lucrative job for his mistress (who did nothing, only get money: lots of it) . . . even though the mistress was likely to get sent to jail and five others at Elf were jailed too.

    " . . . the verdict was immediately attacked as providing evidence of a French double standard in the treatment of defendants by the courts. "In our country there is a justice for ordinary citizens, and a justice for others," said Arnaud Montebourg, a muckraking Socialist legislator in the National Assembly. Mr. Montebourg said Mr. Dumas, who was forced to step down as president of the Constitutional Court, the highest legal body in France, when the allegations were raised against him, had nonetheless benefited from public assertions of support by numerous members of the government and the French establishment." Dumas Trial"

    3. So we have a hodge-podge of countries that would like to transform international law that includes a bloc of neutral Europeans free-riding on US and others' efforts to liberate them (Austria) or save them from conquest. And several EU countries, including these, that blatantly politicized international law in the Pinochet case. And some of the most brutal regimes in the world sitting on the UN Human Rights Commission, thwarting any inquiries into themselves, or at least any condemnation, with one of them likely taking on the chairmanship this coming year. Not to mention that 3 countries on the UN Security Council, of varying degrees of friendliness with the US in the Russian and French cases, where a rule of law in our sense doesn't prevail, and the third China a Communist dictatorship imposing secret-police rule even if far less murderous than in the Mao era.

    4. Legal systems work effectively applying to all citizens alike – rich and poor, powerful and average – when they conform to people's moral expectations as to what is right and proper, at any rate in the large; and where there are clear lines of institutional authority vested in legislatures and executives to update or change the laws according to widely respected constitutional rules.

    The threat of force plays a role, particularly as a deterrent; but that's all it can do. Fear – the reason people largely obey the law in about 120 countries in the world where secret police prevail – does not underpin a legal system in our sense. Here, in the US case, people charged with crimes – civilian or military – expect to face impartial legal authority, involving juries and judges (or tribunals in the military case), where the burden of proof is on the accusers to prove their case. In civilian trials, that means beyond all reasonable doubt. And the charged are covered by habeus corpus, bond rules, right to an attorney, rights to not cooperate at all with the authorities (not the case in Continental Europe, despite what that one Frenchmen said whose views I put on our web site about three months ago: the failure to cooperate is reported by the investigating magistrate to the three judges who decide most cases save where serious crimes are involved, and where the judges sit in on the jury deliberations and guide them), rights to face all accusers, and rights of cross-examination. There are also appeal courts.


    NO, NOT PERFECT -- OUR LEGAL SYSTEM

    It isn't a perfect system. Rich people or big firms can hire better legal talent. Some judges shouldn't be sitting. Some laws are silly, others not applied as fairly as they could be to all citizens. But it's as good or better than other legal systems in the world, and it's one we have confidence in.

    The upshot? One president was driven from office with the threat of impeachment in 1974 (Nixon), and another was impeached for lying under oath, but escaped a condemnation (Clinton). Congress investigated systematically the violations of US law practised by the executive at high level in the Reagan administration (the Iran-contra affair). And it is a system in which overwhelmingly Americans have confidence, just as they are found among all the industrial countries in UN studies on violent crime to show the most confidence in their police.







    Replies: 1 Comment

    Good post on International Law. One very minor correction; at one point towards the end you refer to "Pinochet of Italy" rather than of Chile (it's the first reference to Pinochet). You might want to fix that.

    Porphy:

    Many thanks for the correction: I don't know how the silly little flub occurred, unless I had been sipping too much chardonnay late at night when I wrote it.

    Posted by Porphyrogenitus @ 02/25/2003 02:54 PM PST