Archive for international humanitarian law

A Few Interesting Follow-Ups to the Qaddafi Post

Posted in General Thoughts and Comments with tags , , , , on October 24, 2011 by hoisingm

For those who are interested in further reading:

Commentary from Professor Doebbler over at JURIST on the “extra-judicial killing” of Qaddafi and the dangerous implications that it might have: Curtis Doebbler, The Rule of Law and the Extrajudicial Killing of Muammar Gaddafi, JURIST – Forum, Oct. 24, 2011, http://jurist.org/forum/2011/10/curtis-doebbler-gaddafi-killing.php; and

News reports of action taken by a legal team in Sri Lanka to protect Saif Qaddafi from attack: http://www.srilankaguardian.org/2011/10/international-legal-team-demands.html

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International Law and Vengeance

Posted in General Thoughts and Comments with tags , , , , on October 24, 2011 by hoisingm

As videos of Muammar Qaddafi’s bloody demise make their way through cyberspace, the world is left to wonder: What means this vengeance?  The question for international lawyers is: What’s law got to do with it?

To be sure Qaddafi is not a sympathetic character.  This is a man who ordered his own people exterminated like “rats.”  If anyone deserved to die a bloody, violent, painful, savage and humiliating death surely it was him.  It wasn’t long ago that we were saying the same thing about Osama bin Laden.  But here’s the problem with this position: We are supposed to be beyond it.  While U.S. and NATO involvement in the killing of Qaddafi is murky, what appears clear is that they were serving as a de facto air force for the Libyan rebels.  Such action pushes far past what could reasonably be interpreted out of the U.N. Security Council resolutions authorizing military involvement in Libya.  Moreover, as the videos of a bloodied, battered and defenseless—but still alive—Qaddafi show, he had been rendered helpless far before he was killed.  Under the Geneva Conventions and the laws of war his killing was clearly illegal.

Our fidelity is supposed to be to the rule of law, not to the law of the jungle.  As President Obama said in a speech at West Point in May of 2010, we should promote universal rights, including the right to a fair trial, “even when it’s hard.”  Despite this avowed policy, denouncements of the bin Laden and Qaddafi killings have been conspicuously absent from the public discourse.  Advocating for due process as opposed to a quick execution of someone as despicable as either Qaddafi or bin Laden (or Anwar al-Awlaki for that matter) is no doubt extremely difficult for the people who actually have to make those decisions.  They have lots of angles to consider, not least of which is the issue of exposure.  Recall that until the Libyan intervention in March, Qaddafi had been a useful ally in the War on Terror.  Who knows what ugly details would have emerged regarding the modalities of his cooperation had he been given the platform of a public hearing.  For his part, bin Laden probably would have been all too happy to describe the support he received from the United States during the Russian-Afghan war in the 1980’s.  But that’s the point.  It’s exactly in the face of uncertainty and risk that the we should all reaffirm our commitment to the bedrock values that we so readily espouse under less trying circumstances.

The Qaddafi and bin Laden episodes are not the first time that our values have been threatened by bloodlust.  Acting as defense attorney to the alleged perpetrators of the Boston Massacre in 1770, John Adams, future president and erstwhile patriot took up the unenviable task of defending the indefensible amidst public calls for vengeance.  In doing so he found refuge in the law.  “The law no passion can disturb,” he said.  “’Tis void of desire and fear, lust and anger.”  Lest Adams’ words be cast aside as mere zealous representation on behalf of his clients, he reiterated that the law treats both sides equally.  “On the one hand,” Adams said “law is inexorable to the cries and lamentations of the prisoners; on the other it is deaf…to the clamors of the populace.”  The acquittal of the accused reaffirmed colonial hold on the moral high ground and hastened the American declaration of independence from tyrannical rule.

The legacy of the Nuremberg and Tokyo military tribunals in the aftermath of World War II confirm international commitment to the rule of law.  Would it have been easier to summarily execute suspected Nazi war criminals?  Did they deserve it?  Churchill certainly thought so, yet Roosevelt held firm.  In the wake of the most destructive war in human history, the international community showed constraint in its thirst for vengeance.

Such prevarications may be cast aside as irrelevant.  The common refrain that “the world is better off without” individuals such as Qaddafi or bin Laden is difficult to counter.  These were horrible men.  Furthermore, it is often asked: Wouldn’t any trial be unnecessary when the guilt of the accused is so obvious?  This is not just a question about who they were, it’s also a question about who we are.  When we circumvent the rule law in the interests of expediency, we diminish ourselves and betray our values.  Between summary execution and show trials there is room for justice.

And what of peace?  Can we honestly say that through vengeance the Libyan people have improved their lot?  Would the transition from bloody civil war to good governance and enduring peace not have been better served by a public trial of the man most responsible for untold suffering?  If experience has taught us anything it is that the transition from war to peace is a long and difficult one.  The killing of Qaddafi may signal a new day in Libya, but the prospects of that new day are not exactly clear.  Violence generally begets more violence, not peace.  At some point one cycle has to stop so another can begin.  It is possible that what comes next in Libya may be worse than what came before.

Obama, Change and International Law

Posted in General Thoughts and Comments with tags , , , , , on November 6, 2008 by jeremyleong

 

The votes were tallied as the world waited. The results were announced and history was made. America got her new President. Change was the promise. With a Democratic party dominated Congress as well as the possible opportunity for President-Elect Obama to pick 2 Supreme Court Justices during his term in the White House, this is certainly a good time for the President-Elect to make good on his promise.

 

How well does an Obama administration bode for international law? During the Presidential Primaries, ASIL conducted a survey of the various positions taken by candidates on international law issues. Obama’s responses in this survey generally signal a shift in US policy from unilateralism to multilateralism as well as an emphasis on the need for better compliance with international law so as to enhance US ability to influence international law creation and promote American values abroad. However, on particular issues, the existing international obligations and rules seemed unsatisfactory. For instance, he, in the course of the campaign, strongly advocated the re-negotiation of NAFTA as well as supported humanitarian intervention in Sudan. See http://www.asil.org/obama.cfm as well as a previous post on intervention: https://fletcherfila.wordpress.com/2008/10/06/intervention-some-food-for-thought-on-a-fletcher-favourite/.

 

Two issues come to mind.

First, perhaps, only time will be able to separate meaningful policy statements from campaign rhetoric. Of course, this would have been a necessary concern regardless of whoever won the election. However, there already has been some controversy in the Canadian media over Obama’s commitment to re-negotiate NAFTA. See http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080227/dems_nafta_080227/20080227?hub=CTVNewsAt11. Furthermore, adherence and compliance to international law takes more than executive policy and the new administration will be operating under domestic political constraints. Such is the wisdom of Putnam’s Two Level game.

 

Second, social constructivists may have some fun in examining the idealation effects that Obama and his “Change” campaign will have on international law creation. Will US values and preferences become more accepted in other states to the extent that these foreign values and preferences change? To what extent will this change be attributable to the strength of the Obama message? Also, high expectations can be a double-edged sword. In the event that the new administration fails to live up to its promises, what impact will the subsequent disappointment have on US ability to change foreign values and preferences? What can public diplomatists do to manage expectations?

Jus in Bello and Sociology

Posted in General Thoughts and Comments with tags , , , , , , on October 16, 2008 by jeremyleong

 

I recently came across a 2007 film called “Soldiers of Conscience”, which examines the psychological effects of war on soldiers. It provides accounts from 4 US soldiers who enlisted during the latest Iraq war but later sought status as “conscientious objectors”. It appears that one question that the filmmakers asked was “when is killing in combat permissible?”

 

I have yet to watch it. However, the methodology provoked some thought. The ultimate question of when killing in combat is permissible is a central question of jus in bello or the law of the conduct of warfare. This is a question which clearly transcends its ostensible legal nature into that of other disciplines, such as morality. The filmmakers here were perhaps conducting a little sociological survey of their own. However, this approach is not new.

 

In “Of War and Law”, Prof. David Kennedy (now at Brown University) built on his previous work in “Dark Sides of Virtue” to examine jus in bello with sociological and linguistic tools. He argues that the language of international law in this field has eroded the personal responsibility of soldiers and politicians in the conduct of war.

 

He notes, “(t)he problem for military professionals is no longer a lack of humanitarian commitment. The military has built humanitarianism into its professional routines. The problem is loss of human experience of responsible freedom and free decision-of discretion to kill and let live. For military officers and soldiers, renewing the experience of responsibility will require a reinvigorated sense of command responsibility, and an ethic across the force of refusing to allow the permissibility or privilege of force to lighten the decision to kill.”

 

This begs a follow up question. How are sociology (conducted in this manner) and constructivist theory in international relations methodologically related or unrelated? I suppose while the father of constructivism, Wendt, justified treating states as real, unitary actors to which intentionality can be attributed, he also accepted that the state is an agent of domestic actors. However, he assumes that states are constituted by internal structures that combine a collected idea of the state. Kennedy, on the other hand, peers beneath that assumption to look at the various actors behind the agency.

 

Is it then possible to achieve a “grand” theory of international relations social constructivism which integrates the two levels of analysis? Or has that been done already?

“Crits” and the Interdisciplinary Study of International Law

Posted in General Thoughts and Comments with tags , , , , , , , , on October 8, 2008 by jeremyleong

  

The critical legal studies movement of the 80s and 90s may have left a more profound legacy on international law than we think. Some may say that critical legal theorists pioneered interdisciplinary study of international law. They used the language of politics, sociology, linguistics and other disciplines to attack doctrinal approaches to international law.

 

Martti Koskenniemi comes to mind first. In From Apology to Utopia: The Structure of International Legal Argument, Koskenniemi keenly identifies that “(t)he dynamics of international legal argument are provided by the constant effort of lawyers to show that their law is either concrete or normative and their becoming thus vulnerable to the charge that such law is in fact political because apologist or utopian” (Koskenniemi, 1990).

 

He then goes on to criticize existing “rule-based” and “policy-based” approaches to international law and examines the politics of international law in the process of advocacy and argumentation. His point is that any international legal argument which justifies some determined limit on state sovereignty will be vulnerable from “an opposing substantive perspective.” The result is a continuing argument between states. In his words, “(t)he formality of international law makes it possible for each state to read its substantive conception of world society as well as its view of the extent of sovereign freedom into legal concepts and categories…It is impossible to make substantive decisions within the law which would imply no political choice.” Koskenniemi’s solution? For lawyers to venture into “fields such as politics, social and economic casuistry which were formally delimited beyond the point at which legal argument was supposed to stop in order to remain ‘legal'”.

 

Next, when Phillip Allott assessed the “Health of Nations” and spoke of building “Eunomia”, he was taking an anthropological look at states. He called for an “international law revolution” where an international society of human kind was built before an international law of the same could be built. To him, the language of doctrinal international law, itself, pulled societies further and further away from each other rather than drawing them closer. He implores, “(h)umanity must take command of its future…It will make of itself an international society which is at last a society, a society whose purpose is the survival and prospering of the whole human race.” We also took toward David Kennedy, a Fletcher alum and former Professor, who first took a deep and critical look at international law structures. In one of his latest works, The Dark Side of Virtue, Kennedy takes a sociological view of international humanitarian law. He examines the subject from the eyes of the victim, the enforcer, the bureaucrat and other actors. Finally, he comes to the conclusion that they all have keenly divergent perspectives. One may also add Anthony Carty to this list. In “The Decay of International Law”, Carty utilizes the inherent contradiction between theories of state and theories of law as his basis of criticism. In so doing, readers find him echoing plenty of political theory.

 

I have two questions:- 1. Where has inter-disciplinary study of international law taken over where the critical legal theorists have left off? 2. What are critical legal theorists up to now? Have they shed their skins and re-invented themselves as constructivists or rationalists etc etc?