Archive for use of force

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

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.

International Law as History and Geography Applied

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , , , , , on February 23, 2009 by jeremyleong

Some time ago, I was taught that international law was history and geography applied. In “Imagining Sovereignty, Managing Secession: The Legal Geography of Eurasia’s ‘Frozen Conflicts’”, Christopher Borgen seeks to validate this proposition to a good measure.

 

In the course of his analysis of the series of ongoing succession-ist crises in the post-Soviet states of Moldova, Georgia and Azerbaijan, Borgen pits respect for the right to self-determination against respect for pre-existing borders. He argues, “(s)ecessionist entities that are able to point to some previously existing boundaries to which they will conform have claims that are more likely to be viewed as legally legitimate…Thus, in an attempt to impose a bright line rule on the messiness of ethnic conflict and separatism, the international community gives weight to cartography and political geography. Being able to show a delineation on a map may not be dispositive of a claim for external self-determination, but it helps.”

 

He goes further, noting the prospects for the Westphalian system. “This legal system presupposes the existence of a state system and for its proper functioning, it has defined rules concerning secession that protects the existence of states. Geographical concepts such as territory and borders are used to this end…But states are still the core of the increasingly complicated international system and, absent any showing of a viable alternative, are still the best hope for broad-based approaches to peace and justice. Long live Westphalia.”

 

It is refreshing piece of inter-disciplinary legal scholarship. However, while reading it, I get the feeling that Borgen is wielding a dated instrument. Geography has always been part of international law. Or at least, it has always been part of the narratives that international lawyers construct. No points for saying it out loud now.

 

More importantly, it is a blunt instrument. Inter-disciplinary international law scholarship has developed far more incisive ways of looking at geography. For instance, law and economics scholars may view geography as an allocation of entitlements. This has the added benefit of accommodating the concept of territorial sovereignty as a basket of rights which may be further allocated. Constructivists may focus on the idealational value of geography. They may look at how territory, as defined on various pieces of parchment, provokes a response from people and policy makers. Behavioral economists may ask if there is a heuristic bias toward protection of territorial rights as opposed to other legal rights. Do we feel differently when faced with an infringement of territorial sovereignty as opposed to a piece of legislation which affords prescriptive jurisdiction?

 

Perhaps, these are more salient issues to examine in the future. The Opinio Juris blogpost which links to the paper is found at http://opiniojuris.org/2009/02/23/imagining-sovereignty-managing-secession-and-fourth-generation-warfare/.  

International Law, Science (Broadly Speaking) and Technology

Posted in General Thoughts and Comments with tags , , , , , , , , on October 30, 2008 by jeremyleong

So far, posts here have been limited to international law’s relationship with mainly the social sciences (e.g. economics, sociology, political science, etc). Regretfully, we have neglected to mention international law’s relationship with other fields of science such as the natural sciences and applied sciences such as physics, mathematics.

 

It is regrettable because science and technology has to a large extent permeated international law creation. They have also affected abilities to comply as well as change preferences for compliance or commitment to international law. There have been plenty of occasions where international law has been rendered irrelevant by scientific discovery and technological advancement and there are plenty of occasions where scientific discovery and technological advancement have provided sufficient incentives for states to cooperate in creating new international law.

 

Space law is one example. The first human was sent into space in 1961. Thereafter, the short period from 1965 to 1979 saw a proliferation of treaties relating to delimiting property in outer space; rescuing astronauts; registration of satellites; liability for damage caused by space objects; and regulating activities on the moon. Another example relating to compliance to international obligations can be found in the EC-Computer Equipment case in the WTO where a dispute essentially arose over the tariff classification of LAN equipment before and after the “Internet boom”. Science’s integration into international law is very clear from the WTO SPS Agreement that provides that scientific basis is necessary before a state can invoke the provisions of the SPS Agreement to carry out prima facie WTO-inconsistent measures to protect plant, animal and human health. See generally, http://www.microsoft.com/Presspass/exec/bradsmith/11-03-06InternationalLaw.mspx for an interesting speech by a SVP of Microsoft to ASIL on the relevance of technology to international law.

 

The interaction continues to this day. Contemporary issues like climate change, nuclear non-proliferation and the law on use of force are affected by technological advancements and scientific discoveries in the fields of clean energy, nuclear physics and military science. It seems the international law, at times, struggles to keep pace with the science.

 

Maybe a leaf can be taken from domestic law such as patent law and information technology law. Patent lawyers and information technology lawyers have embraced technology as part of their trade. (Just as international trade lawyers and competition lawyers have embraced economics are part of the same.)

 

I also look forward to more work on how technological methodologies permeate into international law. The “Science Studies” movement has already started to look at science from broader sociological/economic and philosophical context. See e.g. http://www.compilerpress.atfreeweb.com/Anno%20Ben%20David%20&%20Sullivan%20Sociology%20of%20Science%20ARS%201975.htm. I suspect that an examination which integrates law’s place in this may soon follow. This article I chanced upon entitled, “Law in a Shrinking World: The Interaction of Science and Technology on International Law” (http://works.bepress.com/joseph_w_dellapenna/11/) may be a good start.

 

Would love to hear the views of any technologists and scientists out there.

Intervention: Some Food for Thought on a Fletcher Favourite

Posted in General Thoughts and Comments with tags , , , , on October 6, 2008 by fletcherfila

I was watching the Biden-Palin (or Palin-Biden, if you wish) debate on Thursday. In the course of observing the “thrust and parry” between the two, I was struck by the unanimity in which they both agreed that something had to be done about the situation in Darfur. That something would take the form of a no-fly zone over Darfur. Sudan claims that government aircraft are being used to fight bandits and protect humanitarian convoys. Both Vice-Presidential candidates will probably beg to differ.

More pertinently, the exchange between both candidates probably signals a continuation of US policy with respect to intervention and continues the “responsibility to protect” debate. This ties in to a pet Fletcher School international law topic: the limits of use of force in international law. Prof. Glennon suggests the UN Charter Art .2(4) provision has fallen into desuetude. I.e. it no longer functions as a relevant rule of international law.

Can there be no international law governing use of force by states?

Doctrinally, there are two rules at stake, the treaty rule in Art. 2(4) and the customary international law (“CIL”) rule which reflects Art. 2(4) in the North Sea Continental Shelf Cases sense. The pertinent question is ask is where the two rules stand. The answer for the CIL rule is easily answered by Prof. Glennon. Repeated violations of Art. 2(4) have resulted in the CIL rule falling into disuse and desuetude. But the treaty rule remains. Can a treaty rule fall into desuetude to the extent that the obligations contained in it are eliminated?

Conventional international law embodied in the Vienna Convention on the Law of Treaties says no. Treaties are products of the strictest consent and only consent can terminate their operations. However, treaties are also contextual instruments which are interpreted with regard to circumstances. Further, treaties become irrelevant depending on context as well. For example, the treaty obligations of a state vary in occasions of state succession, doctrinal international lawyers have placed distinctions between personal treaties and dispositive treaties.

Treaty rules also become irrelevant because of developing CIL rules. If all of us sign a treaty to purchase each other’s apples today, what happens in ten years when none of us want to eat or purchase any apples at all? We are still obliged to purchase each other’s apples, but, we tacitly agree that no one of wants apples and will not enforce that treaty. We, by CIL, have agreed to do so.

Applied to the Art. 2(4), the response in my mind, when Prof. Glennon speaks of desuetude is not shock and awe over how such an important rule has gone into demise and how can we live without it. In my mind, it is a simple question of CIL trumping treaty rules. A new CIL rule on use of force has emerged which is different from Art. 2(4). If we look back in history, the story of CIL’s primacy over treaty rules is a trite one. JL Brierly did not even consider treaties to be real international law. He opined that the only real international rules were CIL rules.

So what is the new rule governing use of force? I can’t give anything close to an answer, though I suspect some scientific analysis (rather than anecdotal evidence) of state practice and opinion juris may be necessary. Can any empiricists out there help us out?