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1. On what base did the Security Council determine in the morning of September 12, 2001, that the mass murder of the previous day was an act of “international” terrorism?2. On what evidence did the Security Council determine in its resolution 1456(2003) that terrorism was “one of the most serious threats to [international] peace and security”?

3. On what evidence did the United States conclude before October 2, 2001, that the mass murder of 9/11 was masterminded in Afghanistan or directed from there?

4. Who placed explosives in the Twin Towers and in World Trade Center no. 7 before 9/11?

5. Why have governments of Islamic nations failed to highlight the fact that no Muslims boarded the aircraft used as tools of mass murder on 9/11?

6. Why do US administrations act as agents for Zionist interests, such as urging other states to recognize Israel and its founding ideology, Zionism?

7. Why has Saddam Hussein not been charged for causing the deaths of half a million children in the sanctions period?

8. Why did the Palestinian people fail to secure even minimal rights in over half a century?

9. Why do UN member states refuse legal remedies to innocent victims of UN sanctions?

10. Why are political leaders suspected of torture, war crimes and crimes against humanity, so seldom prosecuted?

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Extraterritorial jurisdiction and immunity: The case of Noriega


Adam Isaac Hasson*

Abstract: Prosecutions of former heads of state are becoming increasingly common. In 1990, the United States arrested and convicted General Manuel Noriega, the Panamanian leader, on drug charges. United States v. Noriega set a powerful precedent, rejecting traditional immunity and jurisdiction defenses. In recent years, domestic and international tribunals alike have similarly exercised jurisdiction over foreign leaders, such as Augosto Pinochet and Slobodan Milosevic. While many in the international community praise these recent developments, others warn of the erosion of national sovereignty and justice without limits.

[Note: for footnotes please consult the original article at the above link]


From the commencement of legal proceedings, United States v. Noriega1 presented a drama of international proportions.2 Much of this drama was attributed to General Manuel Noriega’s status as the de facto leader of Panama and to the unusual circumstances that brought him before the courts of the United States.3 Never, prior to 1990, had a foreign head of state been brought to the United States to stand trial for offenses committed outside the country.4

On February 14, 1988, a federal grand jury sitting in Miami, Florida indicted Noriega and twelve co-conspirators on twelve counts of [*PG126]engaging in a criminal enterprise in violation of U.S. racketeering and drug laws.5 The indictment alleged that Noriega participated ‘in an international conspiracy to import cocaine and materials used in producing cocaine into and out of the [United States].’6 Furthermore, Noriega was alleged to have exploited his official position as commander-in-chief of the Panamanian Defense Forces (PDF) by receiving payoffs from the Colombia-based Medellin Cartel (Cartel) in exchange for his assistance.7 Specifically, the indictment alleged that Noriega protected cocaine shipments from Columbia through Panama to the United States, arranged for the sale and shipment of ether and acetone, chemicals used for the production of cocaine, to the Cartel, provided a refuge and base of operations for members of the Cartel in Panama, and assured the safe passage of millions of dollars in narcotics proceeds from the United States.8 All of these activities allegedly were undertaken for Noriega’s own personal profit.9

As a result of the indictment and the unusual circumstances of the case, the U.S. District Court for the Southern District of Florida was presented with several issues of first impression.10 These issues were brought to the forefront in a series of defense motions to dismiss.11 In these motions, Noriega asserted that the case against him should have been dismissed, arguing that: (1) the district court lacked jurisdiction; (2) sovereign immunity precluded the exercise of jurisdiction; (3) prisoner of war status precluded jurisdiction; (4) he was captured and brought before the court as a result of an illegal military invasion that was ‘shocking to the conscience’; (5) a violation of international treaties had occurred; and (6) the indictment against him was politically motivated.12

This Note discusses two troubling questions answered by the court in denying Noriega’s motion to dismiss and the subsequent affirmation of his conviction: (1) How was the exercise of jurisdiction [*PG127]rationalized’; and (2) How did the court resolve the issues of immunity’

Discussing these questions, this Note focuses on the issues of extraterritorial jurisdiction and sovereign immunity. The legality of the invasion of Panama by means of Operation Just Cause, while discussed for background relevancy, does not represent a major issue of discussion. Part I provides the historical background prior to court action, including the history of the military invasion. Part II discusses the procedural history of the Government’s case against Noriega in both the district court and the Eleventh Circuit. Part III considers the present state of extraterritorial jurisdiction and analyzes the court’s reasoning in finding jurisdiction over Noriega. Part IV discusses immunity of three types and their application to the Noriega case: foreign sovereign immunity, head of state immunity, and act of state immunity. Part V analyzes the issues presented in this controversial case. Prior to conclusion, Part VI will compare the Noriega case to possible future litigation among the international community and Slobodan Milosevic, the former de facto leader of the former Yugoslavia, and Augosto Pinochet, the former leader of Chile.

I. Background

From the early 1970s to 1989, General Noriega rose to progressively higher positions in the Panamanian government, first as chief of military intelligence and later as commander-in-chief of the PDF.13 As a result of his position, Noriega came into contact with members of the Colombia-based Medellin Cartel in the early 1980s.14 Thereafter, Cartel operatives and Noriega met and arranged for the shipment of cocaine through Panama into the United States.15 In addition to the shipments of cocaine, the parties arranged for the transportation of chemicals necessary for narcotic manufacturing and substantial cash proceeds from drug sales in the United States.16 This relationship proved financially rewarding for Noriega, who amassed a personal [*PG128]fortune of approximately twenty million U.S. dollars located in European banks.17

Following Noriega’s indictment in February 1988, then Panamanian President Eric Arturo Delvalle discharged Noriega from his post as commander of the PDF.18 However, Noriega refused to step down, and Delvalle was subsequently removed from power.19 Following these events, Noriega successfully frustrated a March, 1988 coup attempt to remove him from power.20

While these events transpired, American President George Bush pondered steps to remove Noriega from power.21 While members of Congress called for tough measures, Bush feared that any action would likely be ineffective or pose significant risks to U.S. interests in Latin America; anything resembling an invasion could have resulted in sabotage to the Panama Canal.22 Furthermore, Bush had limited time in which to decide since the administration of the Canal was due to be transferred to an ethnic Panamanian administrator in 1990, and the Senate would likely disapprove of any candidate nominated by Noriega.23 More direct solutions came under consideration, however, when the indictment, American threats, sanctions, and negotiations failed to persuade Noriega to step down, but rather aggravated the economic ruin that had befallen Panama.24

On December 15, 1989, the Panamanian National Assembly, led by a machete-wielding Noriega, publicly declared that a state of war existed between the Republic of Panama and the United States.25 Following this declaration, on December 16, 1989, numerous attacks on Americans occurred in Panama, including the murder of U.S. Marine Corps. Lieutenant Roberto Paz and the beating of U.S. Navy Lieuten[*PG129]ant Adam John Curtis by the PDF.26 On the morning of December 20, 1989, the democratically elected leadership of Panama, led by Guillermo Endara,27 announced the formation of a government, assumed power, and welcomed U.S. assistance to remove Noriega.28 Immediately recognizing Endara as the legitimate head of the Panamanian state,29 Bush ordered the deployment of 11,000 additional forces to join the 13,000 already present in Panama on December 20, 1989, as Operation Just Cause, with a defined mission to: (1) protect American lives; (2) defend democracy; (3) ensure the integrity of the Panama Canal Treaties; and (4) apprehend Noriega and bring him to trial on the drug related charges for which he was indicted in 1988.30

Hoping to be granted political asylum,31 Noriega took refuge in the Vatican Embassy on December 24, 1990,32 moments before a U.S. Special Forces unit arrived at his residence to seize him.33 Vatican officials refused to surrender Noriega, and he refused to leave on his own accord.34 Once the U.S. Army located Noriega at the Embassy, units launched a form of psychological attack by playing loud rock music.35

Finally, Noriega surrendered on January 3, 1990,36 after the Vatican threatened to lift its diplomatic immunity and invite Panamanian security forces to arrest him if he did not leave voluntarily.37 Accompanied by papal nuncio Monsignor Sebastian Laboa, Noriega surrendered to the U.S. Army and was taken by helicopter to nearby Howard Air Base, and from there by C-130 to Homestead Air Force base in Florida.38 Following the surrender, thousands of Panamanians celebrated in the streets,39 with President Endara expressing relief to be [*PG130]’rid of this criminal.’40 Following the invasion, where 25 U.S. servicemen,41 300 PDF members,42 and 300 Panamanians were killed,43 President Bush promised that Noriega would receive a fair trial,44 in what proved to be yet another battle between the United States and Noriega.
A.’ Justification for Just Cause

Following Noriega’s capture, debate ensued over the legality of American actions in Panama.45 President Bush argued that the events leading up to the invasion made it clear that not only were the lives and welfare of American citizens at risk, but that the continued safe operation of the Panama Canal was in jeopardy.46 Thus, with narrowly defined objectives,47 Bush argued that the invasion was justified as an exercise of self-defense pursuant to United Nations (U.N.) Charter Article 51,48 directly attributing the hostile acts against American servicemen to Noriega’s dictatorship.49 Moreover, Bush asserted that Noriega’s arrest would send ‘a clear signal that the U.S. [was] serious in its determination that those charged with promoting the distribution of drugs cannot escape the scrutiny of justice.’50

The debate concerning the legality of Operation Just Cause centered upon the interpretation of Articles 2(4) and 51 of the U.N. Charter.51 Article 2(4) of the Charter provides that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . . .’52 However, scholars argued that the Charter, through Arti[*PG131]cle 51, preserves the right of self-defense as inherent, and that states commonly used force to defend not only their territory but also their nationals and property.53 Thus, it was argued, the acts of aggression against Lieutenants Paz and Curtis, in addition to numerous other acts of hostility,54 justified the use of American self-defense to defend U.S. nationals.55 Furthermore, as a result of Noriega’s repudiation of the United States’ rights under the Panama Canal Treaties56 and their support of President Endara,57 the United States was authorized to take action, pursuant to these 1977 Treaties, for the purpose of protecting its troops stationed in Panama and for defending and operating the Canal.58

However, critics of the American invasion made themselves heard in an equally assertive voice.59 Opponents claimed that the state of tension existing at the end of 1989 did not present an imminent danger to the United States, and therefore, the invasion was not a necessity.60 Furthermore, the invasion was not a proportionate response to the incidents of the time, the most serious of which was the murder of Lieutenant Paz.61 While these incidents were tragic, critics argued, they did not warrant the launching of a full-scale attack the likes of which had not been seen since the Vietnam War.62 In addition, it was [*PG132]argued that the restoration of democracy in Panama was not a practice supported by even the most expansive reading of Article 51.63
II.’ Procedural History of the Case

Noriega was indicted by a federal grand jury sitting in Miami in February, 198864 and charged with: (1) engaging in a pattern of racketeering activity in violation of the RICO statutes, 18 U.S.C ”1⁄2”1⁄2 1962(c) and (d); (2) conspiracy to distribute and import cocaine into the United States, in violation of 21 U.S.C ”1⁄2 963; (3) distributing and aiding and abetting the distribution of cocaine, intending that it be imported into the United States, in violation of 21 U.S.C ”1⁄2 959 and 18 U.S.C ”1⁄2 2; (4) aiding and abetting the manufacture of cocaine destined for the United States, in violation of 21 U.S.C ”1⁄2 959 and 18 U.S.C ”1⁄2 2; (5) conspiring to manufacture cocaine intending that it be imported into the United States, in violation of 21 U.S.C ”1⁄2 963; and (6) causing interstate travel and use of facilities in interstate commerce to promote an unlawful activity, in violation of 18 U.S.C ”1⁄2 1952(a)(3) and 18 U.S.C ”1⁄2 2.65

Subsequent to the indictment and prior to Noriega’s arrest, in April, 1988, Judge Hoeveler of the Southern District of Florida granted Noriega’s motion to allow for special appearance of counsel.66 The court held that Noriega had the right to challenge the validity of the indictment without surrendering himself, and agreed to hear the motion even though courts had not allowed fugitive defendants to make special appearance of counsel in the past.67 This special request was granted because the defense motion was claimed to go to the heart of the government’s case and the court’s jurisdiction, and because of the extraordinary circumstances of the case.68 Moreover, Judge Hoeveler encouraged the government to welcome the appearance of special counsel or any procedure that would negate the perception that Noriega’s prosecution was politically motivated.69

In February, 1988, the defense brought a motion to dismiss the jurisdiction of the court even though Noriega maintained control of [*PG133]Panama.70 Although the defense conceded that American courts had generally upheld exercises of jurisdiction over acts in other countries intended to have effects in the United States, the defense asserted that jurisdiction did not apply in the case against Noriega because he was the leader of a sovereign nation.71 In its motion, the defense argued that even though Noriega was not a democratically elected leader, his position as the acknowledged de facto leader of Panama qualified him for immunity since there was no bright line to determine who was entitled to immunity.72 Moreover, the defense contended that the exercise of jurisdiction was unreasonable in light of the interests of other nations,73 and that the indictment was based on impermissible political and foreign policy considerations.74

The Government responded, however, that many of the acts claimed in the indictment were alleged to have occurred within U.S territory.75 Furthermore, the prosecution contested Noriega’s claim of immunity because Panama had not requested this status for Noriega, and many of his acts were undertaken allegedly for his own personal gain.76

Judge Hoeveler was of the opinion that the Government’s case was not without merit.77 Hoeveler, in his June 8th omnibus order dismissing Noriega’s preliminary motion, stated that the jurisdictional question was entirely separate from whether Noriega was immune from prosecution as head of state.78 Thus, the court held that jurisdiction could be found, as extraterritorial jurisdiction was upheld in the past over foreigners who conspired or intended to import narcotics into the United States.79 Jurisdiction was reasonable in light of the [*PG134]activity in question and the importance of regulating that activity.80 Given the serious nature of the drug epidemic, jurisdiction was not unreasonable, as the defense had claimed.81 Furthermore, the court opined that Noriega was not entitled to immunity because he was never recognized as the legitimate political leader of Panama; to allow immunity regardless of a leader’s source of power would allow illegitimate dictators the benefit of protection from their seizure of power.82 This Note focuses on this motion and the issues of immunity and extraterritorial jurisdiction.83

With the preliminary motion dismissed, and Noriega’s subsequent surrender and capture, Noriega was formally arraigned in the U.S. District Court for the Southern District of Florida in January, 1990.84 After entering an innocent plea,85 trial was set to begin in September, 1991.86 Months later, on April 9, 1992, Noriega was convicted on eight of ten counts by a jury of nine women and three men after five days of deliberations87 and sentenced to a total of forty years.88 Subsequently, the district court denied Noriega’s motion for a new trial,89 and his conviction and sentence were affirmed on appeal.90
III.’ Extraterritorial Jurisdiction & the General

In the preliminary motion to dismiss, the defense stated five reasons why the District Court should divest itself of jurisdiction.91 One of the major issues the court needed to resolve was that of extraterritorial jurisdiction.92 As stated, this issue was considered entirely separate from the issue of immunity,93 which is discussed in Part IV below.

[*PG135] Jurisdiction is commonly used to describe the court’s authority to affect legal interests.94 There are three categories of jurisdiction:95 (1) jurisdiction to prescribe is the ability of a state to make its laws applicable to activities, relations, and status of persons or a person’s interests in property;96 (2) jurisdiction to adjudicate is the authority of a state to subject particular persons or things to its judicial processes;97 and (3) jurisdiction to enforce is the authority of a state to use its resources to induce or compel compliance with its laws.98 The issue confronting the Noriega court concerned jurisdiction to prescribe.99

International law has given principal attention to a state’s jurisdiction to prescribe law in criminal matters.100 There are numerous theories of jurisdiction to prescribe.101 The territorial theory allows for jurisdiction over persons, things, or acts that takes place within the territorial boundaries of the state.102 Under the nationality theory, a state may prescribe law over persons or things that share its nationality.103 Moreover, customary international law, under the nationality theory, permits a state to exercise jurisdiction over its subjects wherever they may be located.104 The protective principle expands these traditional bases of jurisdiction by emphasizing the effect of an offense committed outside the territory of a state and allows the exercise of jurisdiction where conduct is deemed harmful to the national interests of the forum state.105 Most European countries have accepted this approach, including Austria, Denmark, Finland, France, Spain, Sweden, and Greece.106 Thus, any state may impose liability, [*PG136]even among persons who are not its nationals, for conduct outside its borders that has effects and consequences within its borders that the state reprehends.107 For example, the United States would have jurisdiction over an individual who, standing in Canada, shoots and kills an American in the United States.108 Even more liberal, the passive personality principle of jurisdiction extends jurisdiction over offenses where the victims are nationals of the forum state.109 Lastly, the universal principle, the most controversial basis, allows for jurisdiction in any forum that obtains physical jurisdiction over the person of the perpetrator of certain offenses considered particularly heinous or harmful to humankind, such as genocide, war crimes, slavery, piracy, and the like.110 Although relatively new, jurisdiction by the passive personality and universal principles is not precluded by norms of customary international law,111 and generally, a state may utilize these bases so long as it is not prohibited by international law.112

However, a state is not without limits in its exercise of jurisdiction.113 International law provides that a state may not exercise jurisdiction to prescribe when doing so would be unreasonable.114 Whether jurisdiction is unreasonable is determined by weighing a non-exhaustive list of factors, including the link of the activity to the regulating state, the foreseeable effects in that state, the character of the activity to be regulated, and the extent to which the regulation is consistent with the patterns and practice of the international system.115 Although the proper limits of jurisdiction over transnational [*PG137]activity have been questioned,116 extraterritorial prosecutions commonly have included serious offenses, such as the traffic of narcotics.117

Even among U.S. courts, there is little consensus on how far extraterritorial jurisdiction should extend.118 However, all courts recognize that at some point the interests of the United States are too weak and the foreign harmony incentive for restraint too strong to justify an extraterritorial exercise of jurisdiction.119 At least one court has adopted a ‘direct or substantial effect test,’ relevant in the case against Noriega, which holds that jurisdiction should be supported in any case where the effects are more than insubstantial and indirect.120

With these background principles in mind, the district court addressed the issue ‘whether the [United States] may exercise jurisdiction over Noriega’s alleged criminal activities.’121 Noriega’s challenge to the court’s jurisdiction was that such an exercise was unreasonable under any standard of international law since he did not personally perform any illegal acts within the United States.122 In deciding this issue, the court refrained from looking at Noriega’s official status, instead focusing entirely upon the conduct at issue as alleged in the indictment.123

In addition to possessing the power to reach the conduct in question under customary international law, a court seeking to exercise extraterritorial jurisdiction also must determine whether the crimes under which the defendant is charged are intended to have extraterritorial effect.124 The court held that all of the crimes under which Noriega was charged were so intended, since the drug statutes applicable were designed to stop the importation and distribution of narcotics.125 Moreover, the RICO statute, 18 U.S.C ”1⁄2 1962(c), (d), as well [*PG138]as the Travel Act, 18 U.S.C ”1⁄2 1952(a)(3), express a clear congressional intent to apply extraterritorially.126

More importantly, however, a court must rationalize the exercise of jurisdiction with the custom and practice of international law.127 In the United States, jurisdiction may be exercised over a foreign defendant who merely conspires or intends to import narcotics into the nation’s territory.128 This ‘intent’ doctrine has resulted in the exercise of jurisdiction over persons who had intended, but failed, to import narcotics into the United States, because the purpose of narcotics law is to prevent smugglers from succeeding in introducing their illegal shipments.129

On a more traditional level, the court held that several principles of customary international law supported jurisdiction over Noriega.130 First, the indictment charged Noriega with several acts that occurred within the territory of the United States, such as the purchase of a Lear jet in Miami that was subsequently used to transport cocaine and proceeds to and from Panama.131 These facts would support the exercise of the most traditional basis of jurisdiction, the territorial principle, which allows for the exercise of jurisdiction over acts occurring within a state’s territory.132 Secondly, the court found that jurisdiction was justified under the protective principle,133 which permits the exercise of jurisdiction over acts that threaten the existence of the state and have potentially deleterious effects in that state.134 It was evident, in Hoeveler’s opinion, that the acts allegedly attributed to Noriega would have certain and harmful effects in the United States, as a result of the alleged importation of 2141 pounds of cocaine into Miami.135
[*PG139]IV.’ The Immunity Question

At the turn of the twentieth century, the international law of state immunity was broader than today.136 In general, under an absolute theory of immunity, a state and its property were entitled to immunity from the judicial process of another state.137 Around 1900, however, a new concept of sovereign immunity emerged.138 Throughout the twentieth century, the immunity of a state and its leaders narrowed under the widely accepted restrictive theory of immunity.139 Under this restrictive theory, a distinction is made between public and private acts, with a state entitled to immunity for the prior, but not the latter.140 In developing this new theory, the formulating courts reasoned that immunity was intended to apply only to acts involving state sovereignty.141 They described those acts as public acts, political acts, or acts done jure imperii.142 Such acts were distinguished from private acts or acts jure gestionis, such as commercial acts, where immunity was not intended to extend.143

As with states, public officials are entitled to immunity for acts executed in their official capacities.144 However, consistent with the restrictive theory of immunity, public officials are amenable to suit for acts in their private capacities or for those undertaken for their own personal gain.145 The test as to whether a public official is personally [*PG140]liable in litigation is whether the act of the official is sufficiently connected with the state as to make it an action by the state.146

The restrictive theory of immunity has gained wide acceptance since its inception.147 Long applied by states such as Austria, Belgium, Egypt, France, Italy, and Switzerland,148 nearly all non-communist states now accept the restrictive theory.149 The shift to restrictive application can be found elsewhere.150 In Great Britain, for example, the State Immunity Act of 1978 conformed British law to that of most other developed countries.151 The Council of Europe also has made use of the restrictive theory through the promulgation of the Convention on State Immunity and Additional Protocol.152

The United States has also accepted the restrictive theory.153 Initially, U.S. courts adhered to the absolute theory of sovereign immunity under which a foreign state enjoyed immunity from all suits in federal courts.154 During the nineteenth century, U.S. courts relied upon suggestions from the State Department when deciding whether to extend immunity, thereby resisting the growing international practice of restrictive applications.155 However, in 1952, the United States formally adopted the restrictive theory of immunity after the publication of the Tate Letter, which advised U.S. courts not to grant immunity over non-governmental activities of states.156 Thus, from 1952 until 1977, a foreign state made party to litigation in the federal courts was required to request a claim of sovereign immunity through the State Department.157 If the claim was recognized, the State Department would communicate its decision to the appropriate court.158 However, this structure proved awkward,159 since it resulted in a prac[*PG141]tice whereby the State Department, rather than the courts, determined whether to dismiss a suit based on a claim of immunity.160

To remedy these conflicts, Congress enacted the Foreign Sovereign Immunities Act of 1976161 (FSIA) in October, 1976.162 The FSIA codified the law of sovereign immunity and removed the State Department’s role in immunity determinations.163 Henceforth, the FSIA and the presiding judge’s interpretation thereof became the basis for obtaining jurisdiction over a foreign state entity in the U.S. courts.164

The FSIA sets forth the general rule that a foreign state shall be entitled to immunity except as otherwise provided.165 In general, an exception is permitted, and thus immunity inapplicable, where a foreign state has waived immunity (pursuant to contract or appearance), or where the action is based on commercial activity.166

However, the FSIA does not mention head of state immunity nor foreign sovereign immunity in the criminal context, both of which were vital to the exercise of jurisdiction over Noriega.167 Thus, as the Eleventh Circuit illustrated in rejecting Noriega’s appeal, the court must look to the Executive Branch for guidance when considering claims of immunity by a head of state or where criminal matters are being prosecuted.168

In its preliminary motion to dismiss, the defense asserted several theories of immunity, including head of state immunity, diplomatic immunity, and the act of state doctrine.169 As with the other arguments presented by the defense, the court found these arguments fruitless.170 With the FSIA inapplicable to these issues, the court was compelled to look to the patterns and practices of customary international law.171
[*PG142]A.’ Head of State Immunity

Customary international law has long held that a head of state is not subject to the jurisdiction of foreign courts in actions relating to official acts.172 The rationale behind such custom is to promote international equality, respect among nations, and freedom of action by heads of state without fear of repercussions.173 However, as the Noriega court illustrated, criminal activities such as the trafficking of narcotics could not be considered an official act.174

In order to benefit from head of state immunity, a government official must be recognized by the immunizing state as the head of state.175 However, recognition is considered a discretionary function, with there generally being no legal duty to recognize the validity of a state or its leader.176 In Noriega’s case, it was evident that the General was merely the commander of the PDF, and was never recognized by the Panamanian Constitution or the United States as Panama’s head of state.177 Panama had not even sought immunity on behalf of Noriega through the State Department.178 Even if recognized as the de facto leader of Panama, the court opined, the grant of immunity is a privilege that may be freely withheld by the United States.179

Thus, because the FSIA did not control head of state immunity determinations, the court looked to the Executive Branch for guidance.180 By pursuing Noriega’s capture and prosecution, the court reasoned, the Executive Branch had affirmatively manifested its intent to deny any form of immunity for Noriega.181 Unlike Lafontat v. Aristide,182 which resulted in the dismissal of a civil case against the President of Haiti due to the State Department’s suggestion of applying head of state immunity to the defendant’s status, there was no such suggestion in the case against Noriega.183
[*PG143]B.’ Act of State Doctrine

Another basis of Noriega’s immunity claim was that his actions were precluded under the act of state doctrine.184 The act of state doctrine provides that a court will generally refrain from examining the validity of the acts of another state within its territory.185 This principle also extends to governmental acts of state officials vested with sovereign authority.186 However, Noriega could not benefit from this form of protection because he was unable to establish that his alleged actions were taken on behalf of Panama.187 The court rejected the act of state defense,188 unable to see how Noriega’s alleged drug trafficking could conceivably constitute a public action for the benefit of Panama.189 Rather, in the Eleventh Circuit’s opinion, Noriega’s alleged acts, if true, were for his own personal enrichment.190
1.’ Extradition

In his defense, Noriega also asserted that the District Court should have divested itself of jurisdiction because narcotics trafficking [*PG144]was not one of the crimes listed in the operating extradition treaty between the United States and Panama.191 However, in addition to being contemplated by subsequent treaties between the United States and Panama, crimes of narcotics trafficking are recognized as extraditable offenses under international law.192

Nevertheless, it is obvious to even the casual observer that the means by which Noriega came before the court was not by traditional extradition.193 In the United States, however, the manner by which a defendant is brought before the court normally does not affect the ability of the government to try him.194 This tenet of law, known as the Ker-Frisbie Doctrine, holds that a court is not deprived of jurisdiction over a forcibly abducted defendant.195 In Ker, the defendant was forcibly kidnapped in Peru and brought to the United States.196 There, the Court refused to divest itself of jurisdiction, holding that it was idle to claim that a fugitive from justice had the right to remain in another country.197

In addition, the Noriega Court held that a known exception, the Toscanino exception, was inapplicable.198 In United States v. Toscanino,199 the court held that due process required that the Ker-Frisbie doctrine must yield and the court must divest itself of jurisdiction where a defendant is brought before the court as the result of the government’s deliberate and unreasonable invasion of the accused’s constitutional rights.200 There, a criminal defendant was interrogated for several days by Justice Department agents and thereafter abducted from Uruguay.201 However, the Noriega Court distinguished Toscanino, holding that there were neither allegations of mistreatment of Noriega nor conduct so egregious that it shocked the conscience; therefore, the exception did not apply.202

[*PG145] Despite these holdings, Noriega asserted on appeal that such a forcible abduction in the presence of an extradition treaty was unconscionable.203 Nonetheless, the court quickly disposed of this argument, holding that the presence of an extradition treaty that did not prohibit abductions was nearly irrelevant on the matter.204 The court, relying on United States v. Alvarez-Machain,205 held that a federal court might acquire jurisdiction over a criminal defendant abducted from a foreign country notwithstanding the existence of an extradition treaty.206
V.’ Justifications & Shortcomings

The Noriega Court has been criticized for its failure to clarify the role of the judicial branch in determining head of state immunity.207 In essence, the court effectively increased judicial discretion on this issue through its determination of executive intention.208 In doing so, the court has provided the country, indeed the world, with a guiding opinion that may be used in future head of state immunity determinations involving Augosto Pinochet of Chile and Slobodan Milosevic of the former Yugoslavia.209 Critics argue that the court should have followed a ‘default-no-immunity rule,’ which sets forth that, absent Executive Branch guidance, a court should not grant immunity, and should refuse to weigh the issue itself.210 Although the same result of no immunity for Noriega would have occurred, the approach taken by the Noriega Court in carving out a role for itself to determine executive intention will undercut the political and foreign affairs role of the Executive Branch and may increase the likelihood of inconsistent determinations.211 In refusing to acknowledge head of state immunity for Noriega, the court created a new category of executive suggestion in cases where the Executive Branch remains silent’non-verbal manifestation of executive intent.212 The legal problem, however, was that [*PG146]the court failed to articulate any clear standard for determining executive intent in head of state cases, leaving great discretion for both federal courts and international tribunals.213 Thus, difficult problems may result in the future when courts continue to determine executive intent when that branch remains silent, imputing to the Executive Branch intent that it had not explicitly expressed.214 Yet, others contest that the court should interpret head of state immunity issues in the same manner as they adjudicate matters within the FSIA.215
VI.’ Ramifications for Sovereign Leaders

Judicial proceedings involving domestic courts and foreign former heads of state are not unique to the United States.216 In the years that followed the Noriega decision, similar issues of immunity and extraterritorial jurisdiction were revisited in the context of judicial proceedings against former Chilean dictator Augosto Pinochet Ugarte, and are likely to resurface in future criminal proceedings against the former President of Yugoslavia, Slobodan Milosevic.217
A.’ The Case Against Augosto Pinochet

Although not expressly stated, much of the reasoning applied by the Noriega Court was mirrored by English courts and the House of Lords in the Pinochet case.218 Similar to Noriega, the Pinochet case involved (1) whether Pinochet continued to enjoy immunity for acts committed during his tenure as head of state, and (2) whether customary international law granted the English courts jurisdiction to extradite Pinochet to Spain.219

After seventeen years as Chilean dictator, Pinochet stepped down on March 11, 1990, although he continued to command the military until March 10, 1998.220 Thereafter, the former dictator assumed the [*PG147]title of Senator-for-Life and was granted immunity under the provisions of the Chilean Constitution.221 On July 1, 1996, a Spanish prosecutor filed a criminal complaint against Pinochet, alleging that he caused the detainment, torture, and execution of thousands of Chilean citizens and citizens of other nations.222 In addition, it was alleged that following the violent overthrow of then Chilean president Salvador Allende, Pinochet authorized the torture of thousands, including not only Chilean citizens, but also citizens of the United States and Spain, as part of an international conspiracy, named Operation Condor, to track down and dispose of political opponents.223 The complaint further asserted that Spanish courts could properly exercise jurisdiction over Pinochet under the universal principle, which allowed prosecution by any state.224

On October 16, 1998, a Spanish magistrate issued an arrest warrant after discovering that Pinochet was present in London recuperating from back surgery.225 The warrant specifically claimed that Pinochet had caused the murder of seventy-nine Spanish citizens in Chile in the period between 1973 and 1983.226 Following the issuance of a second warrant, Pinochet was arrested in London on October 16, 1998.227

In the Divisional Court, it was initially determined that Pinochet continued to enjoy immunity for acts committed while he was head of state.228 The issue of immunity was thereafter immediately certified to the House of Lords, where a decision to revoke recognition of immunity was set aside after it was discovered that a link existed between a presiding Lord and a member of Amnesty International, an organization that had intervened in opposition to Pinochet.229 However, on March 24, 1999, the House of Lords issued the final ruling of the trilogy, holding that Pinochet was not entitled to enjoy immunity for his alleged crimes, since such allegations could not be considered official [*PG148]acts under international principles of immunity.230 Nevertheless, Pinochet would once again escape extradition to face trial in Spain; he was released due to failing health and permitted to return to Chile.231 Despite this escape, Pinochet was stripped of his immunity upon his return to Chile by the Chilean Supreme Court on August 8, 2000,232 indicted, and placed on house arrest for his alleged crimes.233

In early 2001, the Chilean Supreme Court, which opined that investigators had failed to properly question Pinochet and subject him to psychological interviews, reversed this initial arrest order.234 However, Judge Juan Guzman quickly fulfilled those requirements in January, 2001, forcing Pinochet to undergo four days of psychological examination.235 After determining that Pinochet’s medical condition was not sufficient to halt judicial proceedings and a personal interrogation of Pinochet,236 Judge Guzman reinstated criminal charges against Pinochet stemming from the deaths and disappearances of some seventy-five political prisoners during a helibourne operation known as the ‘caravan of death.’237 Once again, the reinstatement of charges, placement on house arrest, and Pinochet’s plea of not guilty resulted in yet another appeal to the Santiago Court of Appeals, where defense lawyers asked the judges to release Pinochet from house arrest and to quash the charges.238 This appeal again resulted in a setback for international proponents of sovereign accountability.239 On March 8, 2001, the Court of Appeals dismissed the homicide and kidnapping charges against Pinochet, leaving only the charges relating to Pinochet’s alleged cover-up of such atrocities for possible [*PG149]trial.240 Furthermore, on March 13, 2001, a Chilean judge ruled that Pinochet could be released from house arrest by posting payment of two million pesos, equivalent to $3400.241

Despite the initial willingness of the Chilean judicial system to attempt to bring Pinochet to justice, the reality is that such attempts have proven less effective than desired by international activists.242 Many critics became disappointed with the progress of the case against Pinochet when it became apparent that he would face trial only for the lesser charges of covering-up the actions of the caravan of death.243 Rather than pursuing the most serious charges, critics alleged, the Chilean courts apparently sought to protect Pinochet in a manner inconsistent with international pressure.244 Human rights activists became further outraged when, in July, 2001, a Chilean appeals court ruled that the former dictator was not well enough to stand trial, thereby reducing momentum in a case many believed was facing a slow procedural death.245

In comparison, unlike the Noriega case, where the federal courts exercised jurisdiction pursuant to the territorial and protective principles, initial jurisdiction by the Spanish Courts was justified through an exercise of the universal and passive personality principles.246 However, similar to Noriega, the House of Lords, accepting the position asserted by the Spanish prosecutors, quickly disposed of the defense arguments that Pinochet was immune from jurisdiction of foreign courts for acts committed while he was the head of state.247 Although the ultimate outcome is unlikely to please many in the international community, the case against Pinochet has set a powerful precedent likely to be used by other international tribunals seeking to prosecute foreign leaders for human rights violations and other violations of international and domestic law.248
[*PG150]B.’ A Harbinger for Milosevic’

In 1994, the U.N. Security Council passed a resolution establishing the International Criminal Tribunal for the Former Yugoslavia (Tribunal), responsible for the investigation and prosecution of war criminals in the former Yugoslavia occurring since January 1, 1991.249 On May 27, 1999, the Tribunal indicted the former President of Yugoslavia, Slobodan Milosevic and four others, charging them with crimes against humanity and violations of international law.250 To further the ends of justice, the Tribunal committed to denying head of state immunity claims.251 Specifically, Milosevic, removed from power in October, 2000,252 was charged with personal responsibility for ordering, planning, instigating, executing, and aiding and abetting the persecution, deportation, and murder of Kosovo Albanians from January, 1999 to June, 1999.253 This campaign was allegedly undertaken with the objective of removing a substantial portion of the Kosovo Albanian population from Kosovo in an effort to ensure continued Serbian dominance over the Province.254

[*PG151] In the winter of 2001, the case against Milosevic followed a path very similar to the Chilean case against Pinochet.255 Despite work on a new Yugoslav law that would remove the ban on the extradition of Yugoslav citizens, thus allowing extradition of Milosevic to the Tribunal, Yugoslav President Vojislav Kostunica publicly suggested that he remained opposed to Milosevic’s extradition.256 Apparently less cooperative with the Tribunal than desired,257 Kostunica maintained in February, 2001 that the first priority was to try Milosevic at home,258 rather than risk angering nationalists by extraditing Milosevic to the Tribunal.259

Despite the reluctance to extradite Milosevic, Yugoslav leaders began purging the legal system of Milosevic loyalists in early 2001.260 The most notable arrest was that of Rade Markovic, the former secret police chief under the Milosevic regime.261 With this arrest, prosecutors hoped that information gained from Markovic would lead to the arrest of Milosevic himself.262

Although the Yugoslav government made positive efforts to commence criminal actions against Milosevic and his inner circle, the Tribunal publicly opposed Kostunica, emphasizing the importance of extraditing Milosevic rather than trying him at home.263 The Prosecutor, Carla del Ponte, insisted that Milosevic was no different from any other person indicted by the Tribunal, and that Yugoslavia was obligated by international law to transfer the former leader to the Hague.264 The Tribunal was primarily concerned that any trial in [*PG152]Yugoslavia would neglect the more serious alleged war crimes and focus on domestic charges, such as embezzlement, corruption, and political assassination.265 The United States reiterated these concerns that the Yugoslav judicial system was not pursuing Milosevic vigorously.266 Under a measure adopted by the U.S. Congress in 2000, Yugoslavia was required to demonstrate that it was cooperating with the U.N. Tribunal by March 31, 2001, or risk loosing $100 million in U.S. aid and consideration for the International Monetary Fund and World Bank.267 Nevertheless, Belgrade officials insisted that Milosevic face trial at home prior to any extradition.268 Critics asserted that this insistence was the result of Kostunica’s fear of being labeled a puppet of the west.269

On April 1, 2001, just prior to the U.S. deadline for revoking financial aid, Yugoslav special police officers conducted a raid to seize Milosevic from his home.270 After an exchange of gunfire and lengthy negotiations, Milosevic surrendered to police.271 Following the arrest, Yugoslav officials reiterated their intent to try Milosevic in Belgrade on various charges relating to abuse of power and corruption.272 International pressure continued to grow, however, and Kostunica was pressured to transfer Milosevic to the Tribunal to face war crime charges.273

Accepting the necessity to cooperate and the lesser of two evils, the Yugoslav cabinet adopted a decree to transfer Milosevic to the Tribunal in June, 2001.274 Ultimately, Milosevic was transferred to the Hague on June 29, 2001, following an unsuccessful attempt to challenge the constitutionality of the extradition decree in Yugoslav courts.275 At his initial appearance before the Tribunal on July 3, 2001, [*PG153]Milosevic refused to enter a plea, and contested ‘I consider this tribunal [a] false tribunal and [the] indictments false indictments. It is illegal . . . .’276

On November 8, 2001, The Trial Chamber of the Tribunal decided an initial motion to dismiss brought by Milosevic and amici curiae.277 In the motion, Milosevic and amici curiae argued: (1) the Tribunal was an illegal entity because the U.N. Security Council lacked the power to establish it; (2) the prosecutor had not maintained prosecutorial independence, and was therefore in violation of the Tribunal’s Statute, Article 16, paragraph 2; (3) the Tribunal was impermissibly tainted with bias against Milosevic; (4) The Tribunal lacked competence to prosecute Milosevic due to his status as the former President of Yugoslavia; (5) the Tribunal lacked competence to prosecute Milosevic due to his unlawful surrender and extradition to the Hague; and (6) the Tribunal lacked jurisdiction.278 The Trial Chamber rejected each of these arguments, relying on Article 7, paragraph 2 of the Tribunal’s Statute.279 Specifically, the Tribunal rejected Milosevic’s claims of immunity due to his status as the former President of Yugoslavia, stating that Article 7, which rejected head of state immunity, reflected an accepted principle of customary international law.280 Additionally, the Trial Chamber relied on the Pinochet case and the Rome Statute of the International Criminal Court.281

Similar to the developments in the Pinochet case, the Yugoslav judicial system was initially criticized as being reluctant to pursue the more serious charges of war crimes against Milosevic, favoring any [*PG154]possible trial on lesser charges similar to tax evasion.282 The indictment against Milosevic is similar to the cases against Noriega and Pinochet in that all were former leaders of sovereign nations, thus implicating issues of immunity and jurisdiction.283 As the indictment makes allegations of war crimes, the Tribunal is likely to make an argument justifying jurisdiction under the universal principle.284 It is apparent that the coming Milosevic trial represents the most significant test for the doctrine of universal jurisdiction.285 Since Milosevic has repeatedly refused to recognize the jurisdiction of the Tribunal, the arguments of the Noriega case, which were dismissed by the Trial Chamber, are likely to arise once again, and the Tribunal would be wise to follow the reasoning there set forth.286 As with the Noriega and Pinochet cases, the Tribunal and the Appeals Chamber should deny immunity to Milosevic.287
C.’ The Future & Ramifications for Sovereign Leaders

The Noriega and Pinochet cases, along with the indictment levied against Milosevic, have limited dramatically the immunity that former heads of state can claim for criminal activity, and also illustrate the international community’s willingness to maintain jurisdiction over criminal acts conducted abroad by such state officials.288 Although the underlying crimes may be fundamentally different, with Noriega convicted of drug related crimes, Pinochet indicted for crimes of torture and human rights violations, and Milosevic indicted for war crimes,289 the indictments and willingness to prosecute former heads of state will likely deter future war crimes, human rights violations, drug trafficking, and other violations of international law, by establishing that those who transgress the norms of customary international law shall be held accountable.290

The case against Noriega and the indictments of Pinochet and Milosevic have affirmed that principles of international criminal ac[*PG155]countability apply to heads of state, and furthermore, former heads of state will not be able to hide behind a shield of jurisdictional and immunity challenges.291 As a commitment to these ideals, in July, 1998, 120 states adopted the Rome Statute of the International Criminal Court with jurisdiction over war crimes and crimes against humanity.292 Although it is questionable whether Noriega’s crimes would fall within the jurisdiction of the court, the statute expressly provides that heads of state will not have immunity with respect to crimes under international law.293 However, even though an international criminal system promoting universal jurisdiction over crimes would be highly effective in protecting human rights and promoting accountability of heads of state,294 most domestic courts are still reluctant to apply universal and other forms of extraterritorial jurisdiction.295

Although the preceding cases, which have begun to use national courts in a new international sense,296 have affirmed the fundamental principle of individual accountability for violations of international law,297 proceduralists argue that a system of international law without clear parameters restraining the exercise of jurisdiction and tolerating the dishonoring of immunity is akin to no system of justice at all.298 Many argue that exercises of extraterritorial jurisdiction and the removal of immunity will lead to an unstable system of international politics.299 Such a system of justice may create more problems than it solves.300 Is the justice reached in the preceding cases the type that can only be exacted by the victor on the vanquished’the will of the [*PG156]strong imposed on the weak’301 What limits should be placed on national sovereignty’302 If current trends continue, proceduralists argue, what is to protect current and former heads of states in nations such as Israel, Mexico, and the United States’303 Furthermore, what is to prevent countries, such as Iraq and Libya, from issuing warrants for the leaders of the United States’304 The question that remains is whether a nation has the authority under international law to judge the policies of other sovereign nations.305 What may be at stake, critics argue, is the validity of national sovereignty.306

Although the Noriega case provided controversial issues of first impression, the court’s reasoning is consistent with customary international law. The court rationally justified its exercise of jurisdiction over Noriega through both the territorial and protective principles of extraterritorial jurisdiction. The evidence adduced at trial established that Noriega had purchased a Lear jet and had used it on numerous occasions to fly cocaine into and drug proceeds out of the territory of the United States, thus warranting the exercise of jurisdiction under the territorial principle. Moreover, the evidence established that given the serious drug epidemic presently existing in the United States, the introduction of mass quantities of narcotics into the country surely would result in unwelcome harmful effects, thereby justifying the protective exercise of jurisdiction.

As for the issue of immunity, the court similarly applied rational, widely supported principles of international law. Thus, the court appropriately found that Noriega, who was not recognized as the rightful leader of Panama, should not be afforded immunity under the doctrine of head of state immunity. Likewise, the court rightfully denied immunity under the act of state doctrine since his illegal acts were positively undertaken for his own profit, and not for the benefit of Panama.

Although critics conceivably could protest that the court should have considered Noriega’s status as the de facto head of state and former confident of the CIA in weighing whether the exercise of jurisdic[*PG157]tion was reasonable, the court was logical and correct in maintaining that the issues of immunity and extraterritorial jurisdiction should be considered separately. Undoubtedly, this approach and the subsequent Noriega decision provide a warning to future sovereign leaders of foreign nations and guidance to future tribunals called upon to try a foreign head of state for extraterritorial crimes. The practical results of this landmark decision very well may be to increase the accountability of world leaders by the international community, an issue that the English courts have already addressed in the Pinochet indictment, and that foreign international tribunals are sure to examine in the forthcoming prosecutions of Milosevic for universally condemned crimes.

Even if the results of similar suits against former sovereign leaders do not reach the arguable success of the Noriega prosecution, international pressure to hold leaders accountable can result in domestic charges that are somewhat similar to those existing under international and foreign tribunals, as in the Pinochet and Milosevic cases. Due to the actions in the cases surrounding Noriega, Milosevic, and Pinochet, domestic courts across the globe, whether in Chile, Miami, Yugoslavia, or Spain, are growing more inclined to dismember any shield of immunity and hold former leaders accountable for their actions under domestic and international law. However, despite these optimistic actions by domestic courts, the effects are far from optimal. Recent developments in the Pinochet and Milosevic cases have illustrated that domestic courts, while willing to heed international pressures to bring former sovereigns to justice, are unwilling to pursue the most serious of alleged crimes of which the former dictators are suspected by the international community. In both cases, present leaders appeared hesitant to yield entirely to international demands, fearful of aggravating nationalists. For example, while Pinochet is alleged to have ordered the murder and kidnapping of numerous left wing opponents, the Chilean judicial system now does not seem poised to bring him to trial. Similarly, Yugoslavia was initially reluctant to transfer Milosevic to the Hague.

While some action is preferable to inaction, international activists would prefer judicial action to lie somewhere in the middle ground among the present state of events and the drastic remedies pursued by the United States in the Noriega case.

Nevertheless, it is apparent that there is a growing trend towards accountability of former sovereign leaders for their illegal acts while in office. The only question that remains is where the line should be drawn. How does a tribunal balance the interests of international [*PG158]criminal accountability and the need for reciprocity’ Why do states prosecute leaders such as Noriega, Pinochet, and Milosevic, while others do not pursue sovereigns such as Gaddafi, Mugabe, or Bush’ Future tribunals of justice will continue to ask these questions as the desirability of political accountability grows. Those tribunals have the difficult task of determining when the interests of justice are sufficient to ignore the policy reasons inherent in the concepts of immunity and jurisdiction.
” ”

Reviewing justifications for war and torture

LRB | Vol. 27 No. 10 dated 19 May 2005 |

Protocols of Machismo
by Corey Robin

Arguing about War by Michael Walzer  Yale, 208 pp, ‘16.99

Chain of Command by Seymour Hersh [ Buy from the London Review Bookshop ] ‘ Penguin, 394 pp, ‘17.99

Torture: A Collection ed. Sanford Levinson [ Buy from the London Review Bookshop ] ‘ Oxford, 319 pp, ‘18.50

The 20th century, it’s said, taught us a simple lesson about politics: of all the motivations for political action, none is as lethal as ideology. The lust for money may be distasteful, the desire for power ignoble, but neither will drive its devotees to the criminal excess of an idea on the march. Whether the idea is the triumph of the working class or of a master race, ideology leads to the graveyard.

Although liberal-minded intellectuals have repeatedly mobilised some version of this argument against the isms of right and left, they have seldom mustered a comparable scepticism about that other id’e fixe of the 20th century: national security. Some liberals will criticise this war, others that one, but no one has ever written a book entitled ‘The End of National Security’. This despite the millions killed in the name of security, and even though Stalin and Hitler claimed to be protecting their populations from mortal threats.

There are fewer than six degrees of separation between the idea of national security and the lurid crimes of Abu Ghraib. First, each of the reasons the Bush administration gave for going to war against Iraq ‘ the threat of WMD, Saddam’s alleged links to al-Qaida, even the promotion of democracy in the Middle East ‘ referred in some way to protecting America. Second, everyone agrees that getting good intelligence from Iraqi informers is a critical element in defeating the insurgency. Third, US military intelligence believes that sexual humiliation is an especially forceful instrument for extracting information from recalcitrant Muslim prisoners.

Many critics have protested against Abu Ghraib, but none has traced it back to the idea of national security. Perhaps they believe such an investigation is unnecessary. After all, many of them opposed the war on the grounds that US security was not threatened by Iraq. And some of national security’s most accomplished practitioners, such as Brent Scowcroft and Zbigniew Brzezinski, as well as theoreticians like Steven Walt and John Mearsheimer, even claimed that a genuine consideration of US interests militated against the war. The mere fact that some politicians misused or abused the principle of national security need not call that principle into question. But when an idea routinely accompanies, if not induces, atrocities ‘ Abu Ghraib was certainly not the first instance of the United States committing or sponsoring torture in the name of security ‘ second thoughts would seem to be in order. Unless, of course, defenders of the idea wish to join that company of ideologues they so roundly condemn, affirming their commitment to an ideal version of national security while disowning its ‘actually existing’ variant.

In its ideal version, national security requires a clear-eyed understanding of a nation’s interests and a sober assessment of the threats to them. Force, a counsellor might say to his prince, is a tool a leader may use in response to those threats, but he should use it prudently and without emotion. Just as he should not trouble himself with questions of human rights or international law ‘ though analysts might add these to a leader’s toolkit, they are quick to point out, as Joseph Nye does in The Paradox of American Power (2002), that international norms may have to give way to ‘vital survival interests’, that ‘at times we will have to go it alone’ ‘ he should not be excited by his use of violence. National security demands a monkish self-denial, where officials forego the comforts of conscience and the pleasures of impulse in order to inflict when necessary the most brutal force and abstain from or abandon that force whenever it becomes counter-productive. It’s an ethos that bears all the marks of a creed, requiring a mortification of self no less demanding than that expected of the truest Christian.

The first article of this creed, the national interest, gives leaders great wiggle room in determining what constitutes a threat. What, after all, is the national interest’ According to Nye, ‘the national interest is simply what citizens, after proper deliberation, say it is.’ Even if we assume that citizens are routinely given the opportunity to ponder the national interest, the fact is that they seldom, if ever, reach a conclusion about it. As Nye points out, Peter Trubowitz’s exhaustive study of the way Americans defined the national interest throughout the 20th century concluded that ‘there is no single national interest. Analysts who assume that America has a discernible national interest whose defence should determine its relations with other nations are unable to explain the failure to achieve domestic consensus on international objectives.’ And this makes a good deal of sense: if an individual finds it difficult to determine her own interest, why should we expect a mass of individuals to do any better’

But if a people cannot decide on its collective interest, how can it know when that interest is threatened’ Faced with such confusion, leaders often fall back on what seems the most obvious definition of a threat: imminent, violent assault from an enemy, promising to end the independent life of the nation. Leaders focus on cataclysmic futures, if for no other reason than that these are a convenient measure of what is or is not a threat, what is or is not security. But that ultimate threat often turns out to be no less illusory than the errant definition inspiring the invocation of the threat in the first place.

Hovering about every discussion of war and peace are questions of life and death. Not the death of some or even many people, but as Michael Walzer proposes in Arguing about War, the ‘moral as well as physical extinction’ of an entire people. True, it is only rarely that a nation will find its ‘ongoingness’ ‘ its ability ‘to carry on, and also to improve on, a way of life handed down’ from its ancestors ‘ threatened. But at moments of what Walzer, following Winston Churchill, calls ‘supreme emergency’, a leader may have to commit the most obscene crimes in order to avert catastrophe. The deliberate murder of innocents, the use of torture: the measures taken will be as many and almost as terrible as the evils a nation hopes to thwart.

For obvious reasons, Walzer insists that leaders should be wary of invoking the supreme emergency, that they must have real evidence before they start speaking Churchillese. But a casual reading of the history of national security suggests not only that in practice the rules of evidence will be ignored or flouted, but that the notion of catastrophe encourages, even insists on, the flouting.

‘In normal affairs,’ Richelieu declared at the dawn of the modern state system, ‘the administration of justice requires authentic proofs; but it is not the same in affairs of state . . . There, urgent conjecture must sometimes take the place of proof; the loss of the particular is not comparable with the salvation of the state.’ As we ascend the ladder of threats from petty crime to the destruction of the state, we require less and less proof that those threats are real. The consequences of underestimating serious threats are so great we may have no choice but to overestimate them. Three centuries later, the American jurist Learned Hand invoked a version of this rule, claiming that ‘the gravity of the “evil”‘ should be ‘discounted by its improbability’. The graver the evil, the higher the degree of improbability we demand in order not to worry about it. The graver the evil, the lower the degree of probability that authorises ‘ or permits ‘ us to take pre-emptive action against it.

Though neither statement was meant to justify great crimes of state, both suggest an inverse relationship between the magnitude of a danger and the requirements of facticity. Once a leader starts pondering the nation’s moral and physical extinction, he enters a world where the fantastic need not give way to the factual, where present benignity can seem like the merest prelude to future malignance. So intertwined at this point are fear and reason that early modern theorists, less shy than we are about such matters, happily admitted the first as a proxy for the second: a nation’s fear, they argued, could serve as a legitimate rationale for war, even a preventive one. ‘As long as reason is reason,’ Francis Bacon wrote, ‘a just fear will be a just cause of a preventive war,’ which is a fairly good description of the logic animating the Cold War: fight them there ‘ in Vietnam, Nicaragua, Angola ‘ lest we must stop them here, at the Rio Grande, the Canadian border, on Main Street.

As Seymour Hersh shows in his indispensable guide to the politics of American security after 9/11, these are by no means merely ancient or academic formulations. While liberal critics claim that the Bush administration lied about or deliberately exaggerated the threat posed by Iraq in order to justify going to war, the fact is that the administration and its allies were often disarmingly honest in their assessment of the threat, or at least honest about the way they assessed it. Trafficking in the future, they conjured the worst ‘ ‘we don’t want the smoking gun to be a mushroom cloud’ ‘ and left it to their audience to draw the most frightful conclusions.

In his 2003 State of the Union address, one of his most important statements in the run-up to the war, Bush declared: ‘Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike’ If this threat is permitted to fully and suddenly emerge, all actions, all words and all recriminations would come too late.’

Note that Bush does not affirm the imminence of the threat. In fact, he implicitly disavows it by ducking behind the past, darting to the hypothetical, and arriving at a nightmarish, though entirely conjectured, future. He does not speak of ‘is’ but of ‘if’ and ‘could be’. These words are conditional (which is why Bush’s critics, insisting that he take his stand in the realm of either fact or fiction, never could get a fix on him). And the conditional is often the tense of fear, where evidence and intuition, reason and speculation, combine to make the worst-case scenario seem as real as the realest fact.

After the war had begun, the television journalist Diane Sawyer pressed Bush on the difference between the assumption, ‘stated as a hard fact, that there were weapons of mass destruction’ and the hypothetical possibility that Saddam ‘could move to acquire those weapons’. Bush replied: ‘So what’s the difference” This was his most articulate statement of the entire war, an artful parsing of a distinction that has little meaning in the context of national security.

Probably no one near or around the administration better understood the way national security blurs the line between the possible and the actual than Richard Perle. ‘How far Saddam’s gone on the nuclear weapons side I don’t think we really know,’ Perle said on one occasion. ‘My guess is it’s further than we think. It’s always further than we think, because we limit ourselves, as we think about this, to what we’re able to prove and demonstrate . . . And, unless you believe that we have uncovered everything, you have to assume there is more than we’re able to report.’

Like Bush, Perle neither lies nor exaggerates. Instead, he imagines and projects, and in the process reverses the normal rules of forensic responsibility. When someone recommends a difficult course of action on behalf of a better future, he must defend himself against the sceptic, who insists that he prove his recommendation will produce the outcome he anticipates. But if someone recommends an equally difficult course of action to avert a hypothetical disaster, the burden of proof shifts to the sceptic. Suddenly she must defend her doubt against his belief, her course of action against his (although she probably thought that she wasn’t proposing a course of action, only a series of tough questions). And that, I suspect, is why the Bush administration’s prewar mantra, ‘the absence of evidence is not evidence of absence’ ‘ laughable in the context of an argument for, say, world peace ‘ could seem surprisingly cogent in an argument for war. ‘Better be despised for too anxious apprehensions,’ Burke noted, ‘than ruined by too confident security.’

As Walzer suggests, an entire people can face annihilation. But the victims of genocide tend to be stateless or powerless, and the world has difficulty seeing or acknowledging their destruction, even when the evidence is undeniable. The citizens and subjects of great powers, on the other hand, rarely face the prospect of ‘moral and physical extinction’. (Walzer cites only two cases.) Yet their leaders seem to imagine that destruction with the greatest of ease.

We get a slight, though only slight, taste of this indulgence of the state and its concerns ‘ and a corresponding scepticism about non-state actors and their concerns ‘ in Walzer’s own essays. Throughout Arguing about War, Walzer wrestles with terrorists who claim that they are using violence as a last resort and antiwar activists who claim that governments should go to war only as a last resort. Walzer is equally dubious about both claims. But far from revealing a dogged consistency, his scepticism about the ‘last resort’ suggests a double standard. It sets the bar for using force much higher for non-state actors than it does for state actors ‘ not because terrorists target civilians while the state does not but because Walzer refuses to accept the terrorist’s ‘last resort’ while he is ready to lend credence to the government’s, or at least is ready to challenge critics of the government who insist that war truly be a last resort.

For Walzer, the last resort argument of antiwar activists is often a ruse designed to make a government’s going to war impossible ‘ and a muddy ruse at that. For ‘lastness’, he says, ‘is a metaphysical condition, which is never actually reached in real life: it is always possible to do something else, or to do it again, before doing whatever it is that comes last.’ We can always ask for ‘another diplomatic note, another United Nations resolution, another meeting’, we can always dither and delay. Though Walzer acknowledges the moral power of the last resort argument ‘ ‘political leaders must cross this threshold [going to war] only with great reluctance and trepidation’ ‘ he suspects that it is often ‘merely an excuse for postponing the use of force indefinitely’. As a result, he says, ‘I have always resisted the argument that force is a last resort.’

But when non-state actors argue that they are resorting to terrorism as a last resort, Walzer suspects them of bad faith. For such individuals, ‘it is not so easy to reach the “last resort”. To get there, one must indeed try everything (which is a lot of things) and not just once.’ Even ‘under conditions of oppression and war’, he insists, ‘it is by no means clear when’ the oppressed or their spokespersons have truly ‘run out of options’. Walzer acknowledges that a similar argument might be applied to government officials, but the officials he has in mind are those who ‘kill hostages or bomb peasant villages’ ‘ not those who claim they must go to war. Thus, Walzer is willing to entertain the possibility that governments, with all their power, will find themselves racing against time, while insisting that terrorists, and the people they claim to represent, have all the time in the world.

What is it about being a great power that renders the imagining of its own demise so potent’ Why, despite all the strictures about the prudent and rational use of force, are those powers so quick to resort to it’ Perhaps it is because there is something deeply appealing about the idea of disaster, about manfully confronting and mastering catastrophe. For disaster and catastrophe can summon a nation, at least in theory, to plumb its deepest moral and political reserves, to have its mettle tested, on and off the battlefield. However much leaders and theorists may style themselves as realpolitik’s cool adepts, war remains the great romance of the age, the proving ground of self and nation. ‘Only the dead have seen the end of war.’ So said Plato, at least according to General MacArthur, the Imperial War Museum and Ridley Scott’s Black Hawk Down. It’s not clear that Plato did say this, but regardless of the statement’s provenance, its constant iteration throughout the 20th century suggests a notion we still hold dear: war is life, peace is death.

Exactly why the strenuous life should be so attractive is anyone’s guess, but one reason may be that it counters what many since the French Revolution have believed to be the corrosions of modern culture: the softened mores and weakened will, the subordination of passion to rationality, of fervour to rules. As an antidote to the deadening effects of contemporary life ‘ reason, bureaucracy, routine, anomie, meaninglessness ‘ war is modernity’s great answer to itself. ‘War is inescapable,’ Yitzhak Shamir declared, not because it ensures security but because ‘without this, the life of the individual has no purpose.’ Though this sensibility seeps across the political spectrum, it is essentially an ideal of the Counter-Enlightenment, which found its greatest fulfilment during the years of Fascist triumph (‘war is to men,’ Mussolini said, ‘as maternity is to women’) ‘ and is now, it seems, prospering in our own time as well.

Nowhere is this romanticism more apparent today than in the struggle between neocons and the generals, spies and analysts who make up the American security establishment. Since 9/11, Hersh, along with Nicholas Lemann, has been the master chronicler of this conflict, and Chain of Command is the definitive catalogue of its key moments: the arguments over prewar intelligence, over how to prosecute the wars in Afghanistan and Iraq, over whether or not to use torture.

Listening to neo-con complaints about US intelligence, one can hear distant echoes of Carlyle’s assault on the ‘Mechanical Age’ (‘all is by rule and calculated contrivance’) and Chateaubriand’s despair that ‘certain eminent faculties of genius’ will ‘be lost, and imagination, poetry and the arts perish’. Perle is not alone in his impatience with what Hersh calls the intelligence community’s ‘susceptibility to social science notions of proof’. Before he became secretary of defense, Donald Rumsfeld criticised the refusal of intelligence analysts to use their imaginations, ‘to make estimates that extended beyond the hard evidence they had in hand’. Once in office, he mocked their desire to have ‘all the dots connected for us with a ribbon wrapped around it’, and his staffers derided the military’s quest for ‘actionable intelligence’, for information solid enough to warrant assassinations and other pre-emptive acts of violence. Another neo-con, the New York Times columnist David Brooks, recently blasted the CIA’s ‘bloodless compilations of data by anonymous technicians’ and praised those analysts who make ‘novelistic judgments’ informed by ‘history, literature, philosophy and theology’.

Rumsfeld’s war on the rule-bound culture and risk aversion of the military reveals a deep antipathy to law and order ‘ not something usually associated with conservatives but familiar enough to any historian of 20th-century Europe. Issuing a secret directive that terrorists should be captured or killed, Rumsfeld goes out of his way to remind his generals that the goal is ‘not simply to arrest them in a law-enforcement exercise’. Aides urge him to support operations by US Special Forces, who can conduct lightning strikes without approval from generals. Otherwise, they warn, ‘the result will be decision by committee.’ One of Rumsfeld’s advisers complains that the military has been ‘Clintonised’, which could mean anything from becoming too legalistic to being too effeminate. (Hersh does an excellent job of documenting the ongoing struggle within the security establishment over the protocols of machismo.) Geoffrey Miller, the man who made ‘Gitmoize’ a household word, relieves a general at Guantanamo for being too ‘soft ‘ too worried about the prisoners’ well-being’. Both the FBI and the CIA finally decide to pull out of Guantanamo and Abu Ghraib because they believe torture is ineffective and immoral ‘ and, Hersh reports, because they checked with their lawyers. One can only imagine the howls of derision this provoked in Rumsfeld’s office.

It soon becomes apparent when one reads Hersh that the neo-cons were drawn into Iraq for the sake of a grand idea: not the democratisation of the Middle East, though that undoubtedly had some appeal, or even the conquest of the world, but rather an idea of themselves as a brave and undaunted army of transgression. The gaze of the neo-cons, like that of America’s autistic ruling classes, does not look outward nearly as much as it looks inward: on their restless need to prove themselves, to demonstrate that neither their imagination nor their actions will be constrained by anyone or anything ‘ not even by the rules and norms they believe are their country’s gift to the world.

If Torture is any indication of contemporary sensibilities, neo-cons in the White House are not the only ones in thrall to romantic notions of danger and catastrophe. Academics are too. Every scholarly discussion of torture, and the essays collected in Torture are no exception, begins with the ticking time bomb scenario. The story goes something like this: a bomb is set to go off in a densely populated area in the immediate future; the government doesn’t know exactly where or when, but it knows that many people will be killed; it has in captivity the person who planted the bomb, or someone who knows where it is planted; torture will yield the needed information; indeed, it is the only way to get the information in time to avert the catastrophe. What to do’

It’s an interesting question. But given that it is so often posed in the name of moral realism, we might consider a few facts before we rush to answer it. First, as far as we know, no one at Guantanamo, Abu Ghraib or any of the other prisons in America’s international archipelago was tortured in order to defuse a ticking time bomb. Second, Hersh and others cite reports documenting that anywhere between 60 and 90 per cent of American-held prisoners in Iraq are in jail by mistake or pose no threat at all to society. Third, many US intelligence officials have opted out of torture sessions precisely because they believe that torture does not produce accurate information. These are the facts, and yet they seldom, if ever, make an appearance in these academic exercises in moral realism.

The essays in Torture pose one other difficulty for those interested in reality: none of the writers who endorse the use of torture by the United States ever discusses concretely and extensively the sorts of torture actually used by the United States. The closest we get is an essay by Jean Bethke Elshtain, in which she asks:

Is a shouted insult a form of torture’ A slap in the face’ Sleep deprivation’ A beating to within an inch of one’s life’ Electric prods on the male genitals, inside a woman’s vagina, or in a person’s anus’ Pulling out fingernails’ Cutting off an ear or a breast’ All of us, surely, would place every violation on this list beginning with the beating and ending with severing a body part as forms of torture and thus forbidden. No argument there. But let’s turn to sleep deprivation and a slap in the face. Do these belong in the same torture category as bodily amputations and sexual assaults’ There are even those who would add the shouted insult to the category of torture. But, surely, this makes mincemeat of the category.

Distinguishing the awful from the acceptable, Elshtain never mentions the details of Abu Ghraib or the Taguba report, making her list of dos and don’ts as unreal as the ticking time bomb scenario. Even her list of taboos is stylised, omitting committed crimes for the sake of repudiating hypothetical ones. Elshtain rejects stuffing electric cattle prods up someone’s arse. What about a banana’ She rejects cutting off ears and breasts. What about ‘breaking chemical lights and pouring the phosphoric liquid on detainees” (Taguba). She condemns sexual assault. What about forcing men to masturbate or wear women’s underwear on their heads’ She endorses ‘solitary confinement and sensory deprivation’. What about the ‘bitch in the box’, where prisoners are stuffed in a car boot and driven around Baghdad in 120′ heat’ She supports ‘psychological pressure’, quoting from an article that ‘the threat of coercion usually weakens or destroys resistance more effectively than coercion itself.’ What about threatening prisoners with rape’ When it comes to the Islamists, Elshtain cites the beheading of Daniel Pearl. When it comes to the Americans, she muses on Laurence Olivier’s dentistry in Marathon Man. Small wonder there’s ‘no argument there’: there is no there there.

The unreality of Elshtain’s analysis is not incidental or peculiar to her. Even writers who endorse torture but are squeamish about it can’t escape such abstractions. The more squeamish they are, in fact, the more abstractions they indulge in. Sanford Levinson, for example, tentatively discusses Alan Dershowitz’s proposal that government officials should be forced to seek warrants from judges in order to torture terrorist suspects. Hoping to make the reality of torture ‘ and the pain of its victims ‘ visible and concrete, Levinson insists that ‘the person the state proposes to torture should be in the courtroom, so that the judge can take no refuge in abstraction.’ But then Levinson asks us to consider ‘the possibility that anyone against whom a torture warrant is issued receives a significant payment as “just compensation” for the denial of his or her right not to be tortured’. Having just counselled against abstraction, Levinson resorts to money, the greatest abstraction of all, as payback for the greatest denial of rights imaginable.

And the cash keeps on flowing. After deliberating to whom he should dedicate his book ‘ to the ‘victims of torture’, Levinson says, seemed like a ‘sentimental gesture, especially inasmuch as several of the essays, including my own, countenance the possibility that under some very restricted circumstances, it might be the “lesser evil” to engage in torture’ ‘ Levinson decides to send ‘this book . . . into the world without a dedicatee’. But all those victims who had hoped to find themselves on the dedication page of Levinson’s book need not despair. For he is ‘pleased to say that every contributor concurred in a suggestion that all of the royalties attached to this book will go not to the authors but rather to the Torture Abolition and Survivors Support Coalition’.

If the unreality of these discussions sounds familiar, it is because they are watered by the same streams of romanticism that course in and out of the White House. Notwithstanding Dershowitz’s warrants and Levinson’s addenda, the essays endorsing torture here are filled with hostility to what Elshtain variously calls ‘moralistic code fetishism’ and ‘rule-mania’, and what we might simply call the rule of law. But where the White House seeks to be entirely free of rules and laws ‘ and here the academics depart from the politicians, rendering silly any accusation that the former are faithful propagandists for the latter ‘ the contemplators of torture seek to make the torturers true believers in the rules. For two reasons.

One reason, which Walzer presents at great length in a famous essay from 1973, reprinted in Torture, is that the absolute ban on torture makes possible ‘ or forces us to acknowledge ‘ the problem of ‘dirty hands’. Like the supreme emergency, the ticking time bomb forces a leader to choose between two evils, to wrestle with the devil of torture and the devil of innocents dying. Where other moralists would affirm the ban on torture and allow innocents to die, or adopt a utilitarian calculus and order torture to proceed, Walzer believes the absolutist and the utilitarian wash their hands too quickly; their consciences come too clean. He wishes instead ‘to refuse “absolutism” without denying the reality of the moral dilemma’, to admit the simultaneous necessity for ‘ and evil of ‘ torture. Why’ To make space for a moral leader, as Walzer puts it in Arguing about War, ‘who knows that he can’t do what he has to do ‘ and finally does’ it. It is the familiar tragedy of two evils ‘ or two competing goods ‘ that is at stake here, a reminder that we must ‘get our hands dirty by doing what we ought to do’, that ‘the dilemma of dirty hands is a central feature of political life.’ It is the dilemma Walzer wishes to draw attention to. Should torturers be free of all rules save utility, or constrained by rights-based absolutism, there would be no dilemma, no dirty hands, no moral agon. They must be denied their Kant and Bentham ‘ and leave us to contend with the brooding spirit of the Counter-Enlightenment, which insists that there could never be one moral code, one set of ‘eternal principles’, as Isaiah Berlin put it, ‘by following which alone men could become wise, happy, virtuous and free’.

But there is another reason that some writers insist on a ban on torture that they believe must also be violated. And that is to maintain the frisson of transgression, the thrill of Promethean criminality. As Elshtain writes in her critique of Dershowitz’s proposal for torture warrants, leaders ‘should not seek to legalise’ torture. ‘They should not aim to normalise it. And they should not write elaborate justifications of it . . . The tabooed and forbidden, the extreme nature of this mode of physical coercion must be preserved so that it never becomes routinised as just the way we do things around here.’ What Elshtain objects to in Dershowitz’s proposal is not the routinising of torture; it is the routinising of torture, the possibility of reverting to the ‘same moralistic-legalism’ she hoped violations of the torture taboo would shatter. This argument too is redolent of the Counter-Enlightenment, which always suspected, again quoting Berlin, that ‘freedom involves breaking rules, perhaps even committing crimes.’

But if the ban on torture must be maintained, what is a nation to do with the torturers who have violated it, who have, after all, broken the law’ Naturally it must put them on trial; ‘the interrogator,’ in Elshtain’s words, ‘must, if called on, be prepared to defend what he or she has done and, depending on context, pay the penalty.’ In what may be the most fantastic moment of an already fantastic discussion, several of the writers here ‘ even Henry Shue, an otherwise steadfast voice against torture ‘ imagine the public trial of the torturer as similar to that of the civil disobedient, who breaks the law in the name of a higher good, and throws himself on the mercy or judgment of the court. For only through a public legal proceeding, Levinson writes, will we ‘reinforce the paradoxical notion that one must condemn the act even if one comes to the conclusion that it is indeed justified in a particular situation’; a notion, he acknowledges, that is little different from the comment of Admiral Mayorga, one of Argentina’s dirtiest warriors: ‘The day we stop condemning torture (although we tortured), the day we become insensitive to mothers who lose their guerrilla sons (although they are guerrillas) is the day we stop being human beings.’

By now it should be clear why we use the word ‘theatre’ to denote the settings of both stagecraft and statecraft. Like the theatre, national security is a house of illusions. Like actors, leaders are prone to a diva-like obsession, gazing in the mirror, wondering what the next day’s ‘ or century’s ‘ reviews will bring. It might on the face of it seem difficult to imagine Liza Minnelli playing Henry Kissinger, but I’m not sure the part would be such a stretch. And what of the intellectuals who advise these leaders or the philosophers who analyse their dilemmas’ Are they playwrights or critics, directors or audiences, or are they some uncharted figures of fun’ I’m not entirely sure, but the words of their greatest spiritual predecessor might give us a clue. ‘I love my native city more than my own soul,’ cried Machiavelli, quintessential teacher of the hard ways of state. Change ‘native city’ to ‘child’, replace ‘soul’ with ‘life’, and we have the justification of every felonious stage mother through history, from the Old Testament’s rule-breaking Rebecca to Gypsy’s ball-busting Rose.

Corey Robin, author of Fear: The History of a Political Idea, teaches political science at Brooklyn College and the Graduate Center of the City Univerity of New York

Governance and Legitimacy in the Era of Globalization

Governance and Legitimacy in the Era of Globalization

by Elias Davidsson
(August 2001)

1. Governments purport to be emanations of nations’ collective will. When governments participate in international organisations they purport to represent the will and interests of “their” people, even if domestic constituencies are hardly ever consulted on foreign or international policies. In fact most people don’t know the positions taken by their governments in multilateral or regional fora and even those who wish to know face difficulties to obtain such information. Foreign policy is generally kept by governments outside the realm of democratic consultation, even at the level of legislatures. 

2. As long as States possessed full discretion in designing and implementing social and economic policies, considerations of foreign policy were not really of great concern to the majority of people. As countries became integrated into the global economic system, the need arose for multilateral institutions, mandated to regulate this interdependent system, to increasingly undertake governance functions, formerly the exclusive domain of national governments. Such governance functions include reporting requirements, monitoring, prescriptions and prohibitions in areas as diverse as trade, investment, taxation, labour and human rights. 

3. Decisions are made daily in fora such as the International Monetary Fund, the World Bank, the World Trade Organisation and various United Nations bodies and agencies, without even the semblance of democratic consultation. While United Nations organs accord selected NGOs consultative status, even such modest concessions to democratic principles are fiercely resisted by governments who would prefer to negotiate behind closed doors. Democratic participation, accountability and transparency must be continuously fought for by popular constituencies. 

4. Democratic participation refers to the ability of the citizenry to effectively participate in the elaboration of decisions that affect their community’s physical and social environment. While elections, as practiced in Western “democracies”, are the main form of seeking formal consent to governance, they do not necessarily ensure popular influence on policy decisions nor does the electoral process ensure that the elected body will implement expected or promised policies. Due to the commercialisation of the electoral process (an inescapable consequence of capitalism) compounded by the inherently unrepresentative nature of privately-owned mass media, their general bias in favor of commercial interests and the complexity of modern governance, elections hardly revolve anymore around issues of substance or fundamental values. They typically represent a competiton between carefully nurtured images. Such “product differentiation” becomes ever more necessary as politicians and parties pursue similar social, economic and foreign policies, regardless of the label affixed on the package. The competitive nature of elections forces all politicians, including genuine representatives of the popular classes, to adjust their discourse to the constraints imposed by the commercialisation of politics. As elections become ever more onerous, politicians who wish to be elected, are forced to seek funds from corporations and wealthy individuals. Such dependency has a price.

5. But even when politicians are elected to national legislatures, their role remains marginal compared to the executive. As decision-making power is increasingly removed from national legislatures to the executive and to unelected public officials and from there on to multilateral institutions, the democratic deficit of governance increases in three distinct ways. 

Firstly, multilateral (international) institutions are not an emanation of popular will. They typically house a vast bureaucracy of unelected and unaccountable officials, sitting at the top of a long chain of delegated authority. They have no direct legal obligations to respond to popular demands or to protect human rights. These people are more often than not unrepresentative of the constituencies for which they purports to act in terms of gender, income, education and nationality. In many such multinational bodies, there exists a vast difference between individual states’ power, either on account on their wealth, geographical location or custom. The concept of equality between human beings, or between states, would hamper the effective governance of such bodies. Furthermore, such institutions develop, for good or bad, a life of their own, including a bureaucracy and budget.

Secondly, multilateral institutions exercise their governance function over more than one sovereign nation and must therefore balance the rights and interests of one nation and its inhabitants over the other, in as fair a manner as possible. As such institutions do not reflect popular will or consultation, nor subject to popular control, their decisions will inevitably suffer in quality and equity, even assuming the best of the good will of the decision-makers. And to the extent that decisions of multilateral bodies reflect the balance of power between their member states, such decisions will inevitably be biased in favor of powerful actors, corporations or states. Individual victims of policies emanating from such bodies will typically not have a legal standing to claim remedy nor do effective mechanisms exist for alternative adjudication. They will be referred back to their own tribunals which, however, have no jurisdiction over the multilateral institutions.

Thirdly, multinational corporations and their corporative bodies enjoy easier access to decision-makers of multilateral organizations than popular organisations. The reason is that popular organisations, who wish to maintain grass-root democracy, are loath to delegate decision-making to centralized international boards. While centralization of decision-making would give greater unity of purpose to popular action and permit greater influence on multilateral governance bodies, the danger is that such centralisation could lead to ossification, corruption and the alienation of the grass roots. The dilemma is that between democracy and power. Business corporations do not suffer from such a dilemma.This disparity in accessibility exists also at the local (national) level but is exacerbated when decision-making is centralized at the regional or international level.

6. Multilateral institutions have by late recognised the wisdom to consult non-governmental actors. By involving non-governmental actors, governments find it easier to co-opt constituencies which, excluded, might wish to defeat the government’s policies. Democracy should not only be viewed as a constraint on governance but as a means to increase the popular base on which decisions are made and ensure thereby a more effective implementation as well as social cohesion and stability. Co-opting non-governmental actors is becoming an established methods of governance by multilateral institutions, permitting them to claim legitimacy. As the system of non-governmental organisations is neither transparent nor universal, it does not replace true democratic consultation. It can easily become a venue for parochial interests. 

7.  While multilaterals will most probably continue to call for strengthening the consultative competence of non-governmental actors, it is nevertheless advisable to recognise the limits of such a participation. Even under the best cases, a multilateral institution imposing social or economic policies on a country, could only consult selected domestic actors. Who will select these actors? Whom will they represent? From where will they receive funds? What is the purpose of these NGOs? To which extent could such NGOs affect the agenda and policies of the multilaterals? There are yet no recognised and established legal mechanisms to ensure representativity and accountability in this arrangement.” 

8. In order for international institutions to exercise governance functions, there must be an internationally recognised legislature as well as an effective international judiciary with enforcement powers, underlying such governance functions. It is not certain that such a structure will ever exist. However, the need to enable individuals, regardless of nationality, to lodge complaints and obtain legal remedy if their human rights have been violated by their own governments or by other states or multilateral bodies, is gradually recognized. Governments’ legitimacy rests on their capacity and will to ensure the right of individuals to effective remedy for such violations.

9. The question of a government’s legitimacy has a particular relevance with regards to States’ participation in international governance. Unless a world government exists, national governments are the main bearers, individually and collectively, of legal obligations towards humanity. Such obligations are formally enshrined in the Charter of the United Nations and in human rights treaties.

10. While individuals, groups and governments may not agree on the extent of international (or erga omnes) obligations by states towards mankind as a whole, there is no dispute that such obligations do exist, both legal and moral. Legal obligations of an erga omnes character include for example the requirement to co-operate internationally for the suppression of slavery, piracy, apartheid and genocide.  States are also required, in accordance with the provisions of the United Nations Charter, to co-operate in order to increase global well-being and promote development. Such a requirement is obviously not justiciable because there is no criteria by which to assess a state’s compliance. The opposite however might be considered a legally binding obligation of States, namely that of refraining of deliberately violating human rights of their constituents or those of other jurisdictions.

11. States which would explicitly renege on their recognised international obligations towards individual human rights, could not possibly be regarded as bona fide participants in the collective endeavour by states to act for the public good.  Such states would forfeit their moral legitimacy. Their claim to have a representative competence would merely rest on naked power, hidden or blatant.

12. Usually, a government will not publicly renege on its international responsibilities. All governments claim to act for the public good and recognise, at least to some extent, the universal nature of human rights. Even notoriously repressive governments participate in international fora and attempt to justify their policies as conforming to recognised legal and moral principles. By doing so, they acknowledge the ideological strength and the customary nature of such principles.

13. Governments’ legitimacy can and should be tested. Legitimacy can be tested by challenging the willingness of governments to ensure and respect human rights, both domestically and internationally. Governments are continuously pressed on these accounts by civil society. What concerns us here is the nature of answers provided by governments. While many governments repress the struggle for human rights within their domestic jurisdiction, they cannot engage in such policies within the international system. Within multilateral institutions governments are careful to justify their violations of human rights on apparently rational grounds, such as situations of public emergency, civil war, uprisings, etc. While they often dismiss outside criticism of domestic human rights violations as unacceptable interference, they cannot so easily dismiss as interference in their domestic affairs demands regarding erga omnes obligations of the community of states towards mankind.

14. While governments are very sensitive to overt criticism by other governments, their sensibilities are less offended when they are addressed collectively. This “community of states” might theoretically respond in one voice to popular challenges, thus pitting the peoples of the world against the collectivity of governments. This has not occurred yet.

15. The reluctance of the “community of states” to oppose en bloc civil society can be observed from the reactions to NGOs proposals tabled at the various international conferences on environment, human rights and development. Such reactions are hardly ever unanimous. This show that states address their international duties in various manners and not always negatively. This situation provides a potential for strengthening human rights norms.

16.  The threat to expose a government as an illegitimate partner in the international community, can be a potent, symbolic tool, in order to nudge such a government to acceptance of its international obligations towards mankind, particularly with regards to the requirement to co-operate for the promotion of human rights.

17. Although a determination by non-governmental bodies that a particular government lacks legitimacy does not have any legal effect, the implications of such a symbolic determination are nevertheless fundamental. For if a government truly lacks legitimacy, in the sense that it acts deliberately against the interest of humanity, there should be no moral compunction to efforts aimed at undermining the standing of this government.

18. Regardless whether one considers violations of jus cogens norms in a restrictive sense, that is including merely piracy, slavery, apartheid and genocide, or in a more comprehensive manner, including also gross human rights violations, we submit that there exists a threshold beyond which a government cannot be considered legitimate.

19. To affirm that a government is an illegitimate body or an “enemy of mankind” or merely to suggest that the question is being seriously considered, is a symbolic act. By and itself it lacks coercive power. But contrary to widely shared beliefs, such symbolic declarations are not acts in futility.

20. No government wishes to be seen as criminal gang. In order to effectively participate in international fora and be accorded a modicum of respect and provided diplomatic immunity, state officials are extremely sensitive to charges equating them with common criminals, even if such charges are not accompanied by formal indictment. While they can fake indifference to popular charges, especially if they can rely on media complicity, such charges can have long-term effects, if pursued with determination and on sound factual ground. Charges of government criminality must be used with caution and only when well founded. In such a case they can constitute a unique weapon of political delegitimization.

21. When faced with the danger of losing their moral legitimacy (and thereby their moral authority – distinct from effective or physical authority), most governments can be expected to yield in order to maintain their legitimacy and the privileges ensuing from such legitimacy.

22. To question the moral legitimacy of a government should not be equated with traditional critical measures, such as condemning government policies, making demands upon or appealing to the government. To question the moral legitimacy of a government is to challenge its guiding fundamental values or assumptions. While traditional approaches (condemnations, demands and appeals) consolidate, rather than detract from, a government’s legitimacy, the withdrawal of recognition to legitimacy is, figuratively speaking, a declaration of war, though such act remains symbolic in character.

23. The concept of questioning the moral legitimacy of a government has been successfully used in some situations. It represents one of the few strategies available when confronting a much more powerful body. For the sake of deterrence, it can be useful to maintain the threat of withdrawing recognition of governments’ legitimacy as a permanent fixture of popular struggle for justice and human rights.


Secret agreement USSR-Germany on Latvia’s fate

How Germany and the USSR secretely agreed that Latvia would be occupied by the USSR

The Story of Latvia


The bad example of the governing methods of the U.S.S.R. created similar totalitarian regimes in Italy, Germany and Japan. That in turn unleashed the Second World War.

By skilful manouvering the U.S.S.R. made use of this unique opportunity to take up’, at the end of this war, advantageous strategic positions for a third World War and World Revolution.

In this programme, the occupation of the Baltic States and the Partition of Poland was axiomatic and Hitler gave his sanction to it by the secret agreements of the so-called Ribbentrop-Molotov Pact of August 23rd, 1939. That is why already in September, 1939, the operational maps of the Russian General Staff showed the Baltic States as the Estonian, Latvian and Lithuanian Soviet Republics.

This programme was carried out gradually, so as to act for the Anglo-Saxon Allies the part of the noble “liberator” of the Baltic States. With the so-called Mutual Assistance Pacts dictated by Moscow and forced on the Baltic States already in September and October, 1939. Russia obtained military and naval bases in all the important ports of the Baltic States, in the islands and straits. Thereby the Baltic States had already lost their freedom of action and sovereignty so frequently guaranteed to them by Russia in words.

Latvia had no disputes with her powerful eastern neighbour, the U.S.S.R. Their boundaries were mapped out at the very beginning of Latvia’s independence in a way acceptable to both sides.


Trade agreements had been concluded between Latvia and the U.S.S.R., according to which Russia received very far-reaching concessions on Latvian railways and in Latvian ports. All Latvian trade agreements contained a Russian clause which recognised Russia special rights and privileges which did not apply to other countries. In fact, Latvian terms were so generous that, purely commercially speaking, it was more advant?ageous to Russia to send goods to Latvian ports than to use her own. It was no fault of Latvia that Soviet Russia’s transit traffic through the Baltic States had fallen from 720,000 tons (Estonia 345,788, Latvia 374,885) in 1922 to 80,000 tons in 1938. Methods of economic boycott were used by Soviet Russia quite continually, in order to create internal difficulties in the Baltic States and to prepare the ground for the activities of the Russian fifth column.


In her foreign policy, Latvia followed the principles of strict neutrality and close cultural and economic collaboration with her sister republics of Estonia and Lithuania. Her relations with Soviet Russia were regulated by at least 32 treaties and agreements. Besides the trade agreements, and the Peace Treaty of 1920, signed in Riga, which formed the basis of Latvian-Russian relations and according to which Russia solemnly relinquished all her former rights over Latvian territory and people for ever, the following may be mentioned:


  1. The so-called Litvinoff Protocol, signed at Moscow on February 9th, 1929, under which the anti-war Pact of Paris, known under the name of the Briand-Kellog Pact, came into force for Eastern Europe. According to this protocol the U.S.S.R. was obliged vis-a-vis Latvia to settle any dispute by peaceful means.
  2. The Non-Agression Treaty of February 5th, 1932, under which the U.S.S.R. was bound to avoid any act of force and to submit all disputes which could not be settled in a normal diplomatic way to a mixed Conciliation Commission. This treaty was entered into for three years, but was extended on April 4th, 1934, until December 31st, 1945.
  3. The Convention for the Definition of Aggression, entered into at London on July 3rd, 1933, which lays down that the State which first invades the territory of any other State without declaration of war is acknowledged as Aggressor in international disputes, and no political, military, or economic arguments can be used in exculpation of such an Aggression.
  4. The Mutual Assistance Pact signed in Moscow on October 5th, 1939, which authorised the U.S.S.R. to establish in Latvia military bases, but stipulated at the same time the principle of non-interference in the affairs of Latvian sovereignty, the political constitution of the State, its economic or social structure, or military measures.


Nevertheless, the occupation of all three Baltic States had been decided upon already on August 23rd, 1939, between Ribbentrop and Molotov, when a Non-Aggression Pact was signed between Germany and the U.S.S.R. in Moscow, to which was added a secret protocol, sanctioning the occupation of the Baltic States by the Red Army, leaving the moment therefor to free option.

In June, 1939, the Russians, for the purpose of obtaining better conditions from Germany, had begun negotiations with Britain and France and proposed “Formula covering indirect aggression in the Baltic States.” These negotiations came to nothing, as the Western Democracies did not give their agreement to an occupation of the Baltic States. As a result of these bickering s with England and France, the Russians obtained definite promises from the Germans concerning the Baltic States. Of these, Lord Halifax could not but state: “Herr Hitler bartered what was not his property – the liberties of the Baltic people.”

It had been known for some time that, apart from the official Non-Aggression Pact, Ribbentrop and Molotov had made one or two secret agreements concerning the Baltic States and Poland. The full details became known on May 22nd, 1946, when the St. Louis Post-Dispatch published an article by its correspondent at Nuremberg, quoting the complete text of two secret Soviet-Nazi agreements.

The first of these agreements is dated Moscow, August 23rd, 1939, and consists of 4 paragraphs. It reads: “On the occasion of the signing of the Non-Agression Treaty between the German Reich and the U.S.S.R. the undersigned representatives of the two parties discussed in a highly confidential conversation the problem of the demarcation of the spheres of influence of either party in Eastern Europe. This conversation has the following result: (1) In the case of a politico-territorial change in the territories belonging to the Baltic States – Finland, Estonia, Latvia and Lithuania – the northern frontier of Lithuania shall form also the demar?cation of the spheres of interest between Germany and the U.S.S.R.”

The second Soviet-Nazi agreement is dated Moscow, September 28th, 1939, and the text runs : “Par. 1 of the secret protocol of August 23rd, 1939, is modified in that the territory of the Lithuanian State also shall fall within the sphere of interest of the U.S.S.R…. As soon as the Government of the U.S.S.R. shall take special measures on Lithuanian territory for the protection of her interests, the present German-Lithuanian frontier will be rectified in order to accomplish a natural and simple frontier … marked on the attached map.”

Immediately after the secret agreements or, indeed, even before they were actually concluded, the Soviet High Command ordered military maps (scale 1: 500,000) on which the Baltic States were marked as Soviet Socialist Republics of Estonia, Latvia and Lithuania. These maps are dated September, 1939.

The conclusion of these two secret agreements was confirmed by Stalin on October 2nd, 1939, in the Kremlin during his conversations with the Latvian Foreign Minister, V. Munters, when Stalin said: “I tell you frankly, a division of spheres of interest has already taken place. As far as Germany is concerned we could occupy you.”

Knowing that he had given consent to the occupation of the Baltic States by Russia, which he knew would soon take place, Hitler began the repatriation of the Baltic Germans (Volksdeutsche) from Estonia, Latvia and Lithuania. After protracted negotiations, an agreement was signed between Germany and Latvia in Riga on October 30th, 1939. As a result of this agreement, at the end of 1939 and the beginning of 1940, 49,885 German-speaking inhabitants of Latvia left the country. The total number of Germans in Latvia had been 2.96 per cent of the population. German propagandists were very active in persuading the German Balts, many of whom were unwilling to “return” to the Fatherland, and openly spoke of Russians who would come and occupy Latvia very soon. With great glee they described the atrocities the Russians would perpetrate when they came.

With bitter irony we can now reflect upon the prophetic foresight of these diligent servants of Goebbels. They let their youthful fancy roam in the realm of horrors and themselves had no idea how near the truth they had come and how near their forecasts were to the things that were to happen. Thus two totalitarian despotisms dug the grave of the liberty of the Baltic States.

Secret agreement between US and Japan to deceive the people

Secret pact allows unannounced port calls by U.S. nuke ships
Japan Policy & Politics,” Sept 4, 2000?

TOKYO, Aug. 30 Kyodo

Japan and the United States concluded secret agreements when revising the bilateral mutual security treaty in 1960 allowing port calls by nuclear weapons-carrying U.S. ships without prior consultations with Tokyo, the Asahi Shimbun reported Wednesday.

The Asahi said in a front-page article that the agreements also permit deployment of U.S. troops stationed in Japan in case of contingencies on the Korean Peninsula, without prior consultations with Japan.

The agreements are contained in a document titled ”Summary of Unpublished Agreements Reached in Connection With the Treaty of Mutual Cooperation and Security With Japan” found in the U.S. State Department’s congressional briefing book, according to the Asahi report.

The National Security Archives, a private research institution in Washington, last fall obtained a copy of the summary, which was classified again on national security grounds shortly thereafter, the Asahi reported.

The summary says in part that the agreements restrict U.S. obligations to consult with Japan ”on ‘deployment’ to the introduction into Japan of nuclear weapons and large missiles and on ‘operations’ to military combat operations that may be initiated from Japan against areas outside Japan.”

Ichiro Fujisaki, director general of the Foreign Ministry’s North American Affairs Bureau, told the Asahi that no secret agreements have been concluded under the Japan-U.S. security treaty.

In 1967, then Japanese Prime Minister Eisaku Sato told a parliamentary panel that the Japanese government adopts the three nonnuclear principles of not producing, not possessing and not allowing nuclear weapons into the country.

COPYRIGHT 2000 Kyodo News International, Inc.
COPYRIGHT 2000 Gale Group

Secret treaties to undermine international criminal law

Egypt, Tunisia sign secret agreements to exempt Americans from the international criminal court

Tunisia, Politics, 6/17/2003

The US Department Of State announced yesterday that other five countries approved to exempt American soldiers from being subject to the International Criminal Court. This came in the day when this court’s power came to effect with the appointment of its first attorney general in his post of office yesterday.

Among the countries which signed a bilateral exemption with Washington are two states. They are Egypt and Tunisia in addition to Mongolia, Nicaragua and Seashell islands.

A document by the US Department Of State said yesterday said that these countries signed the agreements with Washington asking to keep the agreement in secret.

The US Department Of State said last week that several countries which signed the agreements asked not to disclose their names.

Sources at the US Congress said that sources in the Congress notified it concerning the agreement with Egypt which was signed on March 5th.

With these agreements, the number of governments which excluded the Americans from being subject to trial before the International Criminal Court reached 43.

The first attorney general of the International Criminal Court, Louis Morino Okambo, yesterday assumed his post in the Hague, inaugurating thereby the task of the court which considers among its task the protection of human rights violations in the world and deterring war crimes.

As the recent Security Council meeting which extended immunity for United Nations peacekeepers from prosecution by the International Criminal Court (ICC), Secretary-General Kofi Annan voiced concern that it might become an annual routine that could undermine the tribunal’s and the Council’s authority, as well as the legitimacy of UN peace operations. France, Germany and Syria refused to join in the vote.

The United States is trying to work with its friends “to find practical solutions” to the International Criminal Court (ICC) issue “and preserve everyone’s interests,” State Department Deputy Spokesman Philip T. Reeker said during the daily briefing June 10.

Reeker was responding to a question about a newspaper report that said the United States had warned the European Union not to interfere with its negotiations with other countries on bilateral Article 98 agreements, which aim to ensure that Americans are not brought before the ICC.

“We have been very clear with Europeans and others all around the world that we are not trying to sabotage the ICC,” Reeker said.

Tehran court judgment could turn over US embassy to plaintiff

US could start losing its international assets to compensate for its illegal acts. Tehran court judgment could turn over US embassy to plaintiff. The US has been ordered to pay an Iranian businessman damages, or present a list of assets for seizure.’s=hns

December 04, 2006 edition
Christian Science Monitor
By Mike Theodoulou

Tehran court judgment could turn over US embassy to plaintiff

Court rules that US must pay damages to Iranian businessman abducted in 1992, or present a list of assets for seizure.
By Mike Theodoulou | Correspondent of The Christian Science Monitor
NICOSIA, CYPRUS ? The United States is in danger of losing its sprawling embassy in Tehran to an Iranian businessman who was abducted in a bungled sting operation by US customs agents 14 years ago.

A Tehran court awarded Hossein Alikhani more than half a billion dollars in damages in the first lawsuit by an Iranian against the US for supporting terrorism.

Now, three years after that ruling, a writ of enforcement is due to be served this week, from when the US will have 10 days to respond by paying or presenting a list of assets in Iran to be seized as compensation.

The most valuable of those assets is the defunct US embassy. Mr. Alikhani, a Cyprus-based businessman, estimates it to be worth at most $120 million.

He spent 105 days in a US jail in 1992 after being abducted in the Bahamas for allegedly violating US sanctions against Libya. He argued the sanctions did not apply to non-Americans outside the US.

The Bahamian government was furious, saying it had not been consulted. Alikhani's case also caused consternation in Congress.

In his ruling three years ago, Chief Justice Mansour Pour Nouri of the Third Branch of the Tehran Public Court accused US investigators of "kidnapping, false imprisonment, using force, battering, abusing, and ultimately inflicting physical and psychological injuries."

Alikhani says he has made no plans yet what to do with the embassy if he receives the deeds. "Maybe I would make it into a school, a university or a public park," he told the Monitor from Tehran.

While few observers expect the embassy's title to land in Alikhani's hands any time soon, the embassy is a potent emblem of the enmity between the US and Iran since 1980, after militant students seized the embassy and held 52 US diplomats hostage for 444 days. The compound, its walls scrawled with anti-American graffiti, has long housed Revolutionary Guards.

The US says that under the Vienna Convention on Diplomatic Relations, diplomatic premises are immune from court judgments. But Alikhani counters that the US flouted that convention in 1996 when it adopted the Antiterrorism and Effective Death Penalty Act. The act stripped countries on the State Department's list of sponsors of terrorism of their immunity from lawsuits in US courts for terror acts perpetrated against US citizens.

Since then, US courts have awarded hundreds of millions of dollars in damages to victims of terror overseas.

"So how can they come back and say that according to the Vienna Convention their assets are immune?" Alikhani asks.

Alikhani says his action was motivated by principle and followed US court rulings to hold Iran responsible for damages awarded to Americans held hostage by pro-Iranian groups in Lebanon during the 1980s.

"Everyone is suing Iran. For instance, the hostages in Lebanon. They were taken in Lebanon by Lebanese but they sued Iran and not the hostage-takers themselves or the Lebanese government," Alikhani says.

His legal action in Iran followed his bid in a Florida court to sue the US for $360 million. The case collapsed in 2001 with a ruling that he had agreed not to sue as a condition of his release. His lawyers argue that was invalid because Alikhani agreed under threat of an indefinite prison term.

Alikhani's saga began in July 1990, when he sought to buy $1.6 million of spare parts for gas generators from a Florida company. He planned to ship the equipment through Germany to Libya for use in a government oil field.

The company said that the parts could not be supplied because Libya was under US sanctions for supporting terrorism. Alikhani did not pursue the deal. However, the Florida company tipped off US Customs and agreed to set up a sting operation that resulted in Alikhani's arrest.

For 30 days, Alikhani was questioned in several Florida hotels, where he says he was shackled to his bed at night, before being moved to a Miami prison where inmates included Manuel Noriega, former dictator of Panama. With anger in the Bahamas and in Congress over the abduction, Alikhani accepted a token charge and was freed after being sentenced to time served.

Inside 1701: What the UN Security Council’s Ceasefire Resolution Actually Says

Regarding its relevance to a real peace in Lebanon, within days or weeks of this writing Resolution 1701 may be a discredited artefact of history. But its design remains significant: inability of the SC to act in a principled fashion to impose international order. In that light, it tells us far more about the internal debility of the UN than it does about any future for the Israeli-Lebanese conflict.
August 19 / 20, 2006

As Full of Pro-Israeli Holes as Swiss Cheese

Inside 1701: What the UN Security Council’s Ceasefire Resolution Actually Says


What is really portended by UN Security Council Resolution 1701, which set the terms for the present ceasefire in Lebanon? The very fact that it was signed at all might be encouraging, but no one is sure what its actual impact will be and most are sceptical. For Israel, will it secure the outcome its leaders are (rather desperately) claiming they have gained by this dreadful war – i.e., ultimate disarmament of Hizbullah? For Lebanon and Hizbullah, will it secure Israel’s withdrawal? Either way, will it last?

More important than its precise provisions are facts on the ground. On one side, Hizbullah is "victorious" in defeating Israel’s military ambitions, but much of Lebanon itself is in ruins; peace for a traumatized population is a matter of urgency. On the other side, the Israeli military is chastened and Jewish Israel is shocked; more fruitless loss of soldiers’ lives has become political anathema. These factors may cause the guns to stay silent where the resolution itself could not.

But a close look at Resolution 1701 is still important because it says a great deal about the politics of the moment. In practice, any Security Council (SC) resolution is only as effective in attaining its goals as the collective political will and capacity of its veto-wielding members allow it to be. Some resolutions reflect more consensus than others. Many confront limitations of the SC to enforce them. Brooding divisions and chicanery within the SC can instill loopholes or debilitating contradictions.

Even short-and-sweet SC resolutions (a fraction the length of 1701) can be manipulated to create a crucial loophole. One notorious example is SC Resolution 242, passed just after the 1967 war when Israel had occupied the Gaza Strip, the West Bank, the Golan Heights, and the entire Sinai Peninsula. Hard Israeli lobbying famously managed to extract the crucial "the" from the English translation of the otherwise blunt provision, "Withdrawal of Israeli armed forces from [the] territories occupied in the recent conflict." "Territories" in English is a general term, and could mean "some territories". "The territories" would mean "all territories". Israel’s maneuver on the definite article was therefore not sophistic: it has allowed Israel to claim, to this day, that it satisfied its obligations to comply with 242 by withdrawing from the Sinai (in 1981), while retaining control of the West Bank, Gaza Strip, and Golan Heights. (In all the other official UN languages, Resolution 242 still says "the territories", but apparently Israel is accountable to international law only in English.)

Brought under the microscope, what exactly does Resolution 1701 say? A line-by-line analysis reveals that it is as full of pro-Israeli holes as a Swiss cheese. It also has two significant pro-Lebanese holes. But the over-all weight of the resolution indicates that Israel holds the crucial card: whether and when to withdraw its forces from Lebanese territory. Close study of the resolution also explains why Israel rushed troops across the border in the days immediately preceding its passage. Knowing the text, having consulted with the Americans about its details, the Israeli government needed its troops in place to make it work. The loopholes also suggest that the present ceasefire, presently welcomed by two exhausted sides, may hold only a few weeks.

"The Security Council,

Recalling all its previous resolutions on Lebanon, in particular resolutions 425 (1978), 426 (1978), 520 (1982), 1559 (2004), 1655 (2006), 1680 (2006) and 1697 (2006), as well as the statements of its president on the situation in Lebanon, in particular the statements of 18 June, 2000, of 19 October, 2004, of 4 May 2005, of 23 January 2006 and of 30 July 2006;"

Security Council resolutions always open with reference to relevant prior resolutions, to establish their juridical context. This one establishes Resolution 1701 within the legal history of prior resolutions on Lebanon. It does not place the conflict in larger regional context, however, which includes Israel’s occupation of the Palestinian territories. Israeli violence in enforcing that occupation is certainly intertwined with Hizbullah’s ideology, popular legitimacy, and its ongoing militancy, as well as Lebanese government weakness. In the penultimate paragraph, the Resolution does cite the need for a comprehensive Middle East peace process based on Security Council resolutions 242 and 338.

"Expressing its utmost concern at the continuing escalation of hostilities in Lebanon and in Israel since Hezbollah’s attack on Israel on 12 July 2006, which has already caused hundreds of deaths and injuries on both sides, extensive damage to civilian infrastructure and hundreds of thousands of internally displaced persons;"

This paragraph offers the first of the Resolution’s two empirical falsehoods. The conflict has not "caused hundreds of deaths and injuries on both sides." It caused hundreds of deaths and thousands of injuries on one side and dozens on the other. Inscribing this false equation into the text might seem a casual twist of language, but it is an ominous footprint indicating the resolution’s direction: endorsing Israel’s fictional narrative of symmetrical suffering bodes ill for the agenda of later clauses. (It also does no service to historians of UN interventions, who doubtless will unthinkingly reproduce this falsehood for decades to come).

In similar vein, the paragraph traces the "cause" of the conflict to a Hizbullah action, described as an "attack on Israel", instead of Israel’s decision to respond to a minor border skirmish with a pre-planned and massive assault on Lebanon’s entire population and infrastructure.[1] This interpretation openly reproduces the Israel-Washington-London axis of revisionist myths about how the conflict started. It also suggests that the Lebanese government and Hizbullah were willing to compromise on this language, probably on grounds that capitulating to Israel’s version of events would be compensated by later substantive clauses that counterbalance it. But, again, allowing the Security Council to inscribe empirical falsehoods and Israel’s version of events into international law is poor law and poor planning. (The second instance of error, in Paragraph 8, is even more worrisome.)

"Emphasizing the need for an end of violence, but at the same time emphasising the need to address urgently the causes that have given rise to the current crisis, including by the unconditional release of the abducted Israeli soldiers;

Mindful of the sensitivity of the issue of prisoners and encouraging the efforts aimed at urgently settling the issue of the Lebanese prisoners detained in Israel;"

A prisoner exchange was the reason for Hizbullah’s capture of two Israeli soldiers, the event cited by Israel as the casus belli. The question of prisoners is therefore hardly peripheral to this conflict. Yet the Resolution here inscribes a starkly asymmetrical standing to Israeli and Lebanese prisoners. Hizbullah’s capture of Israeli prisoners is inscribed as one of "the causes that have given rise to the current crisis". The Security Council itself will therefore "address urgently" the plight of the two "abducted" (captured) Israeli soldiers, by securing their "unconditional release". By contrast, Lebanese prisoners held in Israel, from previous incursions into Lebanon by Israel, are not admitted to be a causal factor. Their plight is only a matter of "sensitivity", whose urgent settlement by other actors (unnamed) will be "encouraged." This formula makes the Security Council itself responsible for the Israeli soldiers’ release, while leaving the release of Lebanese prisoners to present players – i.e., Israel.

"Welcoming the efforts of the Lebanese prime minister and the commitment of the government of Lebanon, in its seven-point plan, to extend its authority over its territory, through its own legitimate armed forces, such that there will be no weapons without the consent of the government of Lebanon and no authority other than that of the government of Lebanon, welcoming also its commitment to a UN force that is supplemented and enhanced in numbers, equipment, mandate and scope of operation, and bearing in mind its request in this plan for an immediate withdrawal of the Israeli forces from southern Lebanon;"

As Israel has insisted that the Lebanese government assume sole authority over Lebanese territory, this passage may seem friendly to Israel, eliminating Hizbullah’s military role and autonomy. Nevertheless, it provides the first loophole favoring Lebanon, as the Lebanese government now includes Hizbullah. "No authority other than that of the government of Lebanon" will not be a problem for Hizbullah if it is part of that government. (Indeed, the government could not have signed this resolution without consulting with Hizbullah and getting a general go-ahead.) The phrase, "no weapons without the consent of the government of Lebanon", will not be a problem for Hizbullah, either, because the government is likely to give that consent. Moreover, as Hizbullah members are already well diffused into the Lebanese army, friendly cooperation between Hizbullah and the army is already evident and can be coordinated under the authority of the central Lebanese government – which, again, includes Hizbullah.

Knowing all this, the central government itself does not face the unworkable challenge of confronting Hizbullah’s greater military and political force. The logistics of integration, however, are clearly difficult. Fusing Hizbullah’s military wing into the Lebanese army is especially delicate, as Hizbullah has jealously guarded its military secrets even from the communities adjacent to its installations. Fusion might therefore have to be managed by reconstituting Hizbullah’s military wing as a branch or special force of the army, to preserve its intelligence firewalls.

Simply "disarming" Hizbullah, however, is out of the question: no Lebanese authority has the power to do that. Reflecting this reality, the government of Lebanon has already redefined Hizbullah as a "resistance" group, not a "militia", and therefore exempt from the provisions of Security Council Resolution 1559 (which requires all "militias" to disarm). This maneuver allows Lebanon’s unity government to comply with Resolution 1559 by "consenting" to Hizbullah’s continuing to bear weapons – or at least, so the government argues.

But a twist, embedded in the last phrase, undercuts Lebanon’s achievement in this paragraph. "Immediate withdrawal of the Israeli forces" is phrasing friendly to Lebanon’s urgent desires. It is prefaced, however, with the debilitating word "request". Given Israel’s violation of international law and the UN Charter in invading a neighboring state, the Security Council should "demand" or "instruct" Israel to withdraw immediately, not "request" it to do so. In this phrasing, Israel is not required to withdraw and the Security Council is not charged with enforcing its withdrawal. This formula therefore leaves Israel in charge of its own withdrawal. If Hizbullah retains its arms, Israel would not consider itself obligated to withdraw.

"Determined to act for this withdrawal to happen at the earliest;"

This short phrase is both vague and strange, not even grammatically complete in English. "Act for" is foggy in English, connoting a general effort. The French version also offers unspecified and passive constructions: "Determined to act in such a way that this withdrawal happen as soon as possible" ("D

Has the UN betrayed the Saharawis?

It is indeed an affront to ask the Saharawi people, who have been denied basic human rights and suffered immensely under Morocco’s occupation of their homeland, to accept an imposed "political reality" and negotiate a compromise on international law. It is as if the French people were asked to negotiate a compromise with Nazi Germany and the Kuwaitis to do the same with the regime of Saddam Hussein.
Has the UN betrayed the Saharawis?

By Kamal Fadel ?

2 May 2006

It seems to be a tradition that at the end of his mandate, every United Nations secretary-general reneges on the commitment to resolve the issue of Western Sahara in a just manner. Is it a coincidence, that after his retirement Perez de Cuellar was offered a position in a Moroccan holding company called Omnium Nord Africain and that Boutros Boutros-Ghali was given the job of Secretary-General of the French organisation, l’Organisation internationale de la Francophonie? (France, of course, is Morocco’s closest ally.)

The fact that Mr Kofi Annan’s mandate is nearing its end should be a source of concern and alarm to the Saharawi people. Hopefully, he will break with tradition and save what remains of UN credibility. Nevertheless, the latest Report of the Secretary-General on the Situation Concerning Western Sahara raises many questions.

The report says that the UN is giving up efforts to resolve the issue of Western Sahara through implementation of its resolutions and the several plans it has outlined during 15 years of presence in the non self-governing Territory. The reason, according to Mr Annan, is that "nobody was going to force Morocco to give up its claim of sovereignty over Western Sahara": a claim that he acknowledged "no member of the United Nations had recognised".

Kofi Annan’s message is that the UN is "taking a step back" and that it is up to the parties to find a solution.

Mr Annan and his personal envoy, Mr Peter van Walsum, are encouraging direct negotiations between the two parties to achieve a "compromise between international legality and political reality". According to them the UN is not able to present any peace plan because "any new plan would be doomed from the outset because Morocco would reject it again, unless it did not provide for a referendum with independence as an option".

It is important to remind the UN Secretary-General and his personal envoy of the purpose and role of the United Nations.

Chapter I of the UN Charter states that the purpose of the United Nations is:

   1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; and
   2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

Articles 73 and 74 outline the principles that continue to guide the United Nation’s decolonisation efforts and these include respect for the self-determination of all peoples.

Furthermore, the UN Declaration on the granting of independence to colonial countries and peoples, Resolution 1514 (XV) of December 14, 1960 states:

   1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation; and
   2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Western Sahara was included in the list of the then non-self-governing territories in 1965. Since then, the UN has passed resolutions calling for the decolonisation of this territory. For example, the UN resolution A/RES/45/21, of November 20, 1990:

Reaffirms that the question of Western Sahara is a question of decolonisation which remains to be completed on the basis of the exercise by the people of Western Sahara of their inalienable right to self-determination and independence.

The latest UN General Assembly Resolution A/RES/60/114 of January 18, 2006 even "reaffirms the responsibility of the United Nations towards the people of Western Sahara".

In his most recent report of April 19, 2006, Kofi Annan recalled "the advisory opinion of the International Court of Justice of October 16, 1975, which concluded there were no valid reasons why the rules for decolonisation and self-determination as contained in General Assembly Resolution 1514 (XV) should not apply to Western Sahara". This is another testament of the responsibility of the UN towards the Saharawi people and their inalienable rights.

The legal, moral and political responsibility of the UN is clear. The mandate of the UN and its mission is to help achieve the decolonisation of the last colony in Africa on the UN?s list of 16 non self-governing Territories. Such a mandate is included in the UN Security Council Resolutions 658 (1990), 690 (1991) and 1495 (2003) which call for a referendum of self-determination in Western Sahara.

The UN mandate is not to reward the aggressor that violates international law and refuses to abide by UN resolutions. To do so is to betray not only the Saharawi people but the international community as well.

It is rather surprising to read in Secretary-General Annan’s latest report his call for "negotiations" to find a "compromise between international legality and political reality". Is this the purpose of the UN? Is this included in its mandate? It is evidently clear to the UN and the international community that Morocco’s presence in Western Sahara is illegal. Such a presence is the result of aggression and occupation. Morocco’s presence in Western Sahara is not a "political reality" that should be accepted by the UN.

It is indeed an affront to ask the Saharawi people, who have been denied basic human rights and suffered immensely under Morocco’s occupation of their homeland, to accept an imposed "political reality" and negotiate a compromise on international law. It is as if the French people were asked to negotiate a compromise with Nazi Germany and the Kuwaitis to do the same with the regime of Saddam Hussein.

However, the UN knows that the Saharawis are not intransigent. It is the Saharawi side that accepted the principle of a referendum with an option of voting for integration with Morocco in 1988. We accepted the Houston Agreements of 1997 that expanded the criteria for voting rights. We even accepted the Baker Plan of 2003, in which we accepted a transitional period under Moroccan sovereignty for a period of five years and we gave Moroccan settlers the right to vote in a referendum supposed to be only for the Saharawi people.

It is difficult to fathom why the Saharawis who are the victims are constantly asked to compromise while Morocco seems to be able to get away with its wrongdoings.

The Secretary-General and his Personal Envoy are asking the Saharawis to negotiate with Morocco but the objective of such negotiations is not clear and the purpose of such negotiations is questionable. The latest UN report states that "Morocco would reject (any plan), unless it did not provide for a referendum with independence as an option". Why did Mr Annan ask the Saharawis to negotiate with Morocco when it is understood that the only solution acceptable to Morocco is that of integration?

It is necessary to remind Mr Annan that Morocco and Polisario have undertaken negotiations both bilaterally and under the auspices of the UN on many occasions since the beginning of this conflict. Both Morocco and Polisario negotiated and agreed to the UN Settlement Plan of 1990 and the Houston Agreements of 1997. The lack of goodwill and the weakness of the UN have allowed Morocco to violate and obstruct such agreements.

The negotiations process has been exhausted. Any new negotiations will destroy 15 years of UN efforts and take the peace process back to square one. This must be avoided because it may lead to rising tension and the resumption of hostilities.

There is a limit to compromise just as there is a limit to patience. There is a line in the sand that the Saharawis cannot cross unless they decide to surrender to the Moroccan regime and become Moroccans. The Saharawis’ goodwill has been over-exploited. To make any more compromises would mean political suicide.

The only just, lasting and democratic solution to the conflict in Western Sahara is through the strict implementation of international law which calls for the exercise by the Saharawi people of its inalienable right to self-determination and independence. This could be achieved through the organisation of a free, fair and transparent referendum under the auspices of both the United Nations and the African Union.

Should the UN wish to see a resolution to the issue of Western Sahara, it needs to exercise adequate pressure on Morocco to force it to abide by UN resolutions and the Peace Plan.

The UN can not just wash its hand of the Western Saharan conflict and abandon its responsibilities. Why? Because the core purpose and mandate of the UN is to maintain peace, to reaffirm faith in fundamental human rights and to ensure the respect of the right to self-determination.

If there is a genuine and sincere commitment to a just resolution in this conflict, the Saharawi side is always willing to cooperate with the United Nations in order to facilitate the decolonisation process.

It is important that the UN Security Council avoid attempts to derail the peace process and put an end to the apparent departure from international law in Western Sahara. Otherwise, the UN’s credibility will suffer and its integrity will be buried in the Saharan sands.

The latest Secretary-General’s report does not augur well for a speedy and peaceful resolution. The writing on the wall is clear to the Saharawi people and their leadership that the UN is not able to resolve the conflict and that it is up to the Saharawi to do whatever is in their power to put pressure on Morocco to abide by international law.

The Saharawis feel betrayed by the UN and suspect that the UN took advantage of their sincere will to co-operate and compromise. They regret the waste of 15 years of efforts and hope and pray it will not be repeated again.

Why International Law Matters

Why International Law Matters
By Richard Falk

Visiting Distinguished Professor, Global Studies, University of California, Santa Barbara and Milbank Professor of International Law Emeritus, Princeton University. TFF associate

March 12, 2003

There is little doubt that the White House seems resolved to wage war against Iraq, however weak its legal case, and despite the withering away of support even at home. It is probably late in the day to stop this militarist juggernaught, but it is not too late to try. There are several constructive steps that could still be taken at this stage. A UN General Assembly resolution, relying on its residual authority to uphold world peace, could convene an emergency session of the General Assembly to oppose recourse to war against Iraq, as well as a reaffirmation of the Charter rules governing the use of force. It would also be significant if Congress could be persuaded to reconsider its premature authorization of the use of force by the President, hold high profile public hearings on the legal and political case for and against war, debate, ideally, pass a restrictive resolution relating to an Iraq War, and thereby finally fulfill its own constitutionally responsibilities, virtually forfeited by its behavior up to this point. Of course, this is too much to hope for.

Beyond backing such institutional steps, the expanding peace movement should continue to hold demonstrations in which speakers develop the argument against war, including its international law elements. It would also be helpful to convene a panel of moral authority figures and jurists to issue a report or white paper on the relevance of international law and the just war doctrine to the realities of the 21st century. As citizens, we have the opportunity and responsibility to act as if it is our duty to challenge this illegal and dangerous war fever that grips the leadership of this country. International law remains the best guide we have for drawing a line between acceptable and unacceptable behavior in world politics, especially in the war/peace setting. The rest of the world, as well as the American people, deserve a US Government that respects this dividing line. It is regrettable, but true that such respect will only be forthcoming if the grassroots pressure from here and abroad grow strong enough. Our Government shows no signs of being guided in its foreign policy by any authority other than its own imperial dreams.

Among the more serious losses resulting from the September 11 attacks has been the subversion of international law as a source of guidance and limitation in the foreign policy of leading sovereign states, and especially the United States. Of course, this process of erosion preceded the attacks, and even started well before George W. Bush’s arrival in Washington. The Gulf War was fought with only a pro forma mandate from the UN Security Council, with the operational control of the ends and means of the war being run from the White House and Pentagon. Such disregard of the proper UN role in collective security was dramatically evident in the way the Clinton Administration conducted its diplomacy prior to the 1999 NATO War over Kosovo, seemingly rejecting peaceful settlement options and bypassing the UN on its way to war. But the presidency of George W. Bush has greatly accelerated this process by its wider rejection of international legal authority. Its arrogant repudiation of such vital international agreements as the ABM Treaty and its rejection of the Kyoto Protocol seeking with due urgency to regulate the emission of greenhouse gasses are indicative of this repudiation of multilateral approaches to global problems.

What September 11 did was to extend this dangerous form of American lawlessness to the most sensitive area of all -war making – uses of force in disregard of sovereign rights, and intervention in the internal affairs of foreign countries.

Such a pattern of irresponsible, and in the end, self-destructive behavior by the US Government, is especially unfortunate because the unprecedented al Qaeda challenge did require adjustments in the way in which the international rules governing the use of force were applied. International law has evolved throughout modern times to meet the common goals of sovereign states seeking to protect their vital interests in the face of changing circumstances. World War II ended with the historic understanding that recourse to war between states could no longer be treated as a matter of national discretion, but must be regulated to the extent possible through rules administered by international institutions. The basic legal framework was embodied in the UN Charter, a multilateral treaty largely crafted by American diplomats and legal advisors. Its essential feature was to entrust the Security Council with administering a prohibition of recourse to international force (Article 2(4)) by states except in circumstances of self-defense, which itself was restricted to responses to a “prior armed attack” (Article 51), and only then until the Security Council had the chance to review the claim.

It is true that international lawyers have through decades argued about the interpretation of these basic rules of restraint, but these Charter guidelines have generally been well enough understood to enable a clear line to be drawn between permissible and impermissible uses of forces in most circumstances. A measure of flexibility existed, giving the UN legal authority to authorize non-defensive uses of force so as to uphold global peace and security, and some would add in light of recent practice, to protect vulnerable populations from severe abuses of human rights, especially ethnic cleansing and genocide. It is especially unfortunate that influential journalists such as Thomas Friedman pour their amoral scorn on European opposition to the Iraq War, flippantly claiming that it is “Euro-whining” to insist on law and morality as restraints on Washington’s warmaking, what Friedman calls “deeply unserious.” Given the realities, such a dismissal of principled European criticism is not only self-serving, but highly arrogant even if in the end Paris and Berlin abandon their opposition in a fit of geopolitical opportunism.

There is no doubt that events since the end of the cold war have strained this earlier consensus. In the 1990s a series of conflicts that were internal to states, yet posed humanitarian crises due to ethnic cleansing (Bosnia, Rwanda, Kosovo) or breakdowns of governance (Somalia, and several sub-Saharan states), created degrees of support for what came to be called “humanitarian intervention.” When the US led the NATO coalition in 1999 to avert the advent of ethnic cleansing in Kosovo, a controversial precedent had been set for the use of non-defensive force without a mandate from the UN Security Council. The September 11 attacks challenge the viability of the overall framework of international law: a borderless war in which neither main adversary is a state. On one side is a concealed terrorist network with a hidden presence in 60 or more countries on one side and, on the other, a global state with military bases in about the same number of countries, as well as a naval presence on all oceans and plans for the militarization of space well underway.

What should “self-defense” mean in such an inflamed setting that lacked geographic parameters? The basic Charter idea was to regulate the use of force in relations among sovereign states. As such, with a bit of stretching international law could be responsibly interpreted as justifying recourse to a defensive war directed at Afghanistan. Even this was a stretch because the Taliban regime was not directly implicated in the attacks, and it was not given an opportunity to hand over the al Qaeda leadership or to cooperate with the United States in securing Afghan territory from being used in the future as a major terrorist base area. At the same time, the Taliban government was only recognized by three governments (and two of these quickly broke diplomatic relations immediately after September 11, leaving only Pakistan, which joined the war on the US side), possessed an abysmal human rights record, and was beset by both a civil war and an imminent threat of mass famine that it lacked the will and competence to avert.

Under these circumstances, the American war against Afghanistan, although remaining controversial in some anti-war circles, was widely accepted within the UN and by most governments, as a reasonable extension of the legal right of self-defense in these new circumstances. After all, the country seemed to be the nerve center of al Qaeda, and to contain its most notable leaders. There was a sense of urgency given the magnitude of the harm inflicted by the September 11 attacks, and the strong indications that additional attacks were planned as part of a continuing violent campaign against the United States role in the world. It was under these circumstances reasonable for the Bush leadership to believe that dislodging the Taliban and destroying the al Qaeda presence in Afghanistan was the most relevant first step in defending the country against such an enemy. It was a reasonable response, but not necessarily an effective one, especially given the manner in which the military campaign was carried forward. In retrospect, it seems clear that the Pentagon tactics included an excessive reliance on air power and on Afghan ground forces that nullified much of the expected benefits of striking at the al Qaeda headquarters. Furthermore, that the halfhearted postwar occupation and reconstruction efforts led by the United States are even raising doubts about the durability of “the victory” over the Taliban.

But the move from Afghanistan to the second phase of American response, directed at the “Axis of Evil” countries while imprudent on strategic grounds, seems also needlessly destructive of international law. For President Bush claiming a generalized right to wage “preemptive war” was in flagrant contradiction with the Charter’s legal framework without any special circumstances justifying an exception. And to apply that claim to Iraq, given the absence of any credible evidence of an imminent threat (something much more than “a smoking gun,” which itself the US has so far not managed to find despite its vast intelligence capabilities and the witness of numerous exiles) was to carry American unilateralism to the frightening extreme of claiming an extraordinarily dangerous and perverse right of “preventive war” (that is, lacking the elements of necessity and imminence). Even here the question “prevent what?” cries for an answer given the absence of a plausible Iraqi threat in the foreseeable future and the razor sharp containment policy poised to annihilate Iraq in the event of a Baghdad provocation in the years ahead.

Lest one be distracted by the guerrilla theater performance of Secretary Powell at the UN, it needs to be recalled that the initial Bush formulations of the preemption doctrine made no mention of the UN, and only a pro forma reference to Congress. The Bush preferred option was pure presidential unilateralism. It was only when Republican Party heavyweights (Scowcroft, Baker, Kissinger) publicly warned the White House that there was insufficient backing for the war that Bush was persuaded that he needed to build more national and international support prior to attacking Iraq.

It was in response that Bush shifted course, and acknowledged a role for Congressional authorization, let alone sought a UN mandate. All along, it was a matter of building a case for a war that had already been decided upon within the dark recesses of the US Government. What has been alarming is that Congress, apparently intimidated by Bush’s lingering popularity, and the Security Council membership seeming to prefer their role as rubberstamp to that of being again (as in Kosovo) bypassed, went along as sheep to the slaughter. In the process, the UN ignoring its own Charter embraced the pseudo-legalism of enforcing the punitive 1991 ceasefire resolutions imposed on a defeated Iraq after the Gulf War, embarking on this inspection safari that has found pathetically little despite visiting more than 230 suspected sites, having unlimited access and extensive intelligence, and the incriminating testimony of an array of Iraqi defectors. The Bush administration has indicated all along that it would greet a favorable report by the UN inspectors in a spirit of defiance, further undermining respect for international law and UN procedures, and returning to its original impulse to embark on war with or without prior UN approval. In fact, it has distorted Hans Blix’s balanced report, highlighting only the criticism, and suppressing via its full court media press the favorable comments on Iraqi cooperation with access and requested information.

When September 11 occurred it was obvious to me and others that this new struggle would exert pressure on the capacity of international law to provide acceptable limits on the way in which the United States pursued security in the world. For this reason, it seemed to make sense to give renewed attention to the Just War Doctrine as a way of acknowledging and identifying limits on recourse to force, yet loosening the restraints of legal rules that had been crafted to minimize warfare between territorial states. What could be done in relation to a concealed terrorist network needed to be different, including the authorization under exceptional circumstances of extending notions of self-defense to deal selectively in an anticipatory manner with threats from abroad that were severe and immediate. At the same time, there was no basis for abandoning international law or undermining UN authority when dealing with conflicts between territorial states, which continue to serve the world well. The claimed right of preemption against Iraq, given the realities of its capabilities and probable intentions, seemed best understood as recourse to “aggressive war” by the United States. To redefine the issue of US aggressiveness toward Iraq as the enforcement of UN Security Council resolutions or as a disarmament measure is to trample on sovereign rights of Iraq, and to subject its long suffering population to the scourge of a one-sided war. To argue that the legal basis of the war is to unseat Iraq’s brutal ruler, a claim of humanitarian intervention, is so far from the real American motivations for the war is manifestly hypocritical, although this did not stop the president from building part of his case for war in the recent State of the Union on graphic details of the cruel abuses toward the Iraqi people by the dictatorial Saddam Hussein.

Even aside from the Iraqi debate, the issues at stake are fundamental. Part of the difficulty is that the debate about the relevance of international law has been mainly between advocates of polar positions both of which miss the point. There are the realists, perhaps best represented by Michael Glennon, who argue that states no longer respect the UN framework of restraint, that the nature of international conflict has fundamentally changed, and that we might as well acknowledge the collapse of the international law enterprise in war/peace settings. And then there are the legalists who insist that nothing has changed, and that a rather literal reading of the Charter restraints deserves unconditional respect regardless of the gravity, the apocalyptic worldview, and the non-territorial character of the mega-terrorist security threats.

A more useful approach to international law, although admittedly more complicated, and dependent on the messier dynamics of judgment and interpretation, is to reaffirm the persisting vitality of the Charter approach to war and international force, but to acknowledge that the nature of global terrorism makes certain extensions of the doctrine of self-defense justifiable in exceptional circumstances. Referring back to the argument made above, there are grounds for loosening the restraints in relation to al Qaeda, but not with respect to Iraq. September 11 provides no persuasive grounds for departing from the prohibition upon the use of aggressive force in relation to Iraq, or other conflicts between sovereign states. At most, such force could be authorized by an explicit decision of the UN Security Council, but such authorization would itself be dubious in this instance, violating the letter and spirit of the Charter. It needs to be recalled and confirmed anew that the primary mission of the United Nations is war prevention.

There remains the possibility that America’s diplomatic muscle will intimidate the Security Council membership to ignore their constitutional responsibilities under the Charter, and either mandate an unwarranted war or refuse to place obstacles in the way of Washington’s stated intentions. Such a UN posture will weaken the credibility of the Organization as representing the best interests of the peoples in the world on matters of peace and security, and would further undermine the role of international law. Not only the peace of the world but the vitality of our democracy are in acute danger if the US Government continues down this path of lawlessness.


Book Review: The Powers of War and Peace by John Yoo

Few lawyers have had more influence on President Bush’s legal policies in the “war on terror” than John Yoo…Yoo’s most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime…Yoo wrote that threats of death are permissible if they do not threaten “imminent death,” and that drugs designed to disrupt the personality may be administered so long as they do not “penetrate to the core of an individual’s ability to perceive the world around him.” He said that the law prohibiting torture did not prevent interrogators from inflicting mental harm so long as it was not “prolonged.” Physical pain could be inflicted so long as it was less severe than the pain associated with “serious physical injury, such as organ failure, impairment of bodily function, or even death.”


The New York Review of Books
Volume 52, Number 18 ? November 17, 2005


What Bush Wants to Hear
By David Cole



The Powers of War and Peace:The Constitution and Foreign Affairs After 9/11
by John Yoo

University of Chicago Press, 366 pp., $29.00

Few lawyers have had more influence on President Bush’s legal policies in the “war on terror” than John Yoo. This is a remarkable feat, because Yoo was not a cabinet official, not a White House lawyer, and not even a senior officer within the Justice Department. He was merely a mid-level attorney in the Justice Department’s Office of Legal Counsel with little supervisory authority and no power to enforce laws. Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same? the president can do whatever the president wants.

Yoo’s most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime – even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the “Commander-in-Chief,” no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.

Yoo is now back in private life, having returned to the law faculty at the University of California at Berkeley. Unlike some other former members of the administration, he seems to have few if any second thoughts about what he did, and has continued to aggressively defend his views. His book The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 shows why Yoo was so influential in the Bush administration. It presents exactly the arguments that the president would have wanted to hear. Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. Indeed, ratified treaties, Yoo believes, cannot be enforced by courts unless Congress enacts additional legislation to implement them. According to this view, Congress’s foreign affairs authority is largely limited to enacting domestic legislation and appropriating money. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by law?constitutional or international.

Yoo is by no means the first to advance such positions. Many conservatives favor a strong executive, especially when it comes to foreign affairs, and they are generally skeptical about international law. What Yoo offers that is new is an attempt to reconcile these modern-day conservative preferences with an influential conservative theory of constitutional interpretation: the “originalist” approach, which claims that the Constitution must be interpreted according to the specific understandings held by the framers, the ratifiers, and the public when the Constitution and its amendments were drafted.[1]

The problem for originalists who believe in a strong executive and are cynical about international law is that the framers held precisely the opposite views?they were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced. During the last two centuries, of course, executive power has greatly expanded in practice; and the attitude of many US leaders toward international law has grown increasingly disrespectful as the relative strength of the US compared to other nations has increased. But these developments are difficult to square with the doctrine of “original intent,” which, at least as expressed by Justice Antonin Scalia and other extreme conservatives, largely disregards the development of the law for the past two centuries. Yoo’s task is to reconcile the contemporary uses of American power with his belief in original intent. His views prevailed under the Bush administration, and therefore should be examined not only for their cogency and historical accuracy, but for their consequences for US policy in the “war on terror.”

1. War

On its face, the Constitution divides power over foreign affairs. It gives Congress substantial responsibility, especially with respect to war. Congress has the power to raise and regulate the military; to declare war and issue “Letters of Marque and Reprisal,” which authorize lesser forms of conflict; to define offenses against the law of nations; and to regulate international commerce. The Senate must confirm all treaties and all appointments of ambassadors. The president is named as the “Commander-in-Chief,” and appoints ambassadors and makes treaties subject to the Senate’s consent. In addition, the words “executive power” have, since the beginning of the republic, been regarded as giving the president an implicit authority to represent the nation in foreign affairs.

These divisions of responsibility were conceived for widely recognized historical and philosophical reasons. The Constitution was drafted following the Revolutionary War, in which the colonies rebelled against the abuses of the British monarchy, the prototypical example of an unaccountable executive. The new nation so distrusted executive power that the first attempt to form a federal government, the Articles of Confederation, created only a multi-member Continental Congress, which was in turn dependent on the states for virtually all significant functions, including imposing taxes, regulating citizens’ behavior, raising an army, and going to war. That ex-periment failed, so the Constitution’s drafters gave Congress more power, and revived the concept of a branch of government headed by a single executive. But they insisted on substantial limits on the power of the new executive branch, and accordingly assigned to Congress strong powers that had traditionally been viewed as belonging to the executive – including the power to declare war.

Many of the framers passionately defended the decision to deny the president the power to involve the nation in war. When Pierce Butler, a member of the Constitutional Convention, proposed giving the president the power to make war, his proposal was roundly rejected. George Mason said the president was “not to be trusted” with the power of war, and that it should be left with Congress as a way of “clogging rather than facilitating war.”[2] James Wilson, another member, argued that giving Congress the authority to declare war “will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”[3] Even Alexander Hamilton, one of the founders most in favor of strong executive power, said that “the Legislature alone can interrupt [the blessings of peace] by placing the nation in a state of war.”[4] As John Hart Ely, former dean of Stanford Law School, has commented, while the original intention of the Founders on many matters is often “obscure to the point of inscrutability,” when it comes to war powers “it isn’t.”[5]

In the face of this evidence, Yoo boldly asserts that a deeper historical inquiry reveals a very different original intention – namely, to endow the president with power over foreign affairs virtually identical to that of the king of England, including the power to initiate wars without congressional authorization. He argues that the power to “declare War” given to Congress was not meant to include the power to begin or authorize a war, but simply the power to state offi-cially that a war was on – a statement that would be “a courtesy to the enemy” and would authorize the executive to exercise various domestic wartime powers. At most, Yoo contends, the clause giving Congress power to “declare War” was meant to require congressional approval for “total war,” a term Yoo never defines, but it left to the president the unilateral decision to engage in all lesser hostilities. He quotes dictionaries from the founding period that defined “declare” as “to pronounce” or “to proclaim,” not “to commence.” He points out that the Constitution did not give Congress the power to “engage in” or to “levy” war, terms used in other constitutional provisions referring to war.[6] And he notes that unlike some state constitutions of the time, the federal constitution did not require the president to consult Congress before going to war.

All the evidence Yoo cites, however, can be read more convincingly to corroborate the view he seeks to challenge – namely, that the Constitution gave the president only the power, as commander in chief, to carry out defensive wars when the country came under attack, and to direct operations in wars that Congress authorized. British precedent is of limited utility here, since the framers consciously departed from so much of it. Dictionary definitions of “declare” also offer little guidance, since Yoo ignores that there is a world of difference between someone’s “declaring” his or her love for wine or Mozart and a sovereign’s declaring war. “Declare War” was in fact a legal term of art, and there is evidence that it was used at the time to mean both the commencement of hostilities and a statement officially recognizing that war was ongoing.[7] The use of the word “declare” rather than “levy” or “engage in” simply reflects the division of authority under which the president actually levies?or carries on – the war once it is begun. Indeed, the framers famously substituted “declare” for “make” in enumerating Congress’s war powers for just this reason.[8] And the framers had no reason to require the president to consult with Congress before going to war since it was Congress’s decision, not the president’s.

Most troubling for Yoo’s thesis, his account renders the power to “declare War” a meaningless formality. At the time of the Constitution’s drafting, a formal “declaration of war” was not necessary for the exercise of war powers under either domestic or inter-national law, so Yoo’s hypothesis that the declaration served that purpose fails.

Yoo’s further suggestion that the clause recognizes a distinction between “total wars,” which must be declared, and lesser wars, which need not be, has no historical basis. Despite his ostensible commitment to originalism, Yoo cites no evidence whatever to suggest that any such distinction existed for the founding generation. Nor does he ever explain what the distinction might mean today. And the fact that the text grants Congress both the power to “declare War” and to issue “Letters of Marque and Reprisal” strongly suggests an intent that Congress decide on all forms of military conflict other than repelling attacks. Once these explanations evaporate, all that is left for Yoo’s theory of the war clause is that it gives Congress the power to provide a “courtesy to the enemy”?hardly a persuasive refutation of the clear language of the framers quoted above.

Yoo’s evidence does not undermine the conclusion that the framers intended Congress to take responsibility for the decision to send the nation into war. But in some sense, arguments against his theory are academic. Modern practice is closer to Yoo’s view than to the framers’ vision. Beginning with the Korean War, presidents have routinely involved the nation in military conflicts without waiting for Congress to authorize their initiatives. Yoo notes that while the nation has been involved in approximately 125 military conflicts, Congress has declared war only five times. Were the framers lacking in practical judgment when they gave Congress this power?

Yoo claims that since September 11, it is all the more essential that the nation be able to act swiftly and without hesitation, even preemptively, to protect itself. We can’t afford to wait around for Congress to figure out what it wants to do. The “war on terror” does not permit democratic deliberation, at least not in advance. And, as Yoo repeatedly insists, Congress remains free to cut off funds for any military action that it does not like.

But there is as good reason today as there was when the Constitution was drafted to give Congress the power to authorize military activities. As the framers accurately predicted, presidents have proven much more eager than Congress to involve the nation in wars. It is easier for one person to make up his mind than for a majority of two houses of Congress to agree on a war policy.

Presidents also tend to benefit from war more than members of Congress, by increasing their short-term popularity, by acquiring broader powers over both the civilian economy and the armed forces, and, sometimes, by the historical recognition later accorded them. Moreover, as the Vietnam War illustrated, even when a war becomes extremely unpopular, it is not easy to cut off funds for the troops.

It is true, as Yoo observes, that, since Harry Truman, presidents of both parties have generally resisted the view that they need congressional authorization to commit forces to military conflict. But this attitude is in fact a relatively recent development. While formal declarations of war have been rare, Yoo fails to note that presidents have generally sought congressional authorization for military actions. Until the Korean War, presidents either openly acknowledged that congressional authorization was necessary or offered rationales for why a particular military initiative was an exception to that rule.[9] Thus, the view that Yoo promotes as “original” has in fact been advanced only during the last fifty years, and only by self-interested executives.

This view is particularly disputed by Congress, as can be seen in the 1973 War Powers Resolution, which sought to reaffirm and restore Con-gress’s constitutional role in deciding on whether to go to war, and also in the legislative debates that inevitably take place when presidents talk of going to war.[10] As the war in Iraq has painfully underscored, the decision to go to war, especially a war initiated by the president without broad international support, can have disastrous consequences; and extricating the country from such a war can be extremely difficult. Were Congress to be eliminated from the initial decision-making process, as Yoo would prefer, the result would almost certainly be even more wars, and more quagmires such as the one in Iraq. On this issue, the framers were persuasive, and it is Yoo who has failed to understand both the checks on executive power they imposed and the reasons they did so.

2. Treaties

Yoo’s interpretation of the treaty power, like his view of the war power, departs dramatically from the text of the Constitution and its traditional understanding. The Constitution’s Supremacy Clause explicitly provides that all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.

On the strength of that clause, and statements made about treaties at the time of the framing, it has long been accepted that treaties have the force of law in the United States, create binding obligations, and may be enforced by courts. Indeed, the Supreme Court long ago stated that treaties are “to be regarded…as equivalent to an act of the legislature.”[11]

In the modern era, Congress often specifies when ratifying a treaty that it should not be enforceable in court until further legislation is enacted. And even without such directives, courts sometimes find treaties not to be judicially enforceable; the US Court of Appeals for the D.C. Circuit did so recently in rejecting a Guant?namo detainee’s claim that his pending trial in a military tribunal violated the Geneva Conventions.

Yoo would go further, insisting on a presumption against judicial enforcement unless Congress clearly specifies otherwise. On this view, treaties lack the force of law, and become mere political promises, having about as much force as campaign rhetoric. And he further claims that the president has unilateral authority to interpret, reinterpret, and terminate treaties, effectively rendering presidents above the law when it comes to treaties.

To support these revisionist views, Yoo relies heavily and repeatedly on a rigid dichotomy between foreign affairs?which he sees, in the British tradition, as the executive’s domain – and domestic matters?which he sees as the province of the legislature. But as we have seen, the Constitution’s framers explicitly rejected such a rigid division, giving Congress and the Senate substantial power over functions that the British saw as executive in nature, including the power to make war and treaties, and expressly assigning the judiciary the responsibility to enforce treaties as the “Law of the Land.”

If anything, Yoo’s historical evidence is even thinner with respect to the treaty power and the Supremacy Clause than it is with respect to the clause on declaring war. As Jack Rakove, one of the foremost historians of the federal period, has concluded, the framers “were virtually of one mind when it came to giving treaties the status of law.”[12] As other historians have pointed out, one of the principal incentives for convening the Constitutional Convention was the embarrassing refusal of state governments to enforce treaties. The Supremacy Clause solved that problem in as direct a way as possible – by making treaties the “Law of the Land,” enforceable in courts and binding on government and citizenry alike. That treaties were not thought to need further implementing is underscored by the framers’ unanimous decision to omit treaty enforcement from Congress’s enumerated powers, “as being superfluous since treaties were to be ‘laws.'”[13] Yoo’s account turns that conclusion on its head; his reading would render superfluous the Supremacy Clause’s assertion that treaties are laws. If treaties had domestic force only when implemented by a subsequent statute, as Yoo maintains, then the statute itself would have the status of the “Law of the Land,” not the treaty.

Yoo is no more convincing with respect to presidential interpretation of treaties. He maintains that because foreign policy is an executive prerogative, the executive must be able to reinterpret and terminate treaties unilaterally. But while the Constitution plainly envisioned the president as the principal negotiator of treaties, it also gave clear responsibilities for treaties to the other branches; all treaties must be approved by two thirds of the Senate, and once ratified, treaties become “law” enforceable by the courts. The president must certainly be able to interpret treaties in order to “execute” the laws, just as he must be able to interpret statutes for that purpose. But there is no reason why his interpretations of treaties should be any more binding on courts or the legislature than his interpretations of statutes.

3.  The Rule of Law

Yoo’s views on the war and treaty powers share two features. First, they both depart radically from the text of the Constitution. He would reduce the power to “declare War” to a mere formality, a courtesy to the enemy; and he would render entirely superfluous the Supremacy Clause’s provision that treaties are the “Law of the Land.” It is ironic that a president who proclaims his faith in “strict construction” of the Constitution would have found Yoo’s interpretations so persuasive, for Yoo is anything but a strict constructionist. One of the arguments most often made in defense of “originalism” is that interpretations emphasizing a “living” or evolving Constitution are too open-ended, and accordingly they permit judges to stray too far from the text. Yoo unwittingly demonstrates that his brand of originalism is just as vulnerable to that criticism as other approaches, if not more so. He not only departs from the text, but contradicts the principles that underlie it.

Second, and more significantly, all of Yoo’s departures from the text of the Constitution point in one direction – toward eliminating legal checks on presidential power over foreign affairs. He is candid about this, and defends his theory on the ground that it preserves “flexibility” for the executive in foreign affairs. But the specific “flexibility” he seeks to preserve is the flexibility to involve the nation in war without congressional approval, and to ignore and violate international commitments with impunity. As Carlos Vazquez, a professor of law at Georgetown, has argued in response to Yoo, “flexibility has its benefits, but so does precommitment.” The Constitution committed the nation to a legal regime that would make it difficult to go to war and that would provide reliable enforcement of international obligations. Yoo would dispense with both in the name of letting the president have his way.

Even if Yoo is wrong about the original understanding in 1787, is he wrong about 2005? As the subtitle of his book indicates, his argument rests not just on revisionist history, but also on arguments about what is practically necessary in a twenty-first-century world threatened by terrorism and weapons of mass destruction. He contends that these developments demand that the president have the leeway to insulate his foreign policy decisions both from the will of Congress and from the demands of international law.

Here it is worth reviewing the positions Yoo advocated while in the executive branch and since, and their consequences in the “war on terror.” At every turn, Yoo has sought to exploit the “flexibility” he finds in the Constitution to advocate an approach to the “war on terror” in which legal limits are either interpreted away or rejected outright. Just two weeks after the September 11 attacks, Yoo sent an extensive memo to Tim Flanigan, deputy White House counsel, arguing that the President had unilateral authority to use military force not only against the terrorists responsible for the September 11 attacks but against terrorists anywhere on the globe, with or without congressional authorization.[14]

Yoo followed that opinion with a series of memos in January 2002 maintaining, against the strong objections of the State Department, that the Geneva Conventions should not be applied to any detainees captured in the conflict in Afghanistan.[15] Yoo argued that the president could unilaterally suspend the conventions; that al-Qaeda was not party to the treaty; that Afghanistan was a “failed state” and therefore the president could ignore the fact that it had signed the conventions; and that the Taliban had failed to adhere to the requirements of the Geneva Conventions regarding the conduct of war and therefore deserved no protection. Nor, he argued, was the president bound by customary international law, which insists on humane treatment for all wartime detainees. Relying on Yoo’s reasoning, the Bush administration claimed that it could capture and detain any person who the president said was a member or supporter of al-Qaeda or the Taliban, and could categorically deny all detainees the protections of the Geneva Conventions, including a hearing to permit them to challenge their status and restrictions on inhumane interrogation practices.

Echoing Yoo, Alberto Gonzales, then White House counsel, argued at the time that one of the principal reasons for denying detainees protection under the Geneva Conventions was to “preserve flexibility” and make it easier to “quickly obtain information from captured terrorists and their sponsors.”[16] When CIA officials reportedly raised concerns that the methods they were using to interrogate high-level al-Qaeda detainees’such as waterboarding – might subject them to criminal liability, Yoo was again consulted. In response, he drafted the August 1, 2002, torture memo, signed by his superior, Jay Bybee, and delivered to Gonzales. In that memo, Yoo “interpreted” the criminal and international law bans on torture in as narrow and legalistic a way as possible; his evident purpose was to allow government officials to use as much coercion as possible in interrogations.

Yoo wrote that threats of death are permissible if they do not threaten “imminent death,” and that drugs designed to disrupt the personality may be administered so long as they do not “penetrate to the core of an individual’s ability to perceive the world around him.” He said that the law prohibiting torture did not prevent interrogators from inflicting mental harm so long as it was not “prolonged.” Physical pain could be inflicted so long as it was less severe than the pain associated with “serious physical injury, such as organ failure, impairment of bodily function, or even death.”[17]

Even this interpretation did not preserve enough executive “flexibility” for Yoo. In a separate section of the memo, he argued that if these loopholes were not sufficient, the president was free to order outright torture. Any law limiting the president’s author-ity to order torture during wartime, the memo claimed, would “violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.”[18]

Since leaving the Justice Department, Yoo has also defended the practice of “extraordinary renditions,” in which the United States has kidnapped numerous “suspects” in the war on terror and “rendered” them to third countries with records of torturing detainees.[19] He has argued that the federal courts have no right to review actions by the president that are said to violate the War Powers Clause.[20] And he has defended the practice of targeted assassinations, otherwise known as “summary executions.”[21]

In short, the flexibility Yoo advocates allows the administration to lock up human beings indefinitely without charges or hearings, to subject them to brutally coercive interrogation tactics, to send them to other countries with a record of doing worse, to assassinate persons it describes as the enemy without trial, and to keep the courts from interfering with all such actions.

Has such flexibility actually aided the US in dealing with terrorism? In all likelihood, the policies and attitudes Yoo has advanced have made the country less secure. The abuses at Guant?namo and Abu Ghraib have become international embarrassments for the United States, and by many accounts have helped to recruit young people to join al-Qaeda. The US has squandered the sympathy it had on Sep- tember 12, 2001, and we now find ourselves in a world perhaps more hostile than ever before.

With respect to detainees, thanks to Yoo, the US is now in an untenable bind: on the one hand, it has become increasingly unacceptable for the US to hold hundreds of prisoners indefinitely without trying them; on the other hand our coercive and inhumane interrogation tactics have effectively granted many of the prisoners immunity from trial. Because the evidence we might use against them is tainted by their mistreatment, trials would likely turn into occasions for exposing the United States’ brutal interrogation tactics. This predicament was entirely avoidable. Had we given alleged al-Qaeda detainees the fair hearings required by the Geneva Conventions at the outset, and had we conducted humane interrogations at Guant?namo, Abu Ghraib, Camp Mercury, and elsewhere, few would have objected to the US holding some detainees for the duration of the military conflict, and we could have tried those responsible for war crimes. What has been so objectionable to many in the US and abroad is the government’s refusal to accept even the limited constraints of the laws of war.

The consequences of Yoo’s vaunted “flexibility” have been self-destructive for the US?we have turned a world in which international law was on our side into one in which we see it as our enemy. The Pentagon’s National Defense Strategy, issued in March 2005, states,

    Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak, using international fora, judicial processes, and terrorism.

The proposition that judicial processes “the very essence of the rule of law “are to be dismissed as a strategy of the weak, akin to terrorism, suggests the continuing strength of Yoo’s influence. When the rule of law is seen simply as a device used by terrorists, something has gone perilously wrong. Michael Ignatieff has written that “it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does.”[22] Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing.


[1] There are, of course, many reasons to question originalism as a theory of constitutional interpretation, chief among them that the framers used general and open-ended language that indicates a desire not to lock in subsequent generations to the specific understandings of the eighteenth century, as Chief Justice John Roberts himself acknowledged in his confirmation hearings. See Ronald Dworkin, “Judge Roberts on Trial,” The New York Review, October 20, 2005. I assess Yoo’s arguments both with respect to the originalist claims he makes and from a more modern perspective.

[2] The Records of the Federal Convention of 1787, edited by Max Farrand (Yale University Press, 1911), Vol. 2, p. 319.

[3] The Debates in the Several State Conventions: On the Adoption of the Federal Constitution, edited by Jonathan Elliot (Lippincott, 1836), Vol. 2, p. 528.

[4] Alexander Hamilton, “Letters of Pacificus No. 1,” The Works of Alexander Hamilton, edited by Henry Cabot Lodge (Putnam’s, 1904), Vol. 4, p. 443.

[5] John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (Princeton University Press, 1993), pp. 2?3; see also Peter Irons, War Powers: How the Imperial Presidency Hijacked the Constitution (Metropolitan, 2005).

[6] Article I, Section 10 limits the states’ ability to “engage in War,” and Article III defines treason to include “levying War” against the United States.

[7] Michael D. Ramsey, “Textualism and War Powers,” University of Chicago Law Review, Vol. 69 (Fall 2002), p. 1543.

[8] See Farrand, The Records of the Federal Convention of 1787, Vol. 2, pp. 318?319 (quoting James Madison explaining that the change was designed to preserve for the president “the power to repel sudden attacks”).

[9] On the evolving history of executive attitudes toward the war power, see W. Taylor Reveley, “Presidential War-Making: Constitutional Prerogative or Usurpation?” Virginia Law Review, Vol. 55 (November 1969), pp. 1243, 1257?1265.

[10] For a proposal to reinvigorate Congress’s powers over military action, see Leslie H. Gelb and Anne-Marie Slaughter, “Declare War,” The Atlantic Monthly, November 2005.

[11] Foster v. Neilson, 27 US 253, 314 (1829).

[12] Jack Rakove, “Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study,” Perspectives in Am-erican History, edited by Bernard Bailyn, et al. (Cambridge University Press, 1984), Vol. 1, pp. 233, 264. Carlos Vazquez and Martin Flaherty have refuted in persuasive and painstaking detail every aspect of Yoo’s argument on the status of treaties. See Car-los Manuel Vazquez, “Laughing at Treaties,” Columbia Law Review, Vol. 99 (1999), p. 2154; Martin Flaherty, “History Right?: Historical Scholarship, Original Understanding, and Treaties as ‘Supreme Law of the Land,'” Columbia Law Review, Vol. 99 (1999), p. 2095.

[13] Farrand, The Records of the Federal Convention of 1787, Vol. 2, pp. 389? 390.

[14] Memo from John Yoo to Timothy Flanigan, “Re: Memorandum Opinion for the Deputy Counsel to the President,” September 25, 2001.

[15] These memos, and the State Department responses to them, can be found on the New Yorker Web site,

[16] Memo from Alberto Gonzales to President Bush, “Decision Re: Application of the Geneva Convention on Prisoners of War to the Conflict With al Qaeda and the Taliban,” January 25, 2002.

[17] Memo from Jay Bybee to Alberto Gonzales, “Re: Standards of Conduct for Interrogation under 18 U.S.C. “? 2340-2340A,” August 1, 2002. While this memo is signed by Bybee, Yoo has acknowledged that he drafted it.

[18] Memo from Jay Bybee to Alberto Gonzales, “Re: Standards of Conduct for Interrogation under 18 U.S.C. “? 2340-2340A,” August 1, 2002.

[19] John Yoo, “Transferring Terrorists,” Notre Dame Law Review, Vol. 79, No. 4, p. 1183 (2004).

[20] John Yoo, “Judicial Review and the War on Terrorism,” George Washington University Law Review, Vol. 72, No. 1/2, available at =461721.

[21] John Yoo, “Assassination or War?” San Francisco Chronicle, September 18, 2005.

[22] Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Princeton University Press, 2004), p. 24.

In Defence of International Law

Axis for Peace
In Defence of International Law
Jean Bricmont,

January 19, 2006

A figure of the anti-imperialist movement, Jean Bricmont, member of the BRussells Tribunal executive committee, opened the round table discussion on humanitarian interference during the conference Axis for Peace 2005. In this text, taken from his most recent book, “Imp?rialisme humanitaire. Droits de l’homme, droit d’ingérence, droit du plus fort?” (“Humanitarian imperialism. Human rights, right of interference, law of the strongest? “), he explains that peace can only be based on international law and that the right to interfere, like the manipulation of human rights, serves as a disguise for the law of the jungle.

Jean Bricmont during his intervention at the Axis for Peace conference held in Brussels in November 2005

As Canadian jurist Michael Mandel perfectly explains, contemporary international law aims at, citing the introduction of the United Nations Charter, “protecting future generations from the scourge of war.” The basic principle to achieve this is that no country has the right to send its troops to another country without the approval of the government of the latter. The Nazis did it repeatedly and the first charge they faced in Nuremberg was aggression, a crime that “contains and makes the others possible.”

“Government” does not mean here “elected government” or “respectful of human rights” but simply that “effectively controls the armed forces” because that is the element that determines if a war breaks or not when borders are trespassed. It is easy to criticize this basic principle and those who defend human rights do not abstain from doing so. On the one hand, it often happens that the states? borders are arbitrary as they are the result of old processes that were completely undemocratic and because many ethnic minorities do not agree with those borders. On the other hand, nothing guarantees that governments are democratic or that they care at least a bit about the well being of their people, but the goal of international law is not to solve all problems. Practically like all other laws, it tries to be the lesser evil in the absence of law, and those who criticize international law should explain the principles they recommend to replace it. Can Iran occupy Afghanistan? Can Brazil, as democratic as the United States, invade Iraq to establish a democracy there? Can the Congo attack Rwanda in self-defense? Can Bangladesh interfere in the US internal affairs to impose a reduction of Washington’s emission of greenhouse effect gases and thus “prevent” the damages to which that country is exposed because of global warming? If the US pre-emptive attack against Iraq is legitimate, why weren’t the attacks by Iraq against Iran or against Kuwait as legitimate as well? Even worse, why wasn’t the Japanese attack against Pearl Harbor a legitimate pre-emptive attack? When we ask these questions we realize that the only realistic alternative to the currently existing law, apart from a generalized chaos, is the possibility of the most powerful nation of the world to intervene wherever it pleases to, or to authorize its allies to do it.

However, all liberal thinking since the 17th century is based on the idea that there are three ways to live in society:

1. War of all against all;
2. An absolute ruler, who imposes peace through force;
3. A democratic legal order, as the lesser of evils.

Dictatorial regimes, denounced by those who defend human rights, have the advantages of an absolute ruler: they preserve order and avoid the war of all against all. Their current expression is the so-called “failed states”. The inconvenient is well known: the ruler acts according to his own interests and those under his rule do not accept his authority; this causes an endless cycle of uprisings and repression. This situation is the very basis for the defence of the third solution.

What has been previously said is considered vain in the discussion about the internal order of democratic states. Let us see now the international order. The ruler, if we had to ignore the principles of the existing international law, would inevitably be the United States. This country clearly acts in its own interests. We have to note that the supporters of interference not always deny this assertion; but then they argue, making a very selective interpretation of history, that their behaviour brings humanity more benefits than evils. I do not share this opinion although, anyway, the adverse consequences of exercising this absolute power certainly match what a classic liberal would expect: Bin Laden, for example, is the result of the support given to the mujaidins in Afghanistan during the Soviet era; on the other hand, by selling weapons to Iraq, the West significantly helped the current Iraqi resistance.

In 1954, the United States overthrew Arbenz in Guatemala. They did it, apparently, without any efforts or risks for themselves. But, by doing so, they contributed to the political formation of a young Argentinean doctor who was there and whose picture is very well known around the world today: Che Guevara.
Jean Bricmont and United-Stater journalist Diana Johnstone

During the Conference of Versailles, after World War I, a young Vietnamese nationalist came to Europe to defend the cause of his people’s self-determination before Robert Lansing, State Secretary of the man who presented himself at that time as the champion of self-determination: US President Wilson. The young Vietnamese was ignored. What risk could he pose? He then went to Moscow to improve his political instruction and he became famous: his name was Ho Chi Minh.

Who knows what the hatred caused by US and Israeli policies will bring in the future?

In the international order, the third solution, the liberal one, would consist of providing more democracy at a world level through the United Nations. Bertrand Russell would say that speaking about the responsibility of World War I would be like discussing about responsibility in a car accident in a country without driving regulations. The idea that international law should be respected and that conflicts among states should be solved by an international organization was a crucial advance in the history of humanity, similar to the abolition of the monarchic power and aristocracy, the abolition of slavery, the development of freedom of speech, the recognition of union and women’s rights and even the idea of social security.

It is clear that the United States, and also those who support the actions of that country in the name of human rights, oppose the strengthening of that international order. It is very likely that the UN reforms currently being studied will lead to the legitimization of more unilateral actions. According to the argument most commonly used, it is an outrage to put democratic and undemocratic countries at the same level in the United Nations and particularly in its human rights commission. This argument ignores that in all the meetings of the Movement of Non Aligned Countries and in all the summits of the South, who represent 70% of humanity, they ? not only “dictatorships” ? have condemned all forms of unilateral interference, namely embargos, sanctions or wars. Anyway, liberal imperialists, that is, the majority of US Democrats and most of the European Greens and Social-Democrats ? who defend democracy at the internal level while they support interference, that is, the dictatorship of a country or a small group of countries, at the international level ? are completely incoherent.

Finally, when complaining, as it often happens, about the inefficiency of the United Nations, we have to think of all the disarmament treaties or accords prohibiting weapons of mass destruction, whose main opponent is the United States. It is precisely the big powers the ones that more firmly oppose the idea of law acting against their last resort: the use of force. But, in the same way that no one suggests that, at the internal level, the mafi hostility towards law can justify the abolition of the latter, no one can use the US?s sabotage of the United Nations as an argument to discredit this organization.

There is one last argument in favour of international law that may be even more important than all the others: international law is the paper shield that the Third World thought it could use against the West during the decolonization. Those who use human rights to undermine international law in the name of the “right to interfere” ignore that, during the entire colonial period, there were neither borders nor dictators preventing the West from establishing the rule of human rights in the submitted countries. If that was their intention, the least that colonized countries can say is that they did not prove it. Probably, that is one of the main reasons why the countries of the South so strongly condemn the so-called “right to interfere.”

Jean Bricmont
Outstanding figure of the anti-imperialist movement, Jean Bricmont is a professor of theoretical physics at the University of Louvain (Belgium).
He is a member of the BRussells Tribunal executive Committee.
He has just published Imp?rialisme humanitaire. Droits de l’homme, droit d’ingérence, droit du plus fort? (?ditions Aden, 2005).

The previous text is taken from Imp?rialisme humanitaire. Droits de l’homme, droit d’ingérence, droit du plus fort”, Jean Bricmont (foreword by François Houtart), October, 2005, 256 pages, format 14 cm x 20 cm, ISBN 2930402148 – 18 euros. More information in “ditions Aden.


How should the world’s peoples respond to US aggression against Iraq ?

How should the world’s peoples respond to US aggression against Iraq ? 

 by Elias Davidsson, 23rd February, 2003

In the case the United States (and allies) will bomb, invade and occupy Iraq, the international community will face an immense challenge to respond to such a blatant act of aggression that would not only violate international law and undermine the United Nations system but threaten to lead to a regional or perhaps a world-wide conflict. Under present circumstances, any attempt to deter this aggression by military means could lead to a global conflagration, an option no sane person could propose. For this reason, an appropriate political response should be envisaged. The following proposal is presented for discussion, elaboration and adoption by individuals, organisations, movements and States that are determined to uphold the principles and purposes of the United Nations and the rule of law in international relations. It bases on the assumption that mere verbal condemnation of US aggression would neither deter such policies nor achieve the prompt withdrawal of US forces from Iraq. The proposal should hopefully serve as a list of demands that civil society opposed to war and aggression could espouse in the wake of a potential aggression against Iraq.

Should the US (and allies) initiate a bombing campaign and invasion of Iraq, civil society, individually and collectively, should demand from governments the adoption of the following peaceful measures:

(1) Recall their Ambassador from Washington;

(2) Convene an emergency session of the UN General Assembly to be held outside the United States to discuss the threat to, and breach of, the peace by the United States (and allies) in order to adopt measures to deal with that threat/breach under the United for Peace procedure [that permits the General Assembly to undertake measures for the maintenance of international peace and security when the Security Council is unable or unwilling to act, due to a veto of one or more of its permanent members];

(3) Transfer the headquarters of the United Nations, the International Monetary Fund and the World Bank, from the United States to another jurisdiction, preferably that of a peace-loving, non-nuclear State;

(4) Demand the immediate dismantlement of the worldwide network of US military bases and installations and the repatriation of US military and auxiliary personnel;

(5) Suspend from the United Nations, the IMF, the World Bank, the World Trade Organisation, the OECD and NATO, the membership of States that have committed the act of aggression against Iraq, until such States have solemnly pledged to abide unconditionally by the provisions of the UN Charter and international law, abolish their stocks of weapons of mass destruction and accept their responsibilities for the consequences of their violations of international law and the UN Charter;

(6) Amend the Charter of the United Nations to reflect the aspirations of the world’s peoples for a more just, democratic and peaceful world order.

Editorial Note (South Asian Voice)

Our site received this letter from Elias Davidsson on 23rd February, 2003. We heartily endorse these (and other such) suggestions.

Comment on Fernando Teson’s article ‘Defending International Law’

Comment on Fernando Teson’s article ‘Defending International Law’

by Elias Davidsson

Source: ASIL Centennial Discussion on a Just World Under Law: Why Obey International Law? 

“Why Obey International Law””, which is the subject of this forum, cannot be answered without deciding what is “international law”, and in particular what core values underpin this legal category

In his article, Fernando Teson, argues that human values override traditional public international law (which is a system regulating interactions between states). In his own words:

A better conception of international law sees it as serving the people on this globe, not their governments. Legal rules and processes should be interpreted in the light of human values, not state values

One might, in this context, add in support of this assertion, that the Charter of the United Nations, often regarded as the precursor of an international constitution, does not refer at all to “state values”. The word “state” does not appear even in the Preamble and in Article One which lists the Purposes and Principles of the Charter. The Preamble of the UN Charter, which refers to the underlying values of the United Nations Organisation, mentions the stakeholders of the Organisation as “succeeding generations”, “mankind”, “human person”, “men and women” and “nations”. States are clearly not regarded as primary stakeholders of the United Nations.

On this base alone one is permitted to argue that the rights and prerogatives of States are derivatives of overriding values, such as those of individuals, peoples and nations. It can also be argued that the legitimacy of a collective entity such as state, people or nation rests on the free will of the individuals composing this entity.Collective rights are thus derived from individual rights. They are not an independent category of rights.

On the base of this conception of international law – in my opinion justified – the author (Fernando Teson) attempts to demonstrate that use of the force in support of the protection of human values (labelled “humanitarian intervention”) is justified.

He therefore writes in the introduction of his article: “The war against Iraq was a great victory for human rights”. Leaving aside the sweeping nature of this assertion, having been informed that perhaps 100,000 civilians may have died in Iraq as a result of the US bombing, invasion and occupation, this comment will address the more general question of “humanitarian intervention” that the author is defending.

On the face of it, the international community should intervene where there is evidence of gross violations of human values, such as crimes against humanity or genocide. The United Nations were established – facially – to serve mankind rather than state reason. States being what they are – bureaucratic entities who serve primarily the vested interests of their own elites – the concept of international community requires to be examined more closely.

There are, in fact, a host of questions that must be asked before proposing the establishment of an international legal regime of humanitarian intervention. Here are a sample of these questions:

  • Who is to decide whom to “liberate” and under what circumstances to intervene?
  • How is it possible to ensure that “intervention” will not lead to the rule or hegemony of the “intervenor”?
  • What specific “human values” are to be protected by intervention?
  • Have the people to be “liberated” been consulted ?
  • Can the intervenor be trusted to be moved by humanitarian, altruistic, concerns?

These questions have not been addressed by the author. In this comment, I will focus on the last question.

I propose the following axiom as one of the constraints against abusive humanitarian interventions:

A state or an international organisation which does not place the promotion of human dignity and human values at the top of its priorities, cannot be trusted to engage in a humanitarian intervention.

If this axiom is accepted, it follows that only states and international organisations who have demonstrated that they place human dignity and human values at the top of their priorities, including in their foreign policies, possess the moral credentials to intervene in a third state for the protection of human dignity and human values.

I do not believe that there exists evidence that states place global human dignity and human values above their own interests. The same applies to international organisations, where states simply negotiate their interests and collude, if necessary behind closed doors, in utter disregard to human values. The above claims can be verified empirically. Here is a small sample of observations:

  1. The United Nations Security Council has imposed – with the acquiescence of all its members – a severe and deadly regime of economic sanctions on the Iraqi people. According to UNICEF, child mortality increased more than twofold during the sanctions years; excess deaths during these years numbered more than 500,000 children under the age of five. No one disputes that these deaths were the result of human agency. This crime – for there is no other word for such human agency – is unprecedented. Yet no UN member state has demanded an official inquiry to determine the legal and criminal responsibilities for causing such a Holocaust. Nor have UN member states proposed that the surviving, innocent, victims of these UN-imposed sanctions, be provided with effective compensation for the harm they suffered.
  2. Over one billion people live in wretched poverty around the world. The Universal Declaration of Human Rights stipulates that every person has the right to an adequate standard of living. Yet, the community of states, and particularly those claiming to be guided by human rights and who possess adequate financial means, have miserably failed to address this global scourge. Their concern for human values ends where such values clash with corporate profits.
  3. Astronomical funds are spent by the most powerful states – who claim a right to humanitarian intervention – to develop and acquire tools of death. The United States alone spend more on arms and weaponry than all other states combined. Merely a fraction of such funds could ensure a life in dignity to millions of human beings and save millions of children every year from preventable death
  4. The right to food, to clean water, to basic education, to a safe environment, to basic medical care and to an adequate standard of living, are denied to a substantial portion of humankind. Yet, states which claim to be moved by human rights concerns in support of interventions, strongly oppose the establishment of an international legal protection regime against infringements of these fundamental rights, or refuse even to recognize the legal right of human beings to clean water, food and medical care (a right, incidentally, legally recognized to pet animals in the United States)
  5. The main proponent and practitioner of intervention in other states’ affairs, the U.S. Government, is actually curtailing human rights within its own jurisdiction under the contrived justification of the “war on terrorism” and routinely engages in gross human rights violations around the world, including torture, extra-judicial assassinations, kidnapping and indiscriminate attacks on civilians and civilian infrastructure.
  6. The Permanent Five of the Security Council, who possess the sacred duty under the Charter to maintain and ensure international peace and security, are, however, the main merchants of tools of death. They share among themselves more than 80 percent of global arms exports and profit thereby from armed conflicts. Their foreign ministries act often as official promoters for their arms industries. Their possession and deployment of nuclear weapons constitutes a continuous threat to human values, namely the very survival of humanity.

The brief listing demonstrates that UN member states, and particularly those who claim for themselves the right to humanitarian intervention, cannot presently be presumed to act for altruistic reasons when acting in the international area. The term “humanitarian intervention”, currently, is little more than a euphemism for aggression, a crime under international law.

Does the above mean that “humanitarian intervention” should be relegated to the end of times and that nations should be left alone to be butchered by thugs? The answer is no. The road for an international regime of humanitarian intervention passes through a number of preliminary steps.

Those genuinely concerned by gross human rights violations in various countries should endorse such steps. These include:

  1. The formal acceptance of UN member states of their legal obligation and that of all international organizations to take full account of the effects of their international policies on the enjoyment of human rights and their obligation to repress acts and policies by legal persons under their jurisdiction which have the intent or foreseeable effect to curtail or undermine the enjoyment of human rights in other countries.
  2. The establishment of international judicial mechanisms, open to victims of human rights violations caused by third states, corporations and international organisations, which are empowered to adjudicate in such cases, award remedies to victims and enforce their rulings.
  3. The inclusion of the crime of economic oppression as a crime against humanity under the Rome Statute of the International Criminal Court and the adherence of all states to the Rome Statute.
  4. The amendment of the UN Charter to the effect of designating the promotion, respect and protection of human rights and fundamental freedoms, including civil, political, economic, social and cultural rights, as the major purpose of the United Nations Organization

Response by the author, Fernando Teson:

I appreciate Elias Davidsson comment on my piece, and I’m glad we agree on the general validity of the doctrine of humanitarian intervention. I have elsewhere offered a full defense of the war in Iraq as humanitarian intervention, ( so here I will confine myself to one point in reply.

The standard proposed by Davidsson is too stringent, because no government places human rights at the top of its international agenda, and that’s the way it should be, since democratic governments owe a fiduciary duty to its citizens to protect their security. As the world stands now, the U.S. is as good as it gets in terms of defending human rights. Maybe Norway or Belgium are more “pure” but they are unwilling or unable to fight for freedom. The war in Iraq is waged against the most virulent form of Islamofascism, against people who hate democracy, hate human rights, hate the West, and are willing to destroy it (as they have abundantly shown). If fighting them is not a war for human rights, I don’t know what is

The Security Council’s Obligations of Good Faith

Elias Davidsson

The Security Council’s Obligations of Good Faith

Florida Journal of International Law, Summer 2003, Vol. XV, Number 4, pp. 541-574

Abstract: The paper first demonstrates that the members of the United Nations Security Council are under a legal duty, both under the Charter and under general principles of international law, to carry their treaty obligations in good faith.  The paper then proceeds to identify situations in which the Council might violate this legal obligation, namely when determining a “threat to the peace”, when selecting measures to respond to such a threat and when deciding when the threat has ended.  The paper then proceeds to review apparent violations by Council members of their duty of good faith and demonstrates that due to the inherent nature and composition of the Council, its good faith cannot be presumed.  In order to prevent the Council to become, itself, an ongoing threat to international peace, a number of measures are proposed. 

Full article attached as PDF


‘War’? Legal Semantics and the Move to Violence


The Attack on the World Trade Center: Legal Responses



‘War’ – Legal Semantics and the Move to Violence

by Frédéric Mégret (*)

Full text available: PDF format
European Journal of International Law, Vol. 13, No. 2, 2002 

The use of the word `war’ to describe the anti-terrorist efforts in the wake of the 11 September attacks has gone virtually unchallenged. The term, however, is not innocent and carries far-reaching implications for international law. The article examines how its use can be said to fit into a broader strategy of legitimization of armed violence. `War’, it is argued, prepares the ground for what is basically an ideal-typical state of exception, which portrays the sovereign as the ultimate saviour of liberalism at home. But the domestic implications of the `war rhetoric’ are probably less important than the international ones, where `war’ can be manipulated to provide an escape route from the constraints of international law. This it does by reframing both the temporal and spatial coordinates of self-defence in a way that fundamentally loosens the framework of collective security. By the time the term’s use has been ratified by law, it will have served to exclude or distort alternative ways of understanding and dealing with the problem of terrorism, namely, as a criminal and political issue. Whatever else military action against terrorist targets may achieve, it is far from clear that placing such action under the banner of `war’ will serve the cause of suppressing terrorism.


(*)Doctoral candidate, Universit? Paris I (Panth?on-Sorbonne) and Institut Universitaire des Hautes Etudes Internationales, Geneva. The author would like to thank Florian Hoffmann, Peer Zumbansen, Bardo Fassbender, Jean Terrier, Ingo Hueck, Graciela Nowenstein and Jochen von Bernstorff for their comments on previous drafts of this article. This article was submitted on 14 November 2001, the day the Northern Alliance captured Kabul and it has not been possible to include significant changes thereafter.