Friday, July 20, 2007
I'm not a fan of international law, said "law" being merely a compendium of the arbitrary decrees of those despots who proceeded us -- but Adrian was kind enough to highlight some interesting developments in the field that related to the Military-Industrial-Sysadmin-Complex (MISC) that is needed to shrink the gap.
Specifically, he pointed me to the article "For a Capability to Protect from David C. Gompert in Survival 48(1). The article highlights two stages of post-Westphalian thought: the right to protect and the responsibility to protect, as well as an emerging one: the need for a capability to protect.
Gompert emphasizes that the idea of a United Nations standing army is going nowhere, and cannot provide true worldwide peace-enforcing capability.
The MISC is such a capability. We need a flexible force, supported by industry, the bureaucracy, and the government, that can "surge" peace into any area of the globe.
Saturday, November 18, 2006
"Chertoff says U.S. threatened by international law," Reuters, 17 November 2006, http://www.alertnet.org/thenews/newsdesk/N17445714.htm (from Democratic Underground).
Secretary Chertoff has joined Supreme Court Chief Justice John Roberts in attacking "international law":
A top Bush administration official on Friday said the European Union, the United Nations and other international entities increasingly are using international law to challenge U.S. powers to reject treaties and protect itself from attack.
"International law is being used as a rhetorical weapon against us," Homeland Security Secretary Michael Chertoff, a former federal appellate judge, said in a speech to the Federalist Society, a conservative policy group.
Chertoff cited members of the European Parliament in particular as harboring an "increasingly activist, left-wing and even elitist philosophy of law" at odds with American practices and interests.
But he said the same pattern could be seen in the policies of the United Nations and other international bodies.
"What we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principals -- separation of powers, respect for the Senate's ability to ratify treaties and ... reject treaties," Chertoff said.
While it's bastard twin foreign law has been criticized by the Attorney General and Justice Scalia, it is good to see so-called "international law" attacked as well.
International Law and Foreign Law are both attempts by legalistic factions who cannot impose their will democratically, so they use legal-sounding words to try to get in through the back door. The world is better off without them.
Monday, July 31, 2006
Hezbollah v. the Lebanese Nation, Hezbollah v. the United Nations
In a recent post, Mark described the violence Hezbollah intentionally inflicts on the Lebanese people
As Hezbollah is a semi-4GW organization, it obeys no recognized rules of warfare yet escapes much in the way of blame, and intentionally seeks maximum civilian casualties among Lebanese Shiites from Israeli retaliation, there are certain political realities that cannot be ignored:
Yet the common people of Lebanon are not the only victim's of rejectionist violence in Lebanon's Civil War. The Party of God is also targeting United Nations missions:
The geographically-aware Catholicgauze has blogged on the War in Lebanon before.
Wednesday, June 28, 2006
... the ICJ has interpreted the Vienna Convention to preclude the application of the procedural default rule to Article 36 claims. The LaGrand Case... and the Case Concerning Avena and other Mexican Nations... were brought to the ICJ by the governments of Germany and Mexico, respectively, on behalf of several of their nationals facing death sentences in the United States. The foreign governments claimed that their nationals had not been informed of their right to consular notification. They further argued that application of the procedural default rule to their nationals' Vienna Convention claims failed to give "full effect" to the purposes of the Convention, as required by Article 36. The ICJ agreed, explaining that the defendants had procedurally defaulted their claims "because of the failure of the American authorities to comply with their obligation under Article 36."... Application of the procedural default rule in such circumstances, the ICJ reasoned, "prevented [courts] from attaching any legal significance" to the fact that the violation of Article 36 kept the foreign governments from assisting in their nationals' defense...
Under our Constitution, "[t]he judicial Power of the United States" is "bested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Art. III, § 1. That "judicial Power... extend[s] to... Treaties." Id §2. And, as Chief Justice Marshall famously explained, that judicial power includes the duty "to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law "is emphatically the province and duty of the judicial department," headed by the "one supreme Court" established in the Constitution.
It's not a slam dunk. An even cooler court would have gone farther in showing "leading international law scholars" that their goal of a Progressive Ulema is unachievable. Still, a large majority agreeing that ICJ rulings are not binding is a good thing.
Thank you, Supreme Court.
Wednesday, February 22, 2006
"Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao do Vegetal et al.: On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit," by John Roberts et al, Supreme Court of the United States, 21 February 2006, http://www.supremecourtus.gov/opinions/05pdf/04-1084.pdf.
While not quite as succinct as Justice Antonin Scalia's criticism of international law, Chief Justice John Roberts has officially put "international law" in its place
John Roberts: Lord of International Law
Sunday, January 08, 2006
I just finished The Fog of War, which had been recommended to my by Curzon of Coming Anarchy. A brilliant documentary of Robert Strange McNamara which puts Vietnam in the context of his early career. Highly recommended. The parallels in mannerism to Donald Rumsfeld are striking. And Lady of tdaxp declares McNamara "so handsome!"
Meanwhile, at The Duck of Minerva, Dr. Dan Nexon and I have entered a discussion following his post, "States of exception (part vi)".
Dr. Nexon argued that
no detainee – even if suspected of war crimes such as the murder of civilians – may be subjected to torture, corporal punishment, or humiliating or degrading treatment
The basis for this appears to be the United Nations Convention Against Torture, which reads (Article II, Section 2):
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
However, UNCAT appears to be overridden by the Charter of the United Nations, specifically articles 51 and 103
Article LI, which guarantees the right of self defense
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
And Article CIII, which asserts the primacy of the Charter over all other treaties:
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
The UN Charter Against Terrorism absolutely forbids torture.
The UN Charter absolutely affirms the right of self defense.
Absolutely forbidding torture is an abandonment of self-defense
The UN Charter absolutely trumps the UN Charter Against Terrorism.
(Long-time tdaxp readers will not I asked Big Cheese a similar question).
Thursday, December 29, 2005
Dr. Demarche of the American Future has asked “What is the international community?”
"My questions for the project are: is there such a thing as “the” international community? If so who are its members? In what arenas does this community act? What is America’s role in this community, and that of the U.N.? Finally, what is the future of such a community when Iraq is terrorized by those who oppose democracy and no “community” reacts, genocide in Rwanda goes unchecked and N. Korea is still run by a madman?"
The Glittering Eye, Mark from ZenPundit and Callimachus at Done with Mirrors have given their take, so here’s mine:
The international community is that society of actors that can influence the relations between states.
Almost by definition the international community includes states themselves. The United States is clearly able to influence relations between the United States and Mexico, just as Palau is able to influence relations between Palau and Iraq. A Realist would say that States are the only members of the international community.
Additionally, many Inter-Governmental Organizations (IGOs) are also part of the international community. The most powerful of the are the World Trade Organization, the International Monetary Fund, and the World Bank. These economically-oriented institutions provide cash and new markets for States, so it is profitable for most States to join them.
Likewise, powerful Non-Governmental Organizations (NGOs) are members of the international community. These include such household names as processes.
A "Liberal Institutionalist" would say that States, NGOs, and IGOs are teh only members of the international community.
However, as a Constructivist would say, the international community is broader than this. Some individuals have the ability to change the friction of states directly. Even if all believed he was speaking only for himself, Bill Clinton's words would still carry weight because of his personal friendships and acquaintances. So would ’s. Properly speaking, we are all part of the international community, each and every one of us, and all of our networks and groupings, without exception.
However, the power law applies to the international community, just as it applies to the blog community. Perhaps only the uper .001% of humans and networks effect interstate relations substantially on their own It is this top tier -- the USAs, WTOs, the al Qaedas -- that we think of when we say "the international community"
As to what the future of the international community is...
What will be will be. The community will continue to exist as long as states interact with each other. Bad things go on in good states, worse things go on in worse states, and the international community abides. There are seriously plans to make the international community more effective, but no part of the international community's definition requires the international community to be a force for good in any way.
Sunday, November 27, 2005
During his trip, he presented him with a plaque
Several days before the trip, I suggested that we should present Ambassador Bolton with a plaque to thank him for his blunt words about North Korea, as well as his efforts to make human rights an element of U.S. policy toward the North. I designed the plaque with one photograph, which you see here . . .
. . . and Lincoln's "half slave, half free" quote. When I presented it to him, I stated that we shared his appreciation that some issues really are black and white. I told Amb. Bolton, not quite half-jokingly, that I hoped he would put it where the Chinese Ambassador would see it. I won’t print his response, however; I’m not sure he’d want me to.
Over at Josh's discussion thread, one of Bolton's staffer's announced that the plaque is now prominently displayed in Ambassador Bolton's office!
I am the staffer who had the pleasure of meeting with you and your colleagues in New York a few days ago. While I will steer clear of the debates in this thread, I would like to confirm that the plaque you presented him with is now on display directly outside of his door.
Friday, November 18, 2005
" OFK, N. Korean Freedom Coalition Meet with Ambassador John Bolton," by Joshua, One Free Korea, 17 November 2005, http://freekorea.blogspot.com/2005/11/ofk-n-korean-freedom-coalition-meet_17.html.
Fellow South Dakotan Josh of One Free Korea recently nabbed an interview with Permanent United States Representative to the United Nations Ambassador John Bolton.
Our agenda was the horrific state of human rights in North Korea, a situation that I believe to be the worst on earth today, and perhaps as bad as any we have seen since the demise of the Khmer Rouge. Such comparisons inevitably invite questions about the metrics of human misery, but I’m prepared to defend my position. I begin with the butcher’s bill: during the 1990’s, approximately two million North Koreans starved to death in a famine that was easily preventable at best, and intentionally inflicted at worst. One could point to a wealth of circumstantial evidence from international aid groups and refugees proving that the regime uses food as a weapon of class warfare, but conclusive evidence may have to wait for the fall of the regime. And then, of course, one can discuss the concentration camps, public executions, infanticides, and the constant, stultifying repression anchored in a complete isolation from the outside world.
Of those facts, Ambassador Bolton is well aware. Our agenda was to discuss ways to translate those facts into concrete, effective, and nonviolent action. Clearly, our movement is growing and gaining traction, even in some unlikely places, but the progress is never fast enough for the lives we could be too late to save. Every last member of our delegation is opposed to invading or attacking North Korea. I suspect the same also goes for Ambassador Bolton. We were seeking what Rabbi Abraham Cooper of the Simon Wiesenthal Center calls “behavior modification.”
Read the whole thing
My view? Kill Kim.
Saturday, November 12, 2005
Note: This is part of a series of reviews for Blueprint for Action. The introduction and table of contents are also available.
"Rome Statute of the International Criminal Court," copyright United Nations, last updated 21 February 2001, http://www.un.org/law/icc/statute/romefra.htm.
"Blueprint for Action: A Future Worth Creating," by Thomas Barnett, 20 October 2005, http://www.amazon.com/exec/obidos/tg/detail/-/0399153128/102-4292267-8637755?v=glance [author blog]
The International Criminal Court, an intergovernmental organization that has refused to promise not to prosecute Americans, is an important part of Dr. Barnett's "Blueprint for Action"
It features in his sixth stage of "successfully processing politically bankrupt states"
6. The final step in the process would involve the criminal prosecution of the indicted / apprehended parties in the International Criminal Court (ICC) located in The Hague, Netherlands (52)
And while Barnett argues for American, and International Peacekeeper, immunity from ICC prosecution
My prediction is this: While the U.S. Leviathan [blitzkrieg] force will never come under the purview of the ICC -- because it will remain deeply embedded in military law -- the far more internationalized SysAdmin [peacekeeper] force, including U.S. components, must reach some blanket-clause protection regarding its activities in the Gap. The reality is that the ICC was not set up to prosecute the "crimes" of peacekeepers and Core military personnel intervening inside the Gap, but rather to extend the Core's principles of war crimes into the Gap and, in this way, provide some sense of international consequence for what in these chronic civil wars, long-running terrorist campaigns, and brutal dictatorships. (68)
He assures us the ICC won't be complicated by entanglements with the United Nations:
Moving on to the last of the six pieces in this A-Z system, I personally place a strong emphasis on funneling any "suspects" we pick up in this process toward the International Criminal Court, an institution that is both free and independent of the UN system as was recently set up specifically to target individuals for prosecution of genocide, crimes against humanity, and related war crimes. (67)
To make sure his point is clear, Barnett later reiterates his suggestion
As for the trials, prisoners will need to be funneled toward the International Criminal Court, which is perfect for this sort of thing. But again, the Untied States, plus the Core group as a whole, would need to reach some direct modus vivendi with the court, and if that didn't work, the group would simply need to set up its own. But my guess is that the ICC would jump at the chance to be accredited in this additional manner, because so long as the United States considers it more of a threat to its ruling making than avenue for rule sharing with the rest of the Core, the ICC will remain vastly underutilized. And no, that wouldn't get us in bed uncomfortably with the UN, because the ICC is independent of the UN. (132)
Hmmm... regular readers of tdaxp may recall a note from International Law & Organization which seems to contradict this...
UNSC can vote to delay ICC proceedings for 1 year, renewable
So what does the Rome Statue of the International Criminal Court say about this? What does the ICC say about its relationship with the UN?
The States Parties to this Statute, ... Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole, (Preamble)
Hmmm... that's a little vague... and it does say "permanent"
The United Nations can refer cases to the International Criminal Court:
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: ... A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations (Article XIII(b)).
And, like my notes said, can delay prosecutions... indefinitely
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. (Article XVI)
The treaty also mentions special roles for the Secretary-General, the General Assembly, and other UN organs, but the Security Council's power to start and stop prosecution hardly makes the ICC "free and independent of the UN system" or even just "independent of the UN."
Except maybe in UN speech.
I am disappointed in Barnett's misleading statements. Perhaps he did not read the ICC treaty and has not read any good summaries of it. Or he very selectively used one word in the (non-binding) Preamble, "independent," while ignoring the substantial dependency of the ICC outlined in the treaty itself.