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November 13, 2005


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Speaking of context, one big problem with the growing realm of "customary international law" is that it's decontextualized from interstate relations. That is, it's made up by insignficant nations and NGOs, who are trying to foist it upon actual nations who have not acknolwedged its ever-changing, ever expanding au courant notions of international criminal law.

In earlier times, events like the Spanish indictment of Pinochet and the Belgian courts' indictments of Sharon would not have happened. International laws were largely reciprocal in nature, and indictments against officials--whether Presidents, Kings or Ambassadors--could have easily resulted in military retaliation. The notion of sovereign immunity grew up so that sovereign leaders could travel freely in peacetime without having to answer to another country's idiosyncratic notions of justice and injustice. Europeans know that they can pick at America and its soldiers with near impunity.

The problem with the growing realm of "customary public international law" is that its chief advocates are effectively unburdened by its impact, acting more like NGOs than nation-states. European countries increasingly outsource military matters to the United States or outsource them to coalitions with the UN imprimatur. So when they increase burdens on fighting forces and presume to question other nations' internal security tactics, there is no countervailing burden on Spain and its forces. For the last 30 years, after the last of the wars of national liberation reached a conclusion, most European nations have hardly done anything to offend anyone, because they have retreated from the realm of international security.

Laws of war and international law rules are designed to channel the evils of war and prevent harm to civilians. They were never meant to be suicide pacts or mere aspirational commitments; they were self-enforced contracts that entailed swift and harsh penalties to those that would try to gain an unfair advantage over another belligerent, such as in the summary executions of Operation Grief commandos in the Ardennes during WWII for their unlawful tactic of wearing American uniforms. In other words, in matters of national security, no nation was expected to tie its hands behind its back. If both sides reciprocally observed basic requirements--such as wearing uniforms and marking hospitals and ambulances among others--then both sides benefit. But all participants were entitled to punish harshly those that would engage in "perfidious" acts. European regimes increasingly want to impose higher burdens on the US without a countervailing benefit, such as the absurd demand that unlawful Al Qaeda combatants be given full POW protections. No regime fully participating in the rough and tumble world of the international order would have dreamed of making such a demand in the past, not least because it did not want to face the difficulties such a system would create for its own forces. Now, however, European regimes feel increasingly free to impose demands and sanctions on the conduct of the real actors on the world stage, not least because no Spanish soldier will be in a position to violate international law. Europe gets to induldge in pacifist fantasies largely because it exists under the American security umbrella. Yet it now wants to bite the hand that feeds it because it has grown incresaingly divorced from the sensible balance of traditional international and law of war rules.

The false dilemma of these caes is what to do about a Milosovic or Hitler or Hussein. The answer is simple; the people of a reconstituted Serbia, Germany, or Iraq should try these men for their crimes against their own people. In addition, their victims from other nations, victorious in war, are allowed to try them for war crimes against other belligerents and have always been allowed to do so under the law of war. The recent arrival is the notion that belligerents can try leaders for internal actions (either after victory or an armistice) and the related notion that any nation anywhere can try a foreign leader or a foreign soldier for acts in a conflict in which it was not involved. Because war is a messy affair with decisions made under a great deal of uncertainty, it's important that cobeligerents make these decisions. Such co-belligerents know more than others that it could easily be them in the dock. For trials during active hostilities, often such accountability is mutual and therefore conducted with a sense of exacting fairness, lest one's own POWs be subjected to similar ill treatment and humiliations. Undoubtedly, some injustices will escape punishment under the classic international law view, especially for international actions during peacetime. Notice, however, the selectivity of punishment. It is the Pinochets and Sharons and Americans that get the brunt of harassment; ex-communists from China and Russia, as well as numerous third world leaders, escape all punishment and concern. Pas d'ennemi à gauche ! This likelihood of selectivity and politicization of any law of war decision when one lacks a direct involvement is the strongest reason for limiting the reach of disinterested courts looking for dragons to slay.

Consider the recent Spanish Court's decision to indict American soldiers for the killing of a Spanish journalist. The practical impact is that these American soldiers will likely be unable to travel internationally, because they will soon face an international arrest warrant. In the future, whole units could be indicted as "criminal organizations," in the manner of the criminal indictment at Nuremberg of the SS. Soon, the US will at one and the same time be expected to preserve international peace and conduct operations that serve its own interests, but only in a way that meets with the approval of uninvolved nations on the sidelines. It truly would be a matter of the Liliputians tying down Gulliver. The time for a serious cease and desist demand from Spain is now. If Spain has the poor sense to arrest these individuals, then they should be freed by military intervention if necessary. It's a principle very much worth fighting for. It's the chief principle upon which our country was founded: the right to secure an independent existence through self-government free from the burdens, demands, and conflicting interests of foreign regimes.

joe m.

I personally can not see the moral difference between the leader of a country authorizing the use of force in a military method, therefore killing civilians, vs. a common thug in a gang deciding that a drive-by shooting is in order, therefore killing civilians. I recognize the demands of leadership, and if anything, I think those demands should expose leaders to a higher standard of scrutiny then they would face under normal circumstances. They are responsible for the safety of more people, as well as having the authority to do more good or bad. On a whole, I think that seeing leaders like Sharon or Pinochet nearly held responsible for their crimes is much more likely to make us all more safe in the long-term. It will make war more increasingly unlikely, because all leaders will know that they share liability for crimes that happen under their command. World Bank research consistently confirms that civil wars rage endlessly because the leaders of poor countries are almost always immune to the suffering caused by their decisions, as they live comfortably off of the rewards of its brutality. This idea has obviously been applied to the business community as well, as increased liability for CEOs and Board members increases the likelihood that companies do not commit fraud. Until leaders are not allowed to act with impunity, it seems unlikely that suffering (whether poverty, disease, or war…) will not be eliminated. This, of course, is the essence of democracy.

That aside, I commented on a previous post by professor Posner, and it seems that I generally agree with him on issues of pragmatism. In that respect, I do not expect to see Bush, Clinton or other leaders of powerful countries ever tried for their crimes. Considering how the USA has worked to disrupt so many important international treaties lately, I would probably agree that it is not even helpful to attempt to criminalize such people, as they have too much ability to cause harm. Even though it is clearly more just. It is quite unfortunate really.

I disagree with Roach's basic view overall, and including the basic assumption that "European countries outsource military matters to the United States" or that there is a "security umbrella" provided by the Americans. I would guess that your nationalism toward the USA brings you to that position, rather then an objective look at a cross section of the views provided by those countries under the "security umbrella." Two quick examples: 1) Most European countries were against the Iraq war, and even now, all (including the British) seem to openly admit that it has made them less safe. It is hard for me to believe that any country would be happy giving away its own safety and sovereignty to make foreign policy and military decisions, if it had a free choice. Professor Posner was correct when he said "other states have no interest in pressing the question because they would not want to acknowledge that their own leaders could be tried and convicted on similar theories, nor would they want to risk losing American aid or cooperation." I would just add that it is especially self-interested of the political class, because only they could possibly be harmed by "similar theories." 2) With the logic you use, it could easily be argued that the USSR provided a "security umbrella" to many countries that did not have the freedom to decide their own foreign policy. Though this example is more extreme, my point is that the root of this example seems to me to make similarly little sense as your argument about Europe. A Russian would quickly argue that they were defending other countries, while someone from the West would argue otherwise, and vise versa. I think that you see this "security umbrella" as positive and the "pacifist fantasies" of Europe as negative simply because it is in the interests of the USA to have that view. If you are striped of this bias, the Emperor stands naked in lue of the destruction it has ravaged across South America, East Asia, Africa and the Middle East. Even allowing that it was acting on the side of justice (For example, the Palestinians are on the side of justice, but that does not make suicide bombing innocent Israelis a just act).

To get back to professor Posner's argument, I disagree when you say that, "One might think that in a world in which war criminals lead the major states, it is not fair to try just one of them (Saddam) but not all the others." I disagree because I think that holding Saddam (in this example) responsible for his crimes is a just act in and of itself. It is not dependent on other people being held responsible for other crimes. Just as Bush being held responsible for his crimes would be a just act in and of itself, if it were to happen. I do not see the need to extend the relationship between individual cases like you have. The criminals deserve to be held responsible for their acts because the acts themselves were criminal, not because they were committed within any particular framework of law or justice. Maybe this view of mine breaks down the system of international law as a system, I am not sure. But it is hard for me to be able to say that this or that action is unjust or in need of prosecution based on the laws available. They are unjust because of the harm they caused, regardless of how they are prosecuted (similar to your previous post’s discussion of whether Saddam needs a fair trial. I think.).

For my money, the most critical statement by professor Posner was, "that states that annihilated hundreds of thousands of civilians with fire bombs and atomic bombs and (in the case of the Soviet Union) engaged in aggressive warfare, massacred thousands of POWs, and brutalized whole populations, had no business accusing the defendants of engaging in criminal behavior." I am very sympathetic to this argument, but in the end I probably do not agree. Because as I said above, I see both sides as being criminally responsible, independent of the actions of the other. Except for the obvious bias in the fact that it was literally the victorious trying the conquered, I don't see how the crimes of the one impact the guilt of the other. So I am happy with Japanese being tried for their crimes. I am unhappy that the Americans were not, but that does not change my view of the Japanese.

Actually, this is my most basic problem with the war in Iraq. As someone with some relationship to Iraq and the Middle East, in a vacuum, I would love to see every government in the region toppled and replaced. If the question of the Iraq war was simply one of whether Saddam should go or stay, there is hardly a person you can find that would think it best for him to have stayed. But it was the intermingling of issues that made/makes the war such a moral dilemma. Not that anyone wanted to see Saddam continue to destroy Iraq, but that it was hard for us to accept the pre-war suffering of the Iraqi people replaced by a deepened suffering that has come out of continued war. Or, to see one criminal replace another criminal as ruler over this continued misery. Even today I am still conflicted. But I want to see Saddam held responsible irrespective of the other crimes…

That said, I just want to add that I would like to thank professor Posner for these discussions. They are very important and interesting.


Joe -

You write: "I personally can not see the moral difference between the leader of a country authorizing the use of force in a military method, therefore killing civilians, vs. a common thug in a gang deciding that a drive-by shooting is in order, therefore killing civilians."

And I think: Well, no need to read anymore.

And I suggest: Look harder and maybe you'll see the difference.


The difference with the criminal gang analogy is that the criminal is subordinate to society. State leaders are all equal to one another, and international law does not allow equals to judge equals.

As for the Warsaw Pact, the Soviets brutally crushed dissent in '56 in Hungary and '68 in Czechoslovakia. France left Nato in the early 1960s and the US did nothing. So to say that the two are just equal and it's a matter of perspective is a totally unsustainable exaggeration.

Bill Baar

This a little long and dense for me. I did pull up Rehnquist's Speech of May 17, 2004 (link is http://www.supremecourtus.gov/publicinfo/speeches/sp_05-17-04a.html )about Chief Justice Jackson, the Nurmberg Trials, and Justice Douglas

He quotes Stone's biographyer writing of Stone's reseravations about the War Crime trials and Jackson's participation.

Stone said he wouldn't have been distribed had Allied power been ... "openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime."

Kevin S.

I think you might be proved wrong Mr. Posner.

"There is something like a system of international criminal law, most clearly embodied in the Rome Statute for the International Criminal Court, which, however, does not apply to the United States because the U.S. is not a signatory."

Poland, Romania, and Afghanistan are all signatories. There is evidence that the CIA and uniformed military are actively engaging in torture in these countries. According to Article 12 of the Rome Statute, one of these States Parties or the Prosecutor of the ICC can refer the case to the Court because the crimes are committed on land upon which the ICC has jurisdiction. Furthermore, the ICC has been the EU's baby. If the EU wants to get involved and bar the ascent of Romania on the basis that... unless... we might have a trial on our hands.

Mr. Posner, I am not a lawyer, but I am not a layman when it comes to the Rome Statute (though all I did was intern for the NGO Coalition for the ICC for a while). Americans know very little about this institution and it seems that American legal academics have little interest to learn. I don't understand why you decided to write such a long and detailed blog posting about something you don't seem to hold much curiousity about. I sometimes blog about what I know nothing about, but (1) I'm not a professor at one of the greatest universities in the world, (2) no one listens to me anyway and (3) my father isn't like the biggest and probably most googled name on the 7th Circuit. I think you might take some heat for this, because I'm pretty sure that a lot of what you write is just wrong. But then again, no one in America knows the difference.

I don't know if George Bush is a war criminal. I do know that he is responsible for crimes against humanity (if you count torture among these). You can make the argument that if Bush is guilty of these things, then so are Clinton, Truman, etc. But who cares? Bush is in office. This is the first time in history that law can reign in some one who is actively abusing and misusing the power of his office. Laws are usually used to keep the downtrodden in line. I speak from personal experience and what I've witnessed while growing up a poor minority in America. Selective prosecution is inherent not to law, but the practice of law. Law is a wonderful thing. But lawyers have exercised it in a manner that is despicable.

Now we can use this law which you practice to demonstrate that no one is above it and that if you approve torture, you damn well better have a defense stronger than "we were going to take the fight to the terrorists." George Bush doesn't seem to know the difference between Al Qaeda and Saddam Hussein's Baath Party. Our soldiers and intel officers, who we've entrusted to his command, are torturing shop-keepers and college students. They were never given the training that would have endowned then with the requisite capacity to discern.

George Bush's ignorance shouldn't be a legal defense and he shouldn't get any special treatment just because he is a small man in a high office because the troops that are going to hang for this won't be permitted to use that defense. Sure, what I'm saying is politically charged, but this is not law we are talking about, this is the application of the law. That the law is applied in a political manner is indisputable.

But there are also moral dimensions to the law. From a moral standpoint, if our president is put on trial and removed from office because of pending prosecution by the ICC, then the ICC will have saved the US from itself. We have over-extended ourselves and it seems that no one has figured this out yet. Democrats, Congress, the press are all blind to this. So the White House will just keep pushing this over-extension until our international prestige and soft power are completely spent and our economy implodes from neglect. Just like the Soviet Union. I'm not someone who considered Ronald Regean to be an American hero, but I love my country. If someone stops the Republican leadership before it destroys my country, I will be tremendously greatful.

I tried weaving together several arguments here, and you might agree with none of them because I spread myself too thin. But the simple story is this: the ICC could have jurisdiction on Bush's crimes and might try him at some point.

criminal background checks

very well said.

Melanie Stephan

What if the Iraq's came over here and hung George Bush. He may not be the brightest star in the sky but you can't hang someone for not being bright. Besides most of these good people voted for him. I didn't but that is besides the point. The way most people pick on Presidents it is hard to get someone smart to run for the office. Anyway I think that would really piss most of you off if the Iraq's hung George. I know I would be. Melanie Stepahn

Melanie Stephan

You can read more of what God had to say during the month of Aug. 2007, on this website "Non-Prophet, Are you going to Hell?" Melanie also gives PROOF that God made contact on this site. The proof is in the story of 3 famous people Mike Douglas, Merv Griffin and Nancy Reagan. I hope you get it. God went to a lot of trouble to get his message out. He is also worried about all of his creations. That means he thinks about you too.

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