The book discusses the Alvarez-Machain case: A doctor was accused of torturing an American narcotics agent who was operating in Mexico (the doctor was Mexican). The US government then kidnapped the doctor and brought him to trial in the US. This was clearly in violation of international law, but yet the US court interpreted the extradition treaty not to explicitly forbid kidnapping, so it allowed the case to be tried.

The ICJ is located at the Peace Palace, in The Hague, Netherlands. The UN Charter, in articles 92, 93, 94, 95, and 96 describe how the ICJ will operate. Basically: all members promise to abide by ICJ decisions, and the Security Council has the power to enforce ICJ decisions. However, enforcement does not occur. Libya didn’t turn over terrorists after an ICJ ruling in 1988, South Africa refused to honor the 1971 Namibia court ruling, and we’ve already discussed the US and the Nicaragua case. Also, small third world states are hindered by the expense of trying to file cases -- especially if it is unlikely to yield a result that can be guaranteed. There are attempts to rebuild a UN Trust fund to make it easier.

The ICJ has fifteen judges, each from a different state, must be a UN memberstate. They serve nine year terms, and are elected by both the General Assembly and Security Council. Every third year, five justices are elected. They must be qualified in their countries, be of "high moral character," and learned in international law. Many have been lawyers, law professors, some have been heads of government. They are not national representatives, and cannot consult or advise.

The optional clause: Although the language gives the ICJ jurisdiction and suggests a move towards mandatory state acquiescence to ICJ authority, that was infeasible, and thus the optional clause gives states the right to determine if the ICJ should have jurisdiction on a case. States themselves define ICJ jurisdiction either narrowly or broadly (some small states say they will accept any ICJ jurisdiction in a case involving themselves, hoping to set an example or start a trend; large states tend to be more narrow). That’s one reason why you can’t have mandatory jurisdiction: states don’t define it the same way, so states could have advantages.

The ICJ can both adjudicate contentious cases, and can issue advisory opinions on cases involving general questions of international law in cases states do not want ICJ jurisdiction. Often these advisory opinions do settle disputes, or can be called for by the UN General Assembly to assist in its deliberations.

Bottom line:  As long as states distrust each other and do not agree on giving the ICJ full power, it will be a limited court, useful in settling many disputes, but not all -- and not major disputes involving powerful states. It could in time grow to be used more, especially if the states through the UN General Assembly and Security Council give it more power. Furthermore, its opinions are evidence (but not having the power of precedents) in cases of international law.

The ICJ can only hear cases states agree too. The US had agreed to allow the ICJ to hear a case where US actions to overthrow Nicaragua’s Sandinista government were attacked as illegal by the Nicaraguan regime. The US decided to withdraw from the case, but the ICJ ruled anyway, saying a state can’t withdraw once it agrees to have the court hear it. The Court ruled against the US, as mining of Nicaraguan harbors, support for the Contras, etc. were deemed illegal by international law. The US ignored the Court. Individual US citizens in Nicaragua tried to force the Reagan Administration to comply. The decision: individual citizens can’t use national courts to try to force compliance with an ICJ decision (except perhaps in extreme cases involving universal disapprobation). Only the aggreived nation can do so, and must do so in an international, not national court.

What does this decision mean? What do you think of the US refusing to recognize the ICJ decision?

The importance of Nazi Germany is clear in the issue of human rights: You can’t leave dignity of individual solely up to the state, is an international issue. In the past, it was assumed that jus cogens was enough to protect basic human rights; there were shared norms throughout the world (e.g., Europe being the focus) which states knew they couldn’t violate.

However, two things happened: 1) by the early 20^th century sovereignty as a legal principle drifted more towards absolute sovereignty, less encumbered by general norms, especially as regards internal activity; and 2) high tech ideological bureaucratic states begun to rationalize acts based on abstract collective principles rather than focusing on traditional moral norms. This led to Stalin’s purges of 20 million, the holocaust which killed 11 million, and totalitarianism in many states.

Custom arguably assured sovereignty, but also included certain ideas of human dignity. That was built on to condemn Nazi Germany. The next step was to build a sense of human rights based on treaties and agreements. Since there is no cultural agreement overall as to what human rights entail, and one country can’t promote its own concept above all others (at least not legitimately), how do you agree on human rights?

Consider:

United States: focus on political rights, such as free speech, freedom of religion, freedom of the press. Based on liberal ideology, or rights to life, liberty, and property. These rights are considered primary, since if you have them, you are free to work for material prosperity and gain.

China/Communist/Third World: Political rights are meaningless if there isn’t an ability to live, if people don’t have the basic material standards. Hence an emphasis on economic rights, or rights to shelter, health care, basic nutrition. These rights are considered primary because if you don’t have them you can’t survive and exercise political rights.

Basic instruments:

UN CHARTER

Article 55: UN shall promote universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

Article 56: UN members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.

Here at least we see universalism as an original point -- all humans should be equal, the fundamental freedoms won’t be guaranteed to only particular racial, ethnic, or religious groups. Furthermore, the members pledge themselves to work together to achieve this within the UN. That, for instance, makes it possible to condemn genocide like that which occurred in the holocaust.

Universal Declaration of Human Rights, 1948, UNGA Resolution, adopted without dissent, though abstentions from Soveit bloc, Saudi Arabia and South Africa. First comprehensive human rights document on a global scale.

Note: This was a statement of principles, not a requirement of international law. The goal is to work towards this.

Note the fundamental principle: universality, and individuality -- individuals are given rights which are universal, human rights do not change depending on your status in society, wealth, or where/what kind of state or territory you live in. the WTO.

Modern notion: starts with Christianity, a major influence on current thought, and in a sense, on international law. No surprise, perhaps, that Woodrow Wilson was quoting the Bible, and using it as an inspiration. "They shall beat their swords into plowshares" at the UN.

Problem: early Christianity seemed pacifistic, and at the very least, once Rome turned Christian, one could no longer claim that Rome deserved its fate of falling to the barbarians. In fact, defending Christian values against pagans seemed necessary. But how to justify this, especially when apparent commands to be pacifist exist all over the New Testament (they cut some of the out when they decided the canon, but even that wasn’t enough).

Jump: St. Augustine. Founder of just war tradition, and ideas underlie much thinking to this day, even if Aquinus and Grotius move away. Lived 354-410, in the declining years of the Roman Empire, during which (383) the Empire converted to Christianity. A major change -- the empire accepting the religion of a rogue Jew, put to death in a distant colony. But early Roman converts and a strict organization made the church a force, and as Rome declined, more and more people turned to Christianity.

BUT: Earth vs. Heaven As Rome fell, the move to Christianity didn’t end the Goth attacks; in fact, things were getting worse. Christians had (and later continued) to simply disengage from the world, but now that didn’t seem as possible. Why wouldn’t God help Rome now that it had converted?

City of God. City of Earth. City of God might be perfect, but the city of earth was not. Through his fall, man needs to earn redemption, and that is often through suffering. That means wars and trails serve a purpose, and that while here on the Earth, one can’t behave as if we weren’t in this world. Indeed, to do so would defeat the purpose of our being here.

NOTE: Other religions try to avoid this problem by going towards asceticism -- deny worldly pleasures, politics, and the like. Monks, etc. Augustine disagrees, as on page 39:

"Humans must continually struggle, often violently, to achieve peace that, when attained, is at best imperfect and ephemeral. As a social being, a person’s desire for peace is natural (and therefore good), as a fallen being a person’s cupiditas makes achievement of peace impossible."

Here, war could even be seen as a moral imperative; fighting against injustice, for redemption’s sake. Recognizing that in an evil world, such actions may be necessary.

Why this religion stuff? In essence, even if we throw out the religion, we still have the same issue. We know what is good, and can imagine what is right and just. But yet we don’t get it in the world. What do we do? Augustine’s answer seems very common sensical: we recognize that in a dirty world we sometimes have to act dirty ourselves. Yet, in order not to become as bad as those against whom we struggle, we have to be very careful, and have rules and procedures in place to govern our actions. To that end: the just war theory.

Danger...Christian "jihads," which did indeed develop.

Feudal conflicts led Christians into the monestaries, away from the world, a move Augustine encouraged. But as time went on, the Church became a more dominant religion, trying to extend political control as well. Ideas less philosophically beautiful, but still some attempts -- weapons not allowed, seasons and days of conflict prohibited, rules about treatment of non-combatants, Augustine’s ideas more or less guiding all of this.

Gratian of Bologna: Rediscovered Roman law, really, and started to separate law from theology in the mid-12th century. This not only was important for international law, but started a rediscovery of the ideas of ancient Rome, including what would lead to the renaissance. Especially helped rediscover the Greek Philosopher Aristotle, and lead to the next great thinker in Church tradition: Saint Thomas Aquinas.

Augustine: God’s laws -- perfect. Earthly life, only a shallow reflection. Did not try to discern natural laws for behavior and the like, that was not sensical by his ideas. But with a dose of Aristotle thrown in, Aquinas took the issue in a different direction.

Aquinas: We can use reason to determine ethics, its not just from God. That reason means trying to discern natural laws. Argument: Man has access to God’s law by finding natural law, which means laws which reflect natural inclinations of human behavior.

Important twist: This allows a real secularization of ethics. Before: you couldn’t reach ethics via God alone, you couldn’t try to think them through. But Aquinas argues you can -- God gives you hints via natural life, but natural law exists. That can be arrived at secularly, and in fact, underlies all human morality, even non-believers. Note the continued need for a religious foundation: if you didn’t assume a God to show his eternal law via natural human inclinations, why should one consider them an ethical guide? However, that problem didn’t apply yet, since people weren’t doubting God.

Here: similar ideas, but also notes that a "last resort" notion -- or the idea that a peaceful way out must have been offered. Also:

- cannot allow a defensive act or just war to become aggression itself

- proportionality, can’t over do it, basically.

Also adds the idea of the double effect: Namely, intentions are important, not necessarily results. Unintended bad effects might be permisable if it is necessary to achieve the more important god effect. You can kill in self-defense if htat simply happens in the act of defending yourself. If you shoot for the hand and hit the head, you were not morally culpable, though if you shoot for the head and hit the hand, you are.

Moving closer to modern ideas.

Francisco de Vitoria interesting.

Comes up with the notion of collateral damage, sets up ideas that Grotius would later build upon. But de Vitoria’s motive was to react to the horrors being inflicted on his spanish countrymen against the Indians in the new world.

Christian theologians: very dismayed by the acts of barbarism taking place in the new world, defended by claims that the Indians were pagan savages, who need to be controlled. Christianity was even being used as a tool for evil and greed, and de Vitoria and others wanted to find a way to condemn that. Yet needed to address the issue in terms of the philosophical system growing out of Augustine and Aquinas.

He notes: "the aborigines undoubtedly had true dominion over public and private matters, just like the Christians....Spain had no right to wage war against hte Indians and that neither the Emperor nor the Pope could authorize such a war." If attacked, the Spanish could defend themselves with a purely defensive war.

Note the move here: recognizing the rights of others to govern themselves. In essence, de Vitoria was bring into existence a real recognition of the notion of sovereignty. Note: it’s not just relations with others and how to govern whether or not a war is just, but simply whether or not one has the right to expand and fight against other groups on different tracts of land because they were pagan.

Simple: its aggression. But why is aggression wrong? Before: not considered, it was wrong. But here there were attempts to justify on the basis of the paganism of the Indians. De Vitoria simply asserts that they have dominion over themselves and thus have rights.

ALSO: concern for innocents -- need to protect women, children, farmers, foreign travelers, clerics, and religious persons, and the rest of the peacable population. They shall not be harmed. Along with Aquinas double effect, he recognizes that might not be possible, there may be collateral damage. So what many now see as an almost obscene term came from a desire to establish that protection need be made.

Also: notion of practicality: subjective calls about war and justice may not be objectively true due to human fallibility, different rules. Goal: to try to limit war’s damage

In essence, just war theory becomes a war minization theory, or damage management. Theology more secular, more tied to and reacting to real world events. But as moves become more pragmatic, idea of an ethical base, and abstract standard becomes more elusive.

De Vitoria thus a bridge from the feudal world to the modern world. Hits on what would become sovereignty, advances the secularization and pragmatization of ethics, and even adds humanism -- dislike of what is happening to the indigenous peoples of the Americas.

First modern move: Hugo Grotius, father of international law.

Lived and wrote during the 30 years war, the period which led to the Treaty of Westphalia, and the emergence of the modern sovereign state.

War had one lesson for Grotius: you couldn’t rely on god for authority. Why? Both sides did, and that led them to feel tha tthey had to vanquish the other side. No rules exist if you believe you are waging a holy war. One doesn’t compromise truth and God. Yet obviously both sides can’t be right. Need a way to govern such an instance. In other words, to look to political authority and law instead of the Church and an increasingly impotent just war theory.

Builds on Aristotle, Aquinas, devides law into natural law, and volitional law.

Natural law: again, law determined by nature. Volitional law: law which does not go against natural law, but is not demanded by natural law. Move to secularization continues...

The just war theory posits war as just only under seven conditions:

1. The aggression being combated must be threatening the life or existing rights and properties of innocent people.

2. The defense of these innocents must be ordered by a legal political authority.

3. Every other possibility to defend against aggression must have already been exhausted.

4. The purpose of the military intervention must be limited to defending against aggression and cannot turn into aggression on its own. (The goal must be peace and justice)

5. Success must be likely.

6. The principle of relativity of means must be considered: the risk of the military defense must be measured against the risk of damage to the aggressor. (The evil of fighting the war cannot outweigh the evil which would be caused by not fighting)

7. In order to assure justice while fighting a war, the effects of military activity must be limited to military purposes, and the immunity of noncombatants must be able to be guaranteed.

The UN’s laws follow to some extent principles of the Just War theory. First, the UN Charter is very specific in prohibiting the use of force. Article 2 states in part: "All members shall refrain...from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the United Nations." There are some exceptions:

First is Article 51 of the UN Charter, which allows for self-defense. As stated, any armed attack may be met with force to defend against the attack, until the Security Council has time to act. States routinely redefine "self-defense" as "threat." If another state is a threat (it has attacked before, it is arming guerillas, it has sent a hostile force en route, etc.) that is not the same as self-defense. An armed attack must have commenced. Still, with weapons of mass destruction, many argue that one needs to have the concept of anticipatory self-defense. The Cuban missile crisis is an example: the US argued that missiles in Cuba were a direct threat to the US, as they could wipe out cities, and thus for reasons of self-defense the US was justified in implementing a blockade. This is controversial. The book notes that Article 53, which allows regional arrangements to act to prevent a "renewal" of aggression would seem to suggest Article 51 doesn’t allow anticipatory self-defense.

Collective Self-Defense: In regional alliance structures An example was US funding of the Contras in Nicaragua. Although the US withdrew from the case, the ICJ ruled that US claims of collective OAS self-defense (protecting other OAS members from a future Nicaraguan attack) was not enough. (Regional collective security organizations like NATO, etc., are allowed -- the US does not have to be attacked directly in order to defend another NATO ally).

Note other limits: armed reprisals are not allowed (e.g., the bombing of Libya in response to a terrorist attack in Berlin, or the attacks on Iraq since the end of the Persian Gulf war, or the attack on Panama in 1989 are legally suspect). If an individual is attacked in a foreign country, that is not the same as an attack on ones’ country (you can’t use that as a reason to go to war). You can’t use self-defense to settle territorial disputes (Falklands Islands case -- Argentina’s invasion). The book goes through other limitations: clearly, international law has a limited and specific definition of self-defense, even if there are arguments to the contrary and states often ignore those limits (especially superpowers).

A note on UN peacekeeping: The security council can act to allow peacekeeping operations, and that has been done throughout the history of the UN. Peacekeeping, however, requires that the UN; 1) be welcome -- both sides must want the UN there and agree for its presence; 2) countries volunteer forces and resources, something often difficult to achieve since few countries want to risk the lives of their soldiers to help other countries keep peace, Also, due to the Uniting for Peace resolution, the General Assembly can act to create peace keeping operations even if the Security council cannot -- an interesting twist. The UN has had around fifty peace keeping operations over the last fifty three years, starting in the Balkans (the Greek Civil war) and Palestine (monitor the truce after the 1948 war). A huge chunk of the operations have been in the Mideast, and the number of operations have increased dramatically since the end of the Cold war (more than half). Some have been very successful, but of course peacekeepers can be ordered out of a place, and are not meant to be peacemakers.

The goal of the United Nations and international law has primarily been to prevent the use of force between states. Rules limiting when war is permissible are tight for that reason: ONLY self-defense, or an approved Security Council action. Here reality is still distant from theory, though some hope the end of the Cold War can change that.

Why laws of war? Isn’t war a loss of all civility, shouldn’t they be cruel, intense, and so horrid no one wants them? That is a common argument in the abstract, but in reality that would mean anything goes, and most countries decided that since war cannot easily be abolished, then one should at the very least minimize the damage done by war. The laws of war are obviously hard to enforce (you’re already at war!) and traditionally reflect norms, something like a code of honor. However, there have been attempts to codify it.

Land: Laws and norms prohibit the use of bacterial and chemical weapons. Hitler considered that in WWII, but decided against it (though perhaps more out of fear of the consequences than any desire to follow international norms -- but that is a powerful reason for a norm to develop, to avoid negative consequences).

1998 Rome statute for the ICC:

The following are outlawed

Acts from the 1949 Geneva convention: willful killing (e.g., not just killing in the act of battle, but killing someone captured or defenseless), torture, biological experiments, willfully causing great suffering or serious bodily injury (again, willful means outside normal battle conditions), extensive destruction and appropriation of property, not justified by military necessity, carried out unlawfully or wantonly (booty, etc.), compelling a prisoner to serve as labor for a hostile power; willfully depriving a prisoner of war or rights of fair trial, and unlawful deportation or confinement, or hostage taking.

Other violations: directing attacks against civilians not taking part in hostilities, or civilian objects (sewage treatment plants, etc.), attacking vehicles or institutions involved in humanitarian missions (hospitals, etc.), launching an attack that will create widespread loss of life to civilians, excessive in relation to military objective, attacking towns, villages, and other areas undefended, wounding or killing someone in the act of laying down their weapons to surrender, making improper use of a flag of truce or surrender to trick the other side, or wearing false insignia, such as a humanitarian or UN emblem, attacking religious, educational, or historical sites, physical mutiliation, scientific experimentation, treacherously killing or wounding individuals from a nation hostile to the enemy, seizing property beyond necessities of war, pillaging a town or place, compelling people of state being occupied to participate in the war, use bullets designed to expand or flatten in the human body, using weapons which are designed to cause excessive injurty such as projectiles and other forms, commiting outrages, such as rape, sexual slavery, forced prostitution, forced pregnancy; starving or impeding survival of civilians, consccripting children under 15.