30 Mar War Resolution Proposed by ASIL Executive Council
Yesterday the Executive Council of the ASIL passed the following resolution for consideration by the full membership at its annual general meeting later today. As a member of the Executive Council, I am privy to the details of the meeting yesterday. But I will refrain from providing the back story about a meeting that is not open to the full membership.
Although many of my colleagues on the Executive Council whom I deeply respect voted in favor of the resolution, I personally did not vote in favor because I fear the resolution will be perceived as politically motivated, something that a diverse organization such as the ASIL should assiduously avoid. If the goal of the ASIL is to reach out to leaders in the Administration and Congress, this is not the way to do it.
The proposed resolution reads as follows:
1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum)
2. Conduct of armed conflict and occupation is governed by the Geneva Contentions of August 12, 1949 and other international law (jus in bello)
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts or their subordinates.
7. All states should maintain security and liberty is a manner consistent with their international law obligations.
UPDATE: At the annual meeting of the ASIL the members voted by a significant majority in favor of adopting the resolution. In the discussion, those who spoke in favor of the resolution outnumbered those who opposed it by approximately 2-1. The most prominent opponents of the resolution who spoke at the general assembly were Stephen Schwebel and Michael Reisman. The most prominent proponents of the resolution who spoke were Anne-Marie Slaughter and Hans Corell. More later.
“People Should Obey the Law” is Political. Discuss. Exactly which of the following statements from yesterday’s proposed resolution of the American Society of International Law (ASIL) is political?1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum) 2. Conduct of armed conflict and occupation is governed by the Geneva [Conventions] of August 12, 1949 and other international law (jus in bello) 3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted. 4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law. 5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces. 6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts or their subordinates. 7. All states should maintain security and liberty is a manner consistent with their international law obligations.(Leave aside the possibly Freudian slip by the scribe, who wrote “Contentions” for “Conventions” in paragraph… Read more »
Dear Professor Alford,
I really wonder to which of these points you object. If there is a problematic point, it is number 6, namely the restriction of command responsibility to “some” (which?) circumstances. But that is hardly what you had in mind. If the administration cannot endorse these obvious points, reaching out to it may not be worth while – it would damage international law to the point of uselessness.
Best wishes,
Andreas Paulus, Ludwig-Maximilians-University, Munich
Dear Roger (and, for that matter, anyone voting on the resolution),
The proposed resolution strikes me as legally unimpeachable, ethically sound, and eminently humane: sufficient reasons alone or collectively to trump concerns over annoying the powers-that-be in Congress and the Administration (I suspect they’re rather thick-skinned anyway, and will soon get over it). Sometimes the leadership necessary for long overdue social change must come from below, from within the various publics and groups sited in the nodes and interstices of a civil society inextricably intertwined with the legal and political order. We might theorize this as the ‘valorization of subjugated discourse(s)’ or the recognition that micro- and meso-political practices and ideas can have generative and reverberative effects on the larger social order. In such cases it might be best to understand a correlative obligation arising from this recognition, that is, from the awareness that there is some power in our hands capable of being wielded on behalf of the common or greater good. It therefore behooves us to responsibly exercise that power. The failure to do so makes one all the more complicit in a state of affairs that is politically barbaric, ethically regressive and, plainly and simply, inhumane.
With increasing global integration, economically and otherwise, there is a commensurate increasing tension between national law and the intrusion of transnational issues into the (formerly) exclusively national sphere. Roger, your article, “Misusing International Sources to Interpret the Constitution,” provides an insightful analysis of some of the associated complex issues for Constitutional law. One can also consider an associated dilemma as follows: giving effect to national law may have extraterritorial effects, but failing to give effect to national law may be viewed as giving extraterritorial effect to another law. The list of resolutions approved by the ASIL membership is an example of the complex interplay, and the corresponding tensions created, between national and international law. When is it proper and appropriate to suggest (at least implicitly) that norms of international law can be viewed as a constraining force on national prerogative? Genocide was cited today by Justice Kennedy as an example of one such norm, whose application works not only interstate, but upon and within States. At a time when the United States is and remains the ascendant power in this culturally diverse yet increasingly economically interdependent world, I take it as a good sign that ASIL has applied (and reaffirmed)… Read more »
The whole process regarding the resolution this afternoon struck me as intensely narcissistic. Do we really believe that this statement is going to affect anything? I do appreciate the institutional concerns but to be honest I was pretty close to voting no simply because of the absolute uselessness of the resolution. It’s a statement of law – nobody could disagree with the legal principles enshrined though perhaps with some of the wording. Open any volume of the AJIL and you’ll find these principles written there.
It seems obvious to me that the ASIL believes, rightly, and after Gibson above, that applying and reaffirming ‘the self-critical lens of certain international law principles against which to map national sovereign behavior’ is not without some purpose, although its effects in the short-term may not be easy to ascertain. Given the manner in which there is some circulation among and feedback between academic and political elites in our society, the characterization of this resolution as ‘absolutely useless’ seems unduly skeptical and cynical. While I was not privy to the ‘whole process’ that led up to its approval, I doubt its passing and publicity is accurately described as ‘narcissistic.’ This may be stretching it a bit, but I think the articulation of these principles falls within the rubric of, or is at least analogous to, the jurisprudential role of judges and publicists, i.e., ‘the teachings of the most highly qualified publicists of the various nations’ as, in Malcolm Shaw’s words, ‘a subsidiary means for the determination of rules of law.’ With Mark Janis, it’s important to recall that ‘the decisions of judges (including arbitrators) and the doctrines of scholars have played a surprisingly important part in the development of international… Read more »
If the goal of the ASIL is to reach out to leaders in the Administration and Congress, this is not the way to do it.
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