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Tony D'Amato

A final blog (for now)

by Tony D'Amato

I’ve talked about Muslim women and international law. Where are they? Where am I? I am sitting here at my keyboard, a lump of protoplasm surrounded by skin. International law is external to me. The Islamic people are external to me. Do I have a right to interfere with these external things? Do they have a right to interfere with me?

The word “right” shows up in these questions. Does the right come from them? Or does it come from me?

If international law says that the Islamic people and I have rights, who authorized international law to say it? In his comments to my blogs, “Obtestor” keeps saying that it is the women of the world who have told international law what to say. It is they who have decided what everyone’s rights shall be. Is Obtestor articulating a powerful insight here? Or is he just trolling for a date?

If my rights are part of my belief system, where did I get my belief system? Most belief systems are formed in childhood. In the Muslim world, boys and girls are raised together in the women’s quarters. When a boy is born, there is great fuss and celebration. But the women do not seem happy when a girl is born. They convey their displeasure to all the boys and girls who are in their care.

A young boy is fussed over and spoiled by all the adult women. As a result, the boy usually becomes a brat. He hits his sisters, steals their food, and behaves like a tyrant toward them. His mother and all the adult women back him up. If he hits a girl who is younger than he is, and hits her for no reason, the women will yell at the girl and maybe hit her. They will tell the little girl that she has displeased the boy, even if she hasn’t.

Finally, when the boy is six or seven he’s sent to the men’s quarters to live with a tutor under the authority of his father.

We might say, looking at all of this, that the women are merely preparing the children for the life of extreme inequality that lies ahead of them. The male person can do whatever he wants; the female person must learn to like it, whatever it is.

Who am I to criticize these people? Hasn’t my belief system been instilled in me just as their belief system was instilled in them? When I was a child, I was told, by adults I trusted, all about God. I was told that I could pray to God and that He would listen. I prayed a lot. I tried to start conversations, but I knew that God was a little too busy to answer me.

However, I no longer believe these things. I have trouble even figuring out what the concept “God” might mean. I don’t say that God doesn’t exist, but I also don’t say that God exists. I think I was very lucky to be able to read books and be exposed to ideas, and given enough time to think in solitude, that I could mentally disengage from these childish things.

I don’t think that Muslim women have the opportunity to disengage. Their childhood brainwashing is just too thorough. What the young Muslim woman said in my previous blog are things she deeply believes. She has been sincerely brainwashed.

I don’t think I was quite as thoroughly brainwashed as a child because I’ve rejected all the things I was taught. I would not have been able to reject them if I had been as completely brainwashed as the children of Islam.

I have evolved a perspective of the world and my place in the world that I believe is not entirely the product of what any other person or group of persons have ordained for me. I think I see the world more objectively than Muslim women see it. Of course, I could be wrong about this, but just the possibility that I am wrong doesn’t make it wrong. Someone would have to prove to me that I am wrong.

So here’s how I come out. I may be a creature of my belief system, but it’s MY belief system. And an important part of it is that no human adult should ever have legal or moral superiority over any other human adult.

I look at the Qu’ran. Even though Ali in a comment says I should be taking seventh century texts with a grain of salt, he would probably be even more outraged if I instead quoted a later translation. I am also sure that the same words I am quoting are read today by millions of Islamic people. As you recall, those words of the Prophet are: “Men have authority over women because God has made the one superior to the other.”

And I say to Muslim women: Reject these words. Do not allow a seventh century Prophet to run your life.

And I say this because I cannot say the opposite without denying my own belief system. I cannot say the opposite without denying my own humanity. I believe I am right and their system is grievously wrong.

Most important human right in our lifetime, Part 3

by Tony D'Amato

I suppose we can divide human rights into two types: those that people want, and those they don’t want. In the preceding parts of this thread, I’ve set out what I think is one of the hardest cases of the second type. I’ve pictured a Muslim woman (taking the term Muslim generically for present purposes—there are of course many Muslim sects with many variations of practices) who, in the exercise of her own volition, chooses to be legally inferior to men. I’ve tried to articulate her position, which is a composite of the views I have heard after many years of listening and study.

However, the International Covenant on Civil and Political Rights provides for equality before the law for all persons and prohibits discrimination on the ground of sex (Article 26). It also provides for the equal right of men and women to all civil and political rights (Article 3). Thus there is a clash between this norm of international law and the preferences of Muslim women.

Exacerbating this clash is the fact that Muslim men are united with Muslim women on this score: both sexes believe that men are superior to women—legally, socially, physically, and according to the tenets of Islam. Moreover, their nations stand behind them. Today, as I write these words, the newspapers are reporting the final text of the proposed Iraqi constitution. It provides in Article Two (1)(a) that “No law may contradict Islamic standards.” Let’s look at the relevant Islamic standard provided in the Qu’ran:

Men have authority over women because God has made the
one superior to the other. Good women are obedient. As for
those from whom you fear disobedience, admonish them,
forsake them in beds apart and beat them.

Quibbling aside, it seems to me that no fair-minded person can compare the texts of the ICCPR and the Qu’ran and conclude that they are substantively compatible with each other.

In approaching the problem of a clash between the law and deeply held religious/cultural practices, let us briefly consider two easier cases. The first case is that of Christian Scientist parents refusing to let their six-month-old child be operated upon to remove an intestinal blockage. Here the law intrudes: it prohibits the parents’ interference and requires that the operation proceed. The second case is that of female circumcision. Even though this practice is widespread in Muslim communities throughout northern Africa, the law on the books in those countries forbids it.

These cases are easier because our case of the inequality of Muslim women is generally accepted by all persons living within the nation that authorizes the inequality. Thus not only do we have a clash between international law and religious/cultural practices, but we also have a clash between international law and a state’s domestic jurisdiction. On all counts, this clash is so enormous as to lead us to revaluate our commitment to the rule of law.

I think revaluation is always healthy. The “law” should not blindly dominate our lives. I’ve argued elsewhere that even the word “should” should not apply to legal commands. A rule of law, as Kelsen pointed out, is simply a calculation: “if you choose to do X, the state will do Y to you.” There is no “should” or “ought” about it at all.

If Kelsen’s essentialist view is accepted, then we have to go outside the law to see whether the law “should” be obeyed. Morality (at least as Kelsen sees it) is external to the law. Thus it is morality that provides the “should” factor. But morality, by its very nature, cannot apply to every law that is enacted without ending up contradicting itself. Thus morality must pick and choose among the legal rules. Some “ought” to be obeyed; others (like the law requiring apartheid decades ago in South Africa) “ought not” to be obeyed.

Hence, in comparing the ICCPR with the Qu’ran, “the law” will only take us a small part of the way. What we really have here looks like a clash of morality. How do we deal with that?

One way to deal with it is through moral relativism. We might say that although women and men ought to be equal before the law, this equality applies only in parts of the world. In other parts, where both men and women agree that women ought to be inferior to men under the law, then THEIR morality dictates a result opposite to the one we would reach.

I think moral relativism is incoherent. I believe there is a clear moral answer to the clash between equality and inferiority for women. I believe in moral absolutism, which I acknowledge up front is an arrogant doctrine. I’ll try to defend my position in my final blog, coming soon to a theatre near you, either Wednesday or Thursday of this week.

Most important human right in our lifetime, Part 2

by Tony D'Amato

In my attempt to understand the mind-set of a Muslim woman, I will put into one combination speech the words of many Muslim women who have talked to me over the years, plusa lot from the scholarly literature of Western observers—primarily women—who have studied the lives of Muslim women:

We know more than you think about American women. We read your magazines and watch your television programs. More than half your marriages eud in divorce or abandonment, with devastating consequences for the children. In the thirty-year period from 1973 to 2003, over 44 million abortions were performed in the United States. Think of all the suffering and trauma hidden behind those statistics. In my country, the divorce rate is less than one per cent and there are hardly any abortions—only those necessary to save the life of the mother.

Instead of getting rid of a wife, don’t the men in your country simply add another one?

Polygamy makes everyone better off. Let’s say a man is not pleased with or satisfied by wife #1. So he goes out and marries wife #2. The deal certainly makes him better off, although he has to pay for it—a point I’ll come to in a minute. It makes wife #1 better off because she doesn’t have to “fake it” any more with her husband, and when he’s upset, he’s got a relief valve over in wife #2’s bedroom. And wife #2 herself is better off: she preferred a polygamous marriage to remaining single. No one forced her to make that choice.

Now let me get back to the man paying for a second wife. You cannot understand the situation of a woman in an Islamic country without knowing some of the basic things about property rights. A single woman usually has some personal property consisting of monetary assets and jewelry, and maybe land, depending on what her parents have given her and their economic status. When she enters into marriage, her personal property remains her own; her husband cannot take any of it. And she is under no obligation to use it for family purposes. For example, if the family is starving, she doesn’t have to spend any of her own money for food, though of course she may want to do so. The husband in a marriage is legally responsible for the welfare of the family. He must go to work if the family needs food or shelter. So you can see that marriage is a very good economic deal for the woman. She gets support and welfare throughout the marriage and does not have to spend any of her own money. That’s why I mentioned that the husband will have to pay for the luxury of having a second wife. Most husbands can’t afford it, and so polygamy isn’t much of a concern in practice.

In a magazine a few months ago I saw a panoramicphoto of the interior of a huge shopping mall in your country. There were shops of very kind selling clothing and goods from all over the world. There were over a thousand people in the picture. As I looked more closely, every one of them was a man.

Men like to shop. Besides, as I said, it’s their money. If a woman wanted to shop she would have to use her own money. Why not let her husband shop for the both of them on his money?

But wouldn’t you like the freedom of choosing your own clothes, shoes, accessories, that sort of thing?

It’s not freedom at all; it’s a nerve-wracking experience. If I were married, I’d have to think, “Will my husband like what I’ve chosen? If he doesn’t, it’s worthless; I’d have to leave it in the closet.” So the efficient solution, as you Americans might say, is to let him pick out my clothes and accessories, because that way he’s sure to like them. Besides, the silly fool gets a kick out of giving gifts.

But suppose you do want to go out and shop, or at least look around. You have to be completely covered in a burkah. Isn’t that oppressive?

No, it’s sexy. Girls can hardly wait till they get their first chador and burkah, because at that moment they become real, desirable women. They spend months picking out the lace for the burkah, because fine imported lace is the most important distinction between burkahs. Men are very good at spotting the women who have the best taste in burkahs.

How can a man find out what a young woman looks like?

Marry her. OK, maybe that was a bit glib. But the more profound truth is this: by being covered in black, Muslim women have achieved perfect sexual equality. Compare this to Western women. I’ve read that above 80% of American women are very unhappy with their own bodies, and more than 50% are actually ashamed of their own bodies. It’s worse for them when they see a television series like Sex and the City where the four friends are ridiculously good looking. But also the models, and magazine covers, and movie stars contribute to the neurosis and depression of the vast majority of young women in America. Young women feel that nature has played a cruel trick on them by giving them unattractive bodies. They should take a clue from us and solve their problem by getting themselves completely covered from head to toe whenever they go out of the house. Here are some statistics for you. The United States has a female suicide rate of 4 per 100,000. The more “liberated” countries are even worse: France has a rate of 9, Finland 10, Cuba 12, the Russian Federation 12, and Japan 13. Let’s compare that with the female suicide rate in Muslim countries: zero.

Well, you’ve made it difficult for me to argue that you are in fact oppressed and that your basic human rights are being unconscionably violated. But that is the argument I intend to make in Part 3, the final installment of this thread. My argument will be helped—or hindered, as the case may be—by readers’ comments on the first two blogs.

The most important human right in our lifetime

by Tony D'Amato

If we consider the quantity of people affected and the quality of the effect, there is no greater injustice in the world today than the denial of equal rights for women. I’m talking specifically about women in fundamentalist Muslim countries in the Middle East. I am also talking about women in fundamentalist Catholic countries in Latin America, although the situation in the Muslim world is worse.

Add in the negative effect upon men. I for one find it painful to spend any time in a country that regards its women as a sub-species of homo sapiens. I cannot enjoy a few hours in such places, not even in their airports on my way somewhere else. How can any male person be happy when there are women in his vicinity who at that very moment in time are the victims of barbaric discrimination?

But what about the feelings of men from Islamic countries who come to the United States for college or graduate work? Don’t they feel equally unhappy in the presence of American women? No, they don’t. They enjoy it here very much. And they acclimate themselves almost overnight to our egalitarian culture and “groove” with it.

I did some work a few years ago for some women who were in “Divided Families,” as Ted Koppel called it his Nightline show that interviewed me. The scenario is more or less the same irrespective of the Middle Eastern country we’re talking about. An American woman meets an Arab in the United States, they get married, she converts to Islam, and they eventually move to the husband’s home country. Here’s a typical story told to me by one of my clients. The man she met in engineering school was a “real Omar Sharif type”—dashing, sophisticated, charming, and totally attentive to her. He shared fully in their household chores, was a great dad when they had a child, never argued with her, and worked out their minor problems on the basis of mutual respect and understanding. When they arrived back at his familial home in Riyadh, he started beating her. He locked her in her bedroom, placed tin foil over the windows, took away the light bulbs, and left her in the sweltering darkness. No food, a glass of water, two or three days of this.

I repeat, this is a typical story. All my clients, and all their friends who married Islamic men, had almost identical experiences.

The young wife would next seek out the grandmother figure of the family group. The matriarch would give her friendly advice: just please your husband and do everything he says. Everything will turn out just fine. But, the young woman asks, what about the beatings? “He still loves you. He is only disciplining you.”

Another of my clients (I call them clients because I had a confidentiality relationship with them though my work was pro bono) could stand her situation no longer. With meticulous planning, she left her house one morning when her husband went to work, made it to the school where she had excuses prepared to take her children home, got into a car driven by a friend, and made it to the American embassy in Riyadh. The Americans working in the embassy could not have been more sympathetic or helpful, she told me. She did not understand why it was taking them so long just to put her and her children on a plane to the United States; she had the money for the tickets. Cables hummed from the United States to Saudi Arabia and back. Finally, on the fourth day, two Marines assisted her and the children into a Jeep. She asked if they were going to the airport but they said nothing. They pulled up in front of her home, where her husband was standing there, glaring at them. She looked at the soldiers. “We’re sorry, ma’am, we’re only doing our job.” They left her and the children there and drove away.

Clearly there are two totally different Weltanshauungen here: the Western worldview and the Muslim worldview. They seem remote from each other both in space and in time. Is communication between the two even possible?

The lawyerly thing to do is to begin by trying to understand the other side’s point of view. I have a few thoughts about this which I’ll post tomorrow.

Does international law bind superpowers?

by Tony D'Amato

I continue to be amazed when educated people say that international law is not binding on the United States, or that international law cannot be enforced against a superpower, or that the United States can violate international law whenever it wants to, or that international law doesn’t exist.

Let’s take the strongest of these claims: the enforcement claim. Let’s stipulate that if international law cannot be enforced against a superpower, then it doesn’t exist.

Hans Kelsen, whose fundamental position was that law is nothing more nor less than a coercive system, argued in 1948 when he drew his attention to international law that coercion in international law takes the form of forcible reprisals. A state commits a delict (in Kelsen’s useful terminology) when it violates a rule of international law. The state that commits a delict opens itself up to a reprisal by other states. A reprisal is a kind of countermeasure, a tit-for-tat retaliation. The most important characteristic of a reprisal is that it would be a delict if standing alone. What saves it from being delict is that it may permissibly be taken, under customary international law, in retaliation for a delict.

Kelsen came to the conclusion that international law is a coercive order because it is enforced through the reprisal mechanism. I think I will have no difficulty in persuading you, at least, that this is exactly what happens under a treaty.

Suppose nation A decides to violate Article 13 of a treaty it has entered into with states B, C, and D. Under the general customary rule of reciprocity, A’s violation of Article 13 immediately releases B, C, and D from observance of Article 13 in their dealings with A. Of course, A already took this into account when it decided to violate Article 13. A went ahead with the violation because it calculated that its benefit in violating Article 13 exceeded the cost of releasing B, C, and D from their corresponding obligations of Article 13.

But treaties are “package deals.” State B, for example, might have signed on to the treaty because Article 13 was especially beneficial to itself even though Article 8 was costly even though it was especially beneficial to A. All four nations were able to agree on the final treaty language because there were goodies in the treaty package for all of them.

So now A comes along and decides to abrogate Article 13. We have just postulated that B is the leading beneficiary of Article 13 and would not have signed the treaty if Article 13 had been omitted. Therefore, if B’s remedy for A’s breach were confined to the reciprocal remedy—that is, the release of B from Article 13—that would not be good enough. Article 13 was never onerous to B in the first place, it was only onerous to A.

Enter the customary international law of treaties. Thousands of years ago, and well before the Vienna Convention on the Law of Treaties, the customary international rule developed that allowed a treaty party to retaliate for a breach by disavowing a different provision in the same treaty (in the earliest law, a breach permitted the other party or parties to withdraw completely from the treaty).

This is the quintessential case of a Kelsenian retaliation. In an article spelling all this out, I called it a “tit-for-a-different-tat.” Of course, the reprisal has to be proportionate to the initial delict; if the reprisal went too far, it would itself constitute a new delict. I considered the problem of runaway retaliation in the article.

Now there is only one analytical step left: we go from treaty law to customary law as a whole. Consider all of international law as a huge interconnected system, very much like a huge treaty with every nation as party. A delict by one state invites a reprisal from another state (usually the injured state). In this theoretical model, all the rules of international law are enforceable by tit-for-a-different-tat reprisals.

Suddenly we should see how easy it is to enforce international rules against the United States. There are thousands, perhaps millions, of rules of customary international law, and additional thousands or hundreds of thousands of rules in treaties we have ratified. All these rules give legal entitlements to the United States in millions of areas and circumstances, just as they also give rise to obligations of obedience. The result is that most of the time we do not break rules of international law because of fear of retaliation. As Louis Henkin famously said, “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

OK, you want me to be specific. Exactly where and how is the United States vulnerable to forcible reprisals? Certainly by nothing so crude or futile as other countries’ dropping bombs upon the territory of the United States, even though this is the first thing that people think of.

The assets and values of the United States are not confined to its territory. The United States is vulnerable because of its investments and nationals located all over the world. The United States has major financial investments in foreign-owned companies in nearly every state. More importantly, at any given time there are hundreds of thousands of American citizens either traveling or residing abroad. The Census Bureau reports that in 1998 there were over 56,000 Americans traveling abroad (compared to 46,000 foreign tourists visiting the United States). Even more striking are the figures of American citizens residing abroad as reported by the Bureau of Consular Affairs in 1999. There were 27,600 citizens residing in Buenos Aires, 55,500 in Sydney, 250,000 in Toronto, 48,220 in Hong Kong, 75,000 in Paris, 138,815 in Frankfurt, 45,000 in Tokyo, and 441,680 in Mexico City. Among the smaller countries which could become “hot spots,” the Bureau reports 646 American citizens living in Albania, 1,320 in Bangladesh, 1,600 in Bosnia, 440 in Congo, 2,000 in Cuba, 10,000 in El Salvador, 546 in Gambia, 11,000 in Haiti, 18,000 in Israel (Tel Aviv), 8,000 in Jordan, and 6,639 in Kuala Lumpur, and I’ve taken those examples from just the first half of the list. To these figures must be added the many thousands of American military personnel and their dependents on foreign bases.

How many American nationals must a country threaten to make the United States take notice? Just 50 were sufficient in 1978 when Iran arrested that number of American diplomatic and consular personnel in Tehran. The hostage-taking led to severe repercussions in the United States including perhaps the defeat of presidential incumbent Jimmy Carter in the election of 1980. Of course, the World Court ruled specifically that the Iranian hostage-taking was not a reprisal for anything the United States had done. The result, as I spelled out in the article previously mentioned, was that the United States went ahead with its own reprisal against Iran, one that was completely successful in getting all the hostages back unharmed.

Superpower vulnerability is enhanced by the bluntness of the military instrument. For example, even though the United States could have annihilated Iran with a volley of nuclear ICBMs, such a wholly disproportionate retaliation would not have saved the hostages. The global scatter of assets and persons from all nations has virtually assured the universal efficacy of the international reprisal system. Indeed, in a shrinking world, the reprisal system is likely to become increasingly efficient. Perhaps there is a correspondence between the efficacy of peaceable reprisals and the recent findings that there has been a steady decline in the global magnitude of armed conflict following its peak in the early 1990s.

The dark heart of war crimes

by Tony D'Amato

When I was a kid with my eyes glued to the silver screen, I wondered why Ingrid Bergmann and Humphrey Bogart were taking their sweet time in getting out of Paris. There they were with German tanks proceeding relentlessly toward them and the noise of artillery fire in the distance. But where was the Luftwaffe? Where were the Messerschmidts? Why weren’t they dropping bombs on Paris? A thoroughgoing bombardment might have crushed the French spirit and destroyed their will to resist.

Many years later I found the answer. It was indeed true that behind the scenes some of Hitler’s advisers and generals were urging him to bomb Paris and thereby bring the war against France to a speedy conclusion. It was Hitler alone who resisted. And it was definitely NOT because he was afraid of committing a war crime.

Hitler, the would-be architect and lover of Gothic buildings, knew that in a week or two all of Paris would belong to him. Why should he want to destroy his Cathedral of Notre Dame? Why should he want to topple his Eiffel Tower?

The Fuehrer was rediscovering what the ancient Hittites of Mesopotamia knew about wars. From their peace treaties preserved for us in clay tablets, we see their elaborate provisions for memorializing a truce by the use of war reparations and oaths not to resume fighting. The purpose of war, as Quincy Wright summarized with blinding clarity, is to win the subsequent peace. Most of the wars of the past millennium were army vs. army, and not army vs. civilians. It was General Sherman and General LeMay, as I argued in a recent post, who chose the latter. They reintroduced primitive and unspeakable barbarity into modern warfare.

We can think of the Lieber Code, the Hague Conventions of 1899 and 1907, and the more recent Geneva Conventions, as laying down parameters for confining war to force vs. force and prohibiting force vs. value (value being civilians and non-military targets). The phrase “not justified by military necessity” is one way of characterizing the exclusion of “value” targets. War may still be hell but it is not pointless. (Even hell, as theologians envisage it, is not pointless).

So we come down to two competing mind-sets (as often is the case in theorizing about human action). The first is to win the war by destroying the enemy’s capacity to fight (force vs. force). The second is to win the war by destroying the enemy’s will to resist (force vs. value). The rationale of war crimes is to permit the first and prohibit the second.

And that brings us to the title of this blog, the dark heart of war crimes. Consider the case of General Curtis LeMay, who was the subject of one of my previous blogs. LeMay knew that his orders for napalming innocent women, children, and the elderly, constituted war crimes. He even boasted that if the Allies were to lose the war he would be prosecuted as a war criminal. These were macho words at the Officers’ Club after a half-dozen whiskeys. But it wasn’t braggadocio that convinced the brass back in Washington to let him go ahead with his napalming. Rather, it was a diabolic calculation. The reasoning was as follows: the one hope the Japanese can cling to in their peril is that we will obey the laws of war. But if we violate them deliberately and directly target innocent civilians, then we will destroy their will to resist.

In this way, the dark heart of war crimes is to violate them and break the enemy’s spirit. When the military command of the United States allowed LeMay to retrofit his planes with napalm bombs, pure lawless evil was unleashed on earth.

Hiroshima and Nagasaki: war crimes?

by Tony D'Amato

Should President Harry S Truman be regarded today as a war criminal for ordering the atomic bombing of Hiroshima and Nagasaki sixty years ago? If history indicts him for the two events, I would argue that as to Count Two, the bombing of Nagasaki, he was clearly guilty and would have deserved the death sentence. The horror of the initial bombing of Hiroshima on August 6, 1945, has in the public mind all but obscured the follow-up bombing of Nagasaki three days later.

I wrote in 1971 that the Nagasaki bombing “had no military justification and was not needed, after Hiroshima, to ‘demonstrate’ the efficacy of the new weapon.” [The Concept of Custom in International Law 117 (1971)] Although a vast amount of research and writing about the decision to drop nuclear weapons on Japan has come out since I wrote those words, I’ve seen nothing that would challenge my conclusion. Of course if readers of this blog know differently, I hope they would give us all the benefit of their comments.

Not only have I not seen any legal argument that tries to justify the Nagasaki bombing, but there is also a dearth of historical explanation why it occurred at all. I have my own theory. By 1945 the United States had produced three nuclear weapons: two uranium and one plutonium bomb. The first uranium bomb was secretly dispatched to the Pacific theatre before the second one was tested on July 16, 1945, at Alamogordo Range 230 miles south of Los Alamos, New Mexico. Three weeks later the remaining uraniuim bomb was detonated over Hiroshima. My theory, terrible as it sounds, is that (a) we dropped the plutonium bomb on Nagasaki to see if it would work—if it hadn’t exploded, nothing would have been said; (b) by dropping a second bomb so quickly after the first one we would show the Japanese that we would be merciless until they surrendered unconditionally; and (c) the second bomb would lead the world to think that we had many others where that one came from.

As to the legality of the bombing of Hiroshima, there are endless arguments, justifications, excuses, condemnations, and plain misstatements. The most prominent justification is the argument of military necessity: dropping the bomb shortened the war and saved many lives. The best contrary argument, in my opinion, is that the peace terms informally (but very seriously) offered by Japan in June 1945 did not materially differ from the peace terms we actually accepted from Japan in August right after we dropped the bombs.

Our Next Military Attack?

by Tony D'Amato

Our government is presently immobilized, like Buridan’s ass, between North Korea’s nuclear development program and Iran’s. Yesterday Iran removed United Nations seals on uranium processing equipment at its Isfahan nuclear site, making the plant fully operational. At the same time across the world in Beijing a deadlock was reported in the six-power nuclear disarmament talks. North Korea intends to go ahead with its “civilian” nuclear program even though other nations believe that it has already produced enough fissionable material for several nuclear bombs.

There is no greater threat to our national security than nuclear weapons in the hands of North Korea or Iran. It’s coming to a head now because of the perceived failure of our invasion of Iraq in March, 2003. I submit there were two primary reasons behind our decision to invade. First, Saddam Hussein had the financial resources in a brief period of time to purchase and assemble nuclear weapons. Although we knew when we invaded that Saddam did not possess WMDs, once he smuggled them in our ability to invade would have become impossible. Second, a quick and successful removal of Saddam’s government would have sent the most powerful of messages to the other “rogue” nations: don’t even think of going nuclear. It was a logical game plan deeply rooted in our national security.

The “failure” that I mentioned above occurred after the invasion was successfully completed. We had absolutely no idea how to go about pacifying Iraq. Our idiotic blunders of occupation were painfully evident as they were being committed, and I lack the incentive to try to recount them here. Suffice it to say that all the world know how we have snatched defeat from the jaws of victory in Iraq.

North Korea and Iran must figure that the United States is a paper tiger. They will keep pushing on their nuclear development programs until we reach the breaking point.

You should know that I’m a real hawk when it comes to nuclear proliferation. Back in 1981 I was practically the only international lawyer in the United States to support Israel’s bombing of the Iraqi nuclear reactor in Osiraq. Maybe I’m overly sensitive about this issue, but I predict that, with practically no notice, the United States will bomb and destroy either the Iranian or North Korean nuclear installations.

History’s Two Worst War Criminals

by Tony D'Amato

Many of our younger international scholars are rightfully insisting that nations own up to their past atrocities. They are pressing Japan to fully disclose the enslavement of Korean “comfort women” who were forced to accompany the rampaging Japanese armies in China during the second world war. The scholars are demanding that Serbia, Croatia, and Bosnia give a full accounting of the war crimes they committed in former Yugoslavia in the last decade of the twentieth century. They are calling upon Turkey for full accountability of the Armenian massacres of 1915.

But our credibility becomes eroded if we conceal our own past. We should be calling upon our own government to acknowledge the war crimes that have sullied American history. To some extent lawyers are doing this with respect to our pre-Union war crimes against Native Americans. Yet nothing can be as dramatic as the personification of war criminality. I suggest we should begin calling specific attention to the two persons whom I will nominate below as the worst war criminals in human history. I omit Stalin and Hitler because the genocides they unleashed should not be labeled as war crimes even though the number of victims was in the millions. (Stalin’s genocide took place in the 1930s, and Hitler’s holocaust actually ran counter to the German war effort.)

Here are my two nominees about whom too much attention cannot possibly be paid:

GENERAL WILLIAM TECUMSEH SHERMAN. During the Civil War, General Grant insisted that the defeat of Confederate armies was the first and foremost objective of Union strategy. Disobeying this policy, General Sherman set forth on a march to Savannah and the sea on November 15, 1864. He led his Union troops away from every Confederate army camp or stronghold. Instead, his army proceeded through the soft belly of the South, burning and destroying the civilians, their homes, their property, their farms, their food, their entire countryside. They murdered the children and the elderly, raped the women and then shot them, and stole every valuable they could get their hands on. Today General Sherman is featured in high-school history texts for saying “War is hell.” But nevertheless there is some controversy about him. There are parents who object to the use of the word “hell” in textbooks that their teen-age children are required to read.

GENERAL CURTIS LE MAY. In air campaigns against Japan in 1944 and 1945, General Curtis LeMay of the U.S. Army Air Corps also defied the established wartime policy of the United States. That policy called for precision daylight bombing of military targets. Instead, LeMay retrofitted his planes with napalm cannisters (jellied gasoline), and dropped them at night over the northern suburbs of Tokyo, which were then the most densely populated areas in the world. Of course there were no men of fighting age present; there were only women, children, and the elderly packed in their wooden homes. On one evening, March 9, 1945, LeMay’s pilots were particuarly lucky: there was a brisk wind that carried the flaming napalm across wide distances. The heat that was generated was so great that the few people who could get out of their homes in time and jump into the nearest river or lake were boiled to death. General LeMay had successfully presided over the murder of 100,000 innocent people. He also had a quip to give to posterity: “There are no innocent civilians, so it doesn’t bother me so much to be killing innocent bystanders.”

When I participated on a war crimes panel at West Point some years ago, I brought up LeMay’s name as an arch war criminal. Despite my saying this in a room packed with cadets and high brass, no forcible action was taken against me. Perhaps the reason for the restraint was that the West Pointers were prepared for remarks such as mine. All eyes turned to one of the observers in the first row, an Army officer who was also a professor at West point. After standing up and establishing his credentials as a major student of aerial warfare, he sharply disputed my assertion that LeMay dropped bombs on non-military targets. He said that the women in the targeted area were active participants in furthering the Japanese war effort: they were darning socks and mending army uniforms.

Don’t evade ‘em, invade ‘em!

by Tony D'Amato

I didn’t intend to sound disparaging about humanitarian intervention, but when the above title occurred to me I just couldn’t resist using it. Come to think of it, Howard Cosell would have been pleased; the title “tells it like it is.”

The international legality of humanitarian intervention is on my mind these days because I’m trying to scribble out a Foreword to the third edition of Fernando Teson’s book of that title (the “humanitarian” title, that is, not the “invade ‘em” title).

A warm and enthusiastic Fernando Teson burst upon my scene at Northwestern Law School in 1982. He had served four years in the Argentine diplomatic corps and also had been an associate professor of international law at the University of Buenos Aires. We had agreed by letter that I would supervise his S.J.D. dissertation. So naturally one of the first things we discussed is what he should write about. He said that, given his experience in diplomacy, he might like to write a book on the privileges and immunities of diplomats. I said something like, “Gee, that’s great! The public is just clamoring to find out a lot more about the privileges and immunities of diplomats.” “So what would you suggest?” he said, deftly kicking the ball back to my side of the field. “Let me think about it for a day or so,” I replied.

I was stalling. I knew of the perfect topic for Fernando, but it was something that I had vague plans to write up myself. Nevertheless, when we had our next meeting, I said, “How about humanitarian intervention?” Perhaps as I said it I harbored the faint hope that he would turn it down. To the contrary, the idea for him was love at first sight.

His dissertation was so good that when it was published by Transnational Publishers, Inc., it came to define the field of humanitarian intervention in international law. Early evidence of this was the fact that the establishment folks in and around the American Society of International Law seemed to have taken a vow of silence about Fernando’s book. As late as 1991, a published symposium on Right versus Might in international law, featuring such luminaries as Louis Henkin, Stanley Hoffman, Jeane J. Kirkpatrick, and David J. Scheffer, examined the idea of humanitarian intervention from many angles but never once referred to Fernando’s work, not even in the “suggested readings” in the back of their book. Why indeed should they let an outsider like Fernando Teson “intervene” into the scholarly world over which they reigned supreme?

Without them, or maybe despite them, the book has thrived and taken on a life of its own in both political and legal global studies. During the two years he worked on his project at Northwestern, Fernando and I were in complete accord that if the morality of humanitarian intervention weren’t right, then its legality one way or the other would be of distinctly secondary interest.

Fernando’s conviction that humanitarian intervention is morally privileged if not required has coalesced over the years since 1982 into three postulates that I can pre-quote from his third edition:

(1) Governments are, internationally and domestically, mere agents
of the people. Consequently, their international rights derive from
the rights and interests of the individuals who inhabit and constitute
the state.

(2) Tyrannical governments forfeit the protection afforded them by
international law.

(3) The fact that all persons have rights entails the following
consequences for foreign policy . Governments have:

(a) The obligation to respect human rights at home and abroad;

(b) The obligation to promote respect for human rights globally;

(c) The prima facie obligation to rescue victims of tyranny or
anarchy, if they can do so at a reasonable cost to themselves.
This obligation analytically entails the permission to rescue
those victims—the right of humanitarian intervention.

If any of you who are reading this blog are teachers of international law, allow me to suggest that early in the course you distribute the above three revolutionary postulates to your students or display them in Power Point. Let your class unpack them, deconstruct them, examine them from every angle.

Agree with him or not, Fernando Teson has staked out a position that can no longer be ignored by anyone—not even by the self-anointed guardians of public international law.

Mr. Roberts (the nominee, not the movie)

by Tony D'Amato

As the law school world peruses the briefs and opinions of Supreme Court nominee John Roberts, one of his important cases that just about everyone omits is Hamdan v. Rumsfeld (D.C.Cir. July 14,2005). The reason for ignoring it is, presumably, that it was a 3-0 decision in which Judge Roberts remained silent.

I suggest that his silence speaks rather loudly against him. It would have cost him nothing to append a brief concurring opinion. His decision not to do so tells us that he is happy with the court’s opinion in every respect.

Hamden was just the right case for a concurrence. I will put aside, with reluctance, the many fascinating issues in the case such as the President’s authority to constitute military commissions, the question whether we are “at war” with Al Quaeda (Mr. Hamden admitted he was Osama bin Laden’s personal driver in Afghanistan between 1996 and 2001), whether Hamden is entitled to prisoner-of-war treatment, and whether the 1949 Geneva Conventions are self-executing under United States law.

But tucked away toward the end of the court’s opinion is an argument that a supposedly bright jurist like Judge Roberts should have picked up on:

Suppose we are mistaken about Common Article 3. Suppose
it does cover Hamdan. Even then we would abstain from
testing the military commission against the requirement in
Common Article 3(1)(d) that sentences must be pronounced
“by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by
civilized peoples.” Unlike his arguments that the military
commission lacked jurisdiction, his argument here is that
the commission’s procedures–particularly its alleged failure
to require his presence at all stages of the proceedings–fall
short of what Common Article 3 requires. The issue thus
raised is not whether the commission may try him, but rather
how the commission may try him. That is by no stretch a
jurisdictional argument. No one would say that a criminal
defendant’s contention that a district court will not allow
him to confront the witnesses against him raises a jurisdictional
objection.

This is just the sort of ersatz law-school reasoning that should be suppressed whenever it rears its ugly head. “The issue thus raised is not whether but how.” Indeed! Just who is the court kidding here? (Themselves, is probably the right answer.)

One simply cannot separate entirely the question of procedural fairness from jurisdiction. Suppose the military commission was well known for reaching its decisions in less than one minute per defendant. Suppose further that its members prided themselves on never reading any briefs. Suppose the commission barred oral argument. Indeed, let’s go to the extreme: suppose the only issue the commission debates is whether the defendant had an Arabic-sounding name. If he did, then he was guilty. Could our court of appeals, in of all things a habeas corpus proceeding whose pedigree extends back to the Magna Carta, say without tongue-in-cheek that even this extreme level of procedural unfairness would be irrelevant to the question of jurisdiction?

If Judge Roberts, or his two colleagues, or the lawyers defending Hamdan, had had any knowedge of international law, they surely would have known of the Hague Tribunal’s milestone decision in the Tadic case [Dusko Tadic, IT-94-1]. Tadic had raised some strong arguments to the effect that the International Criminal Tribunal for Former Yugoslavia was not a legally constituted tribunal and hence lacked jurisdiction over him or any other accused person. The Tribunal answered these arguments as best it could. Then the President of the Tribunal, Antonio Cassesse, memorably added that the test of the legality of the Tribunal’s jurisdiction will ultimately be the fairness of its procedures.