As William Sweet of FPA Arms Control and Proliferation noted last week,  India’s parliament approved a key portion of the U.S.-India nuclear pact but altered the deal to leave open the possibility of holding nuclear suppliers liable for damages resulting from accidents.  This was the Bhopal tragedy rearing its ugly head, as Sweet notes.

This reminds me of a very different though somewhat similar idea about nuclear liability that Stephen Van Evera tossed onto the table a couple years ago:

The international community should establish a new principle that states have civil legal liability for any damage ensuing from terrorist use os their WMDs.  This would give potential proliferators reason to fear that their national WMD programs will bring them major economic harm.  The worried finance ministries and business communities of potential proliferators, fearing endless lawsuits if their armed forces lost control of a nuclear weapon or other WMD, would become powerful lobbies against proliferation.  All governments would have greater reason to secure existing WMD arsenals.  As a result, WMD proliferation would be prevented, and WMD security would improve.

Seems sensible, though impossible.  And while, as William Sweet notes, the U.S.-India nuclear deal could do damage to the current NPT regime, Van Evera’s suggestion might very well be the only thing that could save it.

As I’ve written before, it is widely acknowledged that the economic health of the United States is a major national security concern.  For one, last year Dennis Blair, Director of National Intelligence declared that the economic crisis had become the U.S.’s “primary near-term security concern.”  I decided to read John Kenneth Galbraith’s The Great Crash 1929 to see what lessons can be gleaned from history. Why did the stock market crash of 1929 occur?  Who was responsible?  Unfortunately, as I suppose is characteristic of economics, the search for answers leads us down a landslide of uncertainties.

As Galbraith writes, the crash “was implicit in the speculation that went before.”  So what caused the speculative bubble whose rupture by 1929 had become inevitable?  Can we blame the Federal Reserve?  They cut the rediscount rate in 1927 from 4 to 3.5 percent, but as Galbraith notes, “[t]here were times before and there have been long periods since when credit was plentiful and cheap - far cheaper than in 1927-29 - and when speculation was negligible.”  Can we blame President Coolidge?  Possibly.  Galbraith writes that Coolidge genuinely did not perceive a problem, but even if he did, he believed dealing with speculative bubbles to be the Federal Reserve’s job.  Can we blame Hoover?  After all, Hoover was Coolidge’s Secretary of Commerce.  Apparently, though, Hoover was deeply worried about the speculative bubble.  Under Coolidge, Galbraith writes, Hoover “had sought nothing so much as to get the market under control,” though Galbraith doesn’t elaborate on Hoover’s proposed solutions, nor does he explain why Hoover did not successfully implement them once he assumed the presidency.

So we don’t really know what led to the bubble, but what should have been done once it got going?  Here, Galbraith seems to lay responsibility at the feet of the Federal Reserve.  The Fed’s options were limited.  Raising the rediscount rate would have done no good, Galbraith notes, because returns on speculative investments were so enormous that even high interest rates wouldn’t discourage speculators.  Selling all of its $228 million in government securities “might possibly have had some effect” by taking money out of the market, but this move would have been drastic and came with various side effects.  But Galbraith argues that “the Federal Reserve was helpless only because it wanted to be.”  He continues:

Had it been determined to do something, it could for example have asked Congress for authority to halt trading on margin by granting the Board the power to set margin requirements.  Margins were not low in 1929; a residue of caution had caused most brokers to require customers to put up in cash 45 to 50 per cent of the value of the stocks they were buying.  However, this was all the cash numerous of their customers had.  An increase in the margins to, say, 75 per cent in January 1929, or even a serious proposal to do so, would have caused many small speculators and quite a few big ones to sell.  The boom would have come to a sudden and perhaps spectacular end.

But this drastic measure was actually unnecessary because:

…a robust denunciation of speculators and speculation by someone in high authority and a warning that the market was too high would almost certainly have broken the spell.  It would have brought some people back from the world of make-believe.  Those who were planning to stay in the market as long as possible but still get out (or go short) in time would have got out or gone short.

But the Fed did not want to be blamed for busting the bubble, so it took some comparatively milder measures.  It raised the rediscount rate from 5 to 6 per cent in early 1929 and sold some government securities throughout the first half of the year but then stopped.  It also declared that it would not lend money to be used in speculation, though this still allowed speculation to continue.  Galbraith demonstrates that the Fed’s fear was not irrational.  There were a lot of Peter Schiffs in 1929…

…and the treatment of the 1929 Peter Schiffs very much resembled the treatment of the actual Peter Schiff in 2006.  They were derided.  And the problem of booms is this:

Booms, it must be noted, are not stopped until after they have started.  And after they have started the action will always look, as it did to the frightened men in the Federal Reserve Board in February 1929, like a decision in favor of immediate as against ultimate death.  As we have seen, the immediate death not only has the disadvantage of being immediate but of identifying the executioner.

So the main lesson that can be gleaned is that no one will want to claim responsibility for ending a speculative bubble out of fear of invoking adverse political consequences.  Even the Fed, in theory shielded from the vicissitudes of political will, is not immune to this anxiety.

As you undoubtedly already know, last night Obama announced the end of combat operations in Iraq:

What did we accomplish?  Where are we going from here and what do we hope to continue to accomplish?  How is Iraq related to the geopolitical interests of the United States?  Many have taken the time to over the past day or so to try to answer these questions.  The editors of the National Review offer some unconvincing reasons that the Iraq War has been strategically beneficial:

For now, we have transformed Iraq from a hostile, terrorist-supporting dictatorship destabilizing the region into a ramshackle democracy that is an ally in the war on terror… [Iraq's] success could still, over the long term, provide a model for the region: Any strategy for containing Iran makes no sense unless a stable, U.S-allied Iraq is a bulwark against it.

Actually, the region was much more stable and Iran was more successfully contained before the war.  Dual containment was relatively successful.  And in fact, to see how well dual containment worked, in comparison to regime change via military invasion, we can look at the arguments against dual containment.

F. Gregory Gause III, writing for Foreign Affairs in 1994, posited a nightmare scenario with which he did not believe dual containment could successfully grapple.  Noting that “[c]ontainment of Iran requires a relatively strong and unified Iraq on its long western border,” Gause warned that if Iraq is weak, “Iraq becomes an ideal area for Iran to try to break out of its regional isolation.”  Furthermore:

…if Saddam should fall, Iran would become a key player in the future of Iraq.  With its military resources and its relationship with Iraqi Shiite opposition groups like the Supreme Assembly of the Islamic Revolution in Iraq and al-Da wah, Iran could play a very destabilizing role in a post Saddam Iraq if it felt that its interests were being ignored or that a new Iraqi regime was being constructed by the United States as a means to intensify Iran’s isolation.

According to Gause, the collapse of Saddam’s regime, if it resulted in “a political vacuum in which a number of local groups and regional powers vie for influence,” would be “the worst case-scenario for American policy and the one dual containment is least able to address.”  In other words, the biggest problem with dual containment is that it could not deal with the situation that we wound up creating when we abandoned dual containment.  Looking back, it is as if America were an alcoholic who decided that in fact its problem was that it needed to drink more.

Douglas Feith, also writing for the National Review, asserts that “America is more secure” after the Iraq War, providing three reasons:

It removed a regime that threatened aggression throughout its region. It punished a regime that was hostile to the United States and contemptuous of the U.N. Security Council’s formal decisions on disarmament and peace. It demonstrated that a large price is sometimes imposed on regimes that support terrorism and pursue weapons of mass destruction.

On aggression, as Stephen Walt and John Mearsheimer argued in 2003, if Saddam’s two wars (against Iran and Kuwait) taught us anything, it’s that Saddam was a rationalist who could be deterred.  On the point about nuclear weapons, I’ll give Feith the benefit of the doubt that he was smoking crack when he wrote that, because Iraq wasn’t pursuing nuclear weapons.  On Feith’s second point, yes, I’ll concede that, yes, the U.S. punished a country that was hostile to it.  Unfortunately, though, since the war was immensely bungled, the lesson to the world is probably the opposite of what Feith insinuates: the U.S. is unlikely to undertake a similar venture in the near future.  Furthermore, as The New York Times notes:

It drained American credibility around the world, particularly after the intelligence on weapons of mass destruction proved false and after the abuse scandal at Abu Ghraib prison. The specter of an American war on Islam, no matter how much it is denied by Washington, looms large in parts of the world.

But as I did yesterday, I turn again to George Friedman, from his book, The Next 100 Years:

An Islamic world in chaos, incapable of uniting, means that the United States has achieved its strategic goal… U.S. defeat or stalemate in Iraq and Afghanistan is the likely outcome, and both wars will appear to have ended badly for the United States.  There is no question that American execution of the war in Iraq has been clumsy, graceless, and in many ways unsophisticated.  The United States was, indeed, adolescent in its simplification of issues and in its use of power.  But on a broader, more strategic level, that does not matter.  So long as Muslims are fighting each other, the United States has won its war.

Perhaps that’s the truth peaking out from beneath the windrow dressing presented by National Review editorialists.  Regardless, according to The New York Times, in 2011, we will leave behind up to several hundred military officers “who would help the Iraqis purchase and field new American military equipment,” 2,400 State Department civilians protected by up to 7,000 security guards (who will “operate radars to warn of enemy rocket attacks, search for roadside bombs, fly reconnaissance drones and even staff quick reaction forces to aid civilians in distress”), 1,320 armored cars, 29 helicopters, 3 planes, the embassy in Baghdad, two consulates in Basra and Erbil, and two new embassy branch offices in Kirkuk and Mosul, all of which will cost $1 billion.

The National Review editors began their critique of Obama’s speech with a quote from General Petraeus - “Tell me how this ends” - which Petraeus uttered to Washington Post journalist Rick Atkinson in 2003.  However, the National Review omitted the next part of Petraeus’ statement.  From Atkinson’s article:

[Petraeus] hooked his thumbs into his flak vest and adjusted the weight on his shoulders. “Tell me how this ends,” he said. “Eight years and eight divisions?” The allusion was to advice supposedly given the White House in the early 1950s by a senior Army strategist upon being asked what it would take to prop up French forces in South Vietnam. Petraeus’s grin suggested the comment was more droll quip than historical assertion.

In Vietnam,  though we failed to achieve our strategic objectives, it turned out our strategic objectives were not, in fact, vital to U.S. national security.  Given the unconvincing strategic justifications now offered for the Iraq War, I wonder if history will repeat itself once again.

Nine.  At least that’s what The Atlantic said last year.  In an effort to demonstrate that China is not as monolithic as it may sometimes appear, The Atlantic published an interactive map on its website dividing the People’s Republic of China into nine regions (the interactive feature doesn’t currently work correctly, but you can find the full text about each region here).

But perhaps the more useful answer to the question how many Chinas are in China is… two.  This is the model used by George Friedman in The Next 100 Years, in which he attempts to predict what will happen with China (and the rest of the world) over the next century.  He isn’t concerned with the rise of China as a serious long-term global competitor to the United States because, in his view, there are two Chinas - coastal and interior - with vastly different interests.  I will quote him at length:

Recall how China split into coastal and interior regions between the British intrusion and Mao’s triumph.  Businesses on the coast, prosperous from foreign trade and investment, gravitated to their foreign interests, trying to break free from the central government.  They drew in European imperialists - and Americans - who had financial interests in China.  Today’s situation is potentially the same.  A businessman in Shanghai has interests in common with Los Angeles, New York, and London.  In fact, he makes far more money from these relationships than he does from Beijing.  As Beijing tries to clamp down on him, not only will he want to break free of its control, but he will try to draw in foreign powers to protect his and their interests.  In the meantime, the much poorer people in the interior of the country will be either trying to move to the coastal cities or pressuring Beijing to tax the coast and give them money.  Beijing, caught in the middle, either weakens ad loses control or clamps down so hard that it moves back to a Maoist enclosure of the country.  The critical question is which outcome is more likely.

Adding to this model, David Black, blogging for the World Policy Institute, wrote earlier this month of the widely reported labor unrest in China this summer, noting “the divide between the way unrest is being handled in cities along China’s coast versus those in the country’s interior.”  Black wrote:

In short, there are two Chinas when it comes to manufacturing (though the country can be broken down much further). With few exceptions, manufacturing in provinces like Guangdong and Tianjin (just outside of major coastal cities Hong Kong and Shanghai) accounts for most of the higher-end consumer electronics and durable goods produced in China. It takes place in large chains of factories and compounds that are mostly foreign-owned, usually by big companies based in Taiwan, Japan and the United States. These companies (Foxconn, Honda and Flextronics are good examples for each respective country) are the ones whose managers gave in to demands for wage increases, and whose factories the Chinese government allowed the press to access. The official labor unions still side with the state over workers, but police brutality is unusual. In the end, after this round of unrest, nearly all of the workers in these factories enjoyed a wage hike.

Inland, in places like Henan province or the municipality of Chonqing, a different dynamic pervades. Factories are mostly state- or Chinese-owned, hardly any of them produce high-value-added goods and the presence of Western press is minimal. When strikes do occur, the state deals with them more harshly and with greater ease. At a domestic-owned cotton mill in Pingdingshan, a city in Henan Province, two to three thousand police cracked down brutally on the more resolute among 8,000 striking workers. Across the interior state-sponsored news outlets have reported that strikes like these were ‘resolved’ without pay raises—as occurred at a cheap electronics goods factory in Xi’an, Shaanxi province. The Western media, with one notable in the Toronto Star’s continued coverage, has been largely absent.

The strikes in China show the seeds of the factors of which Friedman warns, only instead of demanding wealth redistribution via taxing the wealthy east coasters, the people in the poorer interior region are demanding higher wages.  In response, the workers faced a stern crackdown, which will only aggravate the wealth disparity that Friedman predicts will lead to China’s downfall.  Ultimately Friedman prognosticates that “China [will fragment] along traditional regional lines, while the central government weakens and becomes less powerful.”

While pondering this, two very different political scientists come to my mind.  The first is Charles Boix.  In Democracy and Redistribution, Boix created a model to explain how populations decide whether or not to revolt to achieve redistributionist objectives and how governments decide whether to acquiesce or repress.  His model has three phases.  In phase one, we assume a situation in which the poor demand a more equitable redistribution of wealth and the rich decide whether to repress or redistribute.  If the rich decide to repress, we come to phase two, in which the poor decide whether or not to revolt.  If the poor revolt, we come to phase three, in which the poor either succeed and expropriate the rich’s capital or fail and no redistribution of wealth occurs.

So what determines whether the rich will decide to repress and whether the poor will decide to revolt?  One factor Boix examines is wealth inequality.  If wealth disparity is high, the wealth of the rich would be vulnerable, since there would be a lot of really poor people wanting a share of it, so the rich would really want to try to repress.  Also, the level of the organization of the poor would affect the decisions of both sides.  If the poor were not well organized, repression would be relatively easy, so would seem even more appealing to the rich.  Additionally, weak organization would dissuade the poor from revolting, since success would seem unlikely.

On both of these points, for China, signs point to repression.  Wealth inequality in China is high.  Earlier this year China’s Gini coefficient reached 0.47.  (The Gini coefficient measures wealth inequality on a scale of zero to one, zero signifying complete wealth equality, one signifying a situation in which one person owns 100% of the country’s wealth.)  As for the ability of China’s impoverished population to organize, the strikes of this summer indicate something positive, but the Chinese government retains many mechanisms of control, the media being one, as demonstrated by China earning the slot of 168 out of 175 on Reporters without Borders’ index of press freedom ranking this year.  For the time being, China’s government seems to be able to retain power over its poor interior region by repression.  But if the costs of repression rise, as do the incentives for wealth distribution.  Should the government choose someday to appease its interior region by wealth redistribution from east to west, we may see the political upheaval of which George Friedman warns.

This brings me to the second political scientist that comes to my mind, a very different one: Igor Panarin.  Panarin is the Russian Political Scientist who has been predicting since 1998 that the U.S. would split into six regions in 2010.  Panarin’s theory is quite similar to that of Friedman:

Panarin has been predicting for the past twelve years that since different regions of the U.S. have different economic interests, a financial crisis will lead to civil war and ultimately disunion.  As for the two factors that Boix notes, wealth inequality is on Panarin’s side.  The U.S.’s Gini coefficient is comparable to China’s.  Organization, though, works against Panarin.  Yes, the U.S. has been fairly successful in preventing mass mobilization of the less well off - U.S. unions are weak compared to Europe and third parties do not fair well in the electoral process.  But the U.S. is a freer nation than China, and the potential for organization is greater here than it is there.  Furthermore, why would the U.S. split now when it did not during the Great Depression?  In 1929, the estimated Gini coefficient wasn’t that much different than it is now.  So if that financial crisis didn’t lead to the end of America, why would this one?  Overall, I’d guess that the gut reaction of most Americans is that Panarin is crazy while Friedman may have a point.  However, given the similarity of their theories, I don’t think both of these things can be true.

There’s been some back and forth this week between Julian Ku and David Bosco about Jeremy Rabkin’s recent critique of the ICC in the Weekly Standard.  I’ll add my two cents, for to me, Rabkin’s piece seems like a ghost story told around a campfire.  Rabkin intends to make the ICC seem really really scary, but he fails to convince me of the danger.

To get my pet peeve out of the way, Rabkin does what pretty much everyone on the right does when critiquing the ICC: tells a misleading version of history.  He misrepresents Clinton’s stance (which was actually very similar to that of Obama), dwells on the rejectionism of the first Bush administration, leapfrogs over the second Bush administration (which supported the court without expressing a wish to join), and lands on Obama, painting the Obama administration’s stance as unprecedented and outrageous (even though it’s essentially the same as that of Clinton and second-term Bush).  The Obama administration actively encourages this fiction.  As Rabkin notes, legal adviser to the State Department, Harold Koh, said after the Kampala conference that the U.S. had “reset the default on the U.S. relationship with the court from hostility to positive engagement…”  Rather than point out the deception, though, Rabkin buys into the fiction.

But what danger could the court pose to the U.S.?  Rabkin begins his piece by suggesting the court isn’t dangerous at all because of its lack of enforcement power.  He notes that the court issued an arrest warrant for Sudan’s Omar Hasan al-Bashir but has no power to actually arrest him.  The actual danger, he states later, is that the idea that specific principles can be applied to determine whether uses of force are illegal could really take root in the international community.  Even worse, populations of democratic countries might start to agree and demand that their leaders adhere to these principles.  Rabkin notes that countries always claim that their uses of force are in self-defense.  His implicit concern is that populations might force their leaders to stop lying to them.

Rabkin goes into full ghost story mode to argue that the ICC’s activation of its jurisdiction over the crime of aggression “rewrites the UN Charter.”  A preventive strike against Iran, he notes, would be illegal under the ICC’s definition.  Of course, he doesn’t note that such a strike is already illegal under the UN Charter.  Such a strike would be “a clear violation of the Charter of the United Nations and the norms of international conduct,” as the UN Security Council said of Israel’s preventive strike against Iraq’s Osiraq reactor in 1981.  Rabkin also warns that drone strikes in Pakistan would also be illegal under the ICC’s definition of aggression, again not noting that the UN has already dubbed such strikes illegal.

Rabkin looks back at history to try to convince his readers that, had the ICC existed in the past, the U.S. could have been prosecuted for all sorts of military activities it has undertaken.  The U.S. could have been prosecuted for entering World War I (though this seems unlikely since Germany had repeatedly attacked U.S. ships, killing over a hundred Americans, and declared its intention to continue to do so).  Or Clinton’s retaliatory strikes against Iraq in the 1990’s (again unlikely since they were justified by UN Security Council resolutions - and much less tenuously so than Bush’s Iraq invasion).  Or World War II (on this I agree, and I defer to Robert McNamara).

Rabkin also argues that by supporting the court now, the U.S. will ultimately be forced to submit to its jurisdiction.  Rejectionism, he asserts, will seem hypocritical to the American people.  He imagines a future administration faced with this problem:

To hold the line on American immunity, the president would have to say, “Yes, we’ve been saying since the days of Secretary Clinton that ‘we support the ICC,’ but we didn’t mean we would put our own people at risk. We only ‘support’ investigations of others.”

But as I’ve argued elsewhere, this has always been the U.S.’s policy, stretching back to Nuremberg and even before.  And the U.S. has thus far successfully avoided stating it in the blunt terms that Rabkin lays out.  I don’t imagine this will change.

Daniel Drezner theorizes that the U.S.’s covert operation to sabotage Iran’s nuclear program is going well and has led to U.S.-Israeli agreement on eschewing preventive strikes against Iran.

I think he’s right.

Drezner was responding to the New York Times article published in the wake of Jeffrey Goldberg’s Atlantic article. Goldberg reported an apparent consensus among Israeli policymakers that there is a greater than 50% chance that Israel will bomb Iran next year.  The Times reported that the Obama administration had convinced Israel otherwise.  The U.S. believes it will take Iran a year to build a bomb from the moment it decides to do so (if it ever decides to do so) and weapons inspectors should be able to detect the move toward breakout within weeks.

The Times article makes passing mention of the U.S.’s covert program.  The sentence about it is buried in the middle of a paragraph toward the end.  See if you can spot it:

Some of Iran’s enrichment problems appear to have external origins. Sanctions have made it more difficult for Iran to obtain precision parts and specialty metals. Moreover, the United States, Israel and Europe have for years engaged in covert attempts to disrupt the enrichment process by sabotaging the centrifuges. Officials concede there are potential vulnerabilities in their assessments. Chief among them is whether Iran has hidden another enrichment center somewhere in the tunnels it has dug throughout the country, including some near Natanz.

And when we look at how the Bush administration convinced Israel not to bomb Iran, we find this:

President Bush deflected a secret request by Israel last year for specialized bunker-busting bombs it wanted for an attack on Iran’s main nuclear complex and told the Israelis that he had authorized new covert action intended to sabotage Iran’s suspected effort to develop nuclear weapons, according to senior American and foreign officials.

This program was handed off to Obama when he assumed office.  It is reasonable to assume that it is still playing a significant role in U.S. and Israeli assessments of the situation.

The Heritage Foundation published a report by Brett Schaefer earlier this month that argues (unsurprisingly) that the U.S. should remain wary of the ICC (h/t Opinio Juris).  I (unsurprisingly) think he’s wrong.  The report’s problems begin in its first paragraph:

Until recently, U.S. policy toward the International Criminal Court (ICC) has been clear and consistent: The U.S. has refused to join the ICC because it lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability to the U.N. Security Council, and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of nonparty states in some circumstances. In a break with previous policy, the Obama Administration has stated that it views U.S. policy toward the ICC as too hostile and has expressed the intent to increase U.S. cooperation with and support for the court.

This very brief summary of the U.S.’s engagement with the court grossly oversimplifies things.  Yes, the first Bush administration stridently opposed the ICC, passing the Hague Invasion Act and concluding over 100 bilateral immunity agreements, intending to protect the U.S. from ICC jurisdiction.  But the second Bush administration was much more nuanced.  The second Bush administration vocally opposed referring the Darfur situation to the ICC but did not veto UN Security Council resolution 1593, which did so, choosing abstention instead.  And State Department legal adviser John Bellinger said in 2007:

Moreover, over the past couple of years we have worked hard to demonstrate that we share the main goals and values of the Court. We did not oppose the Security Council’s referral of the Darfur situation to the ICC, and have expressed our willingness to consider assisting the ICC Prosecutor’s Darfur work should we receive an appropriate request. We supported the use of ICC facilities for the trial of Charles Taylor, which began this week here in The Hague.  These steps reflect our desire to find practical ways to work with ICC supporters to advance our shared goals of promoting international criminal justice.

The Obama administration has taken a similar stance.  As I wrote in an earlier post, Jurist reported in January of this year:

[U.S. Ambassador-at-Large for War Crimes Issues, Stephen Rapp] said that while the US has an important role in international criminal justice, it is unlikely to join the ICC anytime soon. Rapp cited fears that US officials would be unfairly prosecuted and the US’s strong national court system as reasons it would be difficult to overcome opposition to ratification.

So the Obama administration’s policy is more of a continuation of that of the second Bush administration, which itself was a return to the policy of Clinton, who signed the Rome Statute, but, as his signing statement shows, felt the dual pull of wanting to support the court and feeling wary of its perceived flaws.

Strangely, later in the report, Schaefer sketches a narrative that actually  approximates the one I just sketched out.  So I’m not sure why he believes the second Bush administration’s policy was more “clear and consistent” than that of the Obama administration.   Or how Obama’s continuation of Bush’s policy constitutes a “break with previous policy.”

But as for Schaefer’s actual arguments, he really only identifies one reason to justify ICC wariness:

As Obama Administration officials have acknowledged, there remains a strong possibility that U.S. military and political officials could be unfairly prosecuted by the ICC because of the breadth of U.S. political and military interests. Indeed, the ICC has opened a preliminary investigation into alleged war crimes in Afghanistan that could involve American citizens and soldiers given America’s leadership role in the military operations and the political transition.

But I’m wary of this wariness.  Is the concern really that the U.S. could be “unfairly” prosecuted?  Or is it more that the U.S. could be prosecuted at all (i.e. “fairly” prosecuted).  The above statement presupposes that the ICC Afghanistan investigation is somehow unfair, despite the widespread reports, before and after the WikiLeaks revelations, of war crimes committed by the U.S.  The argument that the U.S. should be exempt from the ICC since it has the biggest military and the greatest military presence in the world is also unconvincing.  I outlined some strategic benefits to ICC membership a couple months ago at Foreign Policy in Focus.  An additional reason stems from the David Kennedy lecture to which I linked earlier this week.  Just like some businesses lobby the government to regulate them to shield them from blame if something goes wrong and to legitimate their practices, countries can similarly benefit from submitting themselves to international jurisdiction.

Schaefer doesn’t really engage with such arguments, essentially accepting it as a given that ICC jurisdiction threatens U.S. interests.  If one accepts that premise, then his report’s prescriptions (never ratify the Rome Statute, maintain the bilateral immunity agreements, try to convince the ICC to further delay its implementation of aggression jurisdiction, etc.) are dead on.  As Julian Ku at Opinio Juris notes, this is “the U.S. political consensus.”  This is, of course, also a minority position, since 68% of Americans favor U.S. participation in the ICC (as of September 2008).  I guess that doesn’t matter, though.

Many people claim that international law is not like other law.  Some claim it is not even law.  (See an earlier post of mine on the subject.)  But there are many ways that international law is just like good old municipal law.  From a lecture David Kennedy gave last fall:

Indeed, many military professionals remain suspicious about embracing law as a strategic partner. When I was in corporate practice, I often saw the same suspicion among businessmen. Law, they said, was too rigid, looked back rather than forward. In their eyes, law was basically a bunch of rules and prohibitions – you figure out what you want to achieve, and then, if you have time, you can ask the lawyers to vet it to be sure no one gets in trouble. But these businessmen were not getting all they could from their legal counsel. Neither are military commanders – or Presidents – who think of law as a set of formal limits to be gotten around.

What is difficult for us to realize is that a war machine which used law more strategically might, in fact, be far more violent, more powerful, more, ….well, legitimate.

Savvy business clients do not treat the law as static – they influence it. They forum shop. They structure their transactions to place income here, risks there. They internalize national regulations to shield themselves from liability. They lobby, they bargain for exceptions.

Like businessmen, military planners routinely use the legal maps proactively to shape operations. When fighter jets scoot along a coastline, build to a package over friendly territory before crossing into hostile airspace, they are using the law strategically – as a shield, marker of safe and unsafe.

Over the weekend, I listened to the recent Radiolab episode on the power of words to shape our thoughts, feelings, and abilities (watch the accompanying video below).

The most interesting part of the episode is when they examine an experiment conducted by Elizabeth Spelke at Harvard.  Spelke’s experiment shows an interesting relationship between language and cognitive ability.  In the experiment, she put subjects in a room with one blue wall.  She allowed the subjects to see her hide an object in one of the corners, say, to the left of the blue wall.  She would then have the subjects close their eyes and spin around to disorient them.  When they opened their eyes, the subjects could use the blue wall as a reference point and easily find the hidden object to the left of the blue wall.  However, strangely, children under the age of six can’t do this very well.  These children can talk.  They can say “blue wall” and “to the left of.”  But they don’t yet have the grammatical abilities to say “to the left of the blue wall.”  Seemingly, the development of that grammatical ability coincides with the ability to understand and employ the concept, “to the left of the blue wall.”  This is supported by the fact that when you put adults in the same situation, but deprive them of language, they can’t do it either.  (You can deprive them of language by having them repeat everything that is said on a tape they are listening to.)  So language seems to make new things possible.

This made me think of Chris Borgen’s article, “The Language of Law and the Practice of Politics,” in which he argues that “international law serves as both a vocabulary and a grammar for diplomacy.”  He compares and contrasts NATO’s intervention in Kosovo in 1999 and Russia’s intervention in Georgia in 2008.  He finds that, in both instances, Russia argued its case in legal terms while the U.S. only argued its case in legal terms in the Georgia incident, since, of course, the U.S. had no legal case in the Kosovo incident.  Borgen introduces a concept that is also interesting to ponder in relation to the Spelke experiment: the feedback loop.  He writes:

What drives a change in the vocabulary and grammar of international law is not monocausal but rather a feedback loop: international politics affect international law, which then affects international politics, and so on. So, while great powers may have a privileged position from which they may attempt to define international law, once a certain conception of law propagates through the international system, the erstwhile norm makers can also be held accountable to those norms that they have defined. The rules of self-determination that disfavor secession may be one of those areas where the accepted rules—the common grammar and vocabulary—are constraining the believability of Russian and American claims.

Borgen doesn’t quite succeed in definitively getting us beyond Count Walewski’s maxim that “the business of the diplomat is to cloak the interests of his country in the language of universal justice.”  But he gets us closer.  International law gives diplomatic discourse its vocabulary, and thus, like the Spelke experiment, makes new things possible.

Patrick Frost pointed my way to a Foreign Affairs article published earlier this year, The Best Defense? Preventive Force and International Security, by Abraham Sofaer (downloadable here if you have access).  Sofaer argues that unilateral uses of preventive military force are illegal but can be legitimate, and thus states should feel free to eschew international law and undertake preventive military action if the threat they face is great enough.

Sofaer chooses his supporting evidence selectively.  He likes to cite the report of the 2004 UN High-Level Panel on Threats, Challenges and Change, as if the report supports his conclusion.  Sofaer notes that the report states:

…in the world of the twenty-first century, the international community does have to be concerned about nightmare scenarios combining terrorists, weapons of mass destruction and irresponsible States, and much more besides, which may conceivably justify the use of force, not just reactively but preventively and before a latent threat becomes imminent.

He notes that the report concludes that the UN Security Council should adopt:

…a set of agreed guidelines, going directly not to whether force can legally be used but whether, as a matter of good conscience and good sense, it should be.

This is a great idea, Sofaer asserts, because it would codify notions of legitimacy distinct from international law, thus giving States guidelines for undertaking illegal but legitimate actions, such as the use of unilateral preventive military force.  But this is absolutely, in no way, even close to what the UN report actually concludes (you can read the report here).  The report actually concludes that the Security Council, and the Security Council alone, should have the right to authorize preventive military action.  Here’s what the report says:

190. The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment — and to visit again the military option.

191. For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.

As for the guidelines proposed by the report, the intent was not to give States guidelines for illegal but legitimate actions, but rather:

…to maximize the possibility of achieving Security Council consensus around when it is appropriate or not to use coercive action, including armed force; to maximize international support for whatever the Security Council decides; and to minimize the possibility of individual Member States bypassing the Security Council.

The exact opposite of what  Sofaer wants!  That’s some impressive selective quoting on Sofaer’s part.  His article is peppered with similar cherry-picking evidence.  For example:

The use of force to prevent humanitarian disasters (or halt their escalation) also elicits more support today than it would have when the UN Charter was adopted. The movement to establish a “responsibility to protect” reflects a growing acceptance of the need to prevent gross violations of human rights, even those taking place within another country’s borders. The 1999 U.S.-led intervention in Kosovo was technically illegal because the UN Security Council did not approve it, but it was sanctioned by NATO and widely supported.

On “responsibility to protect” (R2P), Sofaer doesn’t note that the international consensus is to keep R2P’s implementation under the control of the Security Council, for the same reason the 2004 report concludes the Security Council should be the sole arbiter of legal and legitimate uses of preventive force: so States can’t just do what they want.  On Kosovo, Russia and China strongly opposed the intervention, as demonstrated by Russia’s proposed Security Council resolution (submitted with Belarus and India and voted for by Russia, China, and Namibia) stating “that such unilateral use of force constitutes a flagrant violation of the United Nations Charter.”  The actiona may have been supported in the West, but a look at the opinion of the rest of the world reveals a different story.  Sofaer does get one thing right.  He asserts:

Preventive actions pose serious risks. Rather than deterring a state from attacking, the prospect of being targeted by preventive action may provoke it to strike first. Moreover, since preventive actions are based on predictions of future conduct, they are subject to error. The use of force always causes human suffering, intended and unintended, but the costs are more difficult to justify if they result from an action later revealed to have been unnecessary. And preventive action can do more harm than good, opening attackers to condemnation and alienating the public in the states that are attacked.

His attempts to argue that the above points are outweighed by the potential benefits of unilateral preventive action are sloppy and unconvincing.