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Abstract:
Within Islam there has long existed an institution regulating non-Muslims' rights of much greater conceptual sophistication than existed in the Christian West, which often accorded levels of protection, dignity, and socio-economic integration surpassing what many minorities experience today under modern rights regimes. The practice of dhimmah is almost entirely moribund, but Islamist activists are revisiting it, because the quasi-secular, multi-confessional UN model is obviously problematic for many believers. Any system that could claim a connection to classical Islam could claim a legitimacy international rights regimes lack.

What would the human rights perspective on such a system be? Drawing on the classical period and contemporary perspectives, this paper argues that dhimmah might provide a more robust framework for minority protection, but the limitations it places on non-Muslim political participation are difficult to square with modern conceptions - and equally difficult to remove. Yet why does this apparent tension incline us to say that dhimmah ought to be rejected? Do aspirations always trump results? Simply asking about the value of dhimmah raises important questions about the claims the human rights consensus makes in the face of alternate modes of legitimation and organization.

This is the real theoretical focus of this paper: preferring rights over a system legitimated by immanent, divine sanction is difficult to motivate. Rights thinking evinces a triumphalist universalism hostile to the (equally) universalizing claims of religious authority. Human rights' implicitly secular claim - that religion should withdraw from temporal political ordering - cannot be proven, only preferred, and if one believes in autonomy (for cultures as well as people), there may be grounds for conceding others' right to order their societies in a different way.

This paper is part of a larger project to look at the tensions between universalism and cultural particularism as alternative ordering structures. It proposes a model of legislative competence vested in cultural communities and commitment to systemic diversity - notions that may conflict with the universalizing individual commitments of orthodox human rights.

Islam, Islamic law, religion, dhimmah (zimma, dimmah, dimma), Qur'an (Koran), Muslims, non-Muslims, minorities, minority rights, human rights, universalism, taxation, military service

Abstract:
What is the true shape of our commitment to prohibit ethnic cleansing? This Article explores that question by considering a case observers have almost universally decided does not constitute ethnic cleansing. It examines the recent controversy in the European Union, when Sudeten Germans demanded that the Czech Republic apologize for having expelled them after WWII before being admitted to the EU. Their demands were almost universally rejected and the legality of the expulsions was reconfirmed by all relevant actors. So what is the consequence for customary international law's rules on ethnic cleansing?

The Article derives the customary legal norms logically arising from that rejection. It makes two specific claims about the Law of the Holocaust that has arisen since Nuremberg: 1) that despite our otherwise absolute commitment against ethnic cleansing, the Sudeten case identifies a Corollary, an identifiable and predictable limit on our willingness to oppose ethnic cleansing; and 2) that the same case establishes limits on our commitment to restitution for mass violence.

The Article also asks why these norms do not appear as acknowledged doctrine; the inquiry, therefore, is not simply into the rules, but into law's construction of them. Throughout, the Article considers the responsibility of the present to order itself in light of the past: what is the proper moral and legal response to actions that implicate a bygone age and the suffering of another century?

This Article constitutes the first part of a larger project on rethinking the definition and legal contours of ethnic cleansing, as well as the first chapter of a five-part project examining Europe's legal and political identity through the prism of controversies over ethnicity in Central Europe.

customary international law, ethnic cleansing, European Union (EU), memory, Sudetenland

Abstract:
Are human rights compatible with religiously based, group-oriented ordering systems? The question is usually asked the other way around: human rights have become a default rhetorical and ideological framework, and identity-based ordering systems, including religions, are seen as retrograde and illiberal. Yet the assumptions underlying rights may not be so widely shared, and are often surprisingly insular. Moreover, individualistic theories of rights have been singularly unsuccessful in accommodating group claims.

This paper considers one example of a secular, group-oriented model for ordering law - the Roman concept of ius gentium - as a means to explore theoretical challenges to human rights that group orientations pose, especially to notions of universalism, legitimacy, and the state, and to consider alternative ways of thinking about rights and groups.

Could ius gentium justify rights for religious or other minorities in a modern state system? Ius gentium might provide a useful foundation for reconfiguring minority rights since it admits multiple sources of authority and over-lapping modes of legal interaction without threatening territorial integrity: in the Roman conception, jurisdiction is personal and status-based, not territorial, and therefore could afford autonomy to communities who do not inhabit compact, homogenous territories. Ius gentium also inclusively accommodates both religiously and secularly oriented systems. Ius gentium does not impose any universal normative structure; it is less about "a right to rights" than about "a right to a system."

This paper outlines the problems confronting group rights in the modern state system; defines the concept of ius gentium and considers its potential value; and considers questions about contemporary application to religious and other minorities. As part of a larger research project, this paper will also contribute to a legislative model for systematizing group rights that seeks to get around the dead-end debate between relativists and universalists, channeling those antinomies into the simultaneously philosophical and pragmatic enterprise of legitimating the authority to make decisions about rights, rather than simply debating outcomes.

minority rights, human rights, universalism, Roman law, international law, ius gentium (jus gentium), minorities, religious rights, religion, group rights, groups,

Abstract:
This essay is a reflection on democracy, justice and intervention. It focuses on the Bosnian experience, and this requires one to consider several elements and actors: Bosnia as a state, Bosnians as a people or peoples, and the international community. For since Dayton, the indispensable context for reform in Bosnia has been the international protectorate, which is to say the deliberate abrogation of autonomous, democratic, domestic processes for some defined, and hopefully higher, set of purposes. These purposes are expressed in the Dayton Accords, though increasingly the structures of Dayton Bosnia itself are seen as a real obstacle to stabilization, efficiency and prosperity - to the dual values of integration and denying victory to genocide.

This essay examines the processes used by the international community to govern Bosnia since the war, the assumptions underlying that project of governance, and the consequences for the population. Those processes and assumptions suggest a policy premised upon resistance to the fragmentation of the state under any circumstances, and an abiding commitment to reducing the degree of separation among the populations within that state which the international community has willed into being. How necessary - indeed, how related at all - are those commitments to the dictates of justice? What is the relationship of such premises, which justify our intervention, to another set of commitments to democracy?

International commitment to Bosnia is intense, but not profound. It rests on a powerful emotional conviction - and a sense of guilt for what we failed to do - but a conviction whose connection to actual policy choices is essentially arbitrary. The international community's - and Bosnians' - desire for stability, prosperity and justice might be better served by allowing more meaningful debate about Bosnia's future, and our own commitment to democracy makes it essential that we let Bosnians decide.

The essay first describes the shape of the Bosnian polity and the role of the international community in shaping it; it then assesses core assumptions about the integrationist agenda of the international community's intervention, including the problematic tension between its concept of justice and democratic autonomy; finally it considers several potential objections to allowing more open democratic processes in Bosnia. This essay discusses Bosnia, but it has implications for re-conceptualizing claims about the democratic nature of states - and when it is right to intervene in them - much farther afield.

democracy, self-determination, autonomy, intervention, justice, genocide, elections, ethnicity, ethnic conflict, war, protectorate, international community, Bosnia, Yugoslavia, Balkans

Abstract:
A decade after Dayton, Bosnia is a fictive, failed state held together by outsiders' weapons and outsiders' will. All parties recognize that Bosnia's current constitutional dispensation is dysfunctional and are calling for change, but how should the international community respond? In deciding, we should recognize that we may owe Bosnians much, but we owe Bosnia nothing.

This Article argues that traditional self-determination doctrine is unable to justify either further claims for secession from Bosnia or Bosnia's own original secession. It examines the processes used by the international community to frame the dissolution of Yugoslavia and the recognition process for Bosnia, and the likely legal outcomes if these same arguments were applied to the post-Dayton situation, suggesting that most of the legal and moral objections conventionally arrayed against any further fragmentation of the country cannot be differentiated from the circumstances prevailing at the original secession.

The Article concludes that the war and the peace have made ethnic groups' claims more possible and more compelling today. Our and Bosnians' desire for stability and justice might be better served by Bosnia's division, and our commitment to democracy makes it essential that, whatever our moral sense, we let Bosnians decide. The claim is narrow and case-dependent, but it will inevitably have implications for re-conceptualizing claims about state formation elsewhere.

Bosnia, Yugoslavia, Balkans, secession, self-determination, decolonization, ethnic cleansing, ethnicity, democracy, democratization, international law, Dayton, war, uti possidetis

Abstract:
Serbia has two autonomous provinces, with nearly identical constitutional and political claims: heavily Albanian Kosovo and ethnically diverse but Serb-majority Vojvodina. One is headed towards some form of internationally recognized independence; the other almost certainly is not, even though calls for its autonomy have been mounting. What makes the difference?

This article examines what the reasons for these different outcomes show about the changing content of self-determination in an environment of persistent ethnic claims. The defining characteristic of self-determination today is its indeterminacy, which allows policymakers to pursue a broader range of policies than was possible in the era of decolonization. These policies are only limited by the ability of states to define their actions consistently with past practice or to claim new rhetorical ground in the name of self-determination. This in turn will give rise to a new orthodoxy. To achieve a positive outcome in Kosovo, policymakers have adopted rhetorical and legal positions that will shape self-determination as a legal claim and policy option, and will do so in ways that partly revive its original, Wilsonian rationale.

Consistent application of the principles that appear to underlie the West's preferred solution in Kosovo should logically encourage similar outcomes in Vojvodina - yet this is a result few parties desire, so policymakers have to distinguish these claims. Efforts to do so inevitably have to address the different ethnic makeup of the provinces which underlies their different treatment. In disfavoring similar treatment for Vojvodina - and finding it easy to do so - the international community implicitly acknowledges that an ethnic criterion, long disfavored, has definitively reentered the legal and political analysis of self-determination.

International Law, Self-Determination, Ethnicity, Ethnic Conflict, Yugoslavia, Kosovo, Vojvodina, Serbia, Serb, Albanian, Hungarian, Croat, independence, autonomy, partition, secession, intervention, post-colonial, democracy, democratization, doctrine, policymaking, territory, justice, constitution

Abstract:
The Dayton Accords have brought peace and stability to Bosnia. Yet the Accords were intended to do more: they were meant to create conditions for the restoration of political unity among Bosnia's factions. On these scores, Dayton has failed. Moreover, there remains a wide rift between the international community's perceptions of the local parties' obligations and those parties' own perceptions and conduct.

One of the most complicated aspects of post-conflict Bosnia is the range of disputes over real property. Hundreds of thousands of people have been displaced, and so far Dayton has proven singularly incapable of creating any meaningful resolution. Yet the situation is by no means anarchical: There are legal and quasi-legal structures in place in all areas of the country that shape property disputes - if only to shape the ways in which policies of eviction and ethnic cleansing can be pursued.

This Article examines the modes of resolving property disputes enforced by the various ethnic governments operating on Bosnian territory. What are the rules that have actually shaped the disposition of property disputes? What is the relationship between the international community's imposed solution - the Dayton Accords - and the systems actually operating in the country? What do those domestic systems tell us about the essential nature of those regimes: their aspirations, their modes of legitimation, their purposes for being?

In answering these questions, the Article explores the degree to which the regulation of property disputes in Bosnia is evidence, not merely of rights violations, but of a wholly different constitutional conception of what society and the polity should be. Bosnia's domestic regimes are fundamentally - constitutionally - at odds with the commitments imposed upon them in the Dayton Accords. Yet the international community has assessed the legitimacy of the various parties by international standards and imposed norms on them without reference to internal dynamics of legitimacy. A more textured understanding of these regimes' relationship to the rule of law is important because, to the degree these systems are characterized as internally legitimate, their legitimation is independent of the norms outsiders seek to impose on them. The Article argues that in failing adequately to address these issues, the international community risks either the complete irrelevance of its norms, or a dangerous and compromising co-optation.

The international community's efforts in Bosnia suffer from an irresolvable contradiction: they seek to ensure liberal human rights on a foundation of illiberal, ethnically exclusive states. This contradiction poses a serious conceptual and moral challenge to scholars and policy makers: the maintenance of peace in Bosnia will likely require consolidation of ethnic status, but that will in turn subordinate the very values and commitments that have inspired much of the human rights community's hopes for the country's future.

Bosnia, Yugoslavia, Dayton Accords, Property, Constitution, Constitutionalism, Rule of Law, Rechtstaat, Human Rights, International Law, Ethnic Cleansing, Ethnicity, Population Transfer, Reguees, Displaced Persons, Serb, Croat, Bosniak, Muslim, War, Liberalism

Abstract:
What limits ought there be on a state's ability to create a homogeneous society, to increase or perpetuate non-diversity, or to create hierarchies within existing diversity? This paper examines those questions with reference to the Lieberman Plan - which proposes to transfer populated territories from Israel to the Palestine in exchange for Jewish settlements on the West Bank - as an abstract exercise in demographic transformation by the state.

First the article considers if the Lieberman plan would "work": Would it create the alterations it proposes, and would those changes achieve a stable, peaceful, even just settlement? It finds that though there is debate about the possible effects, there is little doubt that transfer would alter the state's demography; objections about feasibility are really based on a conviction that transfer is undesirable. Similarly, transfer is fundamentally different from ethnic cleansing or apartheid, since it leaves people where they are and moves borders around them.

The article then turns to the international standards that might govern the transfer of territory and citizens, to see how they would characterize such a plan. It finds that there is no rule requiring states to condition transfer of territory on the consent of the affected population, and that norms protecting citizenship are considerably more complex than they first appear - even allowing ethnically targeted denaturalization in some cases.

The article then analyzes the loyalty provisions of the Lieberman Plan, and notes, contrary to the usual normative assumption, that the foundations of citizenship are actually shared identity and values which derive from a habitual or formative link to a given territory, which in turn creates a right to citizenship not in any particular state, but in the one that incidentally is sovereign over that territory. This interaction of citizenship and territory, when considered together with equal protection norms, suggests that the polity has an interest in defining its own territorial scope and thereby its membership. Human rights do not dictate a particular political dispensation; they do not dictate the shape of any polity.

The article proposes a neo-Wilsonian interpretation of self-determination to explain how transfer might be assimilated to existing norms. The present doctrinal regime is ambiguous, and deliberations about this question sound in the realm of politics. The right of Jews, as a self-defining group, to self-determination might entitle them to reassess their union with the Arab population of Israel and to in effect secede from the existing broader multi-ethnic state. In fact, all two-state solutions implicitly confirm the continued relevance of division of communities along ethnic lines in the Israeli-Palestinian context. Curiously, therefore, the Lieberman Plan is actually one of the more candid and more generous proposals, in that it acknowledges the logic underlying self-determination: that a self-defining community cannot extend its political dominion over another group, but rather must withdraw.

Finally, the article notes that international law, though it polices excesses by states, is almost entirely silent about the most decisive factor in controlling demography: the fact of state sovereignty over territory.

Israel, Palestine, ethnic cleansing, apartheid, demography, Avigdor Lieberman, self determination, territory, population transfer, citizenship, denationalization, civil rights, human rights

Abstract:
This Article examines the decision by the ICTY Prosecutor not to investigate NATO's bombing campaign during the Kosovo war - and the Prosecutor's unusual decision to publish an Inquiry explaining its reasons. Many scholars have examined the Inquiry, but all have focused on its substantive legal analysis. This Article takes a different approach: It focuses on how the Prosecution reached the conclusion not to investigate. Using rhetorical analysis, it examines the Prosecution's decision-making mindset to see what that indicates about the shape of future international prosecutorial decision-making, including at the ICC.

There is no evidence that the Prosecution succumbed to direct pressure. But the question we must consider is this: Is an international court institutionally capable of asking the questions about law-in-politics that it must if it is to fulfill the promise of international legal justice? This Article argues that the Inquiry raises serious concerns about the Prosecution's compliant attitude toward NATO's liability, especially in the face of changing technology in war. It makes an original contribution to debate about the ICC through a case study of the overlooked, but troubling, effects of a prosecutor's discretion not to act. But more, it argues that the Inquiry's structure and style entrench a worrisome immaturity in our approach to international justice. The Inquiry is evidence that an international justice's prospects are limited; our aspirations and strategies may have to be adjusted accordingly, because a court that produces answers—even right answers—for the wrong reasons may never fulfill its promise.

ICTY, International Criminal Tribunal for the Former Yugoslavia, ICC, International Criminal Court, NATO, Kosovo, Prosecution, Inquiry, war, bombing, prosecutorial discretion, decision-making, war crimes, international criminal law

Abstract:
During the 1990s, European policy towards Roma evolved from concern about migration toward rhetoric about rights. In this article we trace that shift across two OSCE reports. Following rhetorical-action models, we show how the EU's commitment to enlargement and "common values" compelled it to elaborate an internal approach to minority protection. Concerns about migration persist, but Europe now has to consider how to integrate Roma as minorities.

Abstract:
This editorial argues that the United States should not oppose Iraqi efforts to amnesty insurgents who fight against American forces. Killing American soldiers is an act of war, but it's not a crime. Republicans and Democrats alike argue that amnesty encourages attacks on Americans, leaves crimes unpunished and dishonors those who died liberating Iraq. But these objections mistake the nature of amnesty, the incentives it creates and the costs we impose by opposing it.

What is most misguided about the United States' policy is that rather than singling out real terrorists, it criminalizes the one group that resembles a normal fighting force: insurgents fighting Americans. We're at war, and so are they. When our soldiers kill in combat, they are not committing a crime. The same logic should apply to Iraqis. It is hubris to imagine we can fight without the enemy fighting back.

Thousands of American servicemen have died fighting for a cause our country undertook, even though we could not agree among ourselves on what it was. If amnesty for the insurgents who killed them helps bring peace to Iraq, that is a sacrifice worth making. We honor our dead when we bring peace to the country where they died.

amnesty, war, international law, humanitarian law, law of war, international criminal law, Iraq, United States, insurgency, insurgent

Abstract:
When Slobodan Milosevic was transferred to The Hague, hopes were high that the architect of ethnic cleansing would face justice, and a definitive record of the war would be established. His death showed that we expect too much of international justice. Tribunals have become the international community's tool of choice for responding to mass violence. But law is a fragile process with uncertain effects; claims that international courts deter violence, create a record, or promote reconciliation remain speculative.

And what are the costs? International trials are slow. They are expensive, drawing resources from other initiatives. More fundamentally, fetishizing law narrows our options for supporting fragile transitional societies.

Yet the international criminal law paradigm continues to dominate our thinking. A more realistic strategy would incorporate amnesties, truth commissions, exile for entrenched leaders and lustration for mid-level officials, and civil compensation. It would prioritize domestic processes - and have the courage not to insist on trials in countries that aren't ready.

And it would recognize that war is still the best way to combat war crimes: The energy expended on tribunals might be better invested in building consensus on robust, timely intervention when crimes are being committed rather than seeking punishment afterward.

Most of all, international law needs a dose of humility. We should reexamine the attractive but empirically dubious shibboleth no peace without justice. Peace and stability - without which justice seldom flourishes - are within the reach of a flexible response that upholds law yet does not abhor alternatives.

international criminal law, war crimes, trials, amnesty, tribunals, ICTY, International Criminal Tribunal for the Former Yugoslavia, Milosevic, Yugoslavia, Bosnia, Kosovo, international law, humanitarian law, cost-benefit, transitional justice

Abstract:
This article argues that the European Union is mistaken to link accession negotiations with Serbia to the arrest of Ratko Mladic, the Bosnian Serb general accused of war crimes. There are advantages to not insisting on arrest: Negotiated reforms could begin in earnest, and might make Serbs eventually turn their backs on Mladic and what he represents. But instead of having an open-eyed debate about the benefits and costs of arrest, Europe is making three lazy assumptions about the role of international justice in transforming societies.

The first is that arresting a war criminal is a small price to pay for integration. But while linkage might speed Mladic's arrest, it also risks backlash. Is Mladic's arrest worth endangering the integration of 8 million people in a region that badly needs stability?

The second assumption: Mladic's arrest is necessary to prove that Serbia is serious about transforming. But is extracting Mladic under pressure going to change Serbian values? The EU should ask if a deeply brutalized society like Serbia's is a worthy partner for integration, regardless of the disposition of one war criminal.

A third assumption underlies the other two: that Europe's demands are natural and uncontroversial. In fact, Europe's demands are discretionary, and denying this stifles debate about real costs. Mladic's arrest is controversial in a Serbia otherwise eager to integrate. Serbia's integration into Europe is vital, and that is precisely why Europe needs a rational debate about what it should and should not ask of Serbia.

European Union, EU, Serbia, Bosnia, Yugoslavia, accession, integration, transitional justice, international criminal law, war crimes, Mladic