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Abstract:
When the United Nations commission investigating Darfur issued its report in January 2005, it concluded that the Darfur atrocities represented war crimes and crimes against humanity, but not genocide. This had the harmful effect of deflating efforts to mobilize political support to halt the Darfur atrocities. But the Commission's conclusion was based entirely on technicalities in the legal definitions of the international crimes, not on denial that extermination is going on in Darfur. In this paper, I argue that the legal and popular meanings of genocide have diverged in harmful ways: where laymen understand that mass killings and rapes that are exterminating a civilian population simply are genocide, lawyers also require a specific intent to destroy a "protected" group as such. The original motivation for defining genocide differently from extermination (a crime against humanity) lay in a theory that religious, racial, and national groups have value over and above the value of the individuals in them. But, I argue, subsequent developments have thinned the connection between the crime of genocide and the theory of group pluralism. Hence, there is no longer a good reason to draw a sharp legal distinction between genocide and extermination, which today functions to provide a fig leaf for inaction by the world community. I propose adding the crime against humanity of extermination to the other crimes in the definition of genocide.

genocide, Darfur, international criminal law, crimes against humanity

Abstract:
This exchange on Operation Cast Lead - Israel's December 2008-January 2009 campaign in the Gaza Strip - includes essays by Guiora and Luban, followed by Guiora's response to Luban's essay and Luban's response to Guiora's. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles. He also argues that the Hamas civil administration were not lawful targets under Israel's own interpretation of the law of armed conflict. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.

Israel, self-defense, international law, Hamas, Operation Cast Lead, proportionality, counterterrorism, nation state, terrorism, suicide bombing infrastructure, non-state actor

Abstract:
Public debate about U.S. torture policy has been seriously distorted by a nearly obsessive preoccupation with the "ticking bomb scenario" (TBS). As many have noted, the TBS requires the conjunction of many improbable conditions: interrogators must know there is a ticking bomb, know that they have captured the right person, know that he knows where it is, know that he won't talk without torture, know that torture is likely to make him talk, know that he cannot hold out or give misleading information long enough for the bomb to go off, know that the torture won't kill him or render him unconscious, know that lives cannot be saved by other means (e.g., evacuating the building). Given the vanishingly slight probability of all these conditions being met, why do we still act as though the debate about torture is little more than the debate about ticking bombs?

This paper does several things. First, it argues that one likely reason for our preoccupation with the TBS is that we may have vengeful or hateful feelings toward the captive, and we conflate the desire for retribution with the desire to save lives through intelligence gathering. Second, it examines three supposed real-life examples of the TBS, and shows that they are at best disputed and at worst outright urban legends. Third, the paper tries to explain why torture is worse than other forms of political violence, justifying a more rigorous prohibition against torture.

The remainder of the paper is philosophical, discussing the ethical and meta-ethical assumptions behind the TBS. My vehicles are Henry Shue's pioneering 1978 paper on torture and his more recent revisiting of his 1978 approach. The present paper explores Shue's dictum about why the TBS is the wrong focus of discussion ("there is a saying in jurisprudence that hard cases make bad law, and there might well be one in philosophy that artificial cases make bad ethics"). By distinguishing four possible meaning of this dictum, the paper argues that the most compelling is the view that "the unthinkable" is an important moral category that we disturb at our peril, and that the TBS, by presenting a cartoonish hypothetical as though it were reality, aims to convert a moral choice into a stylized brain-teaser and thus to efface the boundary between the thinkable and the unthinkable.

torture, ethics, moral choice

Abstract:
This paper investigates the legitimacy of international criminal trials and defends them against objections grounded in the principle of legality. The argument begins with the observation that the center of gravity in international criminal tribunals lies in the trials themselves more than the punishments inflicted. Such often-discussed aims as giving victims a voice or creating a historical record of mass atrocities are goals of the trial process, not the punishment. Often, it is the spectacle of a former leader brought before a court for politically-motivated atrocities that captures the public imagination; the trial itself has a theatrical or didactic component. That is not an objection to the trials, if they are conducted fairly. But the use of the trial as political theater puts pressure on its fairness. This paper argues that the aim of the trials is norm projection: trials are expressive acts broadcasting the news that mass atrocities are, in fact, heinous crimes and not merely politics by other means. The trials are meant to project the message that atrocities are crimes, not political deeds that exist "beyond good and evil," a vision that underlies traditional amoralist concepts of raison d'tat or Kriegsraison.

The second principal thesis of the paper is that the legitimacy of the tribunals comes from the fairness of their procedures and punishments, not their political pedigree. The legal and political arguments for the jurisdictional authority of international bodies to establish tribunals are only partly satisfactory, and insufficient on their own to legitimize the tribunals. Tribunals bootstrap themselves into legitimacy by the quality of justice they deliver; their rightness depends on their fairness. The clearest example is the Nuremberg Tribunal. Established by victorious allies with jurisdiction only over the Axis powers, it had to prove that it was no show trial, and the clearest evidence was the acquittals it produced.

The final sections of the paper address the concern that international tribunals characteristically violate the principle of legality, in two ways: they are generally established only after the crimes they try are committed, and they sometimes read the law broadly, from a victim-centered point of view, rather than narrowly, as the legality-based rule of lenity in criminal law would require. The paper argues that the two motivating arguments behind the principle of legality - concern about fair notice, and concern about despotic abuse of the power to punish - are less compelling in international criminal law than they are in domestic law. As for the fair-notice rationale: the more horrendous the deeds, the less fairness requires formal notice of potential criminal liability. As for the government abuse rationale: : there is simply much less danger of government abuse in international criminal law than in domestic legal systems, because ICL arises from weak, decentralized institutions rather than strong, concentrated ones. Skeptics point to the free-floating, cosmopolitan character of the tribunals in order to attack their legitimacy. But exactly the same facts demonstrate that the worry about abuses of the legal process by holders of state power is not a powerful one.

international criminal law, tribunals, jurisdiction

Abstract:
This paper examines the roles played by the learned professions in torture and cruel, inhuman, or degrading treatment carried out by the United States in the war on terrorism. It takes lawyers, physicians, psychologists, and anthropologists as its case studies. It originated as the keynote speech at the Association of Practical and Professional Ethics annual meeting in 2007.

national security, professional ethics, torture, terror