So Phillip Sands, the author of torture team, is being interviewed on NPR as we speak about the use of harsh interrogation techniques at Guantanamo. Now I’m seriously bothered but many of the revelations about Guantanamo, particularly the possibility that we used harsh interrogation methods when we had strong reason to believe they wouldn’t be effective and that we kept people locked up despite strong reason to believe they posed no threat nor had committed no crime just to avoid looking foolish. Certainly the indefinite secret detention of people and the use of techniques like water boarding violates the spirit of both the US constitution and international human rights treaties whether or not they constitute technical violations. However, the suggestion that senior officials in the Bush administration, including Bush himself, face a real risk of being subject to criminal penalties by foreign nations is just absurd and actually encourages human rights violations. Moreover, the notion that merely suggesting that US law doesn’t bar certain kinds of harsh interrogation techniques is itself a war crime is flat out absurd.

Now is it possible that top members of the Bush administration will face prosecution for things they did in office? Yes, if later revelations stoke up sufficient public outrage they could face charges in the US but even that seems most unlikely. But the idea that Bush might end up being arrested during a trip to Europe after he leaves office is simply laughable. It’s one thing for the Europeans to arrest the former dictator of Chile and prosecute him for crimes that he had legal immunity for in Chile. Not only was there enough support in Chile for him to be (unsuccessfully) prosecuted but a country like Chile has much less international influence than the United States. Given the attitudes of US citizens toward international courts and US independence it’s simply not plausible that we wouldn’t make a fuss if another country tried to arrest Bush after he left office. It’s one thing to arrest a foreign dictator another to arrest a US president whose actions were supported by a substantial fraction of the populace. Even many people who might favor a prosecution in the US would recoil at the idea that the Europeans or anyone else could tell us what we could and couldn’t do. Arresting a former US president is the kind of stupid idea that could lead to a war (but won’t since no non-symbolic arrest will happen).

Moreover, perpetuating these simplistic attitudes about international law actually encourages human rights violations. Despite the fact that Chinese leaders and Kim Jung-Il have certainly committed human rights violations, including some that likely amount to torture, there is no serious suggestion that they will be prosecuted. This is appropriate as productive engagement is much more likely to improve the human condition than a hard line attitude. However, foreign leaders, knowing they won’t have the protections former US presidents enjoy, aren’t stupid will react accordingly. If they see that leaders of repressive regimes will be protected from prosecutions but former leaders of more open societies are not they have a substantial incentive to cling to power. On the other hand if we save war crime prosecution for truly horrific acts (genocide etc..) it might persuade dictators to soften their tactics or even give up power in exchange for pledges of immunity.

Finally I have to say I’m boggled by the idea that merely expressing a legal opinion about what US law allows could make one a war criminal. I mean if Yoo is supposed to be a war criminal for suggesting that water boarding was legal wouldn’t the human rights activist who protests the lack of a law preventing a US president from ordering water boarding be equally guilty? Now of course a legal opinion from the president’s legal advisers has legal significance that the opinion of a human right’s activist lacks but surely that legal significance doesn’t make it a war crime not to lie. If that human rights protestor was appointed as a legal adviser to be president he surely would not suddenly then be obligated to lie and pretend there was a law that barred water boarding when there was not. But if it isn’t criminal (or even immoral) for a legal advisor to say that water boarding isn’t currently illegal but really should be outlawed surely it can’t be criminal for him to mistakenly claim it isn’t currently illegal.

Now certainly, as we saw during the Nuremberg trials, if a lawyer goes beyond observing that something is legal to actively participating in decisions that choose to implement it than things are different. I suspect the intuition that Yoo has committed war crimes comes from people’s assumption that he deliberately twisted the law to achieve his preferred policy outcomes. However, as hard as it may be to believe, it’s far from clear that Yoo consciously did anything of the kind and it would certainly be near impossible to prove any such thing even if you think that water boarding rises to the level of a war crime.

So recently the movement to ban cluster bombs has been gaining momentum.  On Radio Netherlands Worldwide they’ve been repeatedly running a piece that narrates some of the ‘horrifying effects’ on civilians and discusses the Hague’s choice to suspend the use of cluster bombs but not ban them.  This seems to be the right choice to me and might even go too far.

War is intrinsically horrible.  People get mutilated and die.  The harm from cluster bombs doesn’t seem inordinately different from those of any other sort of weapon.  Sure it’s worse that they can stick around after  use and create unnecessary injuries but as always I don’t see why civilian deaths are any more terrible than military deaths.

In fact I worry that feel good attempts to ban things like cluster bombs and perhaps even land mines undermines the strength of the ban on weapons of mass destruction.  Just like the federal government made marijuana a gateway drug by banning it so too would international treaties banning normal conventional weapons risk lowering the barrier to the use of other banned weapons.  I fully support programs to reduce the harm from cluster bombs, say by making sure they don’t remain active for long periods of time, but I don’t see the argument for adding them to the list of truly horrific weapons we completely ban like chemical, biological and nuclear weapons.

Perhaps what we need is a list of ‘discouraged’ weapons whose use is frowned upon and treaties mandating technological fixes to minimize the harm.

I find it interesting that the standard position among most arms control advocates (and Berkeley liberals) to support both the Anti-Ballistic Missile Treaty (bans anti-ballistic missiles) and the Comprehensive Test Ban Treaty (CTBT). For instance the Union of Concerned Scientists (UCS), an outspoken proponent for the CTBT says this about the Anti-Ballistic Missile (ABM) withdrawal by president Bush. I’ve long been unconvinced by the (non)arguments for the CTBT but it just occurred to me the effect of the two treaties is essentially the same. It seems to me that the traditional support of arms control advocates for the ABM treaty is inconsistent with support for the CTBT and certainly with the idea that a nuclear weapon free world is a worthwhile goal in the current global order (the supremacy of the nation-state, ultimately I hope that the UN will be trusted to maintain the only legal deterrent arsenal).

ABM facilities increase the perception that your opponents are unlikely to be able to mount a successful attack. This is the basis for most of the arguments against ABM installations. The critics argue that when faced with a potential nuclear adversary protected by an ABM countries will react by building many more nuclear weapons, presumably to maintain the deterrent effect of their arsenal (nuclear weapons aren’t good for anything but deterrence). Already one can see the stress between this position and the argument that individuals like Mohamed Elbaradei make for disarmament. If countries will inexorably build up their arsenals whenever faced with a potential decline in their deterrent capability we surely can’t expect that they would really disarm or that vague moral pressure would keep them from rearming during times of crisis. Surely their is a greater moral pressure on countries not to increase their arsenals than there is to voluntarily shrink those arsenals and by reducing the effectiveness of nuclear weapons an ABM would effectively constitute an arms reduction that bypasses the entrenched resistance to these kinds of changes. Furthermore, on top of just reducing the effective firepower of their opponents a (well funded) ABM defense also increases the cost effectiveness of their future nuclear weapons. It doesn’t matter if these effects of ABM systems exist only in perception it is exactly this perception that would help to convince the world that nuclear weapons and nuclear deterrence were old fashion, ineffective and better forgotten.

The critics would likely respond by arguing that having an increased absolute number of nuclear weapons would itself be a danger. For instance the UCS worries that an increase in Russian nuclear weapons kept on alert as the rest of a US ABM system would increase the risk of accidental launch. Obviously there is some chance that any given nuclear weapon could be launched on its own but I would suggest that the risk of an errant nuclear missile launch is so small compared to the risk of a mistaken volley being fired (as we have just barely avoided on several occasions) that it will be swamped by other factors in this analysis. However, if there really is a substantial danger of an errant (singular) missile launch this is itself a strong argument for an ABM system. The primary technical criticism of ABM has always been that a coordinated strike of many MIRV (splits up into many bombs) equipped rockets would overwhelm any ABM system but no one seems to doubt that we could construct an ABM system that provides significant protection against lone ICBMs. Furthermore, as these same critics themselves note the acquisition of nuclear devices by terrorist organizations is a serious looming threat. Given that an ABM treaty would probably not spur Russian to build new warheads but just move old ones into active duty it could plausibly reduce the likelihood the terrorists could get their hands on a weapon (it could increase it too but I was guessing it is harder to steal when it is loaded into launch-prepped missile).

At this point the critics would likely point out that most of the supposed protection of ABM devices is mostly illusionary and that it’s effectiveness would be overrated by both the deploying nation and its adversaries. I don’t really have any way to evaluate this claim but it seems plausible. Thus, the argument would go, the increase in weapons on high alert would actually increase past what was necessary to maintain the same level of deterrence meaning the expected harm would actually rise. However, any nuclear country with the resources to overcompensate likely has more than enough weapons to to totally annihilated their foe meaning the harm resulting from an actual nuclear exchange wouldn’t increase much if they did overcompensate and as I argued above the unlikely scenario where the risk of accidental launch was even close to linear in the number of active weapons would separately justify an ABM system. Finally excessive confidence even offers benefits. Most of the world’s close brushes with nuclear war (except the wargames type scenario) were mistaken identification of non-hostile objects as an incoming missile. The greater the confidence of the man behind the button that a real incoming missile would be shot down the better, whether it is justified or not.

The most plausible argument against ABM installations is that the overconfidence they engender may encourage leaders to ignore the risks of nuclear reprisal, play dangerous games of brinkmanship or even launch a pre-emptive strike counting on your ABM system to protect you from reprisal (tacit deterrence again). I think this argument is compelling when applied to major nuclear powers like China, Russia and the US but I’m less sure whether something like the North Korean threat would justify building an ABM system. Of course even if ABM installations would be a good idea this didn’t justify pulling out of the ABM treaty before we had a production quality nonallowed defense ready. In any case research on an ABM system is always necessary at some level just to make sure that technical advances don’t allow another country to surprise us by deploying one out of the blue.

But wherever you come down on the ABM treaty (I was always vaguely in favor of it but I’m rethinking this now) you should agree that if the ABM treaty is harmful then so is the CTBT. Just like knowing your opponent has a ABM installation knowing that your bombs have never been tested should reduce your confidence in their likely effectiveness. If countries will respond to uncertainty in the penetration of their warheads by building more warheads we should expect countries to respond to uncertainty in their weapons designs by making more designs and warheads to boost their certainty in achieving a certain effect. Worse, by forcing many designs, such a situation results in increased systemic error (someone screwed up the safety features on design 3A4) which is much more worrying than the deployment of more of the same sort of missiles. Furthermore by hiding both sides real nuclear capability (even from themselves) the CTBT manages to encourage both the overconfidence (they don’t have nukes) that leads to accidental wars and the under-confidence (we might not have nukes) that leads to more warheads. Unlike an ABM installation the CTBT manages to do this without even resulting in the slightest reduction in risk from rogue missiles.

The CTBT doesn’t even lead to an improvement of our attitudes to nuclear weapons. Much like tough anti-drug stances the CTBT only serves to drive the activity underground where it is more difficult to monitor. The nice thing about the NPT agreement was that it had everyone put their cards on the table but the CTBT is undermining that principle.

I wanted to make it clear that if we had a uniform legal and procedural framework to try dictators for crimes against humanity I would probably support trying Saddam under that framework. Failing to try Saddam under such a framework would not be unfair, we know he is guilty, but the precedential value of following the rules might help avoid future unfairness. The problem is that no such legal framework exists. In fact I was wrong in assuming that the ICJ will ever be able to take jurisdiction over these sort of incidents, they only have jurisdiction over states.

For instance the war crimes in the Bosnian conflict are being prosecuted by an ad hoc court. Interestingly despite being set up in the Hague with international jurists Milosevic was not allowed to cross examine General Clark about the NATO involvement. In any case the point is no matter what a new court with new rules was necessary to try Saddam for his crimes. Thus there is no getting around the fact that Saddam was going to be tried using procedures handpicked for this situation.

But what is it that makes the procedural rules of a court fair or unfair? As I argued previously the rules of a court are fair when they guarantee that trials are likely to result in the correct outcome. Given that Saddam and his compatriots are the only ones who will be tried using these procedures they are fair just if they give the right result for Saddam and his companions. So the rules for Saddam’s trial could have just explicitly stated he was guilty and the trial would have been no less fair.

In other words once you are handpicking the procedure of a trial for a specific defendant the only sense in which they are fair or not is whether they give the right result for that individual.

So human rights groups have been alleging that Saddam’s trial was unfair. Apparently they allege several types of procedural errors made the trial unfair and as a result Saddam shouldn’t be put to death.

This seems to be totally backwards. A trial is not fair because it implements some arbitrary list of procedures. During Jim Crow a white man on trial for killing a black man could have (though probably wasn’t) a trial that dotted every legal i and crossed every t but it would still be unfair if he had a prejudiced mostly white jury, even if they properly represent the district. On the other side in the absence of formalized legal authority it would be fair to prosecute wrongdoers before informal juries using whatever procedures seemed most likely to give the correct result. What makes a trial fair or not is whether it is likely to get the correct result, perhaps with the additional requirement that there be an articulable individualized justification for guilty verdicts.

Worse if you really believe that it is procedure that makes a trial fair or not you have to decide which procedure is the fair one. Every western country has different procedures, some use an adversarial process, in others you have no adversarial representation and everyone participates in an impartial attempt to arrive at the truth. Surely this doesn’t mean that only one of these sets of procedures counts as fair. Yet many of the complaints about the Saddam trial are not really beyond this sort of national variation. Sure, statements from witnesses were read into the record without Saddam having the opportunity to confront them but different countries have different standards as to when you have a right to confront the witnesses. Many countries allow underage victims of child abuse to submit evidence without having to confront the accused. Why not give supposed victims of genocide the same privilege, especially in situations where they have very real fears of reprisal. The idea that a written transcript is essential to a fair trial is just laughable (fair trials were impossible before written language?) and many of the other worries seem equally trivial.

Ultimately though the procedure is totally irrelevant in this case. We demand certain procedures as guards against unfair trials not because the procedures are essential to fairness themselves. We then insist that these procedures be applied uniformly to prevent abuses, rejecting trials that don’t conform even when they obviously get the right results to make sure the rules will be followed in the future. However, these concerns are totally irrelevant to the Saddam trial. There is no persistent institution that has formal authority to try Saddam (his crimes happened before ICJ was constituted). No one else will ever be tried under the procedures that are set out for Saddam. He is being tried on the same grounds that the Nazis were tried. Namely that they did something so bad that they need to be punished regardless of any laws on the books or treaties their country has signed.

Really the entire notion of giving Saddam a trial, rather than just convicting him and trotting out the evidence is a joke. We know he committed genocide we are punishing him to send a message to other dictators who might do the same. Even Saddam thinks having a trial is a joke saying everyone knew who was in charge. No trial convicting Saddam could ever be unfair as we already know he is guilty and since his trial is unique it doesn’t really make sense to ask if these rules generally lead to fair trials. Even if a ‘procedurally correct’ trial would set Saddam free we should execute him anyway. The harm done by unfair trials of deposed dictators is never going to be as large as the benefit of deterring genocide.

I’m getting more and more annoyed at the confusion between law and morality that seems to be endemic among international human rights groups.

So the BBC is talking about some US soldier who deserted his unit claiming the Iraq war is illegal under international law and requesting asylum in Canada. Lately I’ve been getting more and more upset with the BBC for soft balling and pandering to obviously absurd little emotional attitudes whenever it has these little discussions/interviews.

The first thing which pissed me off about this interview, like pretty much everything I hear about the Iraq war from Europe these days, is the unchallenged insistence that the Iraq war was illegal under international law. Since I have yet to see any detailed legal argument from this position and most people seem to convince themselves of these claims by misinterpreting technical legal language (war of aggression) it is appalling that I never hear the BBC interviewers challenge this. As far as legal technicalities go I don’t even know if we ever formally ceased hostilities with Iraq after the first gulf war (we signed a cease fire then but I don’t think a peace treaty was ever signed) and even if we were any number of security council resolutions made the war legal. Sure it may have gone against the spirit of international law but this is really irrelevant. I don’t understand how it can’t be blindingly obvious to everyone that this business about the gulf war being illegal is just emotional clap-trap.

Even worse the BBC just let this guys assertion/argument that he shouldn’t be forced to do something he felt was immoral without comment. Apart from posing absurd practical problems any such rule would license virtually any sort of behavior, including (at least passive) instances of man-slaughter/murder. Nor did any part of the interview/discussion consider the tough questions of what general principle can be used to separate cases like this from people who just don’t want to fight.

Don’t get me wrong I am sympathetic to someone forced to fight in a war that seems to have at least an even chance of making things worse and ending up killing lots of people for little benefit (hardly matters if Saddam or civil war kills people). In fact it even might be a good thing if Canada gave him asylum though the US must punish him if we catch him to deter this sort of behavior. However, the way the BBC doesn’t point out the glaring obvious problems with the stupid little emotional platitudes people use to justify themselves really annoys me.

So a few days ago I posted about the Church of England’s decision to boycott companies profiting from the Israeli occupation. In that post I criticized the constant rhetoric characterizing the Israeli occupation as illegal. Apart from having unclear truth it is just irrelevant. There just isn’t enough confidence or uniform enforcement of international law to give it any presumption of correctness. If the law is wrong Israel should of course ignore the law. A position which Israel’s Palestinian critics hypocritically adopt whenever they violate Israeli law even in Israel proper or violate international law by failing to meet their security obligations (stopping terrorism) but seem to forget when they talk about the Israeli occupation.

Anyway I thought this post over on the Volokh Conspiracy provided some interesting additional detail. It makes a pretty compelling case (though not expert legal opinion) that in fact all the Israeli settlements on the west bank are in fact perfectly legal under international law as well as the barrier. The most significant point is the following:

Jordan’s renunciation of the West Bank necessarily included a renunciation of all claim to West Bank land which had been owned by the Jordanian government. The renunciation therefore perfected Israel’s legal ownership of the former Jordanian government lands in the West Bank.

Sure there is an International Court of Justice ruling to the contrary but glancing through the ruling I have to say that I am terribly unimpressed. In particular rather than the precise technical rulings that characterize true judiciary bodies like the supreme court, this opinion seems to give the appearance of legal precision through its long list of events and facts but nowhere did I see it dealing with the hard legal arguments. In particular it seemed to be as much of a policy decision as it did a legal opinion. For instance it takes the Israeli governments decision to recognize the PLO as the representative of the Palestinian people to be sufficient to make them a ‘people’ deserving of self-determination. Does the court really take itself to be adopting a precedent which would demand Spain to allow the Basque to secede if it ever recognized the elected leaders from that region as representatives of the Basque people and they favored cessation?

In principle I am very much in favor of a regime of international law. However, I am becoming more and more convinced that what currently passes for international law is simply not appropriate. Such a system should start with precise statutes with explicit automatic penalties for violation and build up slowly. Issuing advisory opinions like this one undermines the entire point of international law as a commonly agreed framework independent of international politics or policy. It’s very unfortunate because international law is such a promising tool but I think the ICJ and its proponents aren’t willing to let international law develop slowly only as consensus builds around clear statutes.

Of course this says nothing about how good an idea west bank settlements are/were. I think they are obviously morally deplorable. There is no real Israeli need for them and they clearly cause suffering among the Palestinians. Though at this point whether withdrawing from them is a plausible option or even a good idea is much more murky.

When it was time to use my most recent audible.com book credit I decided to get Jared Diamond’s “Collapse” on audiobook. Not because I think it is a worthwhile read — I think it’s a simplistic prophecy of doom meant to sell books — but because a lot of people are talking about it and I wanted to be able to knowledgeably argue against them. Once I finish listening to the book I will post my thoughts about it, though having listened to three quarters of the book I doubt Diamond is suddenly going to abandon simplistic emotionally moving analogies and descriptions for the messy complicated details which would be accurate predictors of future events. However, even if I think it is misleading to suggest we can draw conclusions from vague conclusions about radically different societies (not in culture but in absolute level of technological prowess) their are lots of interesting facts and stories in the book. Information that can provide some insight into policy questions even if it is insufficient to make informed predictions about broad future trends .

One thing which “Collapse” really made clear to me is the ease and size of trade in pollution. In particular the movement of polluting industries and processes from first world countries which ban them to places like China which are happy to take the pollution in return for economic development. While this is exactly what one would expect from economic theory it is interesting to see that in the real world neither activism nor public relations concerns prevent it from happening. This effect has significant consequences for world wide environmental policies and raises the troubling specter that treaties and protections which don’t mandate third world compliance may actually make problems worse.

In particular hearing real examples of polluting technologies being moved to countries like China makes me think the problems with Kyoto are more than just pro-industry excuses. Since compliance with Kyoto is entirely voluntary for the third world (it is just a suggestion) it seems there is every reason to believe industries emitting lots of greenhouse gases will simply relocate to places like China. If these countries are willing to accept industries whose pollution will be locally concentrated why would they balk at those who emit greenhouse gases? Disturbingly the overall effect of moving emissions to places like China could be more pollution not less since industries relocating to the third world wouldn’t have to comply with even the relatively week pre-Kyoto environmental requirements, i.e., they could avoid implementing even relatively cheap anti-pollution technologies.

At the very least I think this gives strong reason to be skeptical Kyoto or similar first world only treaties will be effective in combating worldwide environmental concerns. Such treaties may still be valuable as a stealth form of developmental aid to the third world but the environmental harm wrecked by industries moving to the third world to avoid environmental restrictions must be balanced against this benefit. Unfortunately the political will to craft environmental treaties that both prevent industries from escaping to non-signatory nations which will be fair to the third world just doesn’t seem to exist. Developing countries like China justly demand the same chance to become developed that the first world had and accepting stringent emissions requirements without significant compensation would substantially inhibit their development. The only palatable solution would seem to be massive compensation from the first world in return for environmental compliance but just getting voter support for measures to combat global warming is hard enough much less getting people to support paying massive sums to encourage third world compliance.

Even if curtailing emissions is the most effective way to deal with global warming it seems entirely possible that political reality might make this impossible. Therefore prudence suggests we need to continue researching engineering solutions which could avert global warming even if emissions continue. I very much doubt people will be willing to pay the costs necessary to fairly curtail emissions until they start experiencing significant hardship from global warming and at that point it will be too late to stop emissions.