The following is based on a lecture presented by Dr. Beres at Case Western Reserve University School of Law on September 9, 2011.
Everyone who has taught international law, or written about it, knows that the idea of crisis in actually inherent in the subject. More than anything else, this crisis, this continuing or protracted dilemma, is one of efficacy, of effectiveness. In the final analysis, whether we study Northern Africa and the Middle East, or anywhere else for that matter, the core problem is always less a question of To Where? than of Who Cares?
Why should anyone care about international law?
Clearly, whether we assume that our adversaries are rational or irrational, it seems unlikely the particular sanctions and rewards associated with legal compliance are apt to figure very importantly in the decision-maker’s calculations. It is also true that actually knowing what is or is not lawful in particular circumstances is not always plain and straightforward. It can, in other words, be a very confusing field of study and practice.
We all know we live with a largely subjective kind of jurisprudence, and that the antecedent questions of “legal” or “illegal” will often depend on many imprecise and interpenetrating factors. It follows from all this that, in the end, we will need to identify and conceptualize a whole new understanding of international law as a disciplined field of inquiry, one rooted in far greater clarity and in a far greater expectation of both punishment and reward: Nullum crimen sine poena – “no crime without a punishment,” the critical legacy of Nuremberg.
Lately, there have been certain tangible signs of “improvement,” most obviously in the areas of international criminal prosecution, in the form of a now permanently constituted International Criminal Court, and also in the appearance of both assorted ad hoc criminal tribunals, and various domestic court venues.
For the moment, it also seems this enlarged resort to prosecution for egregious international crimes suggests (in this area of law, at least) that international law is making real and obvious progress. It is also obvious we humans are a species that has somehow managed to scandalize its own creation, continuing to engage in war, terrorism and genocide with considerable enthusiasm and with little respite or effective opposition.
Sometimes, it is almost as if there were no international laws at all.
What shall we do?
We who study and teach international law need, at least in part, to go back to “the beginning,” to reconsider the basic raw materials of international relations and world politics, and to examine ways in which problems of seriousness and efficacy can be addressed at the critical individual human level. In short, to alleviate the crises of international law and in international law, we will first have to inquire about what I call behavioral transformations. For now, we are likely to regard any such transformations as far beyond the pale of reasonableness, and to focus instead on the persistent anarchy or “Westphalian” character of world politics.
This focus is largely understandable (for we are not very tolerant in these times of what would appear to be flagrant idealism or utopianism), but, ultimately, our “realism” will leave existentially perilous conditions unchanged.
Back at Princeton in the late 1960s, I was part of the World Order Models Project (WOMP). At the time, I was intrigued with this unprecedented vision of “blueprinting” new systems of international law, yet, looking back, I can see now that even it had remained too static, too structural; essentially, WOMP was conceived and executed as world federalism in “new bottles.”
Now, finally, it is high time for a new jurisprudence, one that would accept Immanuel Kant’s observation: “Out of timber so crooked as that from which man is made, nothing entirely straight can be built.” This “new jurisprudence” would acknowledge the persistently thin veneer of human “civilization” (remember Lord of the Flies?), and begin the search for practicable ways of transforming people. Despite the overwhelming odds against any near-term (or any term) successes, this new way of approaching international law would build upon the understanding that we can never escape from the “crisis of international law,” or even use international law to escape from our current global crises, by improving rules, or by centralizing structures of power and authority.
It is quite reasonable to assert, as indeed I am doing right now, that either we learn how to change the raw material of international interactions at the source – i.e., the level of the individual human being – or we shall continue to face relentless crises within a system of international law that is increasingly inoperable.
My formal paper for this important conference was prepared at an eminently more “practical” level. It deals, quite predictably, with time-urgent questions of assassination (targeted killing); humanitarian intervention (the so-called “duty to protect”); permissible and impermissible forms of counter-terrorism; alternative venues for international criminal prosecutions; and “anticipatory self-defense.” In this more formal paper, too, I offer, predictably, a broad assortment of more-or-less authoritative standards, criteria and thresholds.