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Monday, November 14, 2005
Bush: War Criminal?

Eric Posner has an insightful post on that question at the UChicago Law Faculty Blog, particularly, because he goes through the evidence and ulitmately concludes its a meaningless thought exercise.

Money quote:
So is Bush a war criminal? Perhaps. But we are all legal realists now, so we need to ask whether it matters if Bush is a war criminal. Probably not, because no court is likely to try him. Other states have no interest in pressing the question because they would not want to acknowledge that their own leaders could be tried and convicted on similar theories, nor would they want to risk losing American aid or cooperation.

Why is international law called "law"? Equality under the law only means something if there is a sovereign to back it up qua itself. International "law" on the other hand seems to me to be merely a codification of the exercise of power by some to the detriment of others. That isn't law in any true sense of the word.

As for my opinion, since we are all legal realists now, it doesn't matter that Bush can't be a war criminal. Indeed, Posner is right that "it would require the conclusion that many recent American presidents – including Truman, Kennedy, Reagan, and Clinton – were war criminals (or arguably so, in some cases indictable but not necessarily convictable), as well as most of the leaders of western nations that have recently employed military force or violent covert operations – and this includes France, Britain, Germany, and Israel, to say nothing of Russia and China." I'm not particularly invested in trying, indicting, or convicting Bush per se. But we shouldn't have to chose between idictment and silence.

However, I think Eric's proposition that: "the claim that modern statecraft is criminal is not useful. If the category is to be applied to leaders, one needs a definition of war crime that permits an overall assessment of the good as well as the bad that the leaders accomplished. But this is politics or political morality, not law" excuses too much. He's right that calling modern statecraft criminal doesn't really matter for politicians and statespersons. It does matter, however, if the special tribunals and international courts continue to overlook America's role in fermenting these disasters and breaches of international morality. International law further decreases in its "law" status if it simply comes to mean "the set of norms and principles codified in legalese that are applied to our vanquished enemies." Bad things happened in the past, in part, because of American interference; acknowledging that should case no great harm. International law loses more, I think, if these tribunals ignore, overlook, and disavow American responsibility--even if we can't find legal culpability due to realist concerns--while making the bad guys that we've dethroned out to be monsters.

For all those devoted readers of this blog, and I heart you, this is not the post of the day. There will be one much later today after classes and homework. Hopefully, I will finish a response to the article on feminism that Rabbi Gray sent me. Enjoy your day until then, and stay tuned.