Saturday, July 26, 2008

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 52, no. 4, August 2008) is out. Contents include:

  • Kristian Skrede Gleditsch, Idean Salehyan, & Kenneth Schultz, Fighting at Home, Fighting Abroad: How Civil Wars Lead to International Disputes
  • Carl Jan Willem Schudel, Corruption and Bilateral Aid: A Dyadic Approach
  • Nathan M. Jensen & Daniel J. Young, A Violent Future? Political Risk Insurance Markets and Violence Forecasts
  • Max Blouin & Stephane Pallage, Humanitarian Relief and Civil Conflict
  • Havard Hegre, Gravitating toward War: Preponderance May Pacify, but Power Kills
  • Henrik Urdal, Population, Resources, and Political Violence: A Subnational Study of India, 1956-2002

Friday, July 25, 2008

ILR - Light Blogging

The entire staff here at the International Law Reporter – the fact checkers, the chief financial officer, the cook, the statisticians, the mole at the ICJ, the person who empties the deleted email folder, everyone – is heading off to an Undisclosed Location for the next ten days or so. Posting will be lighter than normal.

Thursday, July 24, 2008

UN High Commissioner for Human Rights - Pillay

The Spokesperson for the UN Secretary-General announced today that the SG has informed the General Assembly of his intention to appoint Navanethem Pillay to the post of UN High Commissioner for Human Rights. In accordance with Resolution 48/141, the GA can accept or reject the nomination. The United States, which apparently did not support Pillay, dropped its its informal opposition. GA action is expected on Monday.

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 23, no. 7, July 2008) is out.

Treaty Transmittal: Protocols to the North Atlantic Treaty on the Accession of Albania and Croatia

Yesterday, the President transmitted to the Senate, for its advice and consent to ratification, the Protocols to the North Atlantic Treaty of 1949 on the Accession of the Republic of Albania and the Republic of Croatia, adopted at Brussels on July 9, 2008. The transmittal package (Treaty Doc. 110-20) is here.

ICTY: Trial Chamber Judgment in the Case Against Baton Haxhiu

Today, the ICTY Trial Chamber rendered its judgment in the case (No. IT-04-84-R77.5) against Baton Haxhiu, a Kosovo journalist. Haxhiu was charged (indictment here; case information sheet here) with contempt of the Tribunal for knowingly revealing the identity of a protected witness.

In today's decision (summary here; press release here; judgment not yet available online), the Trial Chamber found Haxhiu guilty. He was fined 7000 euros.

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 47, no. 3, May 2008) is out. Contents include:
  • United States Supreme Court: Medellin v. Texas, with introductory note by Mark E. Wojcik
  • Extraordinary Chambers in the Courts of Cambodia Pre-Trial Chamber Decision on Appeal against Provisional Detention Order of Kaing Guek Eav, with introductory note by Scott Lyons
  • European Court of Human Rights: Lindon v. France, with introductory note by John Cerone
  • World Trade Organization: Measures Affecting the Supply of Gambling and Betting Services (Award), with introductory note by Sungjoon Cho
  • International Centre for the Settlement of Investment Disputes (ICSID): Azurix Corp. v. The Argentine Republic Decision on the Argentine Republic's Request for a Continued Stay of Enforcement of the Award, with introductory note by Alejandro Escobar

Workshop: Prosecuting Sudanese President al-Bashir before the International Criminal Court: A Risky Venture?

Tonight, the British Institute of International and Comparative Law will host a rapid response briefing on "Prosecuting Sudanese President al-Bashir before the International Criminal Court: A Risky Venture?" Speakers will include William Schabas (National Univ. of Ireland - Irish Centre for Human Rights) and Dapo Akande (Univ. of Oxford - Law).

Wednesday, July 23, 2008

Panizzon, Pohl, & Sauvé: GATS and the Regulation of International Trade in Services

Marion Panizzon (University of Bern - Law), Nicole Pohl (Zurich Univ. of Applied Sciences - Management and Law), & Pierre Sauvé (London School of Economics and Political Science - International Relations) have published GATS and the Regulation of International Trade in Services (Cambridge Univ. Press 2008). Contents include:
  • Marion Panizzon & Nicole Pohl, Testing Regulatory Autonomy, Disciplining Trade Relief and Regulating Variable Peripheries: Can a Cosmopolitan GATS do it all?
  • Nora Dihel, Felix Eschenbach, & Benjamin Shepherd, South-South Services Trade
  • Martin Roy, Juan Marchetti, & Aik Hoe Lim, The Race towards Preferential Trade Agreements in Services: How Much Market Access Is Really Achieved?
  • Marion Jansen, Comment: Is Services Trade Like or Unlike Manufacturing Trade?
  • Carsten Fink & Deunden Nikomborirak, Rules of Origin in Services: A Case Study of Five ASEAN Countries
  • Elisabeth Türk, Services Post Hong-Kong – Initial Experiences with Plurilaterals
  • Claire Kelly, Comment: Negotiating Approaches from a Member’s Perspective
  • Henry Gao, Evaluating Alternative Approaches to GATS Negotiations: Sectoral, Formulae and Others
  • Rudolf Adlung, Comment: Trade Liberalization under the GATS: An Odyssey?
  • Andrew W. Shoyer, Lessons Learned from Litigating GATS Disputes: Mexico – Telecoms
  • Eric Leroux, From Periodicals to Gambling: A Review of Systemic Issues Addressed by WTO Adjudicatory Bodies under the GATS
  • William Davey, Specificities of WTO Dispute Settlement in Services Cases
  • Martin Molinuevo, Can Foreign Investors in Services Benefit from WTO Dispute Settlement?
  • Mireille Cossy, Some Thoughts on the Concept of ‘Likeness’ in the GATS
  • Joost Pauwelyn, Comment: The Unbearable Lightness of Likeness
  • Panagiotis Delimatsis, Towards a Horizontal Necessity Test for Services: Completing the GATS Article VI:4 Mandate
  • Markus Krajewski, Comment: Quis custodiet neccessitatem? Adjudicating Necessity in Multilevel Systems and the Importance of Judicial Dialogue
  • Markus Krajewski, Recognition, Standardisation and Harmonisation: Which Rules for GATS in Times of Crisis?
  • Fernando Pierola, A Safeguards Regime for Services
  • Pietro Poretti, Waiting for Godot: Subsidy Disciplines in Services Trade
  • Kanitha Kungsawanich, Comment: One Set of Rules for Fair and Unfair Trade in Services: A Possible Merger?
  • Sacha Wunsch-Vincent, Trade Rules for the Digital Age
  • Christian Pauletto, Comment: Digital Trade: Technology versus Legislators
  • Marion Panizzon, How Human Rights Violations Nullify and Impair GATS Commitments
  • Simon Walker, Comment: The Instrumental Rationale for Protecting Human Rights in the Context of Trade Services Reform
  • Richard Janda & Mark Glynn, In Pursuit of the Cosmopolitan Vocation for Trade: GATS and Aviation Services
  • Pierre Sauvé, Been There, Not Yet Done That: Lessons and Challenges in Services Trade

New Volume: Hague Yearbook of International Law

The latest volume of the Hague Yearbook of International Law (Vol. 20, 2007) is out. Contents include:
  • Rosalyn Higgins, Some Misconceptions about the Judicial Settlement of International Disputes
  • Malgosia Fitzmaurice, Compliance with Multilateral Environmental Agreements
  • Valery Nzogue, Compétence de la CEMAC dans les accords économiques internationaux: Entre les pleins pouvoirs et l'intermédiation. Cas des APE
  • Dane Ratliff, Dispute Resolutions and Environmental Security
  • Barbara Kwiatkowska, The 2007 Nicaragua v. Colombia Territorial Maritime and Dispute (Preliminary Objections) Judgment: A Landmark in the Sound Administration of International Justice
  • Agnieszka Szpak, The Genesis of International Humanitarian Law and the Most Important Elements of State Practice in Relation to Prisoners of War

Tuesday, July 22, 2008

New Issue: Northwestern University Journal of International Human Rights

The latest issue of the Northwestern University Journal of International Human Rights (Vol. 6, no. 3, Spring 2008) is out. Contents include:
  • Atrocity Crimes Litigation Year-in-Review
    • David Scheffer, Introduction: Atrocity Crimes Litigation During 2007
    • William A. Schabas, International Criminal Tribunals: A Review of 2007
    • George William Mugwanya, Recent Trends in International Criminal Law: Perspectives from the U.N. International Criminal Tribunal for Rwanda
    • Christine H. Chung, Victims' Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?

Yusuf & Correa: Intellectual Property and International Trade: The TRIPS Agreement (Second Edition)

Abdulqawi A. Yusuf (UNESCO) & Carlos M. Correa (Univ. of Buenos Aires) have published the second edition of Intellectual Property and International Trade: The TRIPS Agreement (Wolters Kluwer 2008). Here's the abstract:
Now into its second decade, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) continues to meet challenges raised by ongoing technological changes as it affirms an increasing degree of latitude to national authorities in its implementation. Important developments and controversies witnessed in the nine years since the first edition of this much-welcomed treatise include issues of public health, implications of the Agreement on the realization of human rights, and continuous debates on geographic indications and the appropriation of genetic resources. This second edition incorporates the analysis of key provisions of the Agreement resulting from dispute settlement procedures under WTO rules.

Resolutions of Ratification: Protocol to the International Hydrographic Organization Convention & the International Convention Against Doping in Sport

Yesterday, the Senate, by the requisite two-thirds vote, agreed to the resolutions of advice and consent to ratification of the Protocol of Amendments to the Convention on the International Hydrographic Organization, done at Monaco on April 14, 2005 (Treaty Doc. 110-9) and the International Convention Against Doping in Sport, adopted by the United Nations Educational, Scientific, and Cultural Organization on October 19, 2005 (Treaty Doc. 110-14). The Senate Foreign Relations Committee favorably reported the Protocol on April 22, and the Committee submitted its report on June 26. The SFRC favorably reported the Anti-Doping Convention on June 24 and submitted its report on June 27. The resolution on the Anti-Doping Convention included one understanding, one declaration, and one condition.

Alexander & Andenas: The World Trade Organization and Trade in Services

Kern Alexander (Univ. of Cambridge - Business) & Mads Andenas (Univ. of Oslo - Norwegian Centre for Human Rights) have published The World Trade Organization and Trade in Services (Martinus Nijhoff Publishers 2008). Contents include:
  • Kern Alexander & Mads Andenas, Introduction
  • Rafael Leal-Arcas, The GATS in the Doha Round: A European Perspective
  • Deepali Fernandes, Twins, Siblings or Friends: The Conceptual Case of Goods and Services, Where Do We Stand and Where Could We Be Headed to?
  • Mads Andenas & Stefan Zleptnig, Proportionality and Balancing in WTO Law: A Comparative Perspective
  • Federico Ortino, The Principle of Non-Discrimination and its Exceptions in GATS: Selected Legal Issues
  • Jan Wouters & Dominic Coppens, GATS and Domestic Regulation: Balancing the Right to Regulate and Trade Liberalization
  • Mina Mashayekhi & Elisabeth Tuerk, GATS Negotiations on Domestic Regulation: A Developing Country Perspective
  • Marco Bronckers & Pierre Larouche, A Review of the WTO Regime for Telecommunications Services
  • Stefan Zleptnig, The GATS and Internet-Based Services: Between Market Access and Domestic Regulation
  • Christine Kaufmann & Rolf H. Weber, Reconciling Liberalized Trade in Financial Services and Domestic Regulation
  • Brendan McGivern, Dispute Settlement Under the GATS: The Gambling and Telecoms Cases
  • Lode van den Hende, GATS Article XVI and National Regulatory Sovereignty: What Lessons to Draw from US-Gambling?
  • Klint W. Alexander, Rethinking Retaliation in the WTO Dispute Settlement System: Leveling the Playing Field for Developing Countries in Asymmetic Disputes
  • Abd El-Rehim Mohamed Al-Kashif, GATS’s Non-Violation Complaint: its Elements and Scope Comparing to GATT 1996
  • Kern Alexander, The GATS and Financial Services: Liberalisation and Regulation in Global Financial Markets
  • Wei Wang, The Prudential Carve-out
  • John Cooke, Alternative Approaches to Financial Services Liberalisation: The Role of Regional Trade Agreements
  • Apostolos Gkoutzinis, How Far is Basel from Geneva? International Regulatory Convergence and the Elimination of Barriers to International Financial Integration
  • Wei Wang, The GATS and the Legal Framework of the Chinese Banking Sector
  • Alastair Evans, International Trade in Financial Services and the GATS
  • David F. Snyder, Insurance Services and Recent Trade Negotiations
  • Model Schedule of WTO Commitments for Investment Banking, Trading, and Asset Management: Explanatory Memorandum
  • Michael Moosberger, The GATS and Higher Education: Challenging the Nation State’s Notion of the University
  • Rolf H. Weber, Cultural Diversity and International Trade - Taking Stock and Looking Ahead
  • Toshiyuki Kono, The UNESCO Convention for the Protection and Promotion of the Diversity of Cultural Expressions

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 8, no. 3, 2008) is out. Contents include:
  • Howard Morrison, International Crimes and Trials
  • Kathryn Howarth, The Special Court for Sierra Leone - Fair Trials and Justice for the Accused and Victims
  • Ruport Skilbeck, Defending the Khmer Rouge
  • Daniel Leader, Business and Human Rights - Time to Hold Companies to Account
  • Stuart Alford, Some Thoughts on the Trial of Saddam Hussein: The Realities of the Complementarity Principle
  • Adel Maged, Arab and Islamic Shari'a Perspectives on the Current System of International Criminal Justice
  • Caroline Fournet, When the Child Surpasses the Father - Admissible Defences in International Criminal Law
  • Declan O'Callaghan, Is the International Criminal Court the Way Ahead?
  • Peter Burbidge, Justice and Peace? The Role of Law in Resolving Colombia's Civil Conflict
  • Clemens A. Muller, The Law of Interim Release in the Jurisprudence of the International Criminal Tribunals

Monday, July 21, 2008

ICTY: Karadžić Arrested

Radovan Karadžić, former President of Republika Srpska in Bosnia and Herzegovina, was arrested today in Serbia. Karadžić had been a fugitive since 1995, when he was first indicted for genocide, war crimes, and crimes against humanity (current indictment here; case information sheet here). Needless to say, this is an extraordinarily important development. Here's ICTY prosecutor Serge Brammertz's statement on the arrest:

Prosecutor Serge Brammertz welcomes the arrest today of Radovan Karadžić, the war-time President of Republika Srpska in Bosnia and Herzegovina. He was a fugitive from justice for almost 13 years – the first indictment against him was confirmed on 24 July 1995.

In relation to the arrest, Prosecutor Brammertz stated the following:

“I was informed by our colleagues in Belgrade about the successful operation which resulted in the arrest of Radovan Karadžić. On behalf of the Office of the Prosecutor, I would like to congratulate the Serbian authorities, especially the National Security Council, Serbia’s Action Team in charge of tracking fugitives and the Office of the War Crimes Prosecutor, on achieving this milestone in cooperation with the ICTY.

This is a very important day for the victims who have waited for this arrest for over a decade. It is also an important day for international justice because it clearly demonstrates that nobody is beyond the reach of the law and that sooner or later all fugitives will be brought to justice.”

The date of Radovan Karadžić’s transfer into the Tribunal’s custody will be determined in due course.

New Issue: Études internationales

The latest issue of Études internationales (Vol. 39, no. 1, 2008) is out. Contents include:
  • Symposium: Le décloisonnement du droit international et des relations internationales: l’apport des approches critiques
    • Thierry Lapointe & Rémi Bachand, Introduction: Le décloisonnement du droit international et des relations internationales: l’apport des approches critiques
    • Martin Gallié, Les théories tiers-mondistes du droit international (TWAIL): un renouvellement?
    • Frédéric Mégret, Le droit international peut-il être un droit de résistance? Dix conditions pour un renouveau de l’ambition normative internationale
    • Frédérick Guillaume Dufour, Le retour du juridique comme dimension constitutive des théories critiques des relations internationales?
    • Guillaume Fleury, Internet comme vecteur de pouvoir
    • Philippe Dufort, Droit international, relations sociales de propriété et processus de paix en Colombie: une réarticulation politico-juridique
    • Isabelle Masson, (Re)penser les relations constitutives de la gouvernance néolibérale: quelques pistes de réflexion féministes pour les relations internationales et le droit international

Society of International Economic Law Inaugural Conference Papers (Final Update)

The Society of International Economic Law's Inaugural Conference took place last week. As I've noted before, many of the papers have been posted - indeed, far too many for me to list - so check out the latest here.

Garcia: The Moral Hazard Problem in Global Economic Regulation

Frank J. Garcia (Boston College - Law) has posted The Moral Hazard Problem in Global Economic Regulation. Here's the abstract:
Global regulation of international business transactions presents a particular form of the moral hazard problem. Global firms use economic and political power to manipulate state and state-controlled multilateral regulation to preserve their opportunity to externalize the social costs of global economic activity with impunity. Unless other actors can effectively counter this at the national and global regulatory levels, globalization re-creates the conditions for under-regulated or “robber baron” capitalism at the global level. This model of economic activity has been rejected at the national level by the same modern democratic capitalist states which currently dominate globalization, creating a crisis of legitimacy and, ultimately, security for the international economic system. Enlightened self-interest dictates that home countries and their citizens address this dualism underlying contemporary globalization.

New Issue: Netherlands Quarterly of Human Rights

The latest issue of the Netherlands Quarterly of Human Rights (Vol. 26, no. 2, 2008) is out. Contents include:
  • Kirsten Anderson, Violence Against Women: State Responsibilities in International Human Rights Law to Address Harmful 'Masculinities'
  • Yehezkel Lein, The Holy City in Human Dimensions. The Partition of Jerusalem and the Right to Social Security

Sunday, July 20, 2008

Call for Applications: Marie Curie Research Course 2008-2009

The Grotius Centre for International Legal Studies/The Hague has issued a call for applications for the Marie Curie Research Course 2008-2009. The topic is "The Diversification and Fragmentation of International Criminal Law in a Global Society." I am told that the deadline for applications has been extended beyond July 1, which had been the previous cut-off. Here are the details:

The Grotius Centre for International Legal Studies/The Hague invites applications for the third Marie Curie Research Course on International Criminal Law from 20 to 31 October 2008, with a follow-up week in March 2009.

Highly respected academics and practitioners will provide lectures, training and tutoring and enhance researchers to discuss current topics of International Criminal Law. The Research Course is designed for top researchers with excellent achievements in their international law studies and/or research, and is limited to 12 participants.

The purpose of the Research Course

The aim of the Research Course is to enable each researcher to write an article of publishable quality on a topic related to International Criminal Law. The contributions of the Research Course shall be published in an edited volume (T.M.C. Asser Press, CUP) which will include articles by established scholars and new voices in international criminal law.

The overall theme of the third Marie Curie Research Course (2008-2009) is the Diversification and Fragmentation of International Criminal Law in a Global Society. The research produced within the framework of the course shall contribute to the collective volume. This publication will complement the first volume of the Marie Curie project (Future Perspectives on International Criminal Justice, T.M.C. Asser Press) which includes contributions by participants of the previous Marie Curie Research Courses.

The topic and paper of each participant will be discussed during the first two weeks of the programme in October 2008. Between October 2008 and March 2009, the discussion will continue through email exchanges and internet learning (Blackboard).

Suggested themes

The suggested research topic should be related to the overall theme of the 2008-2009 Research Course, i.e. the diversification and fragmentation of international criminal law. This theme is understood in a broad sense. It covers legal and institutional aspects of the regulation, application and interpretation of international criminal law by different entities and layers of jurisdiction, as well as their impact on unity.

Applicants are requested to propose a topic and send an abstract in which they state their research interest and the focus of their paper. The abstract should also indicate how the proposed topic relates to the overarching theme. Proposals can address issues from various fields of international criminal law, i.e. substantive law, procedural law or institutional law. Topics with a focus on theory or links to other disciplines are also welcome.

Discussion Topics

The theme of the lectures held during the Research Course will be selected in light of the research interests and proposals submitted by Research Course participants.

Other features

Guest lectures · Social programme


Researchers who have been working at least 4 years and less than 10 years (full-time equivalent) on academic research in the field of public international law, human rights law, international humanitarian law, (inter)national criminal law.

Tuition fees and other costs

No participation fees will be charged to the participants. Travel costs will be reimbursed up to a maximum amount (contact us for additional information). Costs of accommodation and meals are at the charge of the participants.

How to apply

Please send an e-mail to or to

Rieff: For Darfuris, Justice Is the Enemy of Peace

David Rieff has an op-ed in today's Los Angeles Times on the request by the International Criminal Court's prosecutor that an arrest warrant be issued for Sudan's president. Here it is:

The long-awaited decision by the chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, to indict Sudanese President Omar Hassan Ahmed Bashir on genocide and war crimes charges has been greeted with relief and satisfaction by the vast majority of people haunted by the tragedy of Darfur.

For Darfur activists -- and no African cause since the movement against apartheid in South Africa has had such reach or influence -- Bashir is the architect of what they are certain has been a genocide just as surely as Adolf Hitler was the architect of the Holocaust. And if this is true, they argue, it would be immoral not to try to bring Bashir and other central figures in the Khartoum dictatorship to justice. Some of these campaigners argue that the indictment represents the first significant step toward an effective regime of international justice in which world leaders guilty of crimes against humanity will no longer enjoy the kind of impunity that they have had in the past.

Attractive as these arguments are, and counterintuitive as it may seem to oppose them, they are nonetheless deeply flawed. To begin with, the bedrock assumption of those committed to the concept of international justice represented by the International Criminal Court is that peace and justice are almost always compatible goals -- and that, on the rare occasions when they are not, justice should have priority.

But in reality, there is no reason to believe this is true. Indeed, the example of post-apartheid South Africa illustrates this perfectly. Real justice would have demanded that the leaders of the white racist regime pay for their crimes; peace, on the other hand, demanded an accommodation. The moral genius of the African National Congress was to understand that peace was what the newly liberated country needed, not civil war, and so instead of trials there was a Truth and Reconciliation Commission in which, in exchange for confessions, the authors of the horrors of apartheid were effectively let off scot-free.

There is also the example of post-Pinochet Chile. Few observers of that country seriously believe that Gen. Augusto Pinochet would have stepped down in 1990 if he had believed that he would be required to face a war crimes tribunal, or that the Chilean military would have agreed to the return to democracy. Patricio Aylwin, the president of Chile during the transition, made the bargain all but transparent when he remarked, "We will tackle the excesses of the past," adding, "within the realm of the possible." Like the ANC, Aylwin understood that justice cannot and should not always be the first priority, much as one might wish it otherwise.

Those who have welcomed the indictment of Bashir set a great deal of store on the importance of memory and of truth, but it sometimes seems as though it is they who have forgotten these hard lessons of the recent past, in which it became clear that the sensible course was to acknowledge that peace was more important than justice when it came time to choose.

Would it be emotionally satisfying to see Bashir in the dock? Of course it would. After all, most of us who believe that this indictment is a tragic mistake also believe that, under settled international law, the Sudanese president is guilty of crimes against humanity (whether Darfur is a genocide is a separate issue, but even if it is not, as groups like Doctors Without Borders have argued, the crimes against humanity committed at Bashir's behest are more than bad enough). At least 200,000 people have been killed in the Darfur conflict, according to most estimates, and most of those deaths have been attributed to militias unleashed by Bashir's government to quell the insurrection.

But the question remains: Is Bashir's indictment worth it or, to put the matter even more starkly, is the price that the Darfuris almost certainly will pay for this indictment (if the International Criminal Court's judges allow it to go forward) really worth it? After all, it is not as though the ICC has an army or even a police force that can go to Khartoum and seize him. Indeed, even the use of phrases like "bringing Bashir to justice" raises the question of who is actually going to do this. Yes, if Bashir decides to take a trip to a European Union country, he would probably be arrested and turned over to the ICC, but that seems extraordinarily unlikely at this point.

No matter how many times advocates of the new norms of international law claim otherwise, and insist that there has been a sea change in the extraordinarily disparate group they call the "international community" (even though presumably the term encompasses both Canada, where the ICC got its start, and China, Sudan's great ally), the reality is that it is virtually inconceivable that Bashir will actually be apprehended and put on trial. To believe differently is to vastly overestimate how much has changed in the world.

One thing that has not changed is that there are really only two viable ways to end a war. The first involves total victory a la World War II; the second involves a negotiated settlement. Were those who welcome the Bashir indictment to also state firmly that they favor the first option -- that just as nothing short of Hitler's and Tojo's fall would do, so only the fall of the Khartoum dictatorship is an acceptable outcome -- that would be one thing. But with a few honorable exceptions, notably one of the leading Darfur campaigners, Smith College professor Eric Reeves, few have been willing to do so. And if all-out regime change is not the goal, then to secure a peace in Darfur means negotiating with Bashir rather than fantasizing about arresting, trying and imprisoning him.

The truth is that "we" -- whether that amorphous word refers to the United Nations, the U.S., NATO or the African Union -- are not going to wage that kind of war on Sudan. And because we are not, why is there so much satisfaction at the prospect of making these negotiations more difficult, as even some of the Darfur activists themselves concede the ICC indictment may have done? A harsh question: Is this about helping bring peace to Darfur or is it about furthering a political vision of the world, one based on human rights as the categorical political and, above all, moral imperative no matter what the real-world consequences?

The human rights triumphalism that has accompanied the indictment also perpetuates some dangerous over-simplifications about what is going on in Darfur at this moment.

In 2004, it was still possible to describe the conflict as a murderous campaign by the government of Sudan and its janjaweed surrogates against the Darfuris. In 2008, the conflict has morphed into a war of all against all, with Darfuri rebel groups fighting each other and schisms opening between groups loyal to Khartoum.

This reality may not fit the morality play that Western "human rightsists" want to believe is unfolding, but it is the core of the matter nonetheless. Doubtless, Bashir is part of the problem; he is in no sense all of it.

In fairness, there is a valid argument to be made that the peace process in Darfur is stymied and that those who favor peace over justice will end up getting neither. Perhaps. But surely it would make more sense to try to restart negotiations in a serious way with Bashir and his government than to indulge in "Count of Monte Cristo"-like fantasies of the wicked getting their comeuppance. Things do not work that way in our fallen world, and it is pure self-indulgence to act as if they did.

Brunnée & Toope: An Interactional Theory of International Legal Obligation

Jutta Brunnée (Univ. of Toronto - Law) & Stephen J. Toope (Univ. of British Columbia) have posted An Interactional Theory of International Legal Obligation (in Legitimacy and Persuasion in International Law, forthcoming). Here's the abstract:
This chapter forms part of a forthcoming book in which we provide a theoretical framework for international law and then apply it in concrete settings, ranging from the law on the use of force to international environmental law. In this first chapter, we set out an interactional theory of international legal obligation. Our theory draws on Lon Fuller's theory of law combined with insights of constructivist international relations theory, in particular Emanuel Adler's work on communities of practice. The theory that we articulate is rooted in three central arguments. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, which we call criteria of legality, are crucial to law's ability to promote adherence, or to inspire "fidelity." Third, legal norms are built, maintained, and sometimes destroyed through a continuing practice of legality.