CIAO DATE: 02/07

Ethics & International Affairs
Annual Journal of the
Carnegie Council on Ethics and International Affairs

Winter 2006, Vol 20, No. 4

 

Symposium: The Trial of Saddam Hussein

• And Now from the Green Zone . . . Reflections on the Iraq Tribunal's Dujail Trial by Miranda Sissons (PDF, 14 pages, 153 KB)

  The Iraq tribunal is an odd creature. It is an Iraqi-led mechanism designed and supported by foreigners. It is based on international law but relies heavily on Iraqi legal tradition and procedures. And it is a postconflict initiative in the midst of escalating war.

• Saddam Hussein's Trial Meets the "Fairness" Test by Kingsley Chiedu Moghalu (PDF, 12 pages, 144 KB)

  War crimes trials are often controversial, and few such trials in history have been more so than that of Saddam Hussein, the former president of Iraq. In this trial, controversy has raged over the very nature of war crimes justice, the relevance or otherwise of the legality of the invasion of Iraq and the subsequent formation of a war crimes tribunal to try the ousted Iraqi leader and his top lieutenants, and the courtroom problems of inherently political trials. Despite legitimate concerns in these areas, however, Saddam Hussein has received an appropriate and fair trial, both in light of the specific details of the judicial proceedings and in light of the political nature of war crimes justice in an anarchic system of states.

Articles

• Judicial Globalization in the Service of Self-Government by Martin S. Flaherty

  For at least the past several decades, judges around the world have been looking beyond their own states’ jurisprudence to international law and the decisions of foreign courts in order to apply domestic law. This widespread practice is part of a phenomenon that Anne-Marie Slaughter calls “judicial globalization.” The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well. . . . Various defenses of the Supreme Court’s reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves.

  None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.

• Killing Soldiers by Gerard Øverland

  A riddle in the ethics of war concerns whether lethal defensive force may be justifiably used against aggressing soldiers who are morally innocent. In this essay I argue that although there might be reasons for excusing soldiers as individuals, one may be justified in using defensive force against them provided that they have initiated threatening behavior and that our interpretation of that behavior as threatening is reasonable. I go on to investigate various implications of being in conflict with aggressing soldiers who are morally innocent, arguing that different restrictions apply to the use of defensive force when the aggressors cannot be held morally responsible for being aggressors. My argument has important practical implications both for deciding whether to go to war and for deciding how to fight a just defensive war.

  Concerning the ongoing Iraq war, for example, it suggests that if it were only a matter of killing culpable members of the Republican Guard, invasion could perhaps have been justified. Since any attack would involve killing innocent conscripted soldiers as well as innocent civilians, however, there were good reasons to wait to see whether options other than intervening militarily would become available. If we are engaged in a just defensive war, my argument implies that we must accept a higher level of risk and more harm if we can assume that the aggressors are innocent rather than morally responsible for their harmful or threatening behavior.

• The Legitimacy of Global Governance Institutions by Allen Buchanan, Robert O. Keohane

  We articulate a global public standard for the normative legitimacy of global governance institutions. This standard can provide the basis for principled criticism of global governance institutions and guide reform efforts in circumstances in which people disagree deeply about the demands of global justice and the role that global governance institutions should play in meeting them. We stake out a middle ground between an increasingly discredited conception of legitimacy that conflates legitimacy with international legality understood as state consent, on the one hand, and the unrealistic view that legitimacy for these institutions requires the same democratic standards that are now applied to states, on the other.

• The Proportionality Principle in Just War by David Mellow

  It is widely held that, in order for a resort to war or military force to be morally justified, it must, in addition to having a cause that is just, be proportionate. In this essay I argue for the need to use a counterfactual baseline when making the proportionality evaluation. Specifically, I argue that the relevant counterfactual baseline must contain a moral qualifier. In defending my proposal, I also contend that the relevant goods and harms that are weighed in the proportionality evaluation are not as open-ended as is sometimes presumed.

Also in This Issue

RECENT BOOKS ON ETHICS AND INTERNATIONAL AFFAIRS

• A New World Order, Anne-Marie Slaughter
  REVIEWED BY ANTONIO FRANCESCHET

• Deliberative Environmental Politics: Democracy and Ecological Rationality, Walter F. Baber and Robert V. Bartlett
  REVIEWED BY IAN WARD

• The Killing Trap: Genocide in the Twentieth Century, Manus Midlarsky
  REVIEWED BY MAUREEN S. HIEBERT

• Hannah Arendt and International Relations: Reading Across the Lines, Anthony F. Lang, Jr. and John Williams, EDS.
  REVIEWED BY PATCHEN MARKELL

• The J Curve: A New Way to Understand Why Nations Rise and Fall, Ian Bremmer
  REVIEWED BY DEVIN STEWART