Post-Bin Laden: Terror, War and Int’l Law (Part 1)

...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....

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