Criteria:         Any work in the English language published during 2011 or whose publication is imminent at the time of submission may be nominated for this prize.  The re-submission of works which have already been considered for this prize is not allowed.  Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance.  Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit:       Competitors must be 35 years old or younger at the time of submission. They need not be members of the American Society of International Law.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Should a multi-authored submission win the competition, the cash component of the prize shall be divided, pro rata, between the authors.  Submissions from outside the United States are welcome.

Submission:     Submissions, including a letter or message of nomination, must be received by 16 January 2012.  Three copies of books must be submitted.  The electronic submission of articles is encouraged.  Authors may submit their own work.  Any work not already published must be accompanied by documentation indicating that it has been accepted for publication.  All submissions must include contact data (e‑mail, fax, phone, address).  The Prize Committee will acknowledge receipt of the submission by e‑mail.

Printed submissions must be sent to: Professor Iain Scobbie, Department of Law, School of Oriental and African Studies, Thornhaugh Street, Russell Square, London,   WC1H 0XG, United Kingdom

Electronic submissions must be sent to: is17{at}soas.ac.uk

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prizes consist of $500, a certificate of recognition, and a year’s membership of the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in March 2012.

In 2011, the winners were:

Tom Ruys, of the Catholic University of Leuven, for his monograph “Armed attack and Article 51 of the UN Charter” (Cambridge UP: 2010)

Naz Modirzadeh, Associate Director of the Program on Humanitarian Policy and Conflict Research, Harvard University, for her article “The dark sides of convergence: a pro-civilian critique of the extraterritorial application of human rights law in armed conflict”, 86 International Law Studies (US Naval War College) 349 (2010).

These allegations are at odds with the declared policy of the Libyan National Transitional Council (NTC) which, on March 24 stated, in relation to the treatment of detainees and prisoners, that “its policies strictly adhere to the ‘Geneva Convention relative to the Treatment of Prisoners of War’ as well as with the ethical and moral values of the Libyan society”.  This statement continued:

“1.        Any Libyan caught whether they be military personnel or citizens recruited to cause sabotage and spread chaos, should not be titled as ‘Prisoner’ but as a Libyan brother (or sister) who has been deceived.

2.         All prisoners and detainees will be provided with food, water and necessary medical assistance and will be treated humanely, without the use of aggression in any form. The NTC will vow to punish those who violate this code and will allow local and international human rights organizations to freely visit and talk to the detainees and prisoners at any time.”

Further, on May 19 the NTC launched a frontline manual on the fundamental rules of armed conflict (see here for the Manual). This has been distributed in various forms, including sending extracts as text messages on mobile phones.  This manual was intended to demonstrate its commitment to do its best to ensure that its forces would adhere to the principles of international humanitarian law, and thus minimize harm to the Libyan people.  In its press release no.21 (which is not on its website), the NTC stated:

 “We recognise that many of those men and women who have taken up arms in opposition to the Qadhafi regime are not combatants who have been formerly trained in the laws of armed conflict. As such, these guidelines were requested in order to help instruct them, as rapidly as possible, in the fundamental rules which they must respect, in particular those relating to the humane treatment of detainees and to targeting in an armed conflict.”

Shortly after the outbreak of conflict in Libya, some expatriate lawyers established a group, Lawyers for Justice in Libya (LFJL) which has the aim of promoting human rights in Libya and, in particular, investigating and documenting possible crimes against humanity committed by the Qadhafi regime since 15 February 2011, and also human rights abuses committed since that regime came to power 42 years ago.

As the group organising Libyan dissident forces, the NTC did not want to “act like Qadhafi and his forces”, it asked LFJL to advise on the applicable rules of the law of armed conflict.  Through personal contacts, LFJL assembled a small group based in the School of Oriental and African Studies, University of London, to draw up basic guidelines for use in the field. We were asked to focus on two areas: guidelines for the detention of captured Qadhafi forces, and guidelines on targeting. Our brief was to provide concise guidance which would set out basic legal standards with the aim of advising how the dissident forces could avoid breaching the law of armed conflict or, for that matter, expose themselves to liability under international criminal law.

Accordingly, these guidelines have two functions: to set out basic standards of behaviour, but also to provide standards of accountability.

This proved to be a challenging task. The guidelines were for the use of untrained fighters who have received no prior instruction in the law of armed conflict. They had to be easily understandable. They were drafted in English, but we were aware they would ultimately be translated into Arabic. We were fortunate that one of the team is a lawyer fluent in both Arabic and English so that problem was not insurmountable, but it still had to be borne in mind. An analogous consideration was that the guidelines should try to be sensitive to cultural and religious sensibilities.

The process was reasonably straightforward. We collected materials, including examples of guidance cards issued by regular armed forces, and asked colleagues for their suggestions. We exchanged many emails and talked at length, identifying the issues that we thought must be addressed in our basic guidance. We drafted. And then our first draft was distributed to three external experts in the law of armed conflict to receive their feedback.  They pointed out areas that needed to be fleshed out and suggested how the guidelines should be augmented. We redrafted and redistributed and reconsidered the feedback we received. This has been a continuing and collective process. When I discussed a draft of the guidelines at the Irish Centre for Human Rights in early May, it was pointed out that we had made no mention of child soldiers. To be honest, this was because we were working under pressure and were focused on our brief of explaining standards for detention and targeting. Shortly afterwards, however, the NTC itself asked for advice on child soldiers and we incorporated a few basic points in another revision. Nevertheless, we are sure that the guidelines are incomplete, but we think that the basics are covered.

The first decision to make was how should the conflict be classified? The NTC was by then in control of part of Libyan territory and carrying out sustained and concerted military operations. The situation had obviously moved beyond a human rights/law enforcement paradigm, as its magnitude exceeded that of “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” to employ the terminology of Additional Protocol II, to which Libya is a party.  As far as the conflict between the NTC and pro-Qadhafi forces were concerned, it was clear that it amounted to a non-international armed conflict—a view also adopted by the ICRC (see here).

Accordingly, at first instance, the applicable law should be that found in common Article 3 of the Geneva Conventions and Additional Protocol II. While these provide basic protections for those not taking part in hostilities, including fighters placed hors de combat, for the wounded and sick, for medical units, and for detainees, the conventional rules on matters such as targeting and detention in a non-international armed conflict are, at best, rudimentary. We thought that these were inadequate and decided that it was necessary to augment the conventional rules by having recourse to customary law, but also to apply by analogy some conventional rules which would formally only be applicable in an international armed conflict. In short, we thought it necessary to suggest some standards which were in excess of those which need lawfully be applied, such as notifying the ICRC of the identity, location, and release of detainees.

The ability of both parties to detain during a non-international armed conflict is simply assumed by both common Article 3 and Additional Protocol II, inasmuch as both mandate protection for “persons deprived of their liberty for reasons related to the armed conflict” (APII, Article 5.1), but no legal basis is given for dissident forces to do so. There is also a practical gap in the conventional law. During an international armed conflict, the Third Geneva Convention provides that prisoners of war should be logged by capture cards (see Article 70). Prisoner of war status is not applicable during a non-international armed conflict, and there is no similar conventional procedure to keep track of detainees, but ICRC customary rule 123 provides “The personal details of persons deprived of their liberty must be recorded”. We thought it practical to indicate that a method similar to the capture card should be used by the dissident forces in order that they had a record of who they had detained, and where. If implemented, we thought that this might also be a safeguard against allegations of enforced disappearances.

In trying to tailor the basic rules for the specific conflict, we tried to account for local cultural and religious sensibilities. For example, we were told that, under the Qadhafi regime, people expected to be beaten up as a matter of course on arrest. The guidelines emphasise that this must not happen to detained pro–Qadhafi fighters, or any other detainees for that matter. A tricky problem was to try to explain economically the prohibition on reprisals and collective punishments without descending into legalese.  The solution adopted was to use the word “revenge” which, we were assured, on translation into Arabic would capture the essentials of the legal notion of reprisals. 

The guidelines are perhaps over-determinative as they leave little room for the use of discretion in their application. This was inescapable given the conditions in which they are intended to be used. The untrained fighter in the field, we thought, needed clear and relatively unequivocal guidance. This was done using two formats: a flowchart to provide clarity in deciding whether someone should be detained; and a set of fairly simple propositions to govern matters such as the treatment of the dead, the wounded and the sick, conditions of detention, and basic rules on targeting.

It is worth recalling that virtually a century and a half ago, in 1862, General Halleck, the commander of the Union Army during the American Civil War proposed an initiative that has rippled through the history of international law. Attributing the brutality of the fighting that had begun a year earlier to the lack of training in the laws and customs of war of the largely volunteer armies of both sides, he proposed that such scattered rules as there were be drawn together so that the Union’s army could be more easily and quickly trained. On 23rd April 1863, General Order No. 100 was promulgated by President Lincoln. Better known as the Lieber Code, this is credited as having provided the inspiration for the 1874 Brussels Conference at which the question of the codification of the war of law on land was first discussed. While no binding treaty resulted from this conference, the resulting Brussels declaration was the text upon which the 1899 Hague Peace Conference based its negotiations. That conference resulted in the 1899 Hague Convention II respecting the Laws and Usages of War on Land.  The rest, as they say, is history.

It is striking that the instant guidelines were requested to deal with a similar problem to that which worried General Halleck under the similar circumstances of a non–international armed conflict. The law has become increasingly codified and much more complicated since Lieber’s day, but the problem of how to train a hurriedly assembled force of untrained men is as acute in the current conflict in Libya as it was in that earlier one. 

One may hope that the implementation of these guidelines has lessened suffering during the conflict in Libya, and perhaps indicate a new and welcome trend in the conduct of contemporary non-international armed conflicts. It must be recalled that the NTC itself decided that it needed legal guidance and requested that the guidelines be drawn up. 

Click here for Final Libyan LOAC Guidelines 17 May 2011

From: Dr. Kathleen Cavanaugh, Senior Lecturer, Irish Centre for Human Rights, National University of Ireland & Prof. Joshua Castellino, Professor of Law & Head of Law Department, Middlesex University, London, United Kingdom.

Over the last half a century the discourse of public international has been enlivened by a growing emphasis on international human rights law, spawning robust debate and discussion, and also the creation of an imperfect system of accountability for crimes against humanity, war crimes and genocide. In the last two decades in particular, the scholarship and activism of Professor William Schabas has had a significant impact on the growth and direction of the normative frameworks around these subjects. In addition through his own engagement in different theatres, Professor Schabas has also contributed to the spread of implementation models worldwide, and has supervised a growing number of successful doctoral contributions that have further enhanced the quality of the debate. His sterling role on the Sierra Leone Truth Commission is but one manifestation that that his contribution has spread well beyond the realms of the classroom: recognition that is also reflected in the bestowal of the Order of Canada upon him for his contribution to human rights.

On the occasion of his 60^th year, we are seeking contributions from scholars, practitioners, judges and others that critically engage with the published contributions of Professor William Schabas. We seek this in the belief that the best testament to a scholar is a critical engagement with their work. We therefore invite contributions of between 8,000 and 10,000 words, in English or French that critically assess the work and impact of Professor Schabas’ writing. The book is likely to be published by Cambridge University Press and will therefore adhere to the house style of that publisher, with further details provided with the invitation letter to those whose abstracts have been accepted. The range of topics that we anticipate include: genocide, war crimes, crimes against humanity, the creation and functioning of the International Criminal Court, the death penalty, the concept of reservations to treaties, norms of jus cogens, minority rights, religion and human rights, truth commissions, reparative justice and  other topics including literature and human rights.

To be considered for publication we request interested authors submit a 500 word abstract, outlining the general thrust of their contribution and highlighting the aspect of Professor Schabas’ scholarship that will be engaged. This abstract should be sent to either of the two editors by the 1^st of October 2011. The abstracts will be vetted by a panel of hand-picked editors who are familiar with the work of Professor Schabas, with potential authors informed of the acceptance of their abstract by mid December 2011. Since this is a competitive call for papers, we intend to enforce a strict deadline on the submission of full papers, which will be due on the 1^st of May, 2012. The submissions will be peer-reviewed by our esteemed editorial board with feedback to the authors within six weeks of submission. Those considering this call for papers are welcome to have an informal discussion with either of the two editors.

Detailed Timeline

June 2011                    Publication of the call for papers, distributed widely through email lists and through the Society of Legal Scholars (UK) and similar subject bodies abroad

October 2011             Deadline for detailed abstracts, to be vetted at first instance by us, with the assistance of the editorial panel.

December 2011        Feedback on Abstracts and issuance of invitations for full papers.

May 2012                     Deadline for the full papers, which will be sent out the panel for refereeing and comments.

July 2012                      Formal feedback to authors, requesting any suggested changes.

October 2012             Final deadline for papers, with the submission forwarded to Cambridge University Press two weeks later.

Editorial Board

We have engaged a formal panel of editors who are familiar with Professor Schabas’ work and will be able to assess contributions and make suggestions to writers. These include: Professor Andrew Clapham (Geneva), Professor Francoise Hampson (Essex), Professor Douglas Cassel (Notre Dame), Professor Dinah Shelton (George Washington), Professor Christine Chinkin (LSE), Professor David Scheffer (Northwestern), Professor David Wippman (Minnesota), Professor David Kretzmer (Hebrew U), Professor Diane Marie Amann (UC Davis), Professor Emmanuel Decaux (University Panthéon-Assas Paris II), and Professor Alain  Pellet (University Paris Ouest).

Contact Details

Dr. Kathleen Cavanaugh, Senior Lecturer, Irish Centre for Human Rights, National University of Ireland, Galway, Republic of Ireland. Tel: +353 92 49 3799 E: Kathleen.Cavanaugh {at} nuigalway(.)ie; Prof. Joshua Castellino, Professor of Law & Head of Law Department, Middlesex University, London, United Kingdom. Tel: +44 208 411 4735 E: J.Castellino {at} mdx.ac(.)uk

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the author of an exceptional work in the field of law and armed conflict.

Criteria: Any work in the English language published during 2010 or whose publication is imminent at the time of submission may be nominated for this prize.  The re-submission of works which have already been considered for this prize is not allowed.  Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non-international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter-terrorist operations, and humanitarian assistance.  Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit: Competitors must be 35 years old or younger at the time of submission. They need not be members of the American Society of International Law. Submissions from outside the United States are welcomed.

Submission: Submissions, including a letter or message of nomination, must be received by 17 January 2011.  Electronic submissions are acceptable.  Authors may submit their own work.  Any work not already published must be accompanied by documentation indicating that it has been accepted for publication.  All submissions must include contact data (e-mail, fax, phone, address).  The Prize Committee will acknowledge receipt of the submission by e-mail.  Three copies of books must be submitted.

Printed submissions must be sent to:

Professor Iain Scobbie
Department of Law
School of Oriental and African Studies
Thornhaugh Street
Russell Square
London    WC1H 0XG
United Kingdom

Electronic submissions must be sent to:

is17 {at} soas.ac(.)uk

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize: The Selection Committee will select one submission for award of the Francis Lieber Prize in the Book category and one in the Article category. The Prizes consists of $500, a certificate of recognition, and a year’s membership of the American Society of International Law.

The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in March 2011.

In 2010, the winners were:

James A. Green of the University of Reading for his monograph, The International Court of Justice and Self-Defence in International Law (Hart: Oxford: 2009)

Robert Sloane of Boston University School of Law for his article, The Cost of Conflation: Preserving the Dualism of the Jus ad Bellum and the Jus in Bello in the Contemporary Law of War, 34 Yale Journal of International Law 47 (2009)

Shabtai Rosenne was born as SWD Rowson in 1917 in London where he first studied law, graduating in 1938 from the University of London.  He was subsequently awarded a PhD by the Hebrew University (Jerusalem).  Soon after I was appointed to my current post at the School of Oriental and African Studies, he told me that he had intended to study Arabic there, but that World War II had intervened.  He served in the Royal Air Force from 1940-1946, which somehow did not prevent him from publishing on the punishment of war criminals and a series of articles on the law of prize and blockade.

Returning to London after his military service, he taught international law at the Royal Naval College in Greenwich.  A committed Zionist, he also worked in the political department of the Jewish Agency for Palestine, first in London and then in Jerusalem, before being appointed in 1948 to the Legal Secretariat of the Preparatory Commission for the State of Israel.  Following Israel’s declaration of independence he became legal adviser to its Ministry for Foreign Affairs from 1948 until 1967, when he was succeeded by Theodor Meron.  As legal adviser, Rosenne participated in the 1949 Armistice Conferences with Egypt, Jordan, Lebanon and Syria, subsequently writing a monograph on the regime created by the 1949 Armistice Agreements, Israel’s Armistice Agreements with the Arab States (Blumstein: Tel Aviv: 1951), and also had to deal with the aftermath of Israel’s abduction of Adolf Eichmann from Argentina and his subsequent trial.

Rosenne had been appointed to the rank of Ambassador in 1960 and, after he relinquished his post as legal adviser, he represented Israel in the United Nations in both New York and Geneva.  In 1972, while in post in Geneva, he was the recipient of a letter-bomb which was successfully defused.  He was appointed an Ambassador-at-large in 1974, and finally retired from the foreign service in 1982.

While legal adviser and Ambassador, Rosenne was a member of Israel’s delegations to numerous diplomatic conferences, most notably all three UN conferences on the law of the sea and Vienna conference on the law of treaties.  He also represented Israel before the International Court of Justice in the Reparations advisory opinion (1951), and in the proceedings in the Aerial incident of 27 July 1955 (Israel v Bulgaria) case (1959).

This should be about enough for any one lifetime, but in parallel to his governmental service, Rosenne also pursued another career as a distinguished, and prolific, academic commentator.  He delivered a course at the Hague Academy of International Law in 1954, and returned to deliver the General Course in Public International Law in 2001, subsequently published as The perplexities of modern international law (Nijhoff: Leiden: 2004).

Rosenne is probably best known for his magisterial command of the procedure and jurisprudence of the International Court of Justice—the four editions of The law and practice of the International Court, the associated monographs on intervention and on provisional measures, and the reams of penetrating articles.  This contribution is of inestimable value and yet, as Professor Derek Bowett recounted, when Rosenne arrived in Cambridge to be the Arthur Goodhart Professor in Legal Science in the academic year 1985-86, their conversation went something like this:

He came here as the Goodhart Professor, but I didn’t know him very well. He was required to give a few lectures—not many, just a few.  So I asked him to give a few lectures and he said “What about?”  So I said, “Come on, about the Court”. And he said, “What do I know about the Court”.  And I said “You’ve written a book on the Court”.

It is an understatement to say that this was an understatement.  In the event, Rosenne spent his year in Cambridge researching and delivering lectures on the law of treaties, the fruits of which were published as Developments in the law of treaties 1945-1986 (Cambridge UP: Cambridge: 1989).  Perhaps Rosenne’s virtual domination in the study of the International Court has overshadowed his mastery of the law of treaties.  Developments had been preceded by the publication of his Hersch Lauterpacht Memorial Lectures, Breach of treaty (Grotius; Cambridge: 1985) and, as always, there are perceptive articles scattered through journals and festschriften dealing with specific issues in the law of treaties, including the seminal The meaning of “authentic text” in modern treaty law (1983).

I must have met Rosenne around the time he was the Goodhart professor but, to be honest, I cannot remember our first meeting.  Perhaps that is because he, in the guise of his writings, had been a major presence in my work for quite some time.  I was then engaged in my PhD, hard at work trying to work out how the judges of the International Court reached and justified their decisions (that’s the short version).  I can, however, remember our subsequent meetings, whether in the Hague, in Glasgow, or in Jerusalem.  Shabtai was always engaged with international law, and conversations when we met tended to take the form of him quizzing me on recent developments at the Court, in detail, with interest, but with warmth.

Rosenne was working to the end.  On 14 June 2010, the Israeli government appointed him as a member of the Turkel Commission of Inquiry.  This was set up to determine whether the interception on 31 May 2010 by the Israeli navy of the Mavi Marmara flotilla which was attempting to breach the blockade imposed on Gaza was lawful.  His appointment was not uncontroversial, and was ridiculed by some in the Israeli media because of his age.  This was misplaced, as another area of special concern to Rosenne was the law of the sea.  In fact, perhaps appointment to the Turkel Commission was a fitting end to his career, as it marked a return to his early concerns, the issue on which he had first published, the law of naval warfare.

The death of Shabtai Rosenne underscores that it has been a bad year or so for international law.  Apart from Shabtai, in the course of roughly the past fifteen months, we have lost Derek Bowett, Ian Brownlie, and Tom Franck.  Who will fill their shoes?

Professor Iain Scobbie, is the Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London

The burden of Professor Koskenniemi’s article appears to bear an uncanny likeness to St Teresa of Avila’s aphorism that answered prayers cause more tears than those that remain unanswered. His article is both a restatement and development of the concerns he addressed twenty years ago in “The Politics of International Law”, namely that law is inevitably indeterminate and must always defer to contested political assumptions (or discretion) in order to impose a decision and that, consequently, international lawyers must be reflective and take responsibility for their actions in both the practice and doctrinal development of the discipline. He has consistently argued that a failure to examine one’s actions contributes to the perpetuation of the problems that international law claims to alleviate. There is merit in this argument: as Colin Warbrick pointed out, a refusal to think about what one is doing may amount to a “latent theory” which rests content with the status quo and seeks neither to question nor justify either the substance or practice of international law (see Warbrick C, “The theory of international law: is there an English contribution?”, in Allott P et al, Theory and international law: an introduction (BIICL: London: 1991).

But to speak of the “discipline” of international law is perhaps to impose a falsely monolothic character on the enterprise. As Professor Koskenniemi argues, one of the characteristics of contemporary international legal practice is specialisation, where discrete sets of substantive issues are packaged into categories such as humans right law or trade law or environmental law, each of which have attendant specialised vocabularies that intellectually structure the possibilities and limits of the given field. Special regimes have thereby been created “that cater for special audiences with special interests and special ethos”. Each of these embody structural biases in the form of dominant expectations about the values, actors and solutions appropriate to that specialisation, which thus affect affect practical outcomes . These expectations differ from specialisation to specialisation. Participants conceptualise issues in ways which locate them within a particular specialisation in order to pull on the biases encoded within that specialisation. In doing so they highlight some elements of a situation while disregarding others. This act of classification is often seen as natural or neutral, rather that one which chooses between contested categories which emphasise conflicting values and thus determine the range of possible or permissible outcomes. Consequently international lawyers should examine the implications of their classification of an issue. Professor Koskenniemi agrees with David Kennedy’s observation that international lawyers often have recourse to using specialised vocabularies and institutions without reflecting on their effect in the real world, but continues that if his indeterminancy thesis is correct, then these vocabularies and institutions must themselves be sites of controversy and compromise. Thus an agreement on broad objectives may lead to disagreement on how these are to be achieved, and different political approaches may be adopted to the same given issue—“One needs to know whose understanding of ‘human rights’ or which notion of security ought to be preferred and, once that preference is fixed, what type of action will best support it”. This requires detachment–“strategic sensitivity and the pursuit of critical distance”—from the institution chosen and the objectives it pursues in order that one is not blinded by, but rather may apprehend, its particular structural bias.

Professor Koskenniemi’s indeterminacy thesis may be seen to have affinities with one of the principal strands of American legal realism, rule scepticism, which argued that uncertainty lies in the very formulation of rules, and thus judicial decisions cannot not lay claim to being simply the inexorable application of the law to the issue in question. This is reflected in Harold Lasswell and Myres McDougal’s admonition that “From any relatively specific statements of social goal (necessarily described in a statement of low-level abstraction) can be elaborated an infinite series of normative propositions of ever increasing generality; conversely, normative statements of high-level abstraction can be manipulated to support any specific social goal” (Lasswell HD and McDougal MS, “Legal education and public policy: professional training in the public interest”, 52 Yale Law Journal 203 (1943) 213). A similar notion informs Julius Stone’s doctrine of categories of illusory reference in the interpretation of precedent.

While Lasswell and McDougal could determine appropriate policy choices by reference to the hierarchy of value expressed in their aim of the “complete achievement of the democratic values that constitute the professed ends of American polity” (Lasswell and McDougal 1943 206), Professor Koskenniemi appears not to harbour such a programmatic intent. Although he expresses the hope that the self-reflective practice of law “would transform the preferences of international institutions in support of ‘progressive’ causes”, he casts little light on what these might be, while recognising that some may pursue less progressive or conservative agendas. The outcome of the contest between differing political visions determines the structural biases of particular specialisms or, indeed, of international law as a whole.

One reservation I have to this aspect of Professor Koskenniemi’s argument, and I hope that this is not unfair, is that it presents all legal practice as the quest for normative capture. Perhaps paradoxically, it fails to recognise that different actors may use the same legal structure to pursue diverse ends, without disputing the nature or implications of that structure. For instance, a liberal could easily support the legality of the free expression of views s/he finds abhorrent, and use the same mechanism, the right to free speech, to criticise those views. The extremist might be exercising the right to free speech cynically, and the liberal in a committed fashion because s/he wishes to affirm and advance the values —or, if you wish, structural bias—that the right to free speech embodies. Nevertheless, each may use the same legal mechanism for different purposes without attempting to alter its structural bias.

One structural bias that is pervasive to international law is that, ultimately, it privileges the interests of States, and that States often wish to keep its precepts deliberately vague in order to maintain their freedom of action. This should not be surprising as States may even wish to do so in their domestic legislation. For example, on 5 October 2005 in the US Senate, there was an attempt to amend the Department of Defense Appropriations Bill to prohibit the cruel, inhumane or degrading treatment of those in the custody or under the control of the US government. The New York Times reported that President Bush would veto the Appropriations Bill if it were adopted with this amendment attached on the ground that “it would bind the president’s hands in wartime” (see here). Speaking in favour of this amendment in the Senate, Senator John McCain said:

I can understand why some administration lawyers might want ambiguity, so that every hypothetical option is theoretically open, even those the President has said he does not want to exercise. But war does not occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty, we cannot hide our heads, pulling bills from the floor and avoiding votes. We owe it to our soldiers, during this time of war, to take a stand. (Congressional Record, Senate, 5 October 2005, S11062)

In contrast to this, there are some who would argue that the quest for determinacy sets the bar of legality at a minimum and caps behaviour, and this precludes better, more enlightened, more humanitarian behaviour. For instance, David Kennedy has opined:

humanitarian rules may well criticize too little—relying for their implementation on the agreement of the military and political establishments which collectively promulgate them. Waging war within the rules may so little constrain the use of force that adherence to humanitarian rules will do more to legitimate than contain force. It is easy to mistake warfare which follows the rules for humanitarian warfare—rule following can become a substitute for careful humanitarian assessment. (Kennedy D, The dark sides of virtue: reassessing international humanitarianism (Princeton UP: Princeton: 2004), 296-297, see 235-323 generally)

The notion that law legitimises behaviour can give rise to ethical dilemmas in any attempt to use law to constrain official action (see, for instance, Sfard M, The human rights lawyer’s existential dilemma, 38 Israel LR 154 (2005)), but Kennedy’s counsel in favour of humanitarian assessment itself creates a dilemma. This is obviously a call for some form of consequentialist appraisal. Leaving to one side Professor Koskenniemi’s injunction that one must first decide whose humanitarianism is in play, and arguments such as those advanced by John Finnis that consequentialism is an inherently irrational enterprise (see Finnis JM, Natural law and natural rights (Clarendon Press: Oxford: 1980) 111-118), how may one account for the unintended consequences of intended action? Further, even assuming that one has the time and resources to engage in deliberation before legal action, law is only one strategy to deal with social issues, and its intended practical impact may be derailed by extra-legal factors and the structural biases that they encapsulate. No-one is omniscient, which for law could mean that specialism is inevitable, but it also means that foresight is limited as it is impossible to map and compare the permutations of all possible courses of action .

It may also be that recourse to the law, with all its imperfections, is the only action available. Consider “lawfare”. The term was coined by a US military judge, Charles Dunlap, initially to describe the way that law has been deployed as a weapon of war, for instance, by those seeking to gain a moral or propaganda advantage by claiming that war crimes have been committed by a stronger adversary (see Dunlap C, “Lawfare amid Warfare“, Washington Times, 3 August 2007). The notion has since been extended, and can be summarised as the employment of the power of legal accountability generally by a non-State actor, such as a NGO, in opposition to official State action (see, eg, Herzberg A, NGO “lawfare”: exploitation of courts in the Arab-Israeli conflict (NGO Monitor: Jerusalem: 2008). Lawfare frequently employs international law against the State, whether in domestic or international fora—for example, in courts or before human rights treaty bodies. It could be described as the use of soft normative power against the more naked coercion of the State. As such, it may be seen as a strategy of resistance to the political desires of States, which seeks to disrupt the principal structural bias of international law which lies in its State-centric nature.

The practice of lawfare is, of course, not without normative danger. In seeking to attack a practice, it may end up legitimating it in whole or in part. For example, the attempt by human rights NGOs to employ international law to have Israel’s policy of targeted killings declared unlawful extra-judicial killings resulted in an equivocal judgment from Israel’s High Court which ruled that targeted killings were at times lawful, depending on the circumstances (see Public Committee against Torture in Israel v Government of Israel, HCJ 769/02, 13 December 2006).

Apart from warning of the dangers of answered prayers, St Teresa also prescribed flagellation for the nuns of her reformed Carmelite order in order that they might mortify their flesh: a self-inflicted sacrifice to achieve an intangible goal. Professor Koskenniemi counsels a less painful course for international lawyers to guard against hubris. We must be conscious of what we are doing and why we are doing it and, above all, take responsibility not for the sins of the flesh, but for the sins of our intellect. We cannot blame everything on the “system” when we, in fact, construct it.