Council Comments
Nathaniel A. Berman
Professor of Law, Brooklyn Law School

Whatever the outcome of the election, 2009 will be a "transitional" moment in the U.S. Our country should thus be a candidate for "transitional justice," a key theme of advanced internationalism since 1989. A "modest proposal," therefore, would recommend that we consider the various alternative forms of such justice for our country, which has for several years engaged in massive violations of the core prohibitions of jus ad bellum , international humanitarian law, and human rights, the scale of which is today hardly contested by serious observers. Should we, in our "transitional justice" moment, follow the "duty to prosecute" model, applied to those policymakers and legal advisers, both academic and governmental, complicit in these violations? Or should we follow a "truth and reconciliation" model? The phantasmatic quality of this proposal stems from the fact of deep involvement of important members of the international legal profession in these violations, making any "transitional justice" moment utterly improbable. The next administration should, therefore, consider two questions. First, of what effective use in an ethical foreign policy is the American international legal profession? Second, if the answer to the first question is "not too much," is there some other normative discipline to which we should turn? And, a plea to fellow members of the American branch of the "invisible college": we must confront the central issue faced by international lawyers generally after World War I - if the current conceptual and social structure of our discipline rendered it unable or unwilling to effectively oppose the horrors of recent years, what kind of massive restructuring is required of us?