James Carter's Presidential Address at the 2005 Annual Meeting forcefully argued that ours is a Society for (not merely of) International Law. He argued that while "a learned society is ill-positioned to formulate public policy positions," the ASIL regularly makes the case for international law by, among other things, raising the visibility of current international law issues, supporting the rule of law where it was challenged, and explaining to a wider public "why international law matters."[1]

I agree that our Society should be about increasing the visibility and accessibility of international law. I also agree that our members need to defend the proposition that international law is law and needs to be taken seriously, especially when high U.S. government officials cavalierly dismiss it. Examples of their hubris abound, whether it was Vice President Cheney suggesting that submerging detainees in water (aka, waterboarding) is not objectionable, or Deputy Assistant Secretary of Defense for Detainee Affairs Charles D. Stimson casting aspersions on the patriotism pro bono defenders of Guantánamo detainees who are doing what Geneva law demands. We can welcome or even call for the Vice President and Secretary Stimson to repudiate such remarks-as both did. As Carter suggests, part of our Society's mandate is to remind policymakers and the wider public that the 1949 Geneva Conventions entail legally binding commitments, that such treaties are expected to be interpreted in accordance with rules that are themselves legal obligations, and that violating either treaties in force or the rules for their interpretation entails costs.

Yet, I want to defend the idea that ours is a Society that should remain, in title and principal function, of international law.

I worry about some of the implications if we are perceived as being "in favor" of international law or its associated institutions, like the UN. Are we really propagandists for the view that the world's problems are always amenable to legal solutions? That compliance with international law, even over conflicting national law, always yields positive or anticipated results? That international courts should always be preferred to power politics or national courts? While we could, like Martin Luther, post such contestable nostrums on the front door of Tillar House, doing so would imply that we are no longer a "learned" society grounded in rational inquiry but a religious sect based on faith. The better option is to soberly recognize the limits of international law and of ourselves as lawyers. Humility, not hubris, should be our credo.

Consider Saddam Hussein's trial and hanging. I question the reaction of many who contend that all would have been well if Hussein had been tried by an international tribunal imposed by Security Council edict, had been convicted by impeccably fair proceedings in full accordance with Article 14 of the International Convention on Civil and Political Rights, and had faced a term of years in jail instead of an indecorous fate that inflamed sectarian violence and threatens to turn him into a martyr. This response presumes that our idealized international trial would have managed to overcome the diverse due process challenges such trials pose (as suggested by the grandstanding tactics displayed by Milosevic before the International Criminal Tribunal for the former Yugoslavia (ICTY)), that a divided Iraqi public would have regarded such a Council-driven outcome as any more legitimate than one rendered under a Council-authorized occupation, and that a single international proceeding spanning numerous crimes across decades would have satisfied the needs of history and the diverse victims (from the Kurds gassed or slaughtered to the Israeli civilians killed by Hussein's scud missiles). Furthermore, it is legitimate to ask whether Hussein's Iraqi (and Iranian) victims, long accustomed to the death penalty for much lesser offenses in their own societies, would have been satisfied with a penalty of a sentence of years in a comfortable northern European jail cell, along with the inevitable subsequent memoirs from the former novelist-cum-dictator.

As I suggested when the plan for an Iraqi tribunal was first announced, the United States was in an impossible position between hegemony and hubris-between its own temptations to do what was expedient as occupier and the calls of international human rights NGOs who unrealistically demanded that the top political leader of an occupied country be tried in a fashion that could escape the charge that it was a "political trial."[2] The best option for dealing with Hussein may have been to satisfy neither the international lawyers' clamor for another ad hoc war crimes tribunal (or a Security Council-mandated use of the International Criminal Court (ICC)) or the victims' demand for expedited revenge, but to wait until conditions in Iraq permit a fairer-if-less-than-perfect national criminal proceeding close to the crimes, the victims, and the evidence.

Although Hussein's trial and execution undoubtedly perverted the Nuremberg legacy, it is not as if international lawyers have perfected that legacy elsewhere, even under more favorable conditions. As astute observers of our current approaches to international criminal accountability have suggested, international lawyers remain relative novices when it comes to penology, criminology, and victimology. Our attempts to adapt the methods of national criminal law to crimes involving collective complicity remain works in progress. We have experimented with victor's justice (Nuremberg), jurisdictional primacy (the ICTY and the International Criminal Tribunal for Rwanda), and national jurisdiction (universal jurisdiction). We also are now embarking on diverse forms of complimentarity among national and international courts (the ICC and hybrids in East Timor, Sierra Leone, and Cambodia), and between criminal and non-criminal approaches (from lustrations to truth commissions). We have yet to find the right formula that will achieve the overly ambitious and often inconsistent goals that we have set for ourselves, from promoting deterrence to preserving collective memory.

Worse still, as a recent report of the International Center for Transitional Justice puts it, we have "overpromised" and "underdelivered" when it comes to combating impunity and advancing reconciliation in places where it is most desperately needed-not just in Darfur, but all over sub-Saharan Africa, such as in Burundi, the Congo, Ghana, Liberia, and Rwanda. As this devastating report indicates, international lawyers have elevated expectations for "transitional justice" in places where it is unclear whether a "transition" has really occurred and where the fundamental institutions needed to promote "justice" of any kind-least of all in cases involving mass atrocity-do not exist.[3] It is not clear that our recourse to international law has made any difference to the lives of the people that we presumably seek to help the most.

Despite the establishment of expensive international tribunals and diverse forms of truth commissions, reparations, and venting programs, the "impunity gap" remains wide enough to force reevaluations of most of the fundamental premises of post-Nuremberg international criminal law. These would include our readiness to identify recognizable "victims" and "perpetrators" (and thereby avoid collective guilt), our ostensible "duty to prosecute," and our courtroom efforts to preserve history and rehabilitate victims.[4] In spite of our universalist aspirations and inclinations, we are becoming aware that no single model for accountability is likely to work everywhere and that the national delivery of localized justice may remain the most promising. Some of us are even suggesting that the ICC itself may have to restructure itself to promote the "nationalization" of international criminal law-an ironic recommendation given the five-decade effort to internationalize that law.[5] Others, like Mark Drumbl, worry that even a sensitive application of the ICC's complimentary regime may encourage heterogeneity in forums but wrongly encourage homogeneity in the handling of crimes or the punishments meted out.[6] The cacophony of voices even among our foremost experts in this field is a welcome sign that hubris has not yet won out, even among fellow Grotians.

The grievous errors committed in trying and hanging Hussein in decidedly un-peaceful Iraq should not lull us into thinking that we are entitled to proclaim "mission accomplished" merely because we are engaging in a handful of international trials for some high-level perpetrators elsewhere. Surely we learned that lesson on an aircraft carrier four very long years ago. With respect to this issue, as with many others whose complexity exceeds our lawyerly grasp, we are and ought to remain a society of-and not salespeople for-international law.

José E. Alvarez

Footnotes