Opinio Juris

The British newspaper The Guardian is currently having Hay Festival, major book festival.

With all these writers and public figures around, there are some fun possibilities. As the folks at The Guradian put it:

Hay is full of the cleverest and sharpest minds, but if they could ask one person just a single question, who would they choose - and what would they ask? We brought them together to find out.

Here are two examples that I thought Opinio Juris readers might find interesting:

George Monbiot, author and Guardian columnist asks John Bolton, former US ambassador to the UN

Q The International Military Tribunal at Nuremberg ruled that "to initiate a war of aggression ... is not only an international crime; it is the supreme international crime". You were instrumental in manufacturing the case for war with Iraq, using false intelligence. Why should you not be put on trial as a war criminal?

A Since the Security Council's unanimous 1991 adoption of Resolution 678 - the ceasefire resolution ending the first Persian Gulf war - Saddam Hussein's regime repeatedly violated it. By systematically demonstrating its unwillingness to abide by Security Council resolutions, Iraq violated the terms of the ceasefire in countless ways. By so doing, Iraq vitiated the ceasefire, and revived the initial authority under Security Council Resolution 678 to use all necessary means to deal with the threat posed to international peace and security by Iraq. Accordingly, the premises of your question are erroneous in law and erroneous in fact.

…

John Bolton, former US ambassador to the UN asks James Naughtie, broadcaster

Q How much longer will the state own the BBC and why?

A If John Bolton hasn't yet worked out the difference between state-owned and publicly funded, it's probably too late to hope for enlightenment. But the distinction is the one that matters. The implication that the BBC's public funding puts it in thrall to government is simply wrong. The founding charter protects us from interfering ministers just as it obliges all of us to practise independent journalism. I think that has produced a healthier broadcasting environment than the one the US now enjoys. And as it happens, many Americans seem to agree, because the number of listeners and viewers there is rising fast. So I hope our form of ownership remains indefinitely.

We all know the adage that those who ignore history are condemned to repeat it. In a recent op-ed, Mark Shulman of Pace Law School shows how if only the Bush Administration had remembered history, they may have repeated it.

Shulman, who besides being a lawyer also has a doctorate in history and a particular expertise in military history, explains how the legacy of Telford Taylor, one of the Nuremberg prosecutors, could have been a guide to avoid the pitfalls of the current administration’s detention and interrogation policies.

The op-ed was published on May 23rd, the tenth anniversary of Taylor’s death. Shulman reminds us that Taylor used humane methods when interrogating Nazis prior to the trial. But, more than that, Shulman also highlights how Taylor's experiences at Nuremberg informed his ongoing legal career and his devotion to the rule of law:

Having spent the 1940s witnessing the effects of a government that held itself above the law, Taylor dedicated the remainder of his long life to ensuring a robust rule of law, evenly applied.

During the McCarthy era, he defended the First Amendment rights of Communists. In the 1960s he appeared before hostile Southern courts to defend the Freedom Riders from persecution. In 1970 he decried both North Vietnam's heinous treatment of POWs and the indiscriminate U.S. bombing campaigns.

He wrote, "The laws of war do not apply only to the suspected criminals of vanquished nations. There is no moral or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street."

Throughout his career, Taylor promoted a strong America guided by wise policies and robust institutions. His final report from Nuremberg concluded: "By prudent military preparedness, by unflagging efforts to lay the groundwork for international society and the rule of law among nations, and by constant improvement in the economic and social foundations of our own democracy, we may hope at one and the same time to undermine these destructive and tyrannical forces and obviate the necessity for a victory by force of arms."

Contrast Taylor's words and actions with those of so many senior adminsitration lawyers. And then imagine if history had, in one small way, repeated itself: if the War on Terror had actually inspired in the the current administration an increased commitment to the rule of law, both domestic and international. But unfortunately that is an alternate history to our own.

Shulman’s whole essay is well worth the read. Especially by those who do (or hope to) wield power.