Roundtable - war, force, and revolution.

Position:Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law - Discussion

The roundtable was convened at 10:45 a.m., Friday, March 31, by its chair, Anne Orford of the University of Melbourne, who introduced the panelists: Philip Allott of the University of Cambridge; Nathaniel Berman of Brooklyn Law School; Ruth Buchanan of the University of British Columbia; B. S. Chimni of the WB National University of Juridical Sciences, India; China Mieville, an independent researcher from London; and Vasuki Nesiah of the International Center for Transitional Justice.

Revolution (like terrorism) appears to represent a moment of extraordinary force which stands outside or before the law. Yet international law seems nonetheless to have a secret sympathy with the romance of revolution, indicated perhaps by the presence of self-determination as a legal principle and later a right, or by the new enthusiasm for intervention to bring about regime change. Many commentators argue that we are living through an era in which the relationship between violence, force and the grounds of law is undergoing its own revolution.

After the panelists were introduced, each was asked to present a two-minute statement or manifesto setting out his or her understanding of the relations between war, force, revolution and international law. Over the remainder of the session, the panelists had a conversation with each other about these themes. In the final part of the session, the audience was invited to join in this conversation. This is an edited transcript of the conversation between the panelists. It should be noted that this is a record of unscripted remarks made in the course of an agora-style exchange, and as a result the comments included in this transcript reflect the experimental format of the event and are speculative in nature.

ANNE ORFORD:

"We are living in revolutionary times." So said Philip Allott throughout the seminar on his work published last year in the European Journal of International Law, (1) and this theme has emerged out of many of the lectures, panels and conversations to date at this American Socity for International Law (ASIL) Centennial Meeting. In the opening session, the Secretary of State, Condoleezza Rice, told us that the United States is engaged in a new kind of conflict, a new kind of war, and that international lawyers must recognize that this is a different era to the one in which the Geneva Conventions were negotiated. Professor Chimni in his Grotius Lecture told us that we are living through a time of profound transformation, in which we are moving from a world of sovereign states to one in which a nascent global state is being constructed. Grotius also lived through a time of transition from a feudal to a bourgeois order, and grasped this sense of transition to structure an international law for the times. Professor Chimni called on us to understand that the Grotian task faces us all today. And in yesterday's session on "The Laws of Force and the Turn to Evidence," Tom Franck declared that in the U.S. policy formulations on the use of force, we are witnessing the most radical shift in U.S. foreign policy since isolationism.

At today's roundtable, a wonderful panel of speakers have come here to discuss this relationship between war, force, revolution and international law.

NATHANIEL BERMAN:

This roundtable is on a topic that is perhaps unconventional for the American Society, but perhaps it's not altogether incidental to the work of the Society, and I wanted to start out with the following fact. In 1906, which is the year that the American Society was founded, another event happened, which is that Lenin, an author known as a theorist of revolution, wrote a long, influential essay on guerrilla warfare. And I wanted to start by reflecting on what that coincidence might mean, and to offer in my two-minute opener two possibilities. One possibility is that the international law of the twentieth century, in its institutionalized form, might be said to arise as a response to some perceived revolutionary challenge. This is what I call the phantasmatic relationship between law and revolution. Ten years before the Society was founded, before Lenin wrote his essay, Friedrich de Martens, the famous Russian international lawyer, wrote "It is not hard to stir up the people to oppose the enemy, but it is not easy to direct the aroused forces and to oblige it to subordinate itself to the orders of government." And so the founding of the American Society at the same time as Lenin was writing a theory of revolution might be viewed as some kind of response to that perceived disintegrating threat.

There's another possible relationship here between international law and twentieth-century revolution, and that is what I call a mimetic relationship. And by that I mean the following: that the theory of guerrilla warfare as laid out by Lenin and people who wrote and practiced revolution in his wake were impelled by ideas about the need to discipline guerrilla forces, to organize them, to keep them within frameworks that were very similarly structured to the law of guerrilla warfare that would be codified in the Geneva Conventions of 1949. So if Lenin said in 1906, "Evil does not exist in guerrilla warfare but only in unorganized, undisciplined and non-party activities," so guerrilla warfare to receive the privileges of combatant status under the Third Geneva Convention has to be disciplined and organized and must belong to a "party to a conflict." In fact, those words from Lenin are almost paraphrases, actually they are almost quotes, from Article 4A of the Third Geneva Convention. In order for guerrillas to be privileged combatants under the law of war, they have to be disciplined, they have to be under command, they have to belong to a "party to a conflict," although of course the word "party" might mean very different things for Lenin and the Geneva Convention. However, it's the same basis idea: that there are these disintegrating forces that can be legitimate if they are under discipline. And that's what I would call a certain kind of a mimetic relationship between international law in its codified form and some of the central theories of revolution as they've emerged in the twentieth century. And I think I've kept within my two minutes.

PHILIP ALLOTT:

Good heavens, is it as short as that?

I always feel coming to the American Society like a visitor from Planet Earth to Planet America. We live worlds apart, and my message on this occasion is in three points if I've got time even for those.

The first is that the party's over. We're coming to an end of something, it's the beginning of the end, it's the end times. The human world is going down the drain. Humanist civilization is coming to an end. And certainly the Hobbesian, Vattelian worldview has come to an end. So the question for us really is what to do in such a situation, and that's what I want to discuss this morning. The problem arises whether to call it a revolutionary situation or not. A society for me is physics plus metaphysics. Physics is the structure and the system of society, metaphysics is the ideas that a society has about itself, the story it tells itself. Law is the bridge between those two things. Law provides the structures and systems but law enacts the metaphysics, and there is a continuous interaction between them. Therefore, in a revolutionary situation, there seems to be something to have gone wrong in the relationship between the physics and the metaphysics, the Marxist structure and the superstructure. That I think is what's happening at the moment. The fictional state as opposed to the previous feudal monarchy is the wonderful idea of the depersonalized state, but nevertheless a state that in some senses has human characteristics, including a will that is embodied in the law. That worldview was the brilliant achievement of Hobbes. And then Vattel did the wonderful trick of turning that inside out and creating the fictional international state with some personal, human characteristics, including a will, self-consciousness and self-interest. And then thereafter the two social processes, diplomacy and war, took over as the way this new fictional system would operate.

So that's now finished, for reasons that we know. The internal and the external are now not separate realities. The internal and the external, the national and the international, are now completely flowing into each other.

The second thing is how we respond to that, particularly as lawyers, because lawyers then have this key position between the physics and the metaphysics. Practicing lawyers, it's hopeless; they are agents, obviously, of reaction and counter-revolution, so we exclude them. Academics we exclude because they are parasites; academics are parasites on the body politic. Social Darwinism has invented the universities as a way of marginalizing tens of thousands of intelligent people so that they don't interfere with the real processes of real life. So academics we can put on one side.

The only two possible candidates for doing anything about it are, first, the middle class. As Aristotle said, the middle class actually is the revolutionary class, it has been in Britain since the thirteenth century. All our revolutions, of which we've had one every century, have been caused by the middle class. So I would say, middle classes of the world unite, you've nothing to lose but your complacency. And the final group is intellectuals, committed intellectuals. Committed intellectuals are different from other intellectuals in that they believe their job is to think in order to change the world. Very few of us left. Those are the two classes in which I rest my hope of a real international revolution.

ANNE ORFORD:

Could the parasites and the counter-revolutionaries please leave the room now?

RUTH BUCHANAN:

Ordinarily when we think of revolution, we understand it as standing in an exceptional relation to law, although I want to put that in question in my two...

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