I think that this should be simplified a great deal.

It seems that Kosovo was a breach of international law by the United States (not in compliance with an international law rule or not in compliance with an excuse for breach of an international law rule). Let's avoid trying to make stretches on these things.

The breach engages the responsibility of each state that was involved in it. The question becomes then what happens? If the international consensus develops that it was a politically right thing to do, there is acquiescence and the decision is considered to have gained some kind of legitimacy by the international society of states. If not, there will be resistance to the decision to attack Kosovo and, over time, that decision will be delegitimized. The question then becomes how will states reflect that delegitimation.

A further point is that the rule of international law that was violated will have its own effect - what I mean is that its violation reflects a violation of something that comes from state experience. One would expect that the rule arose between states to say this kind of thing is a bad thing because this kind of thing IS a bad thing.

So the jury is still out on Kosovo. Personally, I fear that there will be a wider war there as a consequence of the recent efforts at quasi-independence. I hope not but that is what I fear. And of course, there is the humanitarian intervention issue there that may make the original Kosovo decision more legitimate. But the jury is still out and we are really navigating a very delicate space in the Balkans right now. With Croatia and Albania coming into NATO soon how is that going to interact with Russian and Serbian desires. A nervous making reality for me.

On torture, we come to the same thing: breach of international rule or not, and, if breach, international legitimacy or not. Again, the question is acquiescence or resistance to the breach. And the question is also does the rule have some independent meaning in the sense of it is a reflection of states thinking torture IS a bad thing.

On this point, the sense is that the jury is not out: torture is awful and therefore resistance is the name of the game. As the torture is being done by the United States, as a citizen I can resist that by insisting my government not torture. I can also insist the high-level persons be prosecuted like the low-levels who were prosecuted for doing the bidding of the high-level types.

And there are U.S. domestic laws that permit this - see on my faculty website at the University of Toledo College of Law my article "Refluat Stercus." Philippe Sands I think is wrong on the foreign prosecution as the experience in Germany has shown an unwillingness to get over the political hump, as has the experience at the International Criminal Court. We've got to do this home-grown.

And I do this not out of any particular pleasure at one or another being in this place. Rather, there is great sadness that across the spectrum (Congress/Executive/Democrat/R­epublican) persons have been willing to "look the other way" in the grip of this paralyzing fear. It is not a new phenomenon and it is not new in the United States. There are lots of potential persons of interest.

Those who resist torture are in a long tradition of persons who are saying no to obscene things. Those who are happy to enable the torture are in a long tradition of persons who have been willing to do these horrendous things, always or usually in the name of some noble cause.

In the long run, our grandchildren ask us where we stood. And we have to reply something. That is when the rubber hits the road in some sense. I would reply in the same way that a resistance fighter from France explained to me why he fought the Nazis in France, "Ce n'etait pas possible en France!" "This was not possible in France."

This is not possible in the United States!

Best,

Ben

Benjamin Davis

UToledo College of Law