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Professor Noah Weisbord
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Noah Weisbord, THE CRIME OF AGGRESSION [title TBD], Chapter 1 : Law is Dead (Princeton University Press, forthcoming 2016 -7) 1 CHAPTER I: LAW IS DEAD At his best, man is the noblest of all animals; separated from law and justice he is the worst . -Aristotle, POLITICS (4th Century BCE) If you must break the law, do it to seize power: in all other cases observe it. -Julius Caesar (100-44 BCE) ÒWhere has God gone?Ó he [the madman] cried. ÒI shall tell you. We have killed him -you and IÉ Whither are we moving now? Away from all suns? Are we not perpetually falling? Backward, sideward, forward, in all directio ns? Is there any up or down left? Are we not straying as through an infinite nothing?Ó -Friedrich Nietzsche , THE GAY SCIENCE (1882) AS THOUGH THROUGH AN INFINITE NOTHING US President Barack Obama was in a bind. The Islamic State, a fundamentalist jihadist Sunni army, had swept into Iraq from Syria, threatened to flood IraqÕs second largest city by detonating an upstream hydroelectric dam, condemned an ancient religious minority to exte rmination, beheaded two American journalists on video, and seized a vast swath of the border between Turkey and Syria. The President struggled to find a legal justification to allow the US to intervene with armed force. None of the traditional categories f it. Without a dependable legal rationale, the President risked leading the US into another illegal war. Ruminating on his legal options from MarthaÕs Vineyard in the summer of 2014, the question of lawÕs place in the gathering war Ñas ennobling beacon, obst acle on the route to power, or infinite nothing Ñmust surely have cast a pall over the PresidentÕs vacation. Further darkening the skies was the dangerous, pervasive conceptual bombshell of Major General Charlie Dunlap. The Major General is a s light man in his mi d-60s with a dark sense of humo r, a way with words, and the looks of a Yankee Machiavelli. In 2001, in a workshop at HarvardÕs Carr Center for Human Rights, he argued that international law is becoming part of the problem, not the soluti on, for humanizing modern war. He forecast the rise of lawfare, Òthe use of law as a weapon of war.Ó 1!!DunlapÕs idea captured the American legal imagination as Obama considered his options. Dunlap had taken a powerful set of insights developed by critical legal scholars in the 1960s and 70s civil rights, womanÕs rights and anti -war movements and weaponize d them. The Crits, as these scholars are known, had shaken the legal academy by arguing that the rule of law is a myth. They demonstrated that most legal r ules are easily manipulated. As a result, judges and other officials interpreting the law possess 1 Brig Gen (S) Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts in HUMANITARIAN CHALLEN GES IN MILITARY INTE RVENTI ON 4, 2 ( Nov. 2001), www.hks.harvard.edu/cchrp/pdf/publications_pdf/nshr/Vol_1_Nov2001_DunlapMeilingerOwen.pdf .
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