Conlawprof, Soft Power, and the Murder of Jamal Kashoggi

Professor AAA wrote: “But soft power is different. We translated copies of the Constitution and the Declaration of Independence into Spanish and sent them out to Spain’s colonies in the New World. It is hard to imagine any policy that is more in our interest than to have a conversation with the nations around the globe why it is in their self interest to adopt some form of constitutional government ....”

Professor BBB wrote: “The fourth Count of the indictment is based on Crimes against Humanity.  Chief among these are mass killings of countless human beings in cold blood.  Does it take these men by surprise that murder is treated as a crime?”—Justice Robert H. Jackson, Opening Statement to the Int’l Military Tribunal at Nuremberg, Nov. 21, 1945”

Tillman responds:

I have no clear idea what Professor AAA meant by “constitutional government”? Did he mean: [1]—American-style separation of powers, with a president having an electoral mandate independent of the legislature? Or, [2]—Did he mean simply written constitutionalism? Or, [3]—Did he mean just having a government subject to norms and conventions? (Perhaps there is a fourth position?)

As to [2] and [3], I don’t think most recently formed countries ever thought of building on a foundation absent a written constitution (Israel is somewhat anomalous by this standard), much less absent any norms and conventions. If we, the United States, are recommending that newly formed countries adopt [1], that is, American-style separation of powers, then such advice is (in my view) positively harmful. I can think of few things more likely to destroy the chances of a new nation’s living at peace with itself and its neighbours than to take on such a system—a system which only worked in the U.S. (to the extent it worked at all—e.g., the American Civil War) for wholly fortuitous reasons (i.e., big oceans as defense in depth and relatively weak neighbours). If this is “soft power,” then it is positively a destructive force in the world.

Still, the people who marketed soft power over the last decade in the halls of power and among the voters were more than happy to engage in real politik when it suited them. See President Obama called Libya “a mess” <https://www.vanityfair.com/news/2016/04/obama-clinton-libya-mistake>. There are now slave markets in Libya. I wonder why that is? Secretary of State Clinton on Qaddafi: “We came, we saw, he died”: <https://www.youtube.com/watch?v=mlz3-OzcExI>. She laughs while saying it. Laughs.

As to Professor BBB … As long as we are looking to Nuremberg for a model or precedent: Did anyone laugh while the war criminals were executed? Did any of the prosecutors or the proponents of the war-time policies that led to Allied victory in WWII, go on film or radio, and in public discussions of the post-war executions, did they start laughing?

I also wonder if there is any cognitive dissonance amongst the participants on CONLAWPROF who: [1] oppose the death penalty under peace time conditions administered by independents courts and juries; and, [2] support a concomitant willingness to turn to Nuremberg as a model to guide current standards and thinking? What penalty do you think Jackson and the other prosecutors at Nuremberg (and at the other international military tribunals following Allied victory) sought?

Seth

Seth Barrett Tillman, Conlawprof, Soft Power, and the Murder of Jamal Kashoggi, New Reform Club (Apr. 16, 2019, 12:10 PM), <https://reformclub.blogspot.com/2019/04/conlawprof-soft-power-and-murder-of.html>