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Introduction

BY ANDREW ARATO

XN the first section of this volume, an immense gap appears to


divide Michael Walzer, who approaches the matter of justice and
international law from the point of view of a philosopher, from
Richard Holbrooke, who approaches it from the point of view of
a practicing politician. That gap is already indicated by an
assumption that one speaker explicitly made. We should ask ourselves whether that assumption is true: namely, that the international order, and not just the Westphalian international order, but
international order today, represents a state of nature. Is it a
realm of unbridled aggression? Is it a realm in which states do
what they basically wish, or at least what they wish and can?
This assumption, which to different degrees is shared by these
two authors, seems to abstract away from the idea of international
law. It is not only bad sociology, however, to say that the international realm is a state of nature, whether the Westphalian or the
current order; it is also not good legal theory. If there is international law in any sense, even in the sense of customar}' law, the
international realm cannot be merely a state of nature.
Of course, the issue is the status, the meaning of international
law. International law is not unproblematic when it comes to the
actions of states in war. At least four kinds of objections have been
raised concerning an exaggerated emphasis on international law.
One such objection is that it is dramatically incomplete. Another
is that it is excessively formal. A third objection is that law requires
a monopolist of the legitimate means of violence, a state, to
enforce it, and there is no state in international law. And when
there is enforcement another set of objections is raised. Retroactivity was an important issue already at Nuremberg, perhaps less
so today. But other Nuremberg issues, like the tu quoque arguments, the "you too" argument, or simply put, that international
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justice is victor's justice, and remains inevitably \dctor's justice, was


made then, and continues to be made. Former Yugoslav President
Slobodan Milosevic, who is being tried for war crimes by an international tribunal, makes this argument ever>' dav", and you can be
sure that if Osama bin Laden winds up in a court, he will make
the point as well. International justice is not supposed to be justice, becatise it is almost always victor's jtistice. And victor's justice
cannot be justice. If the Nazis had won the Second World W^r,
they would have attempted to trv' or somehow sanction the actions
of their enemies, just as these wound up trying and sanctioning
the acts of the Nazis.
It is nevertheless the assumption of the papers in this section
(and in the section that follows) that the international realm is
not a state of nature; otherwise we would not need to bother with
these questions. It is also assumed that international law can be
made sense of and can be defended, despite the objections that
can be raised regarding it. I personally would not plead for an
international law without moralitv', but the next two sections presuppose that international moralit)' is dramatically incomplete
and defenseless without international law.