¹ The principal statement arid delineation of policy-oriented jurisprudence is presented in Lasswell & McDougal’s two-volume treatise, Harold D. Lasswell & Myres S. McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (1992). For earlier expressions of the approach, see Harold D. Lasswell, World Politics and Personal Insecurity (1965, with a new introduction) (1935); and Harold D. Lasswell & Abraham Kaplan, Power and Society: A Framework for Political Inquiry (1950). See also W. Michael Reisman & Aaron M. Schreiber, Jurisprudence: Understanding and Shaping Law (1987); Ronald D. Brunner, Capitalizing the Policy Sciences: For Global Change Research (forthcoming); and Winston P. Nagan, The Science, Law and Policies of Human Dignity (forthcoming). Alternatively, our approach has been designated as “law, science and policy,” “configurative jurisprudence” and “New Haven School.” We prefer the term “policy-oriented jurisprudence” because it focuses attention on the content of our theory about law.

² For further discussion, see Lasswell & McDougal, supra note 1. With respect to international law, see Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 189 (1968), reprinted in Myres S. McDougal & W. Michael Reisman, International Law Essays 43 (1981); W. Michael Reisman, International Lawmaking: A Process of Communication, 75 ASIL PROC. 101 (1981); W. Michael Reisman, The View from the New Haven School of International Law, 86 ASIL Proc. 118 (1992); Siegfried Wiessner, International Law in the 21st Century: Decisionmaking in Institutionalized and Non-Institutionalized Settings, 23 Thesaurus Acroasium 113 (1997).

³ The German school of interests jurisprudence of the 19th century similarly focuses on the process of law as a continuing struggle. See Rudolf von Jhering’s powerful introduction to his lecture Der Kampf um’s Recht:

The life of the law is struggle, a struggle of nations, state power, classes, interest groups, and individuals. All law is the result of strife; every important rule had to be wrested from those who opposed it, and it remains alive only as long as those who support it stand ready to defend it. Law is not an abstract idea, but a living force.

Rudolf von Jhering, Der Kampf um’s Recht 1 (Vienna, Manz 1872) (our trans.). See also Rudolf von Jhering, Der Zweck im Recht (Leipzig, Breitkopf und Haertel 1877).

⁴ Wiessner, supra note 2, at 129.

⁵ Policy-oriented jurisprudence also provides a refined way of thinking about processes of decision making. It conceives of decision processes in terms of the functions they perform. These functions include the gathering of intelligence, the promotion of preferences, the prescribing of authoritative policy or lawmaking, the invocation of prescriptions, the application of prescriptions, their termination, and the appraisal of the aggregate performance of a community’s decision processes in terms of community goals. For further discussion, see Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, 19 J. Legal Educ. 253, 403 (1967), reprinted in 1 The Future of the International Legal Order 73 (Richard A. Falk & Cyril E. Black eds., 1969), and in McDougal & Reisman, supra note 2, at 191.

⁶ Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AJIL 302, 305 (1999).

⁷ Other approaches featured in this symposium go outside the narrow confines of text and do, at least partially, engage the social context in which legal decisions are made. To that extent, law and economics as presented by Dunoff and Trachtman offers valuable analytical tools. Sec Jeffrey L. Dunoff & Joel P. Trachtman, The Law and Economics of Humanitarian Law Violations in Internal Conflict, 93 AJIL 394 (1999). Regarding the goal of efficiency, they can elucidate the appraisal of different policy options. What we remain to be convinced of is the capacity of law and economics to provide a meaningful response to all the values humans desire, especially when they reach beyond the realm of wealth.

With respect to Mary Ellen O’Connell’s New International Legal Process, 93 AJIL 334 (1999), the author’s acknowledgment of law as a dynamic enterprise, and her recognition of the element of authority in decision are most helpful. The problem with this exposition is that law is more than a narrative technique of statements of authority of the past; it has a present and future dimension (which she sees), and it involves making choices. The issue is: where does the author receive guidance for making such choices? It does not help to invoke a collection of theories that are often incompatible with each other (e.g., feminism and liberalism; liberalism and republicanism; law and economics and feminism). All these theories are quite distinct in their normative value content, and do not necessarily result in common policy preferences, even at a high level of abstraction. “[C]onfidence in institutional settlement” may be a “central NLP value,” id. at 339, but it does not provide any guidance as to the substantive policy preferences that should inform the institution’s decision.

Kenneth W. Abbott’s survey of the approaches to the study of international relations, as laid out in International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AJIL 361 (1999), is illuminating, but the approaches he describes, like other contributions to this symposium, provide little guidance as to what the law should be with respect to human rights abuses in internal conflict. While Abbott describes international relations approaches as “separating] analysis from normative or policy goals,” see id., note 6, none of them in fact address such goals in any detail. The absence of these goals may indicate the exact opposite: the goals may be insinuated in the analysis, either consciously or unconsciously. Conversely, as explained in this essay and elsewhere, analysis and goal clarification are two of the five distinct intellectual tasks that policy-oriented jurisprudence undertakes.

⁸ For further discussion of the way policy-oriented jurisprudence treats words—whether or not crystallized in print—and deeds as indicators of law, see International Incidents: The Law That Counts in World Politics (W. Michael Reisman & Andrew R. Willard eds., 1988).

⁹ Policy-oriented jurisprudence has laid out these objectives in greater detail in Myres S. McDougal & Florentino P. Feliciano, The International Law of War: Transnational Coercion and World Public Order 261–383 (1994); Richard Arens & Harold D. Lasswell, In Defense of Public Order: The Emerging Field of Sanction Law (1961); W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order, 6 Duke J. Comp. & Int’l L. 175 (1995).

¹⁰ For elaboration, see Lasswell & McDougal, supra note 1, pt. III, at 725–1128.

¹¹ See Wiessner, supra note 2, at 146–47, 153.

¹² Martti Koskenniemi, Letter to the Editors of the Symposium, 93 AJIL 351 (1999).

¹³ Hilary Charlesworth, Feminist Methods in International Law, 93 AJIL 379 (1999).

¹⁴ For further discussion and demonstration of the modalities of participation, see Lasswell & McDougal, supra note 1, pt. II, at 335–590.

¹⁵ On minimum and optimum public order, as well as the interrelationship, approaching identity, of peace and “human rights,” see Myres S. McDougal & Siegfried Wiessner, Law and Minimum World Public Order, in McDougal & Feliciano, supra note 9, at xxviii [hereinafter McDougal & Wiessner, Minimum Order]; Myres S. McDougal & Siegfried Wiessner, Law and Peace in a Changing World, 22 Cumb. L. Rev. 681, 683 (1992).

¹⁶ Obviously, this understanding of optimum order is not necessarily reflected in the actual policies and practices of any particular government, including that of the United States. In addition, the values, as identified above, include human aspirations for respect and affection, just as much as desires for power, wealth and rectitude—to name but a few. If modern international law is, indeed, reflective of a “man’s world,” as Charlesworth intimates, see Charlesworth, supra note 13, text following note 7, this should be identified as a problem, analyzed, and rectified.

¹⁷ Comprehensive demonstrations of how policy-oriented jurisprudence applies this recommendation can be found in Myres S. McDougal, Harold D. Lasswell & Lung-Chu Chen, Human Rights And World Public Order: The Basic Policies of an International Law of Human Dignity (1980); and McDougal, Lasswell & Reisman, supra note 5.

¹⁸ Policy-oriented jurisprudence offers detailed maps of the world community, of world politics and of international law. See, respectively, Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The World Community: A Planetary Social Process, 21 U.C. Davis L. Rev. 807 (1988); Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The World Process of Effective Power: The Global War System, in Myres S. McDougal & W. Michael Reisman, Power and Policy in Quest of Law 353 (1985); and McDougal & Reisman, supra note 5.

¹⁹ Arens and Lasswell’s conclusion about the impact of the usage of the terms “civil” and “criminal” on sanctioning policy in the United States is provocative. They wrote:

It is impossible to read the text of statutes or opinions and keep much confidence in the clarifying function of the terms “civil” or “criminal.” The conclusion is inescapable that the terms spread intellectual confusion throughout the courts, the administrative system, the legislatures, and the community at large.

… Unmistakably the two labels “criminal” and “civil” are blinding the minds of all concerned to the consideration of the severity of the deprivations at stake and barring the path to a proper clarification of sanction policy. Fossilized terms of art, long since divorced from the frame of whatever theoretical structure they once expressed, are distorting modern society in its approach to sanction law.

Arens & Lasswell, supra note 9, at 64–65.

²⁰ See McDougal & Wiessner, Minimum Order, supra note 15, at xxxvii (with further references); Humanitarian Intervention and the United Nations (Richard B. Lillich ed., 1973); Fernando R. Tesón, Humanitarian Intervention: An Inquiry into law and Morality (1988); and Sean D. Murphy, Humanitarian Intervention 260–75 (1996). See also Robert M. Chilstrom, Humanitarian Intervention under Contemporary International Law: A Policy-Oriented Approach, 1 Yale Stud. World Pub. Ord. 93 (1974).

²¹ Authorization to member States to form a multinational force, under unified command and control, for Haiti, SC Res. 940, UN SCOR, 49th Sess., Res. & Dec, at 51, UN Doc. S/INF/50 (1994).

²² Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, Art. 6(c), 59 Stat. 1544, 82 UNTS 279.

²³ In fact, the wording “before … the war” expresses the intent to criminalize action taken outside the context of international armed conflict as well.

²⁴ Statute of the International Tribunal for the former Yugoslavia, UN Doc. S/25704, annex, Art. 3 (1993), reprinted in 32 ILM 1159,1192 (1993). For detailed analysis, see Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT–91–1–AR72, para. 94 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996).

²⁵ Statute of the International Tribunal for Rwanda, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994).

²⁶ See Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554 (1995).

²⁷ See Steven R. Ratner, The Schizophrenias of International Criminal Law, 33 Tex. Int’l L.J. 237 (1998).

²⁸ Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9*, reprinted in 37 ILM 999 (1998).

²⁹ Id., Art. 6, in essence repeating the formulation of the 1948 Genocide Convention, Art. II. But see the broader formulation in Prosecutor v. Akayesu, Judgement, No. ICTR–96–4–T, §6.3.1 (Sept. 2, 1998): “In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux préparatoires, was patently to ensure the protection of any stable and permanent group” (emphasis added). See also 93 AJIL 195, 196 (1999).

³⁰ Rome Statute of the International Criminal Court, supra note 28, Art. 7(1).

³¹ Id.

³² See Rome Statute of the International Criminal Court, ratification status as of 11 April 1999 (visited Apr. 13, 1999) <http://www.un.org/law/icc/statute/status.htm>.

³³ Attorney-General v. Eichmann, 1965 Psakim Mehoziim 3, 36 ILR 5 (D.C. Jm. 1961), aff’d, 16 Piskei Din 2003, 36 ILR 277 (S. Ct. Isr. 1962).

³⁴ Regina v. Bow Street Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte, [1998] 3 W.L.R. 1456 (H.L.), 37 ILM 1302 (1998). In a remarkable opinion, set aside because of the perceived bias of another judge, Lord Nicholls of Birkenhead stated:

[I]t hardly needs saying that torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state. All states disavow the use of torture as abhorrent, although from time to time some still resort to it. Similarly, the taking of hostages, as much as torture, has been outlawed by the international community as an offence. International law recognises, of course, that the functions of a head of state may include activities which are wrongful, even illegal, by the law of his own state or by the laws of other states. But international law has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else; the contrary conclusion would make a mockery of international law.

37 ILM at 1333. The opinion of the Lords of Appeal of March 24, 1999, allowed for the extradition of Pinochet for acts of torture committed after December 8, 1988, based on the Torture Convention. Regina v. Bow Street Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte, [1999] 2 W.L.R. 827 (H.L.).

³⁵ These countries include France, Luxembourg, Sweden, Belgium, Switzerland, Italy and Germany. See Main events since Pinochet’s arrest in October (visited Nov. 25, 1998) <http://www.cnn.com/WORLD/Europe/9811/25/BC-PINOCHET-CHRONOLOGY.reut/>.

³⁶ See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996); and Jama v. INS, 1998 WL 684473 (D.N.J. Oct. 1, 1998). But see Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (1984).

³⁷ For an insightful discussion, see Harvard Law School Human Rights Program, Truth Commissions: A Comparative Assessment (1997).

³⁸ 1 Chilean National Commission on Truth and Reconciliation, Report 14 (Eng. ed. 1993) [hereinafter Chilean Report]. See also Pamela Constable & Arturo Valenzuela, A Nation of Enemies: Chile under Pinochet (1991); Patricia Politzer, Fear in Chile: Lives under Pinochet (1989); Mary Helen Spooner, Soldiers in a Narrow Land: The Pinochet Regime in Chile (1994); Jacobo Timerman, Chile: Death in the South (1987). Compare Augusto Pinochet Ugarte, Chile on its Way to the Future (1976).

³⁹ In describing the work of the commission, its member Jose Zalaquett Daher analyzed the moving forces:

The truth was considered as an absolute, unrenounceable value for many reasons: In order to provide for measures of reparation and prevention, it must be clearly known what it is that ought to be repaired and prevented. Further, society cannot simply black out a chapter of its history, however differently the facts may be interpreted. The void would be filled with lies or with conflicting versions. The unity of a nation depends on a shared identity, which, in turn, depends largely on a shared memory. The truth also brings a measure of social catharsis and helps to prevent the past from reoccurring. In addition, bringing the facts to light is, to some extent, a form of punishment, albeit mild, in that it provokes social censure against the perpetrators or the institutions or groups they belonged to. But although the truth cannot really in itself dispense justice, it does put an end to many a continued injustice—it does not bring the dead back to life, but it brings them out from silence; for the families of the “disappeared,” the truth about their fate would mean at last, the end to an anguishing, endless search. It was deemed further that a thorough disclosure of truth was feasible, although probably the whereabouts of the remains of most disappeared will remain unknown.

José Zalaquett, Introduction to the English Edition, 1 Chilean Report, supra note 38, at xxiii, xxxi.

⁴⁰ 1 Truth and Reconciliation Commission of South Africa, Report 1, 50 (Susan de Villiers ed., 1998). The commission’s chairman, Archbishop Desmond Tutu, stated the dilemma and its resolution the following way:

Those who have cared about the future of our country have been worried that the amnesty provision might, amongst other things, encourage impunity because it seemed to sacrifice justice. We believe this view to be incorrect. The amnesty applicant has to admit responsibility for the act for which amnesty is being sought, thus dealing with the matter of impunity. Furthermore, apart from the most exceptional circumstances, the application is dealt with in a public hearing. The applicant must therefore make his admissions in the full glare of publicity. Often this is the first time that an applicant’s family and community learn that an apparently decent man was, for instance, a callous torturer or a member of a ruthless death squad that assassinated many opponents of the previous regime. There is, therefore, a price to be paid, Public disclosure results in public shaming, and sometimes a marriage may be a sad casualty as well.

We have been concerned, too, that many consider only one aspect of justice. Certainly, amnesty cannot be viewed as justice if we think of justice only as retributive and punitive in nature. We believe, however, that there is another kind of justice—a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships—with healing, harmony and reconciliation. Such justice focuses on the experience of victims; hence the importance of reparation.

Desmond Tutu, Foreword by Chairperson, id. at 1, 8–9.

⁴¹ For a useful discussion of what he calls “explanatory variables,” see Carlos Santiago Nino, Radical Evil on Trial 118–34 (1996).

⁴² For details and applications, see W. Michael Reisman, supra note 9; Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 266–303 (1997), reviewed by Jordan J. Paust, 33 Tex. Int’l L.J. 631 (1998); Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide And Mass Violence (1998); Mark Osiel, Mass Atrocity, Collective Memory, and the Law (1997); Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991); M. Cherif Bassiouni, Searching/or Peace and Achieving Justice: The Need for Accountability, in Association International de Droit Pénal, Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights 45, 57–64 (Proceedings of the Siracusa Conference 17–21 September 1998, Christopher C. Joyner, special ed., 1998).