¹ Huntington, S., The Clash of Civilizations, 72 Foreign Affairs 22-49 (1993); B. Tibi, Fundamentalismus im Islam (Darmstadt 2000).Google Scholar

² Those who carried out and provided the logistical support for the 9/11 attacks had studied in Germany, the United States, lived in the UK etc.; similarly, those accused of the Madrid bombings have been present in the country for a number of years and were registered at universities there.Google Scholar

³ According to President Bush, the ‘war on terrorism’ is a ‘war’ on many fronts: foreign governments will have to choose between supporting the war on terrorism or not; terrorists’ financial networks will be dismantled; the military will be on the highest alert for a just battle; internal, domestic safety will be increased by a set of legal measures; and the perpetrators of these random killings and of the attack on civilization will be brought ‘to justice'. Taken from Bush's State of the Union Address 9 days after the attacks: J.W. Edwards & L. DeRose, United We Stand – A Message for All Americans (Ann Arbor, MI 2001).Google Scholar

⁴ A. de Tocqueville, Democracy in America 621 (Harvey C. Mansfield & Delba Winthrop ed., Chicago UP, 2000).Google Scholar

⁵ Edwards, supra note 3.Google Scholar

⁶ When this paper was first conceived the courts had yet to provide guidance as to the course they intended to follow; the recent days of course have seen the German courts make their mark in the war on terror gratifyingly similar to the lines envisaged here. See Infra note 15.Google Scholar

⁷ Lelyveld, J., In Guantanamo, The New York Review of Books, Nov. 7, 2002 (quoting an officer: “If we put them in the Waldorf Astoria, I don't think we could get them to talk”).Google Scholar

⁸ G.A. Res. 1368, U.N. (2001).Google Scholar

⁹ In Unsere Erneuerung. Nach dem Krieg: Die Wiedergeburt Europas, Habermas cites the abolition of the death penalty as one of the defining elements of European identity. Habermas, Unsere Erneuerung. Nach dem Krieg: Die Wiedergeburt Europas, Frankfurter Allgemeine Zeitung, May 31, 2003.Google Scholar

¹⁰ NJ, 1991, 249 (Short) (Dutch Case Law).Google Scholar

¹¹ North Atlantic Treaty, Apr. 4, 1949, art. 7, 3.Google Scholar

¹² Soering v. UK (1989); available at http://hudoc.echr.coe.int/hudoc/. The Soering case is particularly pertinent as the applicant – a German national accused of the murder of his girlfriend's parents – faced the death penalty if convicted in the US; the Court did not conclude that the death penalty per se was contrary to the provisions of Article 3 but rather held that the manner in which it was imposed or executed or the conditions of detention whilst awaiting execution were two factors that may, dependent upon the circumstances of the case, constitute a breach of Article 3. The severity of the conditions in which detainees in Guantanamo Bay are kept leaves little doubt that the threshold of inhuman and degrading treatment would be met, even without the allegation that torture is a regular tool of interrogation there.Google Scholar

¹³ Y.B Eur. Conv. on H.R. Article 5; Article 9 ICCPR, and U.S. Const. amend. V.Google Scholar

¹⁴ Provisions of the Patriot Act and the changes it brought are considered in more detail below.Google Scholar

¹⁵ Hartwig, M., The German Federal Consitutional Court and the Extradition of Alleged Terrorists to the United States, 5 German Law Journal, 3 (2004), at http://www.germanlawjournal.com. On the recent overturning of alleged terrorist convictions by the German Federal Criminal Court, see http://www.rferl.org/featuresarticle/2004/3/76BF1BD9-921B-4DDB-A5BC-28CC94328693.html; http://news.bbc.co.uk/1/hi/world/europe/3592857.stm.Google Scholar

¹⁶ In this respect, one can allege that the 9/11 crime falls into the same category as the assasination of 8,000 Kurdisch civilians in Halebja in 1988 or that of 7,000 Muslims in Srebrenica in 1995, to mention only a couple of examples. It almost goes without saying that so far states have been far more efficient in the killing of innocents than any terrorist organisation. That Bin Laden should be tried on the charge of crimes against humanity is also suggested by G. Robertson, Crimes against Humanity – The Struggle for Global Justice 507-510 (2d ed. Harmondsworth 2002).Google Scholar

¹⁷ “A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation….”Google Scholar

¹⁸ See Y. Bodansky, Bin Laden – the man who declared war on America 279-280 (New York 2001) (1999). See also ‘… to kill the Americans and their allies – civilian and military – is an individual duty for every Muslim …'. The International Islamic Front for Jihad against Jews and Crusaders, February 23, 1998 at http://www.fas.org/irp/world/para/docs/980223-fatwa.htm.Google Scholar

¹⁹ A claim that places the German Government admittedly in direct contravention of Art. 11(1) of the Rome Statute.Google Scholar

²⁰ Arendt, H., Eichmann in Jerusalem 269 (Harmondsworth 1994) (1963) (concurring with previous similar comments by K. Jaspers).Google Scholar

²¹ A salient but often forgotten detail in this context is the fact that ideas of an international criminal court as it functioned for the first time in Nuremberg do not originate from (the context of) the Second World War and the Charter of London, but rather from the First World War. After Germany's defeat, an international tribunal was pursued, in particular to try the German emperor (under the slogan ‘Hang the Kaiser', Treaty of Versailles, sec. 227-9). At that time, the Dutch Government objected. By not extraditing the German emperor, who fled to The Netherlands, and calling upon its neutrality, The Netherlands obstructed this first step towards international criminal justice. See, e.g., T. Bowder, Blind Eye to Murder 17-19 (London 1995) (1981); Robertson, , supra note 16, at 225-6.Google Scholar

²² Robertson, , supra note 16, at 350. This is the principle of complementarity.Google Scholar

²³ The story of the Saudi authorities stripping Bin Laden of his citizenship was carried by the BBC. Kuwait Disowns Bin Laden Aide, CNN, Oct. 14, 2001, at http://news.bbc.co.uk/hi/english/world/middle_east/newsid_1599000/1599088.stm. However, an international arrest warrant for Bin Laden posted on the interpol website in 1998 lists his nationality as Saudi Arabian. http://www.interpol.int/public/Wanted/Notices/ (accessed 15th April 2004).Google Scholar

²⁴ Even though many argued that it is exactly the principle of complementarity that “offers a greater protection to American personnel than current international practice and/or status of forces agreements that uphold a sovereign nation's exclusive jurisdiction to try and punish offences committed by persons of any nationality within its borders”, United Nations Association of the United States of America, http://www.unausa.org/dc/advocacy/iccfact.htm. In connection with this, this principle would also render obsolete the notorious and at first secret appendix B (granting immunity to NATO personnel from any form of arrest) to the unsuccessful Rambouillet- negotiations preceding the Kosovo war.Google Scholar

²⁵ Tadic Case (Prosecutor v. Dusko Tadic), International Criminal Tribunal for the former Yugoslavia, The Hague, (1995) (published on the internet at http://www.un.org/icty/tadic/appeal/decisione/51002.htm.)Google Scholar

²⁶ http://www.unausa.org/dc/advocacy/iccfact.htm.Google Scholar

²⁷ Additionally, the Act forbids any cooperation with the ICC, on the level of intelligence cooperation, like handing over classified national security material (Section 6) on the level of physical extradition of suspects to the ICC (Section 4 c), and on the level of military support to countries that do recognize the ICC (Section 7 a). The US tries to circumvent the ICC's jurisdiction by means of bilateral agreements, on the basis of article 98 of the ICC Statute: “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”.Google Scholar

²⁸ Possibly using the slogan: “Fac et excusa” (act first and justify later), as, for instance, cited by I. Kant, Perpetual Peace – A Philosophical Sketch, in Kant's Political Writings 120 (H. Reiss ed., Cambridge UP 1970). Moreover, for the German government's ‘disappointed’ reaction to the FCC's ruling on Mounir El Motassadeq's case, see http://www.bundesregierung.de/-,413.616894/pressemitteilung/Schily-Entscheidung-ist-zu-bed.htm.Google Scholar

²⁹ See also W.E. Scheuerman, Rethinking Crisis Government, in 9 Constellations 492-505 (2002).Google Scholar

³⁰ New anti-terrorist legislation has also been implemented in countries like the UK, France and Germany, and in the EU as a whole. On Britain's detention camp under this legislation, see http://observer.guardian.co.uk/waronterrorism/story/0,1373,1106664,00.html.Google Scholar

³¹ See, e.g., S. Taylor Jr., Congress Should Investigate Ashcroft's Detentions, The Atlantic Monthly (May 28, 2002); Dworkin, R., The Threat to Patriotism, New York Review of Books (February 28, 2002). Today, such harsh detention regimes are also being applied to US citizens, like José Padilla, see, e.g., R. Dworkin, Terror & the Attack on Civil Liberties, New York Review of Books (November 6, 2003).Google Scholar

³² Supreme Court decision 2491, 2500 (2001), in ‘Zadvydas v. Davis’ evidences that “the Due Process Clause applies to all ‘persons’ within the United States, (Fifth Amendment: “no person shall be held to answer for a capital, or otherwise infamous crime, (…) without due process of law”) See also R. Dworkin, The Threat to Patriotism, New York Review of Books (February 28, 2002); ACLU letter to Secretary of Defence Rumsfeld, January 15, 2002, http://www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=9301&c=111.Google Scholar

³³ See, e.g., R. Dworkin, Freedom's Law – The Moral Reading of the American Constitution 10, 25 (Oxford 1966); Dworkin, R., Terror & the Attack on Civil Liberties, New York Review of Books (November 6, 2003).Google Scholar

³⁴ R. Dworkin, The Threat to Patriotism, New York Review of Books (February 28, 2002).Google Scholar

³⁵ See R. Dworkin, Terror & the Attack on Civil Liberties, New York Review of Books (November 6, 2003).Google Scholar

³⁶ The question of the applicability of the Geneva Conventions in the War on Terror is controversial and has been the subject of vast amounts of print. The conflicts in Afghanistan and Iraq are clearly international armed conflicts and, as all are parties to the Geneva Convention, the conclusion suggested here is that the Geneva Conventions as well as customary international humanitarian law apply in full; as McDonald and Sullivan note, international humanitarian law must be interpreted in light of the principles thereof, such as the Martens Clause of 1899, and that such guiding principles ensure the applicability of the Geneva Conventions even in types of conflict previously unseen, such as a so-called War on Terror. McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror”, 44 Harvard Journal of International Law 301 (2003). While the Bush administration clearly disagrees, they have failed to provide a legal reason upon which they base their decision, asserting instead that the Conventions are simply no longer relevant in this not-so-brave new world. See also http://www.icrc.org/Web/Eng/siteeng0.nsf/0/C82A7582AE20DCD1C1256D34004AEA41/$File/George+Aldrich_3_final.pdf?OpenElement.Google Scholar

³⁷ According to the State Department, Al-Qaeda is “not a state party to the Geneva Convention; it is a foreign terrorist group”. Status of Detainees at Guantanamo, US Department of State Policy Document, Feb. 7, 2002, http://www.state.gov/p/sa/rls/fs7910pf.htm.Google Scholar

³⁸ Security Council Res. 1368 at para. 1 (12 Sept. 2001).Google Scholar

³⁹ Supra note 25. Noëlle Quénivet, The “War on Terror” and International Humanitarian Law, available at http://www.ruhr-uni-bochum.de/ifhv/news/Tashkent_Speech%20Quenivet.pdf.Google Scholar

⁴⁰ It is assumed, for ease, that it is accepted by all that Additional Protocols I and II have not attained the status of custom and thus do not apply (the US is not a signatory and nor are any of the parties against whom it considers its enemies). The application of the Protocols effects the definition of combatant but will not be considered here.Google Scholar

⁴¹ Third Convention's Article 4 enumerates: “A. Prisoners of war are …. 1. Members of the armed forces ….; 2. Members of other militias and members of other volunteer corps, …, provided that … (they) … fulfil the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of conducting their operations in accordance with the laws and customs of war. 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 4. Persons who accompany the armed forces without actually being members thereof, ….; 5. Members of crews (…) who do not benefit by more favourable treatment under any other provisions of international law. 6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. B. The following shall likewise be treated as prisoners of war under the present Convention: ….”.Google Scholar

⁴² Or: ‘protected persons', see J. Cerone, Status of Detainees in International Conflict, and their Protection in the Course of Criminal Proceedings, The American Society of International Law Insights, http://www.asil.org/insights/insigh81.htm.Google Scholar

⁴³ Fourth Convention, Article 3; see also Third Convention, Article 84. Google Scholar

⁴⁴ See, e.g., http://www.armed-services.senate.gov/statemnt/2001/011212wolf&rums.pdf; See also http://www.us-mission.ch/press2002/0802detainees.htm.Google Scholar

⁴⁵ At the time of writing, some 650 persons from around 42 countries are being held there.Google Scholar

⁴⁶ In order to have the lawfulness of their detention tested by the court.Google Scholar

⁴⁷ This distinction might not work since some argue that Al-Qaeda was part and parcel of the Taliban Government, Robertson, supra note 16, at 478, 480, 496. See also Article 75 Geneva protocol I (ratified neither by the US nor by Afghanistan, but nevertheless regarded as customary law). For a different view, see A. Roberts, Counter-terrorism, Armed Force and the Laws of War, http://www.ssrc.org/sept11/roberts_text_only.htm (also published in 44 Survival 2002.Google Scholar

⁴⁸ US Department of State Policy Document, supra note 37.Google Scholar

⁴⁹ Mauro, T., High Court at Crossroads, http://www.law.com/jsp/article.jsp?id=1076428374712; D. Cole, Goodbye, Menschenrechte, http://www.zeit.de/2004/17/Essay_Cole.Google Scholar

⁵⁰ Indeed, the US Government is quick to demand the application in full of the Geneva Conventions where its personnel are involved in quasi-legal situations. The capture of Army Chief Warrant Officer Michael Durant in the course of a US operation against the Somali warlord Mohamed Farah Aideed – a non-state party to the Conventions – saw the US Government demand that his treatment be consistent with the provisions of the Third Convention. Details taken from McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror”, 44 Harvard Journal of International Law 301 (2003)., who note futher, “If the Geneva Conventions are binding on Somali warlords, non-state parties must be granted the same protection.” McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror”, 44 Harvard Journal of International Law 310 (2003).Google Scholar

⁵¹ Despite White House legal Counsel Gonzales's leaked memo that modern terrorism ‘renders obsolete strict limitation on questioning of enemy prisoners, quoted in: S. Taylor Jr., We Don't Need to Be Scofflaws to Attack Terror, The Atlantic Online, (Feb. 5, 2002). See Third Convention, Art. 17. See also Universal Declaration of Human Rights, Art. 5; International Covenant on Civil and Political Rights, Art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The latter prohibits in its Art. 2 (2) the use of torture under emergency situations. Moreover, McDonald and Sullivan argue persuasively that Art. 17 of the Third Convention does not prevent interrogation and suggests that the authorities could have interviewed detainees without needing to deprive them of POW guarantees. McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror”, 44 Harvard Journal of International Law 310 (2003).Google Scholar

⁵² Jr, S. Taylor., We Don't Need to Be Scofflaws to Attack Terror, The Atlantic Online, (Feb. 5, 2002); Lelyveld, J., In Guantanamo, The New York Review of Books, (November 7, 2002); Roberts, A., Counter-terrorism, Armed Force and the Laws of War.Google Scholar

⁵³ 66 Fed. Reg., Vol. 222, 57833-57836; See also A. Arato, The Bush Tribunals and the Specter of Dictatorship 9 Constellations 458-463 (2002).Google Scholar

⁵⁴ It could be argued that this order establishes some sort of rival to the International Criminal Court itself, since it seems to aim at anyone connected to terrorism among the more than 20 million noncitizens in the US and all others in the rest of the world, see American Civil Liberties Union (ACLU) Memorandum on Military Tribunals 4 (November 29, 2001).Google Scholar

⁵⁵ Military Commission Order No. 1, Department of Defense, March 21, 2002.Google Scholar

⁵⁶ See http://news.bbc.co.uk/1/hi/world/americas/3334823.stm Google Scholar

⁵⁷ R. Dworkin, The Trouble with the Tribunals, The New York Review of Books (April 25, 2002).Google Scholar

⁵⁸ Id.; See also J. Lelyveld, In Guantanamo, The New York Review of Books, (November 7, 2002).Google Scholar

⁵⁹ C.L. Eisgruber & L.G. Sager, Military Courts and Constitutional Justice, http://www.utexas.edu/laws/news/colloquium/papers/Sager-Eisgruber.doc; See also Robertson, supra note 16, at 502, 508.Google Scholar

⁶⁰ Eisgruber, C.L. & Sager, L.G., Military Courts and Constitutional Justice, http://www.utexas.edu/laws/news/colloquium/papers/Sager-Eisgruber.doc (referring to the Supreme Court's Weiss v. United States, 510 U.S. 163 (1994)); Neier, A., The Military Tribunals on Trial, The New York Review of Books (February 14, 2002).Google Scholar

⁶¹ Third Geneva Convention, art. 102. Of course, fighting a war itself is not a criminal offense, as the important difference between a soldier and a criminal is acknowledged.Google Scholar

⁶² Dean, J., Military Tribunals, at http://writ.news.findlaw.com/dean/20011207.html, and J. Wallace, Military Tribunals, http://www.spectacle.org.Google Scholar

⁶³ 71 US (4 Wall.) 2 (1866).Google Scholar

⁶⁴ Statement of T. Lynch, Cato Institute, before the Senate Judiciary Committee, at http://www.cato.org. It seems as if ‘Milligan’ allows only two kinds of justices: civil justice for civilians and military justice for those serving in the armed forces. Some argue that the critical stance of the Supreme Court in Milligan could have been prevented by better legal counsel on the part of the government, see Dean, Military Tribunals, supra note 62; R.G. McCloskey, The American Supreme Court, 71-3 (3rd ed. 2000).Google Scholar

⁶⁵ This point was not unimportant as it is related to the fact that there was no official declaration of war or act of Congress on which the President could rely. U.S. Const., art. I, § 8, cl. 11.Google Scholar

⁶⁶ Ex Parte Quirin, 317 US 1 (1942). For extensive details of the case, G. Cohen, The Keystone Kommando's, The Atlantic Monthly (February 2002); Furthermore, the government relies upon ‘Johnson v. Eisentrager', a 1950 decision in which a habeas corpus petition filed by German nationals seized in China and held in a U.S. prison in Germany was denied by a court, the justices refusing to exert jurisdiction. See T. Mauro, High Court at Crossroads, at http://www.law.com/jsp/article.jsp?id=1076428374712 Google Scholar

⁶⁷ President Franklin Delano Roosevelt, Proclamation of July 2, 1942: Denying Certain Enemies Access to the Courts of the United States, Fed. Registrar 1942, 5, 103 (1942), quoted in Roberts, Counter-terrorism, Armed Force and the Laws of War, supra note 47.Google Scholar

⁶⁸ Quoted in Wallace, Military Tribunals, supra note 62. The Hague Convention would then protect only the former, but not the latter.Google Scholar

⁶⁹ See, for example, Neier, The Military Tribunals on Trial, supra note 60.Google Scholar

⁷⁰ See, for example, Dworkin, The Threat to Patriotism, supra note 31.Google Scholar

⁷¹ Only two years later, the Supreme Court upheld the internment of Japanese Americans, in: Korematsu v. United States, 323 U.S. 214 (1944). In the Yamashita case, 327 U.S. 1 (1946), the Supreme Court upheld the legitimacy of the military commission trying the Japanese Commander of the Philippines, Yamashita. In this case too, the court held that procedural protections were not available to enemy combatants. Two justices dissented here. Justice Murphy argued that the due process right mentioned in Fifth Amendment applies to all persons and that this was not respected in this case. Justice Rutledge argued that hearsay evidence of all type was admitted here which would have been excluded in a US court, and he complained that the universal protection of fair trial was violated. See Wallace, Military Tribunals, supra note 60. Moreover, the Supreme Court was unnecessarily hasty in its Quirin decision, giving judgment only one hour after oral arguments had closed.Google Scholar

⁷² American Civil Liberties Union (ACLU), Memorandum on Military Tribunals, under III.Google Scholar

⁷³ Cf. T. Judah, The Star of The Hague, The N.Y. Review of Books, 25 April 2002.Google Scholar

⁷⁴ Robertson, , Crimes against Humanity, supra note 16, at 509; One might also reconsider Hannah Arendt's thesis on the banality of evil, in: Arendt, Eichmann in Jerusalem, supra n. 20.Google Scholar

⁷⁵ Neier, The Military Tribunals on Trial, supra note 60.Google Scholar

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⁷⁷ Neier, , The Military Tribunals on Trial, id.Google Scholar

⁷⁸ ‘As low as possible', since a criminal trial exemplifies only imperfect procedural justice: it seems impossible to design the legal rules in such a way that they always lead to the correct result, namely that a defendant is declared guilty if, and only if, he is guilty, in line with: J. Rawls, A Theory of Justice, 85 (Oxford 1971).Google Scholar

⁷⁹ In the past, however, many death row cases testified to the opposite.Google Scholar

⁸⁰ Tribe, L.H., Trial by Fur', The New Republic, 10 Dec. 2001, quoted in Dworkin, The Threat to Patriotism, supra note 31.Google Scholar

⁸¹ Wallison, J., In favor of military tribunal, Christian Science Monitor, (3 Jan. 2003) available at http://www.csmonitor.com Google Scholar

⁸² Dworkin, , The Threat to Patriotism, supra note 31; C.L. Eisgruber and L.G. Sager, Military Courts and Constitutional Justice, supra note 59.Google Scholar

⁸³ The detention of British citizens in Guantanamo Bay placed real pressure on the so-called ‘special relationship', although much of it behind closed doors. K. Ahmed and T. McVeigh, Terror camp Britons to be sent home, The Observer, 30 Nov. 2003. available at http://observer.guardian.co.uk/international/story/0,6903,1096508,00.html Google Scholar

⁸⁴ Among others: S. Hoffmann, On the War, The N.Y. Review of Books, 1Nov. 2001; T. Judt, America and the War, The N.Y. Review of Books, 15 Nov. 2001.Google Scholar

⁸⁵ Compare, the American attitude towards the Kyoto protocols and the Johannesburg summit. The US has not ratified many widely supported conventions, such as the conventions regarding land mines, prohibiting discrimination against women, protecting the rights of the child and the Additional Protocols to the Geneva Conventions. Robertson, Crimes against Humanity, supra note 16, at 87; J.E. Alvarez, Do Liberal States Behave Better? – A Critique of Slaughter's Liberal Theory, 12 Eur. J. of Int'l L. 183, 183-246 (2002).Google Scholar

⁸⁶ Habermas, J., Bestiality and Humanity, 6 Constellations 269 (1999).Google Scholar

⁸⁷ Habermas, J. & Derrida, J., Unsere Erneuerung. Nach dem Krieg: Die Wiedergeburt Europas, Frankfurter Allgemeine Zeitung, 31 May 2003.Google Scholar

⁸⁸ FitzGerald, F., George Bush & the World, The N.Y. Review of Books, 26 Sept. 2002.Google Scholar

⁸⁹ See also T. Judt, Its Own Worst Enemy, The N.Y. Review of Books, 15 Aug. 2002. See also Symposium the GLJ Kagan symposium, September 2003, at http://www.germanlawjournal.com/past_issues_archive.php?show=9&volume=4 Google Scholar

⁹⁰ Kagan, R., Power and Weakness, 113 Policy Review 1 (2002); fortunately for the Europeans, Kagan adds that ‘the US is a Behemoth with a conscience, a liberal, progressive society through and through.’ The article was followed by a book Of Pradise and Power (New York, 2003), which added little to the main thrust of the argument. For an interesting comment on Kagan see D. Runciman, A Bear Armed with a Gun, London Review of Books, 3 Apr. 2003.Google Scholar

⁹¹ In his recent America's Crisis of Legitimacy (83 Foreign Affairs 87 (2002)), Kagan mildly modified his position, arguing that “‥ Americans will need the legitimacy that Europe can provide…”Google Scholar

⁹² See, for example, L. Strauss, Natural Right and History, 181 (Chicago 1950).Google Scholar

⁹³ Hobbes, Th., Leviathan, Ch XVII: ‘The great LEVIATHAN, or rather, to speak more reverently, (…) that mortal god to which we owe, under the immortal god, our peace and defence'.Google Scholar

⁹⁴ Kant, I., Reflexionen zur Rechtsphilosophie, 19 Akademie Ausgabe 504 (No. 7740, see also 7737).Google Scholar

⁹⁵ Kant, I., Perpetual Peace – A Philosophical Sketch, 98-99.Google Scholar

⁹⁶ For a similar line of thinking, see R. Rorty, Post-Democracy, London Review of Books, 1 Apr. 2004.Google Scholar