To know where we are, we have to see ourselves from a distance. Otherwise the remarkable becomes commonplace.

I see the Military Commissions Act of 2006 from a temporal distance, specifically from the era of state-terror regimes in Latin America during which I served for eight years (1976 -1983) as a member of the Inter-American Commission on Human Rights, a principal arm of the Organization of American States (OAS). Those were the years in which governments scattered across the South American continent and the Central American isthmus, anticipating the policy views announced by United States Vice President Dick Cheney in an interview on “Meet the Press” in 2001, decided to go to what Cheney called the “dark side,” or, in the case of those who had long made that side their principal area of operations, decided to move a larger proportion of their respective peoples into it. Throughout the period, reports about the hell on earth my six colleagues and I exposed (in the somewhat stilted idiom official agents are driven to adopt) would appear episodically in the American press. Their implicit subtext was that these horrors were perpetrated by brutes as alien to American life as the venues where they operated.

International lawyers should help our political leaders, die media, and the electorate appreciate more adequately the implications for international law and order of the United States-led invasion of Iraq and its nearest precedent, the Kosovo intervention. At this point, mid-2003, those implications remain unclear.

Our intramural, often scholarly, but not always polite, debates about the legitimacy of invasions directed against more-or-less brutal authoritarian governments demonstrate how one’s preferred conception of the nature of law can affect one’s conclusions about its contents.

The celebrants of what I will call the classical view display the following characteristics: while recognizing that states can establish and alter norms through both explicit agreements normally expressed in written texts and implicit agreements manifested in practice, they tend in their epistemology toward a rather strict separation of these two processes; when attempting to identify norms arising from explicit agreements, they presume that the parties had an original intention which can be discovered primarily through textual analysis and which, in the absence of some unforeseen change in circumstances, must be respected until the agreement has expired according to its terms or been replaced by mutual consent; when attempting to identify norms arising from implicit agreement, they rely primarily on relatively formal manifestations of consent, deemphasize the relative power of states, and imply a high threshold below which alleged norms are entirely without legal character.

In the fall of 1867, a powerful British expeditionary force, dispatched from India under the command of Field-Marshall Lord Napier and conveyed by over 250 ships, began deploying on the Red Sea coast of Africa. Its mission: rescue two British emissaries and their several assistants who, together with a brace of other Europeans, had been imprisoned by the volatile Ethiopian Emperor Theodore.

As a recurring feature of the Cold War that has dominated international relations for the past four decades, foreign intervention in civil armed conflicts has focused and inflamed scholarly debate over the content of the relevant legal restraints. Conflict has raged particularly around the following issues: First, what forms and degree of assistance to rebels constitute an armed attack within the meaning of Article 51 of the Charter authorizing individual and collective self-defense? Second, in cases where assistance does not reach the armed attack threshold, are there any circumstances in which the target state and/or its allies may nevertheless use forceful measures to terminate it?

The Inter-American Commission on Human Rights (IACHR), founded in 1959, is one of the principal organs of the Organization of American States. The Commission is empowered to receive complaints from individuals, organizations and groups alleging violations of human rights in any of the member states of the OAS, and to make findings of fact and recommendations designed to effect the vindication of those rights.