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  • trial by some foreign courts the obvious first choice of the United States is that the servicemember be tried by a U S tribunal 21 Indeed the willingness of American officials to deploy armed forces overseas for peacekeeping purposes or otherwise might be diminished if that deployment would subject American servicemembers to the jurisdiction of the ICC Therefore it is important to consider what means are available to reduce or if possible to eliminate the risk that American servicemembers will be tried by the ICC In this regard great assistance is afforded by Article 1 of the ICC Statute which states that the Court shall be complementary to national criminal jurisdictions The concept of complementarity is implemented by Article 17 which provides that the ICC shall determine that a case is inadmissible where The case is being investigated or prosecuted by a State which has jurisdiction over it unless the State is unwilling or unable genuinely to carry out the investigation or prosecution The case has been investigated by a State which has jurisdiction over it and that State has decided not to prosecute the person concerned unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute The person concerned has already been tried for conduct which is the subject of the complaint and a trial by the Court is not permitted under article 20 paragraph 3 22 or The case is not of sufficient gravity to justify further action by the Court In light of Article 17 the ability of the United States to prevent the trial of American servicemembers by the ICC will be greatly enhanced if U S courts have jurisdiction to try servicemembers for any crime that falls within the ICC s jurisdiction Moreover since Article 17 by its terms applies to a State and not only to a State Party the United States whether or not it becomes a party to the ICC may block the exercise of jurisdiction by that Court 1 if the crime for which the servicemember might be tried by the ICC is within the jurisdiction of a U S court civil or military and 2 if U S authorities proceed in good faith to investigate the circumstances of the crime and should they find it appropriate try the crime in a U S court Accordingly it is important to ascertain when conduct by a servicemember that would constitute a crime under the ICC Statute would also be a crime in a U S court This inquiry in turn may lead to a recommendation that the existing jurisdiction of U S courts be broadened in order to limit the potential exercise of ICC jurisdiction over American servicemembers With respect to American servicemembers still on active duty the Uniform Code of Military Justice provides wide ranging authority for courts martial to punish almost any type of misconduct For example murder rape maiming arson and burglary are specifically dealt with by punitive articles of the Uniform Code 23 Therefore the conduct that constitutes a war crime may in many instances be charged as a collection of separate violations of the code s punitive articles for example a collection of murders and rapes 24 In addition Article 133 of the Code 10 U S C 933 prohibits conduct unbecoming an officer and a gentleman a prohibition that regarding officers would probably include some of the conduct prohibited by the Statute of the ICC Finally Article 134 of the code the General Article forbids all disorders and neglects to the prejudice of good order and discipline in the armed forces all conduct of a nature to bring discredit upon the armed forces and crimes and offenses not capital In many instances conduct by an American servicemember that violates the ICC Statute would be prohibited by the second clause of Article 134 which concerns service discrediting conduct For example a servicemember s participation in a war crime should be considered service discrediting Moreover the third clause of Article 134 also creates a broad liability because it includes all crimes and offenses not capital a phrase that refers to violations of federal criminal statutes 25 In light of Article 134 s breadth of coverage with respect to the conduct of servicemembers a firm basis exists for invoking the principle of complementarity to preclude the ICC from trying servicemembers who are still on active duty Almost any conduct by a servicemember that could warrant trial in the ICC could also justify the preferring of charges for trial by court martial A good faith investigation of those charges and a trial by court martial if warranted by the evidence discovered in the investigation would then preclude trial in the ICC 26 Subject to the provisions of any applicable statute of limitations Article 3 a of the Uniform Code authorizes a general court martial to try a former servicemember charged with an offense against the Uniform Code that is punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia The statutory purpose was to eliminate an embarrassing jurisdictional gap revealed after World War 11 when occasionally no tribunal military or civilian American or foreign had jurisdiction to try former servicemembers for offenses committed while they had been on active duty 27 The Supreme Court however in 1956 ruled in Toth v Quarles that retention of courtmartial jurisdiction after military status ceased was not permitted by the Constitution 28 Therefore no tribunal was available that could consider the charges against Toth and his participation in killing a North Korean became for him a crime without punishment 29 This holding left U S courts martial without jurisdiction to try discharged servicemembers for any alleged war crimes or misconduct in Korea or in Vietnam 30 Expansion of federal district court jurisdiction to include crimes committed by servicemembers before their discharge would allow invoking complementarity to preclude their trial in the ICC Conducting military operations overseas often requires the presence of highly skilled technicians and experts who are not members of the armed forces If such civilians are alleged to have committed war crimes it also might be desirable to assure that these persons could be tried for those crimes in federal district courts rather than by the ICC The War Crimes Act Some recent additions to the federal criminal code have provided more opportumties for invoking complementarity on behalf of servicemembers and have created an opportunity to utilize that principle to prevent the ICC from trying 1 former servicemernbers for their conduct while on active duty or 2 civilians who might otherwise be subject to the Court s jurisdiction In 1996 Congress enacted the War Crimes Act which made punishable a grave breach of the Geneva Conventions 31 whether committed within or outside the United States if the victim or the perpetrator is a U S servicemember or national 32 A year later Congress passed the Expanded War Crimes Act which replaced the term grave breach with war crime a term defined to include violations not only of the Geneva Conventions but also of the Amended Protocol on Land Mines at such time as the United States ratifies it of certain articles of the Annex to Hague Convention IV and of Common Article 3 of the Geneva Conventions 33 The legislative history of the War Crimes Act makes clear that its enactment resulted chiefly from a desire to establish U S criminal jurisdiction over people who perpetrated war crimes against Americans 34 However its language also applies to American servicernembers who commit war crimes Probably the crimes and offenses not capital clause of Article 134 of the Uniform Code incorporates the War Crimes Act and thereby creates jurisdiction for courts martial to try American servicemembers for violating the act The chief issue would be whether the War Crimes Act s provision for a death penalty if death results for the victim would preclude its incorporation by the third clause of Article 134 which concerns only offenses not capital However if a death penalty were not being sought the argument is persuasive that the authorization of capital punishment in the War Crimes Act is severable and should be disregarded 35 The Law of War In defining the jurisdiction of general courts martial Article 18 of the Uniform Code of Military Justice states specifically Subject to article 17 Jurisdiction of courts martial in general general courts martial shall have jurisdiction to try persons subject to this code for any offense made punishable by this code and may under such limitations as the President may prescribe adjudge any punishment not forbidden by this code including the penalty of death when specifically authorized by this code General courts martial shall also have jurisdiction to try any person who by the law of war is subject to UW by a military tribunal and may adjudge any punishment permitted by the law of war 36 This language signifies that general courts martial may exercise not only jurisdiction derived from Article I Section 8 Clause 14 of the U S Constitution which pertains to crimes committed by members of the land and naval forces but also jurisdiction derived from Article I Section 8 Clause 10 which empowers Congress to define and to punish offences against the law of nations and which is independent of the military status of the person who commits the offence Therefore the jurisdictional limitation imposed by Reid v Covert 1957 would not apply to a general court martial exercising jurisdiction predicated on the law of war The jurisdiction of courts martial under the law of war is also recognized implicitly by Article 21 of the Uniform Code which states The provisions of this code conferring jurisdiction upon courts martial shall not be construed as depriving military commissions provost courts or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such military commissions provost courts or other military tribunals 37 Articles 104 and 106 38 are also intended to authorize courts martial to exercise jurisdiction predicated on the law of war as a component of the Law of Nations The former article authorizes death or such other punishment as a court martial or military commission may direct with respect to any person who aids or attempts to aid the enemy in several specified ways The latter article entitled Spies provides that a mandatory death penalty shall be imposed upon trial and conviction by a general court martial or by a military commission of a ny person who in time of war is found lurking as a spy or acting as a spy in or about certain types of military installations In light of these provisions of the Uniform Code it seems clear that Congress has authorized a general court martial or a military commission to try a servicemember for war crimes Likewise civilians who engage in conduct prohibited by the law of war presumably including war crimes may be tried by a general court martial or by a military commission 39 During and after World War II the Supreme Court had several occasions to consider whether certain conduct violated the law of war and was subject to trial by a military tribunal The first occasion was in 1942 when the Court in ex parte Quirin upheld the jurisdiction of a military commission established by President Franklin Roosevelt to try some saboteurs who had been landed on the Atlantic coast from German submarines 40 The trial was being conducted in Washington and the defendants argued that trial by a military commission at a time and place when civilian courts were open violated the Constitution In this connection they relied especially on ex parte Milligan 1866 41 which had ruled that a military commission convened in Indiana when civil authorities were in full control lacked jurisdiction to try a suspected Confederate sympathizer However as the Court pointed out unlike Milligan which involved martial law and emergency measures when civil authority could not function the German saboteurs were being tried under the law of war which was a branch of the Law of Nations Under Article I Section 8 Clause 10 of the Constitution Congress could define and punish violations of the law of war and could authorize their trial by court martial or military commission The trial of the German saboteurs was within the parameters set by Congress in the exercise of this power 42 A similar result was reached by the Supreme Court in re Yamashita 1946 43 There it upheld the jurisdiction of a U S military commission to try a Japanese general accused of war crimes in the Philippines crimes consisting chiefly of his failure to prevent his troops from committing many violent offenses against occupants of the territory they controlled 44 According to the Court the use of a military commission rather than a general court martial to punish such misconduct was an option authorized by Congress In Madsen v Kinsella 1952 45 the Supreme Court considered whether the United States Court of the Allied High Commission for Germany a tribunal created by the United States in connection with its postwar occupation of a part of Germany had jurisdiction to try an American civilian dependent She was charged with murdering her husband who was an American army officer Reasoning that under the law of war a victorious nation had the right to administer justice in occupied territory by such means as it saw fit the Court held that the occupation court had jurisdiction even with respect to an American civilian present in the occupied territory As a result Mrs Madsen received neither the procedural safeguards that would have been present in a U S civil court nor those she would have enjoyed in a trial by court martial Analysis of these precedents leads to certain conclusions In the first place the Constitution gives Congress the power under both Article 1 Section 8 Clause 14 and Article I Section 8 Clause 10 to provide that American servicemembers may be tried by court martial for war crimes Any conduct by a servicemember that would be subject to trial by the ICC as a war crime probably could also be made subject to trial by a general court martial Indeed to a considerable extent the existing provisions of the Uniform Code of Military Justice and the War Crimes Act have already created jurisdiction over war crimes on the part of U S courts martial at least if the death penalty provisions of that Act do not preclude a war crime from being considered a crime and offense not capital within the meaning of Article 134 of the Code Therefore the principle of complementarity set out in the ICC Statute would provide the United States a basis for maintaining that American servicemembers accused of crimes prohibited by the Statute should be tried by a U S court martial rather than by the ICC As a matter of caution some additions to the Uniform Code and to the Manual for Courts Martial might be desirable in order to make even firmer the conclusion that as to American servicemembers the jurisdiction of courts martial would be coextensive with that of the ICC 46 The United States also may try in a federal district court a servicememberor a civilian who has been charged with a violation of the War Crimes Act 47 Accordingly if an American servicemember or civilian is charged with conduct that falls within the Act the principle of complementarity would authorize the United States to demand that the accused be tried in a federal district court rather than in the ICC Currently the War Crimes Act does not cover many of the crimes that are the subject of the Statute Moreover under the War Crimes Act an issue may arise as to whether the alleged misconduct occurred during a conflict that constitutes a war Therefore Congress might wish to consider whether this Act should be amended in a way that would ensure that the conduct it prohibits is coextensive with that as to which the ICC would have jurisdiction 48 Admittedly it may seem distasteful to modify U S criminal statutes to include crimes initially defined by others but even so this alternative should be considered in order to ensure the benefits of complementarity Quirin and Yamashita also established that the United States might use military commissions rather than courts martial to try civilians for offenses against the law of war Thus even if American civilians were accused of conduct that violated the law of war as recognized in treaties court decisions and otherwise but that was not specifically prohibited by the War Crimes Act the United States could plausibly contend that pursuant to the principle of complementarity it is entitled to establish military commissions to try the accused rather than leaving them subject to trial by the ICC 49 Indeed the possible advantage to be derived from having military commissions available as a means to try civilians accused of war crimes would provide an additional reason for the Supreme Court to reaffirm the existence of such jurisdiction on the part of military cominissions in the event of a challenge thereto 50 Conclusion Complementarity does not provide American servicemembers deployed overseas any absolute protection against being brought to trial before the ICC However this principle recognized in the ICC Statute does make available to the United States a means for insisting that U S authorities not the ICC have the opportunity to investigate and to prosecute alleged crimes by servicemernbers against the Law of Nations Perhaps therefore the threat to American servicemembers posed by the Statute may be less ominous than many have supposed Whether the Statute of the ICC is ratified by the United States may well depend on Congress s evaluation

    Original URL path: https://www.amacad.org/content/publications/publication.aspx?d=638 (2016-02-13)
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  • of this writing no significant recent interventions have been concluded successfully 3 The ultimate success of such efforts hinges on actors and institutions other than the U S military In most instances success will not be the sole responsibility of the United States it will be the result of combined efforts of international and regional institutions ranging from the World Bank to the U N High Commissioner for Refugees as well as regional organizations nongovernmental organizations NGOs private businesses indigenous political institutions and local and national leadership Catalyzing promoting and helping to coordinate the nonmilitary elements of an intervention are much easier and more likely to succeed if the initial military intervention has been regarded as legitimate Thus U S military power is more effectively employed when its actions are endorsed as consistent with international norms and broadly shared objectives and when U S forces act in coalition and in conjunction with nations and institutions that undertake political social and economic efforts Securing international support while not determining has become increasingly important for advancing U S security interests How the United States exercises leadership in its current position of military political and economic strength will affect more than military successes it will significantly determine the future role of the United States in the world It is in this broader context that this chapter considers the U S position toward the ICC It is true perhaps we can say it only to other Americans that the United States has accepted unparalleled responsibilities around the globe And while there may be elements of U S indispensability that ring true it is simply not useful to say it publicly and haughtily In the eyes of many that is what the United States did in Rome Foreign governments believed that as its price for serving as the world s police force the United States was demanding an exemption from accountability The overwhelming vote against the U S proposal to allow states to shelter their nationals form the ICC shows that most nations including some of the strongest allies of the United States recoil at what they perceive as an open display of U S exceptionalism This perception is dangerous Over the long term it undermines the capacity of the United States to lead The ICC unfortunately is not the only issue fueling this perception But because it goes to the heart of accountability international norms and because it is the first new international security institution in decades it is a particularly resonant issue by which to measure U S attitude toward global leadership This places a heavy burden on opponents of the ICC to demonstrate why it is not in U S interests to join the Court Military Concerns The U S military has reason to be wary of an CC The concept of allowing a civilian court to evaluate what essentially may be professional military judgments runs contrary to the core of the U S military system The idea that the laws Of war so clearly and diligently ingrained in U S military doctrine and training might be reinterpreted by an outsider is worrisome As Robinson Everett explains in chapter 9 even the shared jurisdiction embodied in status of Forces Agreements SOFAS which are now considered the key prerequisite for ensuring Protection of American servicemembers deployed abroad once was viewed with Suspicion At a more fundamental level the military rightly expects that its civilian leaders will be sufficiently clear and committed in their direction of military force that the execution of Policy will not be a contentious issue subjected to second guessing of the ICC Americans should expect these concerns to surface in the context of the ICC They are all the more legitimate in the context of America s leading military role Active international engagement means that American citizens are exposed on many fronts Our forward deployed soldiers and diplomats may be engaged by enemy fire taken hostage or attacked by terrorists in the course of their duties U S leaders and citizens understand this to be an integral part of the burden of responsibility and while they take the associated risks every day they also strive to minimize those risks Moreover the United States will be the target of international criticism for unilateral actions such as U S attacks on Libya in reprisal for the Berlin disco bombing or the bombing of the Al Shiffa pharmaceutical plant in Sudan Even when endorsed by the United Nations or supported by a large majority of nation states U S actions can engender enemies and criticism One need only consider the charges levied against the United States for causing civilian casualties in operations against Iraq The nature of the attacks in Kosovo also highlighted questions about the humanity of a strategy that appeared to minimize military casualties at the cost of risking greater civilian loss of life In the end the mandate and the structure of the Court particularly its requisite deference to national judicial capabilities coupled with the training and the conduct of the U S armed forces adequately address many of these legitimate concerns The U S military as much as if not more than any other military establishment trains its servicemembers in the law of war and has integrated a serious program on international and human rights law in all of its training and education programs Concerns about the Court should be mitigated by confidence in this commitment to the training and the caliber of American soldiers sailors airmen and marines U S Commanders are professionals who know how to do their jobs Commanding a modem military operation requires great and sustained attention to legal issues This is not just because it behooves members of the military to understand their rights under the Geneva Conventions and other applicable norms which are critically important it is also because the reciprocal nature of the laws of war requires that the U S military internalize the rules and constraints when conducting its own operations One need only recall the legal basis the U S claims for the humane treatment and return of captured American servicemembers whether in Iraq or Kosovo to understand why the military cares deeply about international law In preparing American forces for the Bosnia operation in 1995 a great deal of effort was devoted to avoiding inappropriate or inhumane action including potential violations of the laws of war Many hours were spent identifying protected sites so that the United States would not destroy them Lawyers were included in all relevant planning and decision making During the initial Bosnian intervention day to day decisions often required moving the artillerymen to the back benches and moving the lawyers up front This is the way of modern military operations The United States places a high priority on following the laws of war because it is important right and prudent And the United States will continue to do so regardless of whether an ICC with related jurisdiction comes into being The U S government will never commit genocide Furthermore it will never purposefully or systematically commit war crimes or crimes against humanity This doesn t mean that others will always concur that U S use of force does not raise potential violations of international law including those that fall under ICC Convention jurisdiction For example a serious issue revolves around Geneva provisions regarding disproportionate force and the war crime of i ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians 4 The ICC s Statute specifies that the Court will have jurisdiction in particular when such an attack is committed as part of a plan or policy or as part of a large scale commission of such crimes 5 But the Statute does not say that the Court will have jurisdiction only in such cases Given the difference of perspectives between the United States and many other nations there can be serious international debate about whether a specific bombing campaign would constitute a large scale commission of a crime and whether it would be reasonable to believe that such bombing would cause incidental civilian casualties Kosovo demonstrated that in the present urbanized world the total avoidance of collateral damage is impossible even with the precision weapons used today So there may be ongoing questions about whether bombing even when undertaken with great effort to minimize harm to civilians would be a legitimate concern of an ICC In addition any military campaign will be flawed The United States and its allies will make mistakes such as bombing the Chinese Embassy in Belgrade These are reasons why U S efforts to require that the detailed elements of crimes be applied by judges at the outset before consideration of general international law are so important Nonetheless the U S military justice system is best positioned to evaluate criminality and negligence regarding the use of force If it is appropriate to investigate mistakes to determine who was responsible or if particular actions merit investigation of criminal charges the U S military will do so The United States was correct to insist on strong provisions to ensure that ICC jurisdiction would be complementary to that of national justice systems As Judge Robinson Everett argues the ICC s complementarity provisions provide a means for demanding that U S authorities not the ICC have the opportunity to investigate and to prosecute alleged crimes by American servicemembers against the Law of Nations Everett notes that there is no absolute protection against Americans ever being brought to trial before the ICC With regard to the American who might participate as a mercenary in a foreign genocidal campaign his fate might be best served by an ICC Americans abroad currently fall under the jurisdiction of foreign courts unless they are servicemembers deployed under a SOFA And even in the case of a SOFA complications may arise regarding jurisdiction that is shared between the United States and the host nation So absolute protection from prosecution overseas is in reality an unreasonable expectation particularly in the context of what already have been defined as international crimes that any nation may prosecute Moreover in order to actually investigate a case the ICC would have to demonstrate that the United States was unwilling to genuinely investigate or prosecute A matter of legitimate concern regarding violations of international law will be investigated and prosecuted vigorously by U S military authorities The criminal embarrassments of Vietnam and possibly of Korea are of another age It is very difficult to imagine any reasonable institution or people who would not conclude that the U S military is committed to upholding international law Thus the prospect of an American soldier actually being prosecuted and sentenced by the ICC is reasonably remote The more realistic apprehension about the Court is that it will be used as a political forum for raising questions about U S foreign policy Concern about the ICC is at the strategic level and it is fundamentally political The legal vulnerability of an American soldier is not the chief threat The political concern has merit One consequence of the disproportionate might of the United States is that it is rarely subject to direct military challenge by its enemies Foes will search out asymmetrical responses to U S strength Care should be taken then regarding the creation of alternate means in this context the ICC that can be used by opponents to disrupt operations of the United States to imperil its ability to act and to undermine its accomplishments Certainly enemies of the United States or an ICC Prosecutor could raise questions about U S military actions by threatening to hold military or political leaders accountable for violations of international law It is not unreasonable to fear that U S actions or even threats of actions such as hints of a U S attack to prevent terrorist action could prompt a complaint to the Court or result in the ICC announcing its intention to investigate This issue has arisen in the context of requests that the International Criminal Tribunal for the Former Yugoslavia ICTY investigate the NATO bombing of Kosovo But as Bartram Brown s chapter chapter 4 explains many procedural safeguards to prevent frivolous prosecution have been built into the Court s jurisdiction and operation Moreover there are other forums and means to challenge U S policy the ICC will not be the only vehicle for so doing and it may well prove to be a less effective venue than a press conference Treating the ICC as though it will become the prime mechanism to challenge American global leadership is to vest more power in the Court than it could ever have Impact on Decision Making In terms of policy decisions Clinton administration officials already have warned that because an ICC could be used to challenge U S policy it could inhibit U S activism overseas They argue that the ICC s existence could make the United States reluctant to conduct military operations that are not vital for American security By this argument the operations most at risk would be those at the humanitarian or peacekeeping end of the spectrum of military engagement particularly given the current attitudes of many in Congress who both oppose such operations and oppose the ICC The initial American intervention in Somalia bore no relationship to traditional security interests it aimed to save human lives U S relief efforts in Rwanda after the genocide were conducted for humanitarian reasons These types of deployments and even disaster assistance to non Americans would be most easily sacrificed for fear of the ICC But Kosovo demonstrates that such predictions of military recalcitrance are likely overblown The ICTY had jurisdiction over Kosovo and NATO intervened on a large scale It is true that the ICTY is a creature of the U N Security Council and that the United States was familiar with its personnel and rulings Nonetheless no commentator appears willing to contend that if an ICC had existed the United States would have refrained from acting against Slobodan Milosevic The campaign was roundly criticized for many reasons North American academics submitted a complaint to the ICTY charging NATO with inappropriately targeting civilian infrastructure using inhumane weaponry and causing unnecessary civilian casualties But the main source of international governmental concern appeared to be the fact that NATO acted without U N Security Council authorization Ironically perhaps the ICTY s indictment of Milosevic may have done more to legitimize the bombing of Serb targets than any other event surrounding NATO engagement The Court s overall impact on the United States in deciding whether to deploy forces will be marginal It is doubtful that an ICC would ever constitute the sole reason not to undertake a military mission It will be disregarded when circumstances require and used as a rationale for inaction when other interests dominate If there were a strong consensus about the importance of U S military action among American policymakers the impact of the ICC would not be significant Operational Impact The ICC could have impact at the operational level ranging from the virtually imperceptible to the extremely negative depending on the Court s actions For example the United States certainly will revise or finish revising all of its SOFAs to ensure that they include protections from ICC jurisdiction providing greater assurance for servicemembers and reinforcing the principle of complementarity In the future before conducting a training exercise overflying territory or mounting a territorial defense the military will routinely determine whether the host nation its neighbors or an anticipated adversary is a State Party to the ICC Thus the ICC will become another routine piece of the complex mosaic of standing legal protections and associated deployment prerequisites The ICC could have more potentially significant effects if it were to routinely pursue allegations against U S policies Such a posture is unlikely given the degree to which a new ICC likely will be guided by U S allies and will be eager to establish its credibility Moreover ICC actions would not proceed as long as the United States were undertaking its own investigation But the very act of launching an investigation however short lived could give credence to allegations of wrongful acts by the United States Such actions could have two effects on U S military operations First U S concern about avoiding such charges could lead to unwise operational constraints For example if the military were directed to adopt as operational policy stricter interpretations of proportionality this could reduce the speed mass and dominance that have characterized U S military operations in the past decade and lower casualties Concerns about incidental loss of life could result in even more conservative targeting Some would call this a positive development but repeated piecemeal efforts increase the risks to both parties and are usually more harmful in the long run Returning to the recent Kosovo experience the slow and limited buildup of NATO s air campaign can explain in part the length of the war and the resulting incidental loss of life an unintended consequence of proportionality In fact the United States already subjects its military operations to a high degree of sensitivity to target selection and other related legal concerns Second a more likely effect of ICC interference in U S policy would be to increase the frequency and visibility of internal U S military investigations The Clinton administration has implied that it would not investigate the legality of military operations that it regards as valid official actions to enforce international law 6 If the United States ultimately felt compelled to better insulate itself from ICC jurisdiction by investigating ICC concerns the Department of Defense DOD could find itself launching investigations on the flimsiest of charges Investigations might be considered a relatively inexpensive insurance policy but they would absorb time and money If taken to extremes internal investigations would undermine morale and appear to constitute second guessing of military decision making

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  • Introduction - American Academy of Arts & Sciences
    the internet to enable participants to maintain their mutual compatibility and adapt the entire system as technology and needs evolve With this vision each author has chosen a subject to pursue Some of these will open our eyes to potentialities we desire Others discuss problems that have to be addressed and barriers that must be surmounted to achieve desired goals The first part of this volume addresses issues associated with daily teaching and research Andrew Odlyzko in his chapter on Electronics and the Future of Education argues that the advent of electronic communications will not force a large scale displacement of classroom teachers nor will it lead to a smaller and less expensive educational establishment He notes that if relatively small educational institutions such as Podunk Community College or Harvard College have access to the same digital libraries and to the same holographic projections of lectures the best way for Harvard and like institutions to distinguish themselves is by stressing the quality of its faculty s ongoing interactions with students Although technology can enhance interactive instruction education is primarily a process requir ing extensive social interaction says Odlyzko Neil Kestner an expert on distant learning offers his perspective on a very different style of education in The Changing Landscape of Academics as Affected by New Communications Technology He says that academics has become more business like whether we like it or not The emergence of for profit institutions of advanced learning the growth of mega universities such as the United Kingdom s Open University with an enrollment of 150 000 students and a shift to learner centered instruction which depends heavily on extensive use of technology are examples of this trend In his article Scientific Journals of the Future Steven Bachrach probes how researchers will communicate with each other on a regular basis Here he notes the advantages of the electronic communication of research findings are clear and diverse It offers improved access cheaper and wider distribution and the expansion of content to include audio video and large data sets Peer review can also be made more encompassing he says empowering the community as a whole Thomas von Foerster in his article on The Future of Peer Review agrees for the most part He suggests that because different fields have different social structures and different ways of certifying the merit of ideas electronic forums still have different ways of operating von Foerster says that in the end the styles that most reviewing and certification take will likely depend more on social factors than on technology Stephen R Heller in Management of the New Infrastructure for Electronic Publications suggests that electronic journals will require an entirely new type of physical plant and professional support Like General Motors and the Saturn automobile he writes one may have the goal of building a car but to do it differently required starting from scratch in Tennessee not modifying a car plant facility in Michigan Two particular challenges are in the areas of archiving and

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  • Electronics and the Future of Education - American Academy of Arts & Sciences
    industry leads in relying on conventions to function effectively Goldberg We can expect similar factors to operate in education Displacement of a function by technology can produce net savings in time or money Dishwashing machines have reduced time spent cleaning dishes at the kitchen sink In that case the goal was specific new technology was able to satisfy it and in any case who enjoyed washing dishes On the other hand medical care costs have been rising in spite of progress in technology Many procedures and pharmaceuticals have been developed that demonstrably do save money compared to traditional treatments However total costs have been climbing as a fraction of Gross Domestic Product GDP and not only in absolute terms in most countries as more illnesses are treated and people live longer Historically education has been more like medical care than like dishwashing As countries have become wealthier they have devoted an increasing fraction of GDP to education There have been several waves of massive increases in spending First came elementary schools then secondary ones and finally higher education For example in the U S spending on higher education went from 1 3 in 1960 to 2 4 in 1980 SAUS This increase did not come at the expense of primary and secondary education which also grew although much less rapidly These increases were driven by the rising wealth of the country and the need to prepare for the more sophisticated jobs generated by the economy Will any of the factors that have propelled educational expenditures in the past reverse There is no sign they will We may not see another wave of growth on the scale of previous ones but decreases are unlikely The economy is growing and with increasing world integration there is a consensus that the only way for the rich countries not to slip in the competitive race is to keep moving on to sophisticated new products and services That requires a continuing effort to upgrade the skills of the workforce and policymakers are responsive to that need Individuals also have a strong motivation to invest in their own and their children s education The rising inequality of income has led to college graduates in the U S earning 80 more in 1994 than those with only a high school diploma up from a 50 premium in the early 1970s While causality has not been proven the public views education as an important requirement for a successful career As a result college attendance rates have increased in all economic classes Colleges have been able to increase tuition charges much faster than growth in family incomes The basic argument of this note is that society is willing to pay a lot for education now and since the value of education is growing we can expect society to continue paying at least as much in the future How will those resources be divided If every institution from Podunk Community College to Harvard uses the same holographic projections of the

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  • The Changing Landscape of Academics As Affected by New Communications Technology - American Academy of Arts & Sciences
    provide opportunities for the students Frances Cairncross has an interesting book called The Death of Distance How the Communications Revolution Will Change Our Lives 23 The death of distance is very relevant to modern educational delivery systems since these new delivery systems do not depend on where the students or instructors are located These new methods for educational delivery use those same electronic pipes that we use to carry other communications Despite Noam s predictions 3 Odlyzko 4 and others argue that the traditional university will probably not grow much larger with the increased numbers of students having their educational needs being catered to by national distance education groups some of which could be for profit Our new students are different and instructional methods must change to address their concerns as well as issues of accountability Research is already changing Modern electronic communications have already altered how we do research We already discussed the new ease of communication with coworkers not limited by any geographical boundaries Communication with the Hubbell telescope is as easy as with the spectroscope in the same room communication with someone in Germany is as easy as locating your colleagues on the same campus These new communications are also altering how we distribute the results of our research It is now possible to self publish on the World Wide Web anything you want The more important issue is becoming how do you get anyone to read it i e marketing Academicians have long subscribed to an elaborate culture which made the dissemination of the good results easy and even guaranteed an audience It was a rather formal arrangement one so important that most scientists readily signed away their rights to own presentations of their own labors something which astonishes a journalist or writer who depends on ownership for their livelihood Scientists were willing to do this because the publishers provided refereeing and all the typographical work required to get a paper in press Now anyone can do and often does all of the preparation before sending the article to a journal all the journal needs to do is referee it and distribute it Self publishing on the net accomplishes everything but refereeing Previously publishers did the marketing but took the copyright in return but as Justice Sandra Day O Connor wrote It should not be forgotten that the framers intended copyright itself to be the engine of free expression 24 Using self publishing we can reclaim this freedom The other way scientific results have been made public in addition to private communications and journal publications is through presentations at conferences Scientists travel long distances and spend much time and money to meet their colleagues and discuss research ideas many of which are not yet totally developed or which often contain some unusual feature that makes the scientist concerned about his her explanation Such discussions and critical debate are essential for progress in any field but is it essential for the individuals to be in the same room The answer probably is sometimes For a long time science has enjoyed a relatively generous travel budget because it was felt that this was essential for progress Agencies also liked to see their grantees appear before groups presenting the latest data and justifying the granting agency s role Most of that is necessary and provides a filtering mechanism to rank a work s quality Poor work when exposed before a large public forum appears inferior Business people likewise have their own ideas and issues they need to communicate across large corporations They are also very concerned with justifying any expenditure that does not translate into profit More and more businesses have been finding that much of their travel is not justified but communications that had taken place at their meetings were still essential That is one of the reasons we see increased use of videoconferencing in large corporations Such videoconferences may involve simple conferencing where one desires a little more than just a phone call and wants to see the people involved At the high end of computer conferencing we have groups working together on a common document with everyone having before them the same computer screen containing changes made at one site just seconds before These whiteboards and videoconferencing devices are starting to have an impact in scientific communications All of these new communication tools have made it much easier to have international collaborations on rescarch projects There can be real time collaboration and not just the sharing of results However the web also allows for massive sharing of data This is most dramatic in various DNA sequence projects such as the Human Genome Project where many research groups work on one portion of the project but all results are stored in one massive database accessible to everyone The recent Mars Pathfinder project is another example Within minutes of data collection people around the world had access to photos and analytical results of Mars rocks as well as up to the minute reports on wind and temperature But the question remains Can a typical scientific conference be carried out via electronic communication Simon Schama 25 discussed this from the viewpoint of historians And with the possibility of lectures and seminars being opened electronically to all who have paid their professional dues annual conventions of historians can revert to their essential honest to goodness function as guild gatherings assembled for feasting gossip and hiring inspections Maybe a few conference activities can still be justified For the record however career placement offices are also using videoconferencing to help employers make their initial employee decisions Even hiring interviews can be done electronically In another essay we will hear more about various electronic conferences in which the papers and all discussions are carried on at a distance The question remains if those conferences and private electronic discussions can totally replace the large meetings of the past Very likely some large meetings will occur but they will be fewer in number and personal interactions will be electronic or if in person will involve small very focused groups There is also another type of publication which we need to explore namely monographs While all areas of research use them for some publications at present most scientists could probably migrate all conference reports and specialized publications to the web with very little effect These monographs are very expensive and have very limited sales They do play a major role in certain fields probably more in the non science or humanities areas In many fields those publications are the major components necessary for tenure Of all the types of books used in academics the economics of these are most unfavorable and they are most likely to eliminated regardless of electronic alternatives in these days of drastic cutbacks in library budgets There was a recent meeting of the American Council of Learned Societies the American Association of American University Presses and the Association of Research Libraries to address the death of the monograph 26 Many at that meeting saw the Internet as one viable option It seems clear that such works must move to electronic form either web or CD ROM This is consistent with what was done in the early days when communication moved to the best media available namely the printed page However there must be some way for their quality to be reviewed It is possible that there will have to be electronic bulletin boards reviewing these publications The CD ROM could be self published for a small fraction of the previous cost and could even be placed in some repository along with reviews from experts In tenure decisions it might be necessary for the author to explain how he has disseminated his work and the promotions committee might have to send out CD ROMs for review Reasonable solutions will require changes in what is currently done Instruction Teaching is Trying to Change Also Several trends occurring in higher education affect the roles and activities of the faculty They also affect the future of paper publications These are the increased recognition given to teaching the increased use of technology in teaching a shift to learner centered teaching and the increased importance of distance education and competition among institutions Increased emphasis on teaching Partly as a result of public concern and partly because research funding is declining universities have begun to pay increasing attention to the importance of good teaching as part of a faculty member s responsibilities There is evidence that this is more than just talk since promotion and tenure guidelines are being modified One result is the involvement of more enthusiastic young faculty full of new ideas and attuned to modern communications spending more time trying to improve instruction They are getting interested at exactly the time when other technological changes such as those mentioned earlier involving research support are becoming available for other uses as well Increased use of technology It is almost a given that once technology becomes available it will be used It will be used in research and it will be used in teaching Computers by themselves are nice tools capable of controlling experiments and reporting and analyzing experiments but with a network we are not limited to local resources and can connect with anyone or anything in the world That can include a person down the hall or a big server which can offer up customized learning materials for each student and hold the most up to date reference materials With CD ROM and huge hard drives becoming common the issue of storage is no longer a limiting factor as it was a few years ago Making a personal CD ROM is no longer costly less than 1 each in large volumes they are routinely included as giveaways in computer magazines Thus a visually intensive presentation can be prepared and sold to students or included as a textbook supplement In chemistry the major textbook publishers now include a CD ROM with the textbook and one of the items it contains is the entire textbook itself In addition there are animations demonstrations and all sorts of supplementary materials So why does one need a paper textbook Right now the best answer is that not all students have access to the necessary computer system It is simply an issue of availability of that technology and maybe the comfort level of individuals reading from a computer screen versus a printed book Faculty members who want to spend the time could make their own CD ROM s and never use a textbook or paper handouts As discussed earlier with these new technologies RPI has switched from normal lecture recitation classes to their Studio Physics courses 9 which are totally computer based Those new courses have produced better learning at a lower cost Very few of the course materials are on paper They have expanded this type of instruction to other courses as well Several major organizations are leading the way on the application of technology to instruction Those involved with policy issues as well as best practices include the NLII National Learning Infrastructure Initiative of Educom and the AAHE American Association of Higher Education through its offshoot the Technology Projects group and their Teaching Learning Technology Roundtables Many other organizations are pursuing similar goals but with more emphasis on specific subjects The paradigm shift to learner centered instruction In the education literature today no single item is mentioned more than the paradigm shift to a learner centered environment It is often summarized as a shift from the cliche sage on the stage to guide on the side the instructor is more mentor than lecturer While in fact this is not new it is very hard to implement a learner user driven curricula without extensive use of technology networks and modern programming languages to let the user control the flow of information Modern technology with its massive storage and nonlinear programming is required to make the instruction meaningful and interesting The old fashioned linear programming modules of Skinner s teaching machines are not attractive to today s MTV trained students Likewise the very nonlinear nature of the Internet has an appeal in this environment To provide for this new paradigm we need a powerful computer system which is flexible extensive requiring networks and able to deliver multimedia instruction which can fit the learning styles of any student requiring large storage devices Production of this new instructional material requires a team approach Instructional designers are needed to help the content person develop the modules for maximum attractiveness ease of use instructional effectiveness etc The large educational organizations such as the open universities use this model routinely 2 Distance learning and institutional competition The higher education student body is becoming more diverse older and more heterogeneous in its interests and needs They want education on the job in their home wherever and whenever they need it Many want it in a university setting but those numbers are decreasing To serve this new breed of student distance learning has become a major priority for many universities A survey by the National Center for Educational Statistics completed in the fall of 1995 indicated that 62 percent of public four year institutions offered distance education courses There were 25 730 courses offered to 734 640 students It was estimated that in 1995 as many as 690 different degrees could be received solely by distance education and about 3 430 students did obtain those degrees By distance education 1 we mean basically that instruction is being delivered at places other than the typical residential classroom it might be a classroom at another site like a high school library or another higher education facility or it could be in the home in some computer lab in a library at the workplace What is delivered is really not important except that it is via some electronic medium Instruction can be delivered via satellite fiber optics or good phone lines ISDN in particular the content can be computer programs Internet delivered materials video audio whatever In earlier times this method of educational delivery was called correspondence study and paper was the medium used to transmit information Today even most correspondence courses make extensive use of the Internet email etc using paper or videotapes as the lowest common denominator for those without proper electronic connections The best distance education courses include lots of interactivity One of the most exciting developments is computer mediated conferencing which has been used in business and in research The software is often called group ware since it allows groups to work together In education these programs are used to allow students to develop group projects and prepare joint papers Communication with other students or the instructor can be via asynchronous or synchronous communications depending on whether the group works at different times or the same time In the lowest common denominator of synchronous communication one uses Cu See Me technology but the most successful applications require single or double ISDN connectivity Any university can deliver this type of instruction and electronic signals do not obey state or geographical boundaries This means that there is increased competition among several institutions which deliver similar course content to one area Such competition is a new role for universities and is a direct consequence of the new electronic means of communication While on the surface it generates competition it can also be used to collaborate and cooperate via these educational networks Groups can share materials stored in some central database but used anywhere sharing educational materials or publications just as researchers can share files of publications This competition means that there will be winners and losers Many experts expect that over half of all distance educational activities will end over the next five to ten years as the weaker programs find it unprofitable to remain active For this reason there is a lot of activity now to establish a foothold in the growing market The competition comes not only from other universities but also comes from commercial enterprises including large businesses and for profit universities Right now each sector is trying to carve out its niche in the market or form strategic alliances to enhance its foothold Some of the larger commercial providers such as Sylvan Kaplan Oracle and even Arthur Andersen are trying to set up arrangements with higher education where they will deliver and market courses while much of the content will come from a school s faculty The next few years will involve a massive shakedown of business and higher educational efforts in higher education What is clear is that distance education via digital format and not paper is going to be a gigantic profitable market Texts for courses are dying while multimedia is growing Commercial publishers of textbooks are at a crossroads They see the decline of paper texts for many reasons books are too big too inclusive too expensive hard to update and too limiting The new communication technologies are changing the way we teach the way students learn The textbook is but one tool A number of publishers in the sciences are exploring the use of CD ROM and Internet sites to supplement the textbook In reality if the student has the proper computer equipment the paper book is irrelevant However at the moment those sites or CDs are treated as supplements They include for example real time molecular modeling simulations videos of laboratory experiments and all sort of aids like trial exams with extensive feedback problem sets with answers alternative readings links to relevant web sites interactive calculations built in calculators etc The bottom line is that textbook publishers know that times are changing and they are trying to find their role in this new electronic marketplace Since this topic is so important to the context of this volume there is an entire chapter devoted to this subject Reference materials are another type of book which Eli Noam 29 has addressed in his talk

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  • The Future of Science Textbooks - American Academy of Arts & Sciences
    The course content technologies and materials available are changing rapidly and yet the size of most textbooks makes them very expensive and equally hard to update The textbook does not allow for rapid changes in content and is limited in format As a result publishers are trying new procedures Today many publishers are willing to create unique versions of the text for a particular school if there is enough enrollment to justify the extra expense and that cost is dropping with newer production methods It has even been known for them to include parts of several different texts something they would not consider even a few years ago This is becoming common for laboratory manuals where faculty can tailor a published manual to their special needs taking what is available from the publisher as a group of modules to be used in the manner the instructor decides often deciding to ignore many of those offered Both McGraw Hill and Prentice Hall for example now allow a faculty member to create his own laboratory manual by picking items off a list on their web site and then bundling in their own material this is then bound and sent back to the school bookstore for sales The new communication technologies are changing how we teach how students learn The textbook is becoming but one tool Most publishers in the sciences and even other areas are exploring the use of CD ROM and Internet Web sites to supplement their textbooks They also realize that in the future there may not be a text so they want alternative publication environments If the student has the proper computer equipment the paper book is becoming less relevant or essential However at the moment those sites or CD s are usually treated as supplements to the textbook and the course CD s include real time molecular modeling simulations videos of laboratory experiments and all sort of aids like trial exams with extensive feedback problem sets with worked out answers alternative readings links to relevant web sites interactive calculations built in calculators java applets to allow matching of items on an image with vocabulary real time experiments using java even interactive remote operation of instruments In some products most of the material is on the CD in other cases most is on the publisher s web site These web sites can be updated easily and new material added as often as one wants One chemistry site has links to major newspapers and magazines If there are major breaking news stories they can be made available to everyone quickly along with background material on related web sites There is a lot of experimentation underway and a lot of money is being spent to try to discover what works best There are also efforts by IMS Instructional Management Systems a project of Educause and the National Learning Infrastructure Initiative NLII to standardize all web presented modules so they can interact with each other and maintain control copyright and ownership where

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  • Scientific Journals of the Future - American Academy of Arts & Sciences
    the proper software The same is true for sound Perhaps more important and revolutionary is that e publishing brings data into the hands of the readers in a way that facilitates interaction and discovery The best way to describe this is by providing a concrete example drawn from chemistry Chemists are very interested in the structure of a molecule and one way of obtaining this is via x ray crystallography Once a crystallographer has determined the structure she must select a single view of this molecule for presentation in the printed article This is a static dead image A reader of this work may be interested in a view of the back side of the molecule Unfortunately the reader is forced into some very time consuming manipulations to obtain the necessary view either by entering the structure by hand into her own molecular viewing program or by obtaining the structure from a database and feeding it into the viewer With electronic publishing what is published is not the dead image but the coordinates of the molecule itself The reader uses a browser that will automatically direct the coordinates into the appropriate viewer and the reader is free to manipulate the structure to her heart s content This concept of interactive manipulation of data is possible in all disciplines be it a matrix of wind speeds in a hurricane the scattering tracks made by particles in a collider the three dimensional image of a brain tumor obtained in an MRI magnetic resonance image or the DNA sequences of a dinosaur This interactivity goes far beyond what is capable in traditional print and is perhaps the most compelling reason for the shift to electronic publication of scientific articles How an article is published on the Internet Publishing an article on the Internet can be very simple An author writes the manuscript creates a file and places it on a computer that is accessible by others The question then becomes what format should be used for storing the article As of early 1998 there are two readily available and simple formats for saving documents They differ quite dramatically in their intent Portable Data Format PDF attempts to maintain the look and feel of the printed document It provides a means for storing a document in a digital form that will appear identical on any screen and when printed from any output device such as a laser printer or offset press PDF provides for the complete typeset and layout control that publishers have been using for decades meaning that text and graphics can be incorporated on a single page font and point size are dictated and preserved etc Publishers can deliver a PDF file with complete assurance of how the document will appear A PDF file is created from a wide variety of original sources such as a text or graphics program and then viewed using as of this writing Adobe Acrobat a freely distributed program PDF can incorporate hyperlinks to other documents or other sections of a single document However the user is not really dealing with text since PDF files cannot be directly edited one cannot cut text out of the PDF file and paste it elsewhere one is really dealing with an image The alternative format is hypertext markup language HTML which is a subset of the very powerful page layout language SGML standard generalized markup language Text is marked up to identify structure within the document For example tags are inserted around text to indicate that this is a header or a footnote or an author s name or in boldface etc A program then interprets these tags and formats the text appropriately Currently HTML has a limited set of layout features but as HTML continues to evolve authors will be able to produce ever more specialized layouts Files written in HTML can be viewed quite easily using a browser such as Netscape Navigator or Microsoft s Internet Explorer The markup approach has a number of distinct advantages over the PDF approach One is that the reader can dictate some of the presentation features such as the font and point size and the size of the window But of greater significance to scientists is that markup languages are inherently extensible Currently HTML deals primarily with how text should be displayed For a scientist some portions of the text have deeper meaning than the words themselves The name of a compound is more than just a string of text it contains chemical information The name benzene implies a molecular formula of C6H6 a molecular weight of 78 11 and a structure shown below A chemical markup language would allow for this type of information to be contained within the document itself A chemically intelligent browser could then render a 2 D or 3 D image of the molecule instead of just the text Another example is units While most scientists use the SI International System of Units it is not universal nor is it often convenient A bond energy might be represented as 100 kcal mol within the text Chemical markup would allow this number to be properly identified as an energy unit and a browser could provide instant conversion to an alternative unit such as ergs The beauty here is that data can be represented not only as text but also as manipulable information Benzene Initiatives supported by both Netscape and Microsoft are creating extensions to HTML under the name XML The first example of XML actually was developed in the field of chemistry CML chemical markup language A proof of concept of CML already exists with a definition of the tags and a working browser Once the article is written and saved in an appropriate format the author simply mounts the files either HTML or PDF and any associated graphics or interactive media on a web server which makes the document available to the public The web therefore can be viewed in a sense as everyone s personal vanity

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  • The Future (?) of Peer Review - American Academy of Arts & Sciences
    investigation to correct That such reviews are not common can be concluded for example from the small number of papers in which the author thanks a reviewer for substantive comments Electronic Enhancements Electronics chiefly the Internet but also the enormous reduction in the costs of telephone links and the enormous increase of computer power has is affecting how scientists communicate their results to their colleagues Important information is communicated by telephone e mail and other means that involve no paper let alone scientific journals Beginning with high energy physics but spreading rapidly to other disciplines preprint servers are more and more becoming the primary means of distributing recent results to one s colleagues The Internet has of course also changed the paper flow associated with peer review drastically in that much of the correspondence about articles to be published takes place via e mail In many cases the articles themselves are also sent to reviewers in electronic form Although the reviewing process is less demanding on the presentation format language of an article than publication there are still some problems in using only electronic manuscripts for review because of difficulties in reading on one machine the files prepared on another As universal readers such as Techexplorer or Adobe Acrobat improve these difficulties will certainly decrease and the purely electronic procedures will become more and more widely adopted This is however a only a change in the procedures and it is unlikely in the absence of other changes to change the relationship of editor author referee and reader On the other hand these procedural changes are easy to implement and to improve incrementally that is they are adiabatic changes in Eherenfest s not the thermodynamic sense of adiabatic so most journals in the physical sciences will probably be developing them in the near future The journal editors with whom I have discussed this concur in that view Because e mail is not as secure as paper it is easy to alienate an address for example to make a message seem to come from someone other than the author editors who use electronic means to send out papers and obtain reviews must take some precautions An editor can for example give reviewers passwords by telephone or fax both to access a read only version of a submitted article and to authenticate the reviewers comments As papers submitted to a journal become more technologically demanding some reviewers may find they do not have the means to review all aspects of a paper and editors will have to take such limitations into account Of course as scientific literature becomes more dependent on computer power not only reviewers and editors but also scientists will find that technological developments limit access to parts of the scientific literature to those with the funds to acquire the necessary technology One aspect of the standard procedure of peer review however will not be altered by the Internet The number of publications in scientific journals has been growing at a much faster rate than the number of scientists and consequently orders of magnitude faster than even the most active editor s Rolodex Each reviewer thus is being asked to referee an ever increasing number of papers to the frustration of many reviewers and occasionally to the detriment of the quality of the reviews Electronic publishing by itself does nothing to alter that relationship it is embedded into the sociology of publishing and reviewing The coexistence of electronic and traditional means of communicating scientific information can lead to occasional anomalies Thus for example one can easily imagine a scenario in which a referee receives from a journal editor an article that he has already seen on a preprint server and to which he has already posted a comment on the article it would be most natural to use the same comment in the review for the journal thereby not only voiding the anonymity of the review but also raising the question what has the journal added to the article that the open forum has not already provided For some disciplines such as high energy physics much of the discussion of scientific results already takes place via the preprint servers In these fields computers have taken over one of the functions of the traditional journal to serve as a forum for discussion of new ideas Interesting preprints spawn comments from workers in the area the original papers are improved and new versions posted other workers are stimulated to do experiments or suggest new ideas and the field progresses without a single tree being felled It seems highly likely that such electronic forums will become the norm of the future Once a critical fraction of the leading researchers in a field make use of a preprint server no other worker in the field can afford to ignore it and the Matthew principle will take over The way in which such a forum works seems more akin to the 17th and early 18th century discussions of the learned societies than to those in the learned journals of the 19th and 20th centuries Within the forum linked papers and commentary replace the meetings and reports of the society and the journals peer review is replaced by dialogue The discussion itself becomes the review Such a system works well only if the group that interacts in such a forum is sufficiently cohesive The members must know that for the most part they can trust each other s judgment otherwise the posted material is not worth reading This may be part of the reason why preprint servers find ready acceptance in some fields such as astronomy or high energy physics but not in other larger fields such as condensed matter physics To preserve the needed social cohesion the forums of the future may find they have to limit access to their discussions just as the old learned societies restricted their membership to an elite usually of learned members There are of course many ways to restrict access

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