Coercing Virtue (19 page)

The court broadened its jurisdiction by making the United Kingdom responsible for potential actions in the United States.
Soering
v.
United Kingdom
(1989) involved a German national residing in the United Kingdom and suspected of a double murder in Virginia. The Court ruled
that if the United Kingdom extradited Soering, that action would constitute a violation of the Convention’s prohibition of torture. Physical and mental suffering while awaiting execution, it said, amounted to a “death row phenomenon” that would be degrading and inhuman treatment. To obtain Soering’s extradition, Virginia had to agree not to charge him with a capital offense.

Similarly, in
Open Door and Dublin Well Woman
v.
Ireland
(1992), Ireland was held precluded, on the grounds of freedom of expression, from prohibiting the dissemination of information about overseas abortion clinics.

The certainty of abuse of international tribunals is illustrated by the lawsuit that has been filed in the European Court of Human Rights in Strasbourg by relatives of Argentine sailors who died when Britain sank the battleship
General Belgrano
on May 2, 1982, during the Falklands war. Damages are sought from the British government. The Court is asked at a considerable remove in time, distance, and knowledge to judge a combat action during war. The claimed competence of a court to judge a wartime military action is especially illegitimate because a judgment against Britain would override the agreement worked out between the two countries that the sinking was “a legal act of war.”

It is not clear why most of the Human Rights Court’s decisions on cultural matters appear to involve the United Kingdom. Perhaps it is due to other nations accepting the convention as domestic law, and the United Kingdom not taking that step until 2000. Thus, many cultural issues may have been settled in conformity with
the court’s interpretation of the convention without reaching Strasbourg. It is clear, in any event, that in cultural matters (decided under the rubric of “human rights”) the Strasbourg court displays the tendencies of the New Class. The court is activist, quick to displace democratic government (despite lip service to deference or the “margin of appreciation”), and pushes the various European cultures to the left. A feature of the latter trend is a mental or psychological softness, an unwillingness to allow elected governments to make traditional moral judgments about behavior. Nonjudgmentalism becomes a virtue enforced by the court, at least when the judgments condemned accord with bourgeois values.

The presumption of international tribunals was well illustrated in the
LaGrand
case,
Germany
v.
United States of America
(1999), when the International Court of Justice (ICJ or World Court) ordered the United States to heed violations of the Vienna Convention on Consular Relations during death penalty proceedings. The LaGrand brothers had committed a murder in Arizona and a jury in that state gave them the death penalty. Though residing in the United States, the brothers were German nationals. The ICJ held, in effect, that its version of the treaty superseded both the American Constitution and state law and directed that the United States “should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order.” When the U.S. Supreme Court rejected Germany’s attempt to obtain
enforcement of the ICJ’s order, the execution of Walter LaGrand was carried out. The ICJ insisted that its orders were binding on American and other national courts and stated that, with respect to future convictions carrying serious penalties, “it would be incumbent on the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the [Vienna Convention].” The ICJ had no authority to give orders to the United States and its courts. The decision was an example of the judicial activism that is rapidly becoming characteristic of international tribunals.

The next international outrage on the horizon is the proposed International Criminal Court. The treaty establishing the court will go into effect when sixty nations have ratified it. At the end of 2000, 139 nations had signed the treaty and 27 had ratified it. Despite expressing concerns about the treaty’s flaws, the United States signed but has no intention of ratifying. One of those flaws is that the court would have jurisdiction over a crime when either the state where the crime was committed or the state of the perpetrator is a party to the treaty or consented to jurisdiction. This term means, for example, that if an American allegedly committed a crime in a country that had ratified the treaty, the court would claim jurisdiction to try him even though America had not accepted the treaty. Alternatively, if Yugoslavia didn’t ratify and then massacred some of its own citizens, the ICC would have no jurisdiction. But if the United States, which had ratified, used armed force to stop the massacre, American
personnel could be tried. That possible reprisal could deter the United States from meeting its obligations to its allies or participating in humanitarian interventions.

The court will be a powerful arm of the prosecution. The main concern is not that the prosecutor will indict a soldier who has committed a war crime, but that a political prosecutor might select particular targets: the president, cabinet officers on the National Security Council, and other senior officials responsible for defense and foreign policy. That concern should be shared by all nations that use armed force abroad, whether in the conduct of a war or of peace-keeping operations. The court has no rules of procedure, no protection for the rights of the accused comparable with those of the United States, and no clear separation between prosecutors and judges.

To make matters worse, the statutes the ICC must enforce are intolerably vague and fertile grounds for judicial activism. “War crimes,” for example, include “[i]ntentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage to be anticipated.” Nobody can know in advance what that sentence means. Almost all attacks unavoidably cause harm to civilians and to the natural environment. How is a field commander to know what he may or may not order under a wide range of largely unforeseeable circumstances? Taken seriously, the statute would paralyze an army’s capacity to fight.
Taken cynically, as it should be, the statute provides cover for politically motivated reprisals after the event, reprisals undertaken by judges in the guise of law.

Nor are the current list of ambiguously worded crimes the end of the damage that is contemplated. The representative of the International Law Commission that produced the original draft treaty said, “[L]et us think about ways in which new developments in substantive law and even new crimes can be brought within the jurisdiction of the Court as time passes and the law progresses.”

Though it is not possible here to explore the subject in the detail it deserves, a word should be added about the way in which international law “progresses” and new law, especially human rights law, is created. In furtherance of their own imperialistic ambitions, courts are inclined to give weight to international statements such as the various United Nations declarations and resolutions. These statements are the product not only of governments responding to their own interests and constituencies but also of nongovernmental organizations, or NGOs, that participate in the processes by which such declarations and resolutions are made. The NGOs are typically highly ideological participants at the United Nations and in conferences under UN auspices around the world. Feminist NGOs, for example, lobby for universal rights of abortion and for mandatory proportional (50 per cent) representation in legislatures. Their influence often approximates that of governments in the formation of norms that are then said to be international law. Academics are another powerful group. Many of them
maintain that their articles and their speeches at conferences constitute evidence of inter national law. The claims of NGOs and academics do nothing to lessen the ambiguity and opacity or to heighten the legitimacy of that law. Yet it is claimed that nations have no choice but to adhere to law made in this fashion.

Jack Goldsmith quotes an international law scholar: “States really never make international law on the subject of human rights,” but rather “it is made by the people that care; the professors, the writers of textbooks and casebooks, and the authors of articles in leading international law journals.” As Goldsmith says, “In a discipline that views its scholarship as a source of law, it is no surprise that this scholarship is characterized by policy prescriptions that reflect author preferences, or criticisms of practices deemed to violate international law. These tendencies are exacerbated by a powerful idealism. International law academics tend to see themselves as part of an ‘invisible college’ devoted to world justice.” To the degree that judges take these scholars seriously, it is hardly surprising that international human rights law continually moves to the cultural left.

One of the great deceptions practiced by proponents of international law is that there is something deserving the name of “law” by which the use of armed force between nations may be controlled or at least inhibited to some worthwhile degree. In fact, there is no such law, and the
pretense that it exists is a harmful fantasy.

It is difficult to believe that anyone supposes that the use of armed force between nations will be deterred by treaties or by customary international law. Treaties are tissue barriers to tanks and military aircraft. Customary international law is of even less value. We have, however, a long history of naivety in these matters. Sixty-two nations, including Germany, Italy, and Japan, signed the Kellogg-Briand Pact of 1928. The pact condemned “recourse to war for the solution of international controversies.” Japan invaded Manchuria in 1931, Italy attacked Ethiopia in 1935, Germany occupied Austria in 1938 and began World War II by invading Poland in 1939. Hitler claimed allegiance to the pact throughout his previous aggressions in Europe. The entire enterprise of controlling armed force by “law” accomplishes little other than teaching disrespect for law and serving as the basis for accusations of lawlessness during and after the fighting.

The major difficulty with international law is that it converts what are essentially problems of international morality, as defined by a particular political community, into arguments about law that are largely drained of morality. This conversion is, no doubt, a conscious tactic of the left. When there is danger that a nation’s public might support the action the left dislikes, the charge is made that it violates law. Government officials are then drawn into quibbles about nonexistent laws that inevitably divert the public from the merits of what was done to the charge that the nation in question, usually the United States, is an international outlaw.

While their social and cultural predilections are much the same, members of the international New Class are not unified on all subjects. There are themes that cut across otherwise common values. There is, for example, a widespread resentment of the United States, particularly among the intelligentsia of many foreign nations, a resentment that finds expression in international law. A similar hostility is directed at Israel by Arab and some European nations. There is also antagonism between have and have-not nations, between developed countries and those still developing or still awaiting the first signs of development. This antagonism often takes the form of demands for the redistribution of wealth and power from the nations of the North to those of the South.

The anti-Americanism that frequently suffuses international tribunals was exemplified by the decision of the International Court of Justice that the United States had violated customary international law by aiding the Nicaraguan insurgency of the contras against the Sandanista dictatorship, including the mining of Nicaraguan harbors. When the United States learned in 1984 that Nicaragua would file a claim in the ICJ, it suspended its acceptance of the tribunal’s jurisdiction over disputes with any Central American nation. When the ICJ decided it would retain jurisdiction, the United States terminated its qualified 1946 acceptance of the court’s compulsory jurisdiction. At the time, only 47 of the 162 nations entitled to accept that jurisdiction did so – and nine of the fifteen judges came from nations that did not.

El Salvador was under attack from armed rebels
supported by Nicaragua, but the court rejected that country’s petition to intervene, although the ICJ’s own statute gave El Salvador that right. Nicaragua alone was to be heard. The ICJ had no jurisdiction under the treaties invoked by Nicaragua, so the court decided it could apply customary international law whose principles were said to be binding despite their incorporation in the treaties that could not be applied. Its application of those principles was particularly lawless, and the principles themselves turned out to be one-sided, wooden, and wholly unsuited to the realities of international armed conflict.

The court found that Nicaragua, despite supporting, arming, and giving sanctuary to the rebels attacking El Salvador’s government, had not engaged in armed attack. That finding, however contrary to fact and common sense, should have ended the case. There was no reason to go on to address the United States’s claim that it was exercising the well-established right of collective self-defense. But the court chose to do so and rejected the claim for a very odd reason: the state undergoing attack must declare that fact. Another state may not exercise the right of collective self-defense based on its assessment of the situation.

This entirely novel requirement had a major impact. Even if El Salvador was under attack by Nicaragua and the entire world knew it, but El Salvador, for reasons of prudence, did not wish to make a formal declaration to that effect, the United States could not respond by treating Nicaragua in the same way that Nicaragua was treating El Salvador. Still worse, El Salvador had, in fact, asked the United States to assist in its defense, President Duarte
had repeatedly mentioned the attack in press conferences, and El Salvador’s improperly rejected petition to intervene in the ICJ’s proceedings had declared the existence of such an attack. When the decision inevitably went against it, the United States did not, of course, pay damages, nor had Nicaragua expected it to.