Coercing Virtue

by Robert H. Bork

  The implications of these episodes, particularly Pinochet’s, are not yet entirely clear, but, at a minimum, it is safe to say that former and current government officials have to pay attention to their travel plans. The degree of danger officials face will depend on the power and influence of their countries. The Chilean judge who indicted Pinochet when he returned home prepared a list of questions for Henry Kissinger concerning his knowledge about the death of an American shortly after Pinochet took power. The Chilean Supreme Court approved and the questions were forwarded to the U.S. State Department. Kissinger will not dignify the proceedings by answering the questions.

  No such assurance can be felt by officials of less powerful nations. Israel’s Foreign Ministry, for example, has warned its government, army, and security officials to be cautious about traveling to certain countries. Some might level charges concerning the violation of Palestinians’ human rights. Among the nations that may claim universal jurisdiction to try Israelis are Belgium, Britain, and Spain. Probably there are others. There is an attempt in Belgium to indict Ariel Sharon, Israel’s prime minister, on the ground that he should have stopped a massacre in Lebanon by Christian militiamen allied with Israel. Israelis, according to the New York Times, “see the Belgian case as an example of European pro-Arab, anti-Israel and perhaps even anti-Jewish bias.” They are probably right. Violations of human rights in Arab countries, Israelis say, are far worse than anything Israel can be charged with. There do not appear, however, to be any attempts to charge Arab officials or the Palestine Liberation Organization with any crimes.

  Issues of international human rights do not, of course, depend entirely on the assumption by national courts of universal jurisdiction. Of equal interest and greater importance is the European Convention for Protection of Human Rights and Fundamental Freedoms. Both the Convention and the new concept of universal jurisdiction just discussed are transforming international law from a body of rules, however ill-founded, ambiguous, and ineffective, about the conduct of nations in relation to one another into a body of rules about the rights of individuals against their own nations.

  The Convention’s rules are interpreted by the European Court of Human Rights at Strasbourg. The Court’s decisions are binding on those nations that have agreed to its jurisdiction. The Convention contains the right to life, the prohibition of torture, the right to liberty and security, the right to respect for private and family life, the freedom of expression, and the prohibition of discrimination. Amendments or protocols contain additional rights and prohibitions, but not all have been ratified by all the states. Some states, such as Germany and Great Britain, have incorporated the Convention and the Strasbourg court’s interpretations of it into their domestic laws. The courts of these countries will themselves apply the Convention without requiring litigants to appeal to Strasbourg to obtain a ruling. Both before and after incorporation, the Convention, as interpreted by activist judges, has had a marked effect on British autonomy and culture. Significantly, the Labour government made incorporation a major part of its program, while conservatives opposed the move. That reaction is typical of developments everywhere. The left wants expanded judicial review in the name of rights because it has seen what has happened in the United States and other nations which have taken that course. Conservatives oppose the move for the same reason. English judging will soon be politicized, as will the selection of English judges. Britain signed the European Convention in 1953, but did not make it part of domestic law for nearly fifty years.

  With the incorporation of the Convention into English domestic law, a flood of cases about rights is certain to occur, and many more English laws will be declared invalid. A judge has thrown out a case against two men charged with speeding on the ground that requiring them to say which of them was driving violated their right against self-incrimination. Once the rhetoric of rights takes hold, the law is applied reflexively, according to semantics and without regard to the reason that defines and limits the right. The coerced movement to the cultural left is predictable and familiar. The Labour government knew what it was doing. Those enchanted by the idea of the protection of basic rights did not understand. The dream is on the side of the left; the unchangeable reality is on the right.

  In Dudgeon v. United Kingdom (1981) the European Court of Human Rights ruled that, under the article guaranteeing respect for family life, Northern Ireland’s anti-sodomy laws were invalid. Despite the deference (“margin of appreciation”) due to government authorities in the protection of morals, less deference was due here because the subject “concerns the most intimate aspects of private life.” The Court “cannot overlook the marked changes which have occurred in this regard in the domestic law of member states.” There was, of course, no reason to require Northern Ireland to conform its policy on morals to that of other nations except that the Court, like many courts in the Western world, disapproves of judgments that homosexual behavior is immoral.

  Smith and Grady v. United Kingdom (1999) held that two members of the Royal Air Force could not be dismissed for homosexuality. A recent study by the Ministry of Defence upholding the policy of barring homosexuals from the armed forces was found not convincing because it was based on “negative attitudes.” The Court noted that European countries with similar policies were now in a small minority. Once more, the Court said it could not overlook “the widespread and consistently developing views and associated legal changes in the domestic laws of Contracting States on this issue.” British deference to government decisions – expressed in the “irrationality” doctrine – insufficiently protected the individual’s right to privacy because it did not correspond to the Court of Human Rights’ tests that the ban rest on “pressing social need” and be “proportionate to legitimate state ends.” It is indicative of judicial attitudes that, in the British decisions upholding the policy, the judges had lamented the level of deference British law required them to give. Smith and Grady was decided on the same day as Lustig-Prean and Beckett v. United Kingdom, which ruled that homosexuals had a right to serve in the Royal Navy. That case was filed in 1996, just months after Parliament voted to uphold the ban on such service.

  The United Kingdom’s Sexual Offences Act of 1967 decriminalized private consensual homosexual conduct between adults, but made an exception to permit punishment of group sex. In ADT v. United Kingdom (2000), the police had found a videotape of the applicant engaging in sex with four other men. Yet the Court unanimously held that the applicant’s conviction for gross indecency was wrongful and awarded damages and expenses. In A. v. United Kingdom (1998) the state was held responsible for not protecting a nine-year-old boy from “inhuman or degrading treatment or punishment.” His stepfather, the legal guardian, had hit him with a garden cane. Though a British jury acquitted the stepfather on his defense of “reasonable chastisement,” the Court held that “the law did not provide adequate protection” to secure rights and freedoms.

  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, 198
2, 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.

  The Use of Armed Force

  One of the great deceptions practiced by proponents of international law is that there is something deservi
ng 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.