Coercing Virtue (18 page)

Blackstone, who was thoroughly familiar to Americans when the Constitution and the statute were written, said that the principal offenses against the law of nations were violation of safe conduct, infringement of the rights of ambassadors, and piracy. American adoption of that law in the
Alien Tort Claims Act
was probably intended, by providing a remedy, to avoid giving offense to powerful foreign nations. That would explain the law
against violations of safe conduct and infringement of the rights of ambassadors. (Piracy was a violation of the law of nations because no single nation had jurisdiction over acts done on the high seas.) The modern expansion of the concept of the law of nations, in which American courts augment tensions with foreign nations, is quite the opposite of what was intended. It is preposterous to think that a small, weak nation clinging to the Atlantic coast took upon itself the task of judging torts by foreigners against foreigners in foreign nations such as Great Britain and France. “[I]t will not do,” I wrote, “to insist that the judge’s duty is to construe the statute in order not to flout the will of Congress. On these topics, we have, at the moment, no evidence what the intention of Congress was. When courts lack such evidence, to ‘construe’ is to legislate, to act in the dark, and hence to do many things that, it is virtually certain, Congress did not intend.”

My view has not prevailed;
Filartiga’s
approach has become the norm. American courts are freely judging tort claims that have not the remotest connection to the United States. Five Chinese natives sued the former Chinese prime minister, Li Peng, for his role in the Tiananmen Square crackdown that killed hundreds of civilians in Beijing. President Robert Mugabe of Zimbabwe was served with a civil suit for $400 million while he was visiting the United States because he had allegedly ordered killings and torture in his country. President Slobodan Milosevic of the former Yugoslavia was sued here, as were the Prince of Wales and Prime Minister Margaret Thatcher, on the claim that they had
violated human rights in both Northern Ireland and Libya. The Prince and Thatcher were held to have immunity. A federal court jury awarded $4.5 billion in damages against Radovan Karadzic, the Bosnian Serb leader, to people who were raped, tortured, or the survivors of those killed in the Balkan conflict.

The modern expansion of the
Alien Tort Claims Act
is judicial activism – indeed, moral presumption – at its highest pitch. The law of nations incorporated into American tort law in 1789 bears almost no resemblance to the law of nations being applied by U.S. courts today.

Some national courts have begun to assert universal criminal jurisdiction – the authority to try persons for acts in other countries. Thus, a Belgian court, having been given such jurisdiction by the legislature, tried and convicted Rwandan nuns for actions during a massacre in Rwanda. The case that attracted the most attention, however, involved the former head of Chile’s government, General Augusto Pinochet. While Pinochet was recovering from surgery in London, a Spanish judge issued an international warrant for his arrest. The judge claimed authority to prosecute Pinochet under international law as well as Spain’s domestic law. Jurisdiction was claimed despite objections by Chile, which had worked out its own settlement with Pinochet. A British judge then issued a provisional warrant for extradition, and Pinochet was arrested in the hospital. The House of Lords relied on international conventions said to be incorporated into the criminal statutes of the United Kingdom and held that Pinochet lacked immunity because acts of
torture could not be regarded as functions of a head of state. The home secretary, after initially authorizing extradition proceedings, ultimately allowed Pinochet to return to Chile as not medically fit to stand trial.

David Rivkin and Lee Casey note that the modern notion of universal jurisdiction would “permit the courts of any state to prosecute and punish the leadership of any other state for violations of international humanitarian norms”:

It is somewhat nauseating to hear of law forbidding “crimes against humanity” when it is obvious that what is involved is not law but politicized force. Both French and Spanish courts, it’s worth noting, have dismissed Pinochet-type proceedings against Fidel Castro. This “law” applies only to leaders and citizens of small, powerless countries on the right, while the most murderous
leaders of powerful or leftist countries (China and Cuba, for instance) are courted, flattered, and fêted. Moral law, stable law, cannot be made out of sheer hypocrisy, but that is what the arrest and proposed extradition of Pinochet amounted to. International law in such matters is little more than organized hypocrisy.

The difference that power makes is illustrated by the contrast between Pinochet’s vulnerability and Clinton’s invulnerability and the fate of Milosevic. He was deported from Yugoslavia to The Hague to be tried before the International Criminal Tribunal. The Serbian legislature refused to extradite him, intending that he be tried in Yugoslavia. The Serbian government ordered him extradited by decree, but, when the constitutional court put the decree on hold, the Serbian government ignored the court. Far from being a testament to international law, Charles Krauthammer explained, what was demonstrated was American economic power. Milosevic was arrested on April 1, 2001, because the U.S. Congress set that deadline. If it was not met, the United States would withhold $50 million in reconstruction aid. Then “Milosevic was spirited out of the country. Why precisely on June 28? Because on the very next day, a donors’ conference of Western nations would be meeting to consider the Serbs’ request for $1.25 billion in reconstruction aid. They knew they wouldn’t get it – the U.S. was not even prepared to send a delegation – until it was clear that Milosevic would be deported. Money talks.” Though Krauthammer, along with most of us, wants Milosevic to pay for his crimes, his punishment will not vindicate international law. Other
men with blood on their hands walk free. All that was proved is that the United States, like other nations, can and will manipulate governments and call the manipulation dedication to international justice.

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.