The Magazine

Eurojustice

An exercise in posing and preening.

Sep 10, 2001, Vol. 6, No. 48 • By JEREMY RABKIN
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IT HAS BEEN A BUSY SUMMER for European diplomats and for the human rights activists who dance to the Euro-beat. They have been much exercised about dangers to global stability. The main danger, they seem to think, comes from the United States.

Europeans want to stop global warming and stand up for global justice. So do the globalist non-governmental organizations, or NGOs, who are their moaning bass accompanists. But the Bush administration has said no to the Kyoto Protocol and no to the International Criminal Court. The Bush administration is even pressing ahead with plans for a missile defense system. But that means—national defense! Europeans don’t like to think about national defense. They don’t even like to think about nations. They prefer to think about "peace."

So European governments and advocacy groups have been protesting U.S. "obstructionism" and also griping about the death penalty in the United States. And they have been grimacing at Washington’s ally, Israel. In recent months, Palestinian terror bombings have struck Tel Aviv, Haifa, and Jerusalem, and the toll of murdered or maimed Israeli civilians has been rising steadily. But, as the New York Times reported on July 28, Israel’s claim to be acting in self-defense "leaves many Europeans cold." They condemn Israel for trying to kill organizers of the Palestinian terror war.

Is this a failure of imagination? Western Europeans now live in orderly, tolerant democracies. They have trouble grasping the notion that anyone would seek the indiscriminate slaughter of Jewish grandmothers, teenagers, and toddlers. It is so alien to European experience.

At least it is alien to Europe’s current way of thinking, which is resolutely forward-looking. Germany now has a foreign minister from the Green party, Joschka Fischer. And Fischer is the foremost champion of a constitution for the European Union, replacing the current hodgepodge of continually adjusted treaties. A formal constitution could provide an assured position of predominance, within Europe, for its largest states, like Germany. Isn’t that forward-looking?

Foreign Minister Fischer has spent the summer laboring to negotiate a Mideast "truce" so that a "peace process" can be resumed in the Mideast. What could be more natural than brokering Mideast peace in Berlin? After all, Germany has a "special relationship" with Israel—for remote historical reasons on which it is not now necessary to dwell.

And Fischer has a special relationship with the Palestinians. In 1970, a younger Fischer, then a leftist street brawler in Germany, attended a PLO conference in Algeria, where the other delegates clamored for the destruction of the Zionist entity. Shortly thereafter, Fischer’s associates in the German Left helped to organize the massacre of Israeli athletes at the Munich Olympics.

Well, perhaps it would be better not to dwell on that ancient history, either. The point is that the Green party is for peace and Germany is for peace and Fischer is Germany’s foreign minister and the United States has stopped negotiating with Arafat but Fischer can find the way forward. Fischer secured an agreement from Arafat to stop the terror attacks back in June. Fischer himself did it then. He can do it again.

Perhaps the problem, after all, is not a failure of imagination in Europe. Perhaps it is too much imagination. There was plenty of imaginative thinking on display across Europe this summer.

BACK IN JUNE, Sweden, taking its turn in the rotating presidency of the European Union, hosted a U.S.-E.U. summit, and the Swedish prime minister told reporters that the E.U. is "one of the few institutions we can develop as a balance to U.S. world domination." When world domination was threatened by Nazi Germany and then by Soviet communism, Sweden was proudly—or at least profitably—on the sidelines, a firm neutral. For the struggle against "U.S. world domination," Sweden is now eager to lead the E.U. counterforce.

This imaginative perspective is actually widely shared in Europe. A week later, the Parliamentary Assembly of the Council of Europe—a broader grouping than the 15-state European Union—put in its oar. It adopted a resolution "requiring Japan and the United States of America to put a moratorium on executions in place without delay and to take steps to abolish the death penalty."

The reference to Japan was just a courtesy. A very extensive report, approved by the Council, condemns American practice repeatedly, continually, and obsessively but never mentions Japan. The American practice of capital punishment, according to the report, is "racist" and "discriminatory," and in 23 "documented" cases it has been imposed on innocent people. There is no explanation in the report of why U.S. courts do not recognize these abuses. The report does acknowledge that American voters support capital punishment but dismisses this fact as irrelevant in a true democracy: "In continuing this barbaric and anachronistic form of punishment . . . the United States is out of step with other democracies and international human rights standards—and, in this aspect, ‘undemocratic.’"

So as Europeans see it, democracy means not government by the elected representatives of your own people, but government in accord with what most other democratic governments want and in accord with "international human rights standards"—which seems to mean the same thing. Or perhaps not quite.

Membership in the Council of Europe is supposed to be limited to full-fledged democracies, but has now been extended to Russia, Ukraine, Belarus, Albania, and a whole range of other states whose democratic credentials might be a bit more questionable than those of the United States. But all of these states have agreed to abolish capital punishment—even if, in some cases, only very recently. And they have all endorsed the denunciation of the United States, because "when the state takes a life, it is sending a signal that there are situations when killing is acceptable." As Chechen rebels know, Russians simply cannot tolerate the sending of that sort of signal.

Nor can Germans. In July, Germany renewed a lawsuit against the United States in the International Court of Justice. Last year, two young thugs, convicted of murder in Arizona, had been sentenced to death. They turned out to have been born in Germany, though they had come to the United States as children. They were not advised of their right, under the Vienna Convention on Consular Relations, to seek legal advice from the German consul in Phoenix. Perhaps he could have told them that the Council of Europe regards capital punishment as "barbaric" and supplied German defense attorneys to argue this telling point before an American jury.

The German government took the matter to the International Court of Justice, which "ordered" Arizona to cancel the scheduled execution while its international legality was under review. Arizona ignored this "order," as Texas and Virginia had ignored "requests" from the Court in parallel cases a few years ago. The executions were duly carried out. That makes the whole dispute now just a matter of history, right?

No. The German government insisted this summer that its suit go forward as a matter of principle. This is one historical dispute that can’t simply be relegated to the history books. Foreign Minister Fischer has renounced anti-American (and anti-Israel) violence. Today’s Fischer is an entirely new man, a champion of peace. So he must carry on the struggle against "barbaric" American practices. And the new Germany he represents must show how different it is by standing up for the rights of German murderers.

And because the new Germany is so different, Austrians can proudly join the Germans in this struggle. Walter Schwimmer, the secretary general of the Council of Europe, so loud in his denunciations of "barbaric" America, is an Austrian politician, from the same party that ran former Nazi Kurt Waldheim for president in the 1980s (and saw him elected, after his involvement in Nazi war crimes had been well publicized). Schwimmer offered an impassioned preface to the Council’s report on capital punishment in America.

"How wonderful that we forget." It was a German philosopher who said that. And so many Europeans still find Nietzsche inspiring. Truth? Reality? History? They are mere expressions of the will—whatever you want them to be.

Unless, of course, there are competing wills. All Europe may be celebrating a kind of democracy in which nations march in lock step, but most Americans have not yet grasped the provisional quality of their own elections. The idea that Europe will "require" the United States government to change American practice regarding capital punishment is, of course, a bit beyond "imaginative": You might call it comical, if you like sick humor. Today’s Supreme Court probably would not allow the federal government to abolish capital punishment in the states even if Congress wanted to do so. For their part, state legislatures, especially in places like Arizona and Texas, are not highly intimidated by ultimatums handed down from Strasbourg or The Hague.

The International Court of Justice can say the United States owes damage payments to Germany for slighting its consuls. The United States will almost certainly refuse to pay. It has refused to pay previous assessments by international bodies without much consequence. (For that matter, it might also consider withholding its housekeeping contributions to the World Court, which is supposed to hear suits against the United States only when the United States has consented to be sued—a restriction that the Court simply ignored.)

The Council of Europe threatens to revoke U.S. "observer status" at its meetings. So we may have to get our make-up notes from other "observers," like our friends in Mexico. Europeans have already contrived to vote the United States off of the U.N. Human Rights Commission—so the United States has lost the privilege of rubbing shoulders there with human rights champions like Syria, Sudan, China, and France. We have shown we can live with these blows.

BUT EUROPEAN FLIGHTS OF FANCY can be less comical for small countries. In the fall of 1998, agitation by human rights activists led to the arrest of former Chilean dictator Augusto Pinochet. He was seized by British police, acting on a warrant from a Spanish judge, who sought to try Pinochet for "genocide" of political opponents. Chile’s own democratic government protested, very firmly and emphatically, this assault on its sovereignty. Yes, Pinochet’s military government had conducted a brutal campaign of repression in the 1970s, but it had agreed to a peaceful transition to democracy in 1989, on the understanding that no prosecutions would result from past military repression (or from left-wing terrorist crimes). This was the period when similar amnesties were smoothing the transition from Communist control in Eastern Europe and from white minority rule in South Africa.

Nevertheless, the European Parliament applauded Pinochet’s arrest, and a half dozen states in Western Europe vied with each other to assert jurisdiction over the case—on the novel grounds that any country could claim "universal jurisdiction" over extreme human rights offenses, regardless of where they had been committed. The same states subsequently condemned British authorities for allowing Pinochet to return home because he was too old and sick to stand trial.

Still, Pinochet was held for a year and a half while British courts deliberated on (and finally endorsed) his extradition. Nothing of this sort had ever been attempted before—the prosecution of a former head of state by courts of a third-party state with no connection to the crimes. Human rights advocates hailed the episode as a tremendous victory for the principle of "international justice." No country in the Americas endorsed the Pinochet prosecution or the alleged principle behind it, but Europeans prided themselves on striking a blow against "dictators."

While the Pinochet precedent was celebrated throughout Europe, the new "law" it established seemed at first to be a mere one-time gesture. No one ever expected that Europeans would dare to arrest any of the henchmen of the Communist tyrants who had spilled so much blood in Europe itself. No one even expected them to act against former fascists in Spain or elsewhere in the E.U.

But human rights advocates circulated hit lists of seemingly more plausible targets for the next Pinochet prosecution. Couldn’t France stir itself to go after blood-drenched tyrants from former French colonies? No, it couldn’t. To the disappointment of Human Rights Watch, former Haitian dictator Baby Doc Duvalier continues his comfortable retirement in the south of France. The ex-dictator of Chad, Hissene Habre, living in exile in neighboring Senegal since his overthrow in 1990, was actually arrested by Senegal, in a case initiated by former Chadian victims or their relatives and extensively coordinated by international human rights advocates. But after intervention by Senegalese president Abdoulaye Wade, the charges were dismissed.

Human Rights Watch issued a press release warning that the "Senegalese government . . . needs to explain to the world what is going on here." The world was not very interested. Even France couldn’t be bothered, though it is a partner of both Chad and Senegal in the Communauté Française and—as a founding member of the Council of Europe and current member of the U.N. Human Rights Commission—considers itself a special champion of human rights. Habre is still a free man.

COULDN’T THE PINOCHET precedent at least be applied to a more prominent killer, one not tangled up with French client states? Izzat Ibrahim al-Duri, top lieutenant to Saddam Hussein, seemed to fit the bill. He went to Vienna for medical treatment in the summer of 1999—just as Pinochet had gone to London for medical treatment the year before. Ibrahim is alleged to have participated in the mass murder of Kurds in 1988. According to the Kurds, nearly 100,000 were killed in the space of six months. A criminal complaint was filed against Ibrahim by an alert Vienna city councilman. But the Austrian government didn’t want the case. Ibrahim slipped out of the country, and Austrian authorities made no attempt to stop him. Most likely, they didn’t want to risk terrorist reprisals against Austria.

In fact, in the three years since Pinochet’s arrest, European states have found only six individuals worthy of prosecution under their new doctrine of "universal jurisdiction." All of them were wanted for crimes in Rwanda or Yugoslavia, where international tribunals had already been set up by the U.N. Security Council to bring war criminals to justice. Where they cannot position themselves as backups to internationally sanctioned tribunals, European governments have shown little eagerness to complicate their foreign policy or invite security risks with prosecutions of their own.

Yet they remain very attached to the idea of international justice. After a democratic movement succeeded in overthrowing Slobodan Milosevic in the fall of 2000, Europeans began demanding that Serbia hand over the deposed dictator to be tried by the International War Crimes Tribunal for the Former Yugoslavia, set up in The Hague in 1994. It made no difference to the Europeans that the newly elected government in Serbia—in particular the new president, a professor of constitutional law—opposed the extradition as unlawful. Similar laws prohibit Germany and Italy from extraditing their own nationals. The Serbs have proved themselves very serious about this law, which they cited in July 1914 when rejecting Austrian demands for the extradition of suspects in the assassination of Archduke Franz Ferdinand.

Serb authorities arrested Milosevic in April 2001, but the Serbian Constitutional Court ordered that extradition not be attempted, at least until the legal obstacles were sorted out. The Serbs insisted that they would organize their own trial. After all, don’t the advocates of international justice tell us that international courts are a mere back-up to national courts, which always have first claim on prosecutions of their own nationals?

Maybe, but Europe was impatient. Very impatient. Europe could not wait for Serbia to organize its own forum in which to try the former head of state, an elementary expression of national independence for a fragile new democracy. Under intense pressure from European leaders—in which the United States, to its discredit, took part—the new Serb prime minister bypassed all legal procedures in his own country and in late June hustled Milosevic off to The Hague. As expected, the governing coalition in Belgrade fragmented, with results still to be seen.

Meanwhile, the Hague tribunal won’t be prepared to go to trial until some time in 2002, and it will surely have more trouble gathering evidence than prosecutors in Serbia. Still, it’s another milestone for international justice. (Advocates of international justice were indignant when the U.S. Supreme Court allowed the trial of Mexican drug lords who had been improperly extradited to the United States in the early 1990s, but they have been silent about the Hague tribunal’s bypassing of the normal extradition process to get its hands on Milosevic.)

BUT THEN, MILOSEVIC is old news. In Brussels, the headquarters of the European Union, Eurojustice found its inevitable target: Israel. A Belgian court in late June opened hearings on criminal charges against the Israeli prime minister, Ariel Sharon. The actual charges, however, were a bit stale: that during Israel’s war against the PLO in Lebanon in 1982, Defense Minister Sharon, as he then was, had allowed Lebanese Christian militias to enter Palestinian camps, where they had proceeded to massacre hundreds of civilians. An Israeli commission, dominated by Sharon’s political opponents, subsequently condemned him for not having taken precautions against such violence. Not even Sharon’s opponents, however, claimed that he had ordered the action or had known about it at the time. And it took place two decades ago—decades that have witnessed far more terrible violence in the Mideast and in other parts of the world.

Belgium can’t forget about mass atrocities and the negligent commanders in the field who failed to prevent them? Why not look at more recent instances of far greater carnage? Nearly a million Tutsi civilians were slaughtered in Rwanda in 1994. Belgian troops were actually present in that country, part of a prior U.N. peacekeeping mission. They did not lift a finger to protect Tutsi civilians or stop the Hutu killers. Instead, they busied themselves saving white people—who were not targets of the genocide, but whose incidental deaths might have triggered demands for a larger intervention, which Europeans (along with President Clinton) were anxious to avoid.

But for Belgium to prosecute its own officials and soldiers for this terrible negligence wouldn’t prove any point about international justice, since Belgian courts have always had full authority over Belgian nationals. So how about the negligence of troops from the neighboring Netherlands? They stood by in 1995 as Serb militias slaughtered some 7,000 Bosnian Muslims in Srebrenica. The Dutch were guarding Srebrenica because the U.N. had declared it a safe zone for refugees. Dutch troops betrayed the very civilians they were there to protect.

But the Dutch troops were only following orders. Could Belgian courts at least go after the men giving the orders? Not likely. The U.N. official responsible for peacekeeping forces in Bosnia at the time—as for peacekeeping in Rwanda—was Kofi Annan. These disasters did not prevent Annan’s promotion to secretary general of the U.N., in which capacity he has strongly endorsed European notions about universal justice for others. It doesn’t seem to occur to him that he might someday be indicted. His predecessor, Kurt Waldheim, served two terms as secretary general. No one imagined he would be prosecuted, even when he turned out to have been personally involved with Nazi atrocities in the Balkans during his military service in World War II.

So Ariel Sharon will probably be the only head of state or international figure of note who’ll have to worry about European justice for some time. But why didn’t the Belgians go after him earlier? Well, Belgium only changed its law to allow for such prosecutions in the late 1990s—in a belated gesture of solidarity with genocide victims in Rwanda. (For those who say Belgium did nothing to help Tutsi victims, the country can now proudly boast prosecutions of two minor Hutu killers in Belgian courts.) The case against Sharon was organized by Palestinian and human rights activists under the sort of weird Euro-law that permits activists to trigger criminal investigations on their own initiative. The Belgian government has even expressed regret about a prosecution involving a sitting head of state—but it has not stopped it. This is not a convenient time for a European government to stop attacks on Israel’s prime minister, especially with lots of people cheering.

DESPITE SUPPORT IN MANY QUARTERS for an international trial of Sharon, he is not likely to end up in a European dock. But one of his subordinates might. About the time when Belgian courts were beginning criminal inquiries into Sharon’s guilt, Denmark told Israel that a former Israeli intelligence director, Carmi Gillon, would not be welcome as ambassador to Denmark. If Israel sent the man, the Danes warned, he might be arrested on the spot and prosecuted for abusive actions against Palestinians. Denmark is not known to have rejected any emissary sent by Nazi Germany or Soviet Russia—much less threatened to arrest them. But Israel is, well, a country that Europeans feel entitled to be fussy about.

And where Israel is concerned, all this posturing can have serious consequences. In mid-July, Amnesty International and Human Rights Watch—both among the very loudest cheerleaders for the Pinochet prosecution and the most enthusiastic boosters of applying the Pinochet precedent to others—issued a joint statement, demanding "the urgent deployment of international observers to monitor Israeli and Palestinian human rights and humanitarian law violations." The only point of such a proposal is to undermine Israel’s legitimacy as a sovereign state. "International observers" do not go to normal countries. They go only to countries that are candidates for international intervention.

What, after all, could it possibly mean to affirm that Palestinians, too, have committed violations of "human rights"? The Palestinian Authority runs a typical mideastern despotism, and everyone knows it. Documenting that is scarcely necessary. It is an accepted fact that most Arab states are run this way, and no one much cares. There is, for example, no outcry in Europe against Syria, one of the most repressive states in the world (whose dictator was received with full honors in Paris earlier this summer). Europe is agitated that the United States wants to maintain sanctions against Saddam Hussein, whose . . . let’s call them human rights deficiencies (mass murder, poison gassing of civilians, and so on) are also well known, yet Austria can’t be bothered to seize an Iraqi official responsible for 100,000 deaths. What could we possibly expect from these international observers except anti-Israel agitprop?

In the 50 years since the Geneva Conventions were adopted, the signatory states have never once held a conference to inquire about compliance with these "laws of war." In the mid-1990s, however, Arafat stirred a campaign for a global conference to look into Israeli violations of the conventions. Europeans, who had not thought to monitor compliance in all the wars in the world since 1949, decided this might, after all, be a good idea. Arafat himself called it off. But European governments were quite prepared to go along with a unique international conference with no other target than the state of Israel. The United States decided to boycott the U.N. conference on racism now under way in Durban because it is likely to become a hate-Israel festival. Europeans are not so fastidious about taking part in this effort to revive the old U.N. resolution equating Zionism and racism.

IT IS TEMPTING TO DISMISS these antics as so much pointless posturing, a kind of counterpart in international jurisprudence of the French taste for literary deconstruction. But the Europeans actually have strong incentives to nurture political fantasy. The central political fact in contemporary Europe is the European Union. It is a fantastical construction, and its looming presence exerts continual pressure to abandon sober strategy for globalist happy talk.

The European Union now stretches from Portugal to Finland, from Ireland to Greece—embracing 15 states with little historical or cultural affinity. "Europe" is indeed so abstract that the E.U. now finds two dozen other states, from Estonia and Romania to Turkey and Malta, bidding for admission. The E.U. does not want them all, but cannot figure out a definition of "Europe" that would justify excluding any of them. At this level of abstraction, it is only a small step from "Europe" to "humanity." So on behalf of "humanity," Europe corrals these applicants into denunciations of "barbaric" practices in the United States, while delaying their entry to the E.U., where they might endanger the E.U.’s intricate system of agricultural subsidies.

Yet the European Union itself is no mere trade organization. Its central bureaucracy in Brussels has involved itself in regulating everything from recipes for sausage and beer to techniques for recycling household trash. In enforcing these regulations, the European Court of Justice claims the authority to override enactments of national parliaments and the rights guaranteed in national constitutions as interpreted by national constitutional courts. Free trade can be secured with much less intrusion. But when it comes to trade, Europeans are actually quite ambivalent about "globalization."

What is the European Union all about, then? The justification most commonly given by Europeans themselves is that "European integration" (meaning surrender of national sovereignty) is a guarantee of peace on a continent where independent states wrought so much destruction in two world wars. Listening to this line, one might think the problem in the old Europe was that a bellicose, revanchist Luxembourg was constantly invading Belgium or a militarist Portugal constantly launching surprise attacks against France and Italy.

The problem, of course, was Germany, but to say this would be rude to the Germans, who are full partners in the enterprise. Then, too, it might trigger awkward questions about whether an ever tighter "integration" of European states is really a way of constraining Germany or of accommodating the age-old German dream of dominating the European continent. So today’s Europeans are addicted to abstract thinking that treats the past as another world, too remote to recall without recourse to scholarly tomes.

European integration has moved forward on the assumption that the basic elements of sovereignty can be readily disaggregated, then reassembled in whatever arrangement seems most politically palatable at the moment. The European Union has been described, with much reason, as a "postmodern polity." So organs of the European Union are given final say over such small matters as constitutional safeguards for individual rights. (Or is it the Council of Europe, with its Court of Human Rights, that has final say? Never mind, it’s a small matter, anyway.) When it comes to armies and police, however, the European Union is out of the picture entirely.

Europeans are anxious to have an International Criminal Court, but they don’t have a European criminal court. The latter might feed demands for a European police force and a European criminal code, and most Europeans don’t have the stomach for that level of integration. But an International Criminal Court feeds nothing but NGO fantasies. Not even Europeans imagine that the ICC’s independent prosecutor should be equipped with an independent police force, actually enabling the ICC to make its own arrests.

So, too, Europeans are boosters of international peacekeeping, but they don’t yet have a European army. It would be especially hard for them to develop a serious European military force, because the member states couldn’t agree on how to deploy it. Some are pledged to the NATO alliance, for example, while others (Sweden, Finland, Austria) are pledged to stay out of NATO. Britain and France have significant ties with former colonies, significant military forces of their own, and permanent seats on the U.N. Security Council. Most other member states have no temptation to play a separate, national role in world affairs and no obvious reason to follow behind the British or the French. A reunified Germany has ambitions to play a role in the world, but it prefers to see itself as speaking for "Europe," which does not always charm other member states. So "Europe" has trouble speaking with a serious voice in international affairs.

All along, the fundamental preconditions for European integration have been supplied from outside. American military force was required to beat down the Germans, to hold off the Soviets, to ensure that big strategic issues didn’t have to be sorted out among otherwise divergent states of Western Europe. Now the Americans are less needed, and a postmodern polity doesn’t dwell on the past. So the E.U. is developing a "common foreign and security policy"—and devoting it to the most abstract plans regarding abstract peace efforts. Serious commitments are still very difficult for the European Union, which is better at writing sausage recipes and directives for recycled trash.

But Europeans can all agree that General Pinochet must be punished. And General Sharon. They are anxious to think that justice can be done for "humanity" because "humanity" is fundamentally in agreement, so anyone can properly speak for "humanity"—and prosecute for it, too. Isn’t the world heading in this direction, anyway? Aren’t we all putting national differences behind us? Doesn’t democracy mean marching in lock step with other democracies? Doesn’t Europe now have a German foreign minister speaking for it?

Euro-thinking is mostly a nuisance for the United States. For Israel, as for other small countries, it can be a serious danger. Long before the Tutsis of Rwanda and the Bosnians of Srebrenica, Jews learned that European protection is not very reliable. That is one reason a Jewish state exists today in the Mideast. But as Europeans no longer have independent states, it irks them that a Jewish state should be making its own decisions about how to defend itself.

It clearly irks Europeans even more that Americans want to live in an independent country where the government is accountable to its own people. Europeans mutter now about prosecuting Henry Kissinger for war crimes: He was tangled up in that Pinochet business and in the Cold War and other nasty things that Swedes and Austrians would never have taken part in. Kissinger was actually served with a subpoena in Paris this summer, though probably nothing will come of that.

But Europeans find it easier to prosecute the leaders of little countries. Isn’t that what "humanity" is all about?

Jeremy Rabkin teaches international law at Cornell University.