The Magazine

Eurojustice

An exercise in posing and preening.

Sep 10, 2001, Vol. 6, No. 48 • By JEREMY RABKIN
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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.