The Magazine


Nov 23, 1998, Vol. 4, No. 11 • By JEREMY RABKIN
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When British authorities arrested the former dictator of Chile, General Augusto Pinochet, in London last month, the story made front-page news around the world. The episode deserved the attention, but its real significance escaped the notice of editorial writers. What is at stake in this drama is not "justice" but a new version of international law.

Bit by bit, without fanfare, international law is acquiring a fantasy counterpart -- the "customary law of human rights" -- that is the special preserve of activists and ideologues with their own agendas. Like judicial activists on the domestic scene, the promoters of this new international "law" make up the rules as they go along, in defiance of ordinary principles of consent. Whether this "law" can establish itself as a serious factor in international affairs is the ultimate issue in the case of General Pinochet.

In making the arrest, the British acted in response to an extradition request from a Spanish magistrate, who was himself acting independently of the Spanish government. He sought to try Pinochet in Spain for murders committed after the bloody coup that brought the general to power in 1973.

Both the British and Spanish governments then affirmed that the matter must be left to the courts. British prime minister Tony Blair insisted from the outset that Pinochet's fate was "a legal, not a political, question." Foreign secretary Robin Cook agreed: It was "not proper, not possible" for the British government to intervene on a matter of "due legal process." Spain's prime minister, Jose Maria Aznar, echoed this view: "It is a question that is in the hands of judges." True to his word, when a court in Madrid confirmed the legality of the extradition request, Aznar duly forwarded the request to Britain -- acting as "no better than a mailbox" for the prosecuting magistrate, as Chile's indignant foreign minister put it.

All the while, the central questions in the whole affair, though very much in the foreground, were hardly noticed. If, as the Spanish judges maintained, a Spanish trial of Pinochet was authorized by "international law," how did this come to be the law? Is this law simply made and implemented by judges? And if that is so, how did judges get to be in charge of such basic foreign-policy judgments as whether to put on trial the former head of state of a foreign country?

The short answer is that Pinochet's arrest never was a legitimate application of existing international law. To understand the long answer, Americans should think back to the heyday of judicial activism in this country during the 1970s.

For elected politicians, judicial activism was a way of passing the buck to judges: "I personally disapprove of abortion-on-demand [forced busing for school integration, denying government aid to parochial schools, etc., etc.], but the courts have spoken and the law is the law." At home, we have almost cured ourselves of that addiction. In the end, angry voters noticed that the policy ruminations of Justice William Brennan had little to do with the actual words of the U.S. Constitution.

But international law is a strange and confusing thing -- even to most judges. It thus lends itself to the kind of buck-passing we have seen in the Pinochet case, with both politicians and pundits eager to be let off the hook. Challenged to defend a major foreign-policy decision, they fell back on disclaimers: "Oh, international law -- a technical matter." But judicial activism in the name of international law is an important and disturbing trend. International law is, at bottom, about relations between sovereign states -- in other words, about crisis and stability, war and peace. Do we really want this turned over to lawyers with attitudes? For all concerned about the stability of relations between states, the Pinochet case should be a wake-up call.



People who associate international law with the vaporings of the U.N. General Assembly forget that this branch of jurisprudence is much older and more serious than the United Nations. The U.S. Constitution makes a place for it, authorizing Congress to "define and punish . . . offenses against the law of nations." Some of the most well-established principles of international law were challenged in the Pinochet matter.