The Global Prosecutors: Hunting War Criminals in the Name of Utopia

Allegations of war crimes, genocide, and crimes against humanity have received considerable press coverage in recent years -- more than at any time since Nuremberg. Yet this is not because the incidence of such barbarities has increased. The crimes are simply brought to our attention more rapidly these days, by the media and by what Aryeh Neier calls the "international human rights movement," which has an ambitious agenda for handling such crimes.

It is this agenda that emerges most clearly from Neier's War Crimes, and not the now-familiar narrative of atrocities he presents to support it. Neier's real objective is to assert the primacy of "international law" over the nation-state, and of criminal prosecution over alternative methods of dealing with the worst offenders. For a sense of how Neier's model of international law would work, look to the recent arrest in London of General Augusto Pinochet. Describing the matter to The New York Times, Professor Diane F. Orentlicher -- one of Neier's cohorts -- said triumphantly that "crimes against humanity transcend the concerns of the countries where the abuses are committed. In theory, there should be no safe haven for world-class criminals." This language would be right at home in Neier's new book. It encapsulates the euphoric impracticality of his approach.

SLIGHT OF HAND

In building his case for robust international law, Neier's first step is to insist on calling it "binding international law" -- the extra adjective obviously intended to carry weight. He uses "binding" to redefine what is generally called "customary international law," describing it (inaccurately) as rules that "bind a government regardless of whether it has formally ratified a treaty accepting their obligations." This notion, that states and individuals can be bound by an "international law" that they may never have consented to, has surface appeal because it sounds familiar to citizens used to living under the rule of law domestically. By exporting the terminology of national legal systems into international affairs, Neier implies that there is strong similarity between the two realms. From this it follows that the legal and political principles and institutions of domestic systems can also operate between sovereign states.

Neier barely argues this point, because he believes it to be either self-evident or universally accepted. Both assumptions are incorrect. To claim that the concepts and structures of international law mirror domestic law is simply wrong. In assuming they do, Neier's argument is detached from real international relations and actually dangerous.

In reality, international law, especially customary international law, meets none of the tests we normally impose on "law." In common-sense terms, law is understood as a system of rules that regulate relations among individuals and associations -- and between them and the government (the source of coercive authority that can enforce compliance with the rules). In the modern era, that government is considered legitimate to the extent that it stems from and represents the popular will.

To have real law in a free society, there must be a framework (a constitution) that defines the government's authority, thereby limiting it and preventing the exercise of arbitrary power. As C. H. McIlwain wrote, "all constitutional government is by definition limited government." And there must also be political accountability, ensured through popular controls on the creation, interpretation, and enforcement of laws.

In "international law," neither of these requirements is met. There is no attempt to link international authority to the political consent of the global population, to find true democratic legitimization. Lacking a constitution, international law has no definitive dispute-resolution mechanism (the role played domestically by courts), or any agreed-upon enforcement, execution, or compliance mechanisms (short of warfare). Governments often follow only those "laws" that suit their interests and ignore those that do not, with relative impunity. None of the international organizations that exist today could pass for accountable law-giving, law-interpreting, or law-enforcing bodies. Even Neier implicitly concedes this point. In his chapter on the United Nations, for example, the most praise he can muster is that "it is not the utter failure its harshest critics contend."

Of course, none of this means that nations can abjure or ignore treaties, or even customary international law, at will. But while treaties may well be politically or even morally binding, they are not legally obligatory. They are just not "law" as we apprehend the term. And what happens to countries when they do not adhere to international law on some matter? Usually nothing. Why, then, do we continue to talk about international "law"? Because the word has a strong emotive appeal. As one British commentator put it in 1945, replacing "international law" with "international custom" meant that "these international rules may lose some of the respect in which they are now held. . . . It will follow from the fact that the word 'law' is nowadays more highly charged with a certain kind of emotion (namely the emotion of unquestioning obedience) than the word 'custom.'"