The Fate of Freedom Elsewhere: Human Rights and U.S. Cold War Policy Toward Argentina
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.
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.'"
Emptying international treaties and custom of their "legal" authority does not, of course, preclude nation-states from prosecuting and convicting perpetrators of crimes against humanity—domestically. Indeed, a national approach might be preferable; effective catharsis best occurs when a population independently comes to grips with its past and administers justice on its own. But that is not what Neier wants. He wants international rules that bind nation-states because he does not trust states to do the right thing, and he wants the brand-new International Criminal Court to ride herd on inadequate national tribunals. In short, he wants international law, not national law, to reign supreme.
Following his bid for "binding international law," Neier makes a second, fundamental mistake: he insists that those responsible for war crimes, genocide, and crimes against humanity should be tried and punished without exception and without ever considering other alternatives. For Neier and his ilk, there should be no plea bargains, no pardons, and no amnesties. The erstwhile national director of the /has become a zealous Global Chief Prosecutor.
But Neier, in his utopian zeal, misses a crucial distinction. In Western legal systems, the overwhelming bulk of criminal offenses have no political content. They are not "crimes against the state"; they reflect no clash between larger ideological, religious, ethnic, or economic interests; and they are not regionally concentrated. Today, even the most radical class-based jurisprudence does not justify criminal behavior as a legitimate protest against society's ruling structures. Accordingly, there is generally no reason for national judicial systems to be concerned with the social implications of particular crimes. Citizens and jurists need consider the severity of the sentence, the possibility of pardon or forgiveness, and a host of other variables only in the context of the specific violation.
Crimes against humanity, war crimes, and genocide, by contrast, are highly context-specific. They are acts committed either during war (between or within nations) or by repressive regimes. When these crimes are finally addressed, it is usually during enormous social and political upheaval: the negotiation of a peace treaty, restoration of legitimate political rule, or some similar milestone. In such circumstances, there are typically other priorities to be considered than just punishing those who committed crimes during the preceding turbulence.
These issues raise questions that are as much moral or political as they are legal in nature: Once guilt is established, what are the appropriate penalties? Are reparations or economic compensation justified? Should there be a time limit on prosecutions? Amnesty? Other questions are even more clearly political: How will the warring parties live with each other in the future? How will the underlying causes of the previous inhumanity be expunged (through programs such as de-Nazification, for example, or more recent Eastern European lustration efforts)? Can the truth of what actually happened ever be established (through truth commissions, for example) so that succeeding generations may avoid making the same mistakes?
Neier ignores these dilemmas; he is not satisfied by anything less than prosecution and punishment, as the title of one chapter, "The Trouble with Amnesty," makes clear. He endorses Francis Bacon's argument that the king's power to pardon should not extend to offenses that are malum in se (evil in themselves)—whatever the circumstances. Neier sees amnesties demanded by outgoing military governments as a form of terrorism and argues, "standing up to terrorism is painful. It is the same with standing up to demands for an amnesty, only more so." Neier's strategy of "one goal, one process, one result" may be appealing on the surface. But his assessment is just too simplistic. Both civil-libertarian leftists and law-and-order conservatives should agree that his approach ignores too many of the complexities and trade-offs that are essential in national and international affairs.
However it is ultimately resolved, the recent case of General Pinochet illustrates the flaws in Neier's rigid approach. The request by Spanish judge Baltazar Garz-n to extradite the general from the United Kingdom provoked hosannas from the human rights cognoscenti. Had extradition been sought solely for the alleged murder of Spanish nationals, British courts could have directly considered Pinochet's criminal liability, as with any other accused murderer, and decided accordingly. In such cases, extradition may be appropriate—as when the United States sought to extradite and arrest the Libyans accused of killing Americans in the bombing of Pan Am flight 103.
But in this case, the Spanish magistrate pursued Pinochet for genocide and other crimes against humanity committed against Spaniards and non-Spaniards alike, on a theory that such crimes are amenable to "universal jurisdiction." This meant that Spain was not limited to avenging its own citizens. Yet one wonders why a Spanish judge has a greater stake in prosecuting such crimes than do the Chileans themselves. Did he consider the hard compromises already made by Chilean democrats to restore civilian rule? Most importantly, will actions such as his facilitate the removal of other authoritarian regimes, or simply entrench them further? Only those who are utterly certain of their own moral judgment could have dismissed these complexities. Neier, of course, enjoys such blithe certainty; as he writes, "amnesties are invalid when they conflict with international treaties that obligate states to prosecute and punish."
It is at this point in the debate that Minow's Between Vengeance and Forgiveness has its place. Minow reviews the alternatives to adjudication and punishment. These include South Africa's Truth and Reconciliation Commission, various forms of amnesty (as granted in former communist countries and Latin America), and reparations. Minow explores their pros and cons, and finds both—for there are indeed real advantages and problems with these alternatives to prosecution, a point Neier refuses to recognize. After all, the Pinochet affair reinforces the fact that providing realistic exit strategies to dictators (including insulation from prosecution) can make the return to democracy more likely, not less.
Yet Minow's work also shows major flaws. Her approach has more to do with the emotional and psychological responses of victims and those close to them than with larger geopolitical or legal questions. It is not, therefore, a real counterpoint to Neier's more conventional work. Minow's emotionalism and therapeutic jargon often leave one intellectually at sea, though beneath them she does identify some hard political realities.
Minow correctly notes that "litigation is not an ideal form of social action," quoting Voltaire: "'I was never ruined but twice: once when I lost a law suit, and once when I won one.'" She rejects many of Neier's broad claims for the prosecutorial option because "exaggerated assertions are bound to yield critical and even hostile disappointment," and because of the inevitable problems war-crimes trials encounter, which she describes as retroactivity, politicization and selectivity. In particular, Minow expressly rejects Secretary of State Madeleine Albright's claim that, thanks to developments in human rights law since Nuremberg, retroactivity (criminalizing an act after it is committed) is no longer a problem. Minow explains that "the claim of international consensus does not by itself create or eliminate remaining ex post facto concerns. No clear source shows that international law includes the full range of criminal and penal authority enjoyed by nation-states." To pretend that it does is dangerous and dishonest.
After considering alternatives to prosecution, Minow expresses no preference among them, other than the vague notion that "perhaps the challenge is to meet a basic need for balance and wholeness." However frustrating it seems not to have a concrete answer to Neier's approach, Minow's conclusion is correct. Neither the "one size fits all" prosecutorial strategy, nor a uniform preference for amnesty or some non-juridical alternative in every case, would be justifiable. Circumstances differ, and circumstances matter. Atrocities, whether committed abroad or at home, are almost by definition highly unusual. For precisely that reason, their resolutions should be too.
A particularly important point for Americans, of course, is how this debate applies to us. Proponents of international governance and justice, including many human rights activists like Neier, see the United States as the chief threat to the "new world order" they are trying to create. Neier warns darkly that "suspicion of international law has remained a potent political force" in America. Although war criminals are, in a public relations sense, easier targets for advocates of binding international law, the United States is their ultimate objective. Individual villains who commit heinous crimes may kill individuals or entire populations, but only the United States can neutralize or destroy the "new world order" itself.
Politically, this analysis is absolutely correct. If the American citadel can be breached, advocates of binding international law will be well on the way toward the ultimate elimination of Treaty of Westphalia-style nation-states. It is thus important to understand the root of American intransigence: namely, the fact that the United States and its Constitution would have to change fundamentally and irrevocably before binding international law becomes possible. This constitutional issue is not merely a narrow, technical point of law, certainly not for the United States.
The idea that treaties themselves can trump the U.S. Constitution—and thereby legally bind the United States—comes from a common misreading of the Constitution's Supremacy Clause. Article VI reads, "this Constitution, and the laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." Although the Supreme Court contributed to the confusion surrounding this clause, Justice Hugo Black later explained unambiguously that "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty," adding that an Act of Congress "is on a full parity with a treaty."
The Court has clearly distinguished between the effect of treaties in the international arena, on the one hand, and within the United States, on the other. Internationally, a treaty is primarily a compact between independent Nations. It depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations. . . which may in the end be enforced by actual war.
With respect to a treaty's domestic impact, however, the Court explained that a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the Nations residing in the territorial limits of the other, which partake of the nature of [national] laws, and which are capable of enforcement as between private parties in the courts of the country.
In such circumstances, "[a] treaty, then, is a law of the land as an Act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined." By contrast, in the international arena, treaties are mere political agreements, disputes about which require political resolution—not legal adjudication.
The unique centrality and supremacy of the Constitution is reflected in the very structure of the American government. Democracies with parliamentary systems simply do not comprehend the concept of powers separated among equal branches of government. For them, when the prime minister speaks, so does the legislature. America rejected this form of government, however, before most countries adopted it. The Constitution allows any Congress to amend, by law, an earlier Act of Congress—including treaties—and to unilaterally free the United States of any international obligation. The Supreme Court has made this point explicitly:
A treaty . . . is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment.
The Court directly faced the consequences of breaching a treaty and said, "whilst it would always be a matter of the utmost gravity and delicacy to refuse to execute a treaty, the power to do so was prerogative, of which no nation could be deprived without deeply affecting its independence."
If treaties cannot legally bind the United States, it follows that "customary international law"—whatever that is—cannot have any binding legal effect either. The idea that what is customary can bind the world's nations seems to assume that the Global Constitution contains a Global Supremacy Clause making customary international law trump domestic law. But of course, such a Global Constitution has yet to be written; nor is there a global government up to the task.
International law proponents dismiss these conflicts with U.S. constitutionalism as peculiarities of one country's domestic law. They argue that America's internal legal constraints are irrelevant internationally and cannot protect it from the charge of violating international law. But this is a circular argument, which simply brings us back to the question of whether international law trumps the Constitution, or vice versa—without answering it. And this approach should serve as a clear warning. One must be wary of any theory of international law so quick to declare the world's strongest and freest representative democracy to be in constant, flagrant violation, simply for adhering to its own constitution. One should be especially concerned when that constitution happens to be used as a model by liberal democracies around the world. Neier notwithstanding, the clash between America's constitutional structure and calls for the decline of the nation-state will not be resolved in the near term. But no one should ignore the coming battle, waged indirectly through books such as these.