John R. Bolton is Senior Vice President of the American Enterprise Institute. He served as an Assistant Secretary of State in the Bush Administration and as an Assistant Attorney General in the Reagan Administration.
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
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