FIRST THEY CAME FOR PINOCHET

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.

 

I

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.

The central premise of international law is that independent states must respect each other’s sovereignty. One sovereign state cannot interfere with what another nation’s government might do in its own territory. There have always been exceptions. The oldest is that, while every nation has criminal jurisdiction over its own territory, it should not assert this jurisdiction against diplomatic envoys from other countries. Chilean lawyers cited diplomatic immunity on behalf of Pinochet. Many commentators derided the claim on the grounds that the general was not visiting Britain in any diplomatic capacity. More than two weeks after his arrest, however, the British government acknowledged that Pinochet was, in fact, heading an arms-buying mission for the Chilean government and at the airport, on his arrival in Britain, had been accorded diplomatic treatment.

There are other long-standing exceptions to the basic principle that each country is responsible for its own territory. As far back as 1812, Chief Justice Marshall held that U.S. courts could not rectify the seizure of an American ship by Napoleon, even when the ship returned to American waters, because the courts of one country could not sit in judgment on the official acts of another government.

This “act of state” doctrine has received some modification, but it is still basic law in the United States and almost every other country. Governments can protest the actions of other governments through diplomatic channels — or with sterner measures. But the national courts in one country do not have jurisdiction to judge the acts of a foreign government. Spanish judges, however, claim that this traditional doctrine does not protect the former dictator because of the brutality of his government — even though he was, at the time of the killings, the lawful head of state in Chile and recognized as such by the government of Spain.

The territorial principle also has exceptions by which most countries assert some degree of extra-territorial jurisdiction. Most countries claim some authority to punish acts committed by their own nationals outside their own territory. Most also claim some authority to punish extra-territorial acts that injure their citizens or their national security. The Spanish magistrate who sought Pinochet’s extradition based his jurisdiction, in part, on the fact that Spanish nationals in Chile were among the victims of the Pinochet government. But the number of Spanish victims was very small, and proving that Pinochet knew or approved of these killings would be difficult. So the Spanish authorities also claimed the right to try Pinochet for crimes against Chileans — on the theory that “crimes against humanity” had become a matter for “universal jurisdiction,” justifying trial by any country that happens to lay its hand on the perpetrators.

Traditionally, the one crime for which all countries acknowledged such a universal jurisdiction was piracy on the high seas — because pirates had no home state. There has been much talk of extending the category to terrorists and perpetrators of atrocities. But there is scarcely any precedent for asserting universal jurisdiction against such criminals when their home countries object. And to apply the doctrine to a former head of state — and one traveling under diplomatic passport, at that — was unheard of before Pinochet’s arrest.

The “precedent” cited most frequently in defense of the arrest is the trial of former Nazi leaders by the Nuremberg tribunal after World War II. But the Allied Powers that organized the tribunal were at the time the only lawful government in Germany. In 1960, when Israel tried Adolf Eichmann, a revived West Germany did not object, nor in later years did it object to other countries’ assertions of jurisdiction over Nazi war criminals. When the United States put Manuel Noriega on trial in Miami (for offenses against American drug laws, rather than for some “universal” crime), it had the enthusiastic support of the new government of Panama, which was eager to get the former dictator out of the country.

There were excellent reasons, then, why Britain’s High Court refused to allow General Pinochet’s extradition in a decision handed down on October 28. At this writing, a final ruling by the House of Lords is pending. But a new rule is on its way to being established, whatever the House of Lords does. And what makes that rule worrisome is that, as English judges have recognized, the norms it would supplant have powerful justifications.

It is certainly unsurprising that nothing like the proposed Spanish trial of Pinochet has ever been attempted before. It is, on the face of it, an extremely hostile act for one country to prosecute the top officials of another country for actions they took in their own country.

There may be situations where a country is unable or unwilling to try its own war criminals and does not object to prosecutions abroad. That was the theory behind the proposed new International Criminal Court, which, if ratified by 60 nations, will have jurisdiction over war crimes and crimes against humanity. But even the proposed statute for the ICC does not assert universal jurisdiction. Its authority will extend only to defendants from signatory states or defendants whose victims come from signatory states.

The principle asserted in the Pinochet case is far more sweeping: Any country can prosecute any foreign official it thinks guilty of atrocities requiring punishment. Any country, then, might put former Soviet leaders on trial or former Chinese Communist officials. It is not even clear the precedent could be limited to former officials. If Pinochet’s current status as a member of the Chilean senate and the head of an official delegation to Britain could be swept aside, any official traveling abroad on official business might be open to arrest for his past crimes (as those crimes may be defined by the arresting country). This is hardly a rule calculated to promote international diplomacy. It is, in fact, an invitation to international conflict, as hostile countries add prosecutions to their inventory of tactical maneuvers.

It says a great deal about the current drift of international law that the world’s chief peacekeeper, U.N. secretary general Kofi Annan, saluted the arrest of Pinochet as a sign that “international human-rights law is coming into its own.”

 

II

The Pinochet case would be much easier if the evils of the Chilean dictatorship were in some way unique. But many governments, particularly in that era, had far more blood on their hands. Indeed, it was the relative humanity of the Pinochet regime that contributed to its notoriety. By allowing thousands of Chilean leftists to leave the country, it helped seed a well-organized international opposition. During the 1970s and ’80s, Chile was one of the favorite targets of denunciation in the U.N. General Assembly. But it was not unique even in this. Israel was even more often a target, and so, quite often, was the United States.

Pinochet’s military government was responsible for some 3,000 killings, most of them in the first year after the coup, when the military feared a takeover by left-wing groups openly armed by Castro’s Cuba. Many of the killings were done with extreme brutality and sadistic glee, and years later the Chilean secret police were still hunting enemies or settling scores. Only a few perpetrators have been tried in Chile, however, because Pinochet decreed an amnesty for the military before leaving power. But he did give up power in a peaceful transition, after losing a free election. Pinochet’s democratic successors accepted the amnesty as the price of stability. In all of this, Chile pioneered what has become the general pattern in South America, Central America, South Africa, and Eastern Europe when dictatorships have peacefully given way to elected governments.

The Chilean government’s strong protest of the prosecution of Pinochet is understandable. Even some prominent Chileans on the left (like the Socialist foreign minister) have denounced Spain for upsetting the political compromise that Chilean politicians had worked out for their own country. If the Pinochet case were to establish a new general rule, it should worry Europeans, for the new democracies in Eastern Europe and the former Soviet Union would all be open to outside trials, upsetting their internal peace terms. Western countries should also worry about the effect on dictators still in power. Cuban exiles immediately urged Spain to prosecute Fidel Castro, who is responsible for many more murders than Pinochet. Spanish authorities insisted that as a current head of state, Castro has a different status. But will he be likely to relinquish power voluntarily if doing so makes him vulnerable to prosecution elsewhere in the world?

None of these obvious considerations, however, seems to have had much effect on European opinion. Soon after Pinochet’s arrest, France, Switzerland, and Sweden announced that they would seek his extradition for trial in their own courts if Spain declined to press its claims. Other countries made their own claims, and finally even Luxembourg announced its readiness to host a trial of Pinochet. The European Parliament passed a resolution urging Britain to extradite. The prime minister of France and the new foreign minister of Germany welcomed the prospect of a Pinochet trial in particularly enthusiastic terms.

European governments appear to be assuming that the precedent set by a Pinochet trial would not get out of control. And with some reason. When the British and Spanish governments insisted that the matter was strictly “legal” or “judicial,” they were, in fact, taking a political stance. The British home secretary retained undisputed authority to order Pinochet’s release. His government simply declined to do so. The Spanish cabinet also had the authority to block the extradition sought by the investigating magistrate. The Spanish government simply chose not to exercise its power. But the next prosecutions may not be in countries with such suave discretion, and the target countries may not be as isolated as far-off Chile.

 

III

Meanwhile, the pretense that the prosecution was on automatic pilot gave weight to the parallel pretense that there is already an international law to cover such cases. But there is no treaty by which Chile or any other country could be seen as consenting in advance to Spain’s claim of jurisdiction. What there is, instead, is a formless process by which scholars extrapolate new principles of “customary international law.”

Customary law was the original basis of international law. The idea is that practices long accepted as obligatory acquire the status of rules of law. In its traditional applications — the “act of state” doctrine and diplomatic immunity are examples — this makes a good deal of sense. But the whole point of customary law as traditionally conceived was that it required a long record of practice. In recent decades, advocates have become so entranced with the notion of unwritten law that law reviews now speak of “instant customary law.” The point is to get around the awkward formalities of ratifying actual treaties.

Thus, advocates have insisted that human-rights standards should be seen as binding, as a matter of “customary law,” even on countries that have not ratified the conventions in which these standards are spelled out. This is the doctrine endorsed by the most recent Restatement of Foreign Relations Law, a prestigious treatise published by the American Law Institute. In 1987, the third Restatement asserted that basic standards of international human-rights law had become binding on the United States — even though the United States had not then ratified any of the relevant treaties.

But for advocates of customary law, the actual texts of treaties are only a jumping-off point. Professor Louis Henkin, the chief reporter for the Restatement, argued in the early 1990s that the list of basic rights recognized in the Restatement should be expanded to include “sexual autonomy” — that is, gay rights — which is recognized in the human-rights conventions only in the sense that some advocates claim it is recognized in the U.S. Constitution. Other advocates think that the right to a clean or safe natural environment has become a human right recognized by customary international law. Still other scholars and advocates claim there is a right to affirmative action for racial minorities and to special state protections for minority cultures and languages.

The Pinochet case exemplifies the free-floating way in which this “law” develops. Spanish judges have cited, as the main justification for their assertion of jurisdiction, the fact that almost all countries have now ratified the U.N.’s Convention on the Punishment of the Crime of Genocide. But that convention defines genocide as a crime directed at distinct ethnic, racial, or religious groups. Furthermore, the convention imposes an obligation on countries to try their own perpetrators in their own courts and says nothing at all to authorize trials by third countries. The Spanish judges insist, however, that it is in the spirit of the Genocide Convention to extend it to crimes against distinct “political or ideological” groups and to allow trial by third countries as a matter of universal jurisdiction.

The appeal of customary law for advocates of human rights is that it allows them to assert a new “law” without securing the specific consent of governments — that is, of politically responsible officials. Instead of political leaders putting the terms of a treaty up for debate before a ratifying legislature, we have judges inferring principles from a vague “international consensus,” independent of any official acts of governments. Human-rights law particularly lends itself to such treatment because, though there are now a considerable number of international conventions in the area of human rights, all of them are statements of ideals with no provision for enforcement. Instead, there are international gatherings at which speeches are made and reports are read.

What is almost always missing is precisely the ingredient that traditionally was required to establish a customary practice as law — namely, the recognition by governments, through their official actions, that some international norm is obligatory, as when one country, responding to the protest of another country, makes some payment or concession in acknowledgment that it has violated an international norm. Thus, Louis Sohn of Harvard Law School has rightly observed that “states never really make international law on the subject of human rights. It is made by the people who care: the professors, the writers of textbooks and case-books, and the authors of leading articles in leading international law journals.”

Many advocates urge that American courts should apply customary international human-rights law — that is, norms recognized or fancied as law by law professors — within the United States. In fact, over the last decade, U.S. courts have begun to allow tort claims by foreign nationals for human-rights abuses in their home countries. And a few recent cases have targeted U.S. companies for liability for the environmental depredations or labor practices of their operations in other countries. The doctrine of the Restatement of Foreign Relations Law suggests that such cases could also be brought against state and local officials within the United States. Preparing for such possibilities, the American Civil Liberties Union (in cooperation with Human Rights Watch, where many ACLU veterans work) has been publicizing international human-rights norms and their application to American practices.

Probably such maneuvers won’t get far before provoking a reaction from Congress. And no one disputes that Congress has the authority to make laws overriding the application of treaties or international customary-law norms, at least within the United States. The more urgent question is what other countries will do with this law.

 

IV

If customary human-rights law does gain momentum, it is likely to be, in the main, a law made in Europe. In trying to project its future course, that is the crucial fact to reckon with.

The countries of Western Europe have little concern about their national sovereignty. They have already yielded remarkably broad powers to the European Union. The European Court of Justice, for example, has claimed (and frequently exercised) the power to invalidate laws enacted by national parliaments. And the policy-making organs of the European Union are notoriously removed from direct democratic control. There is a European Parliament, but it has very few powers and no actual legislative power.

At the same time, Western Europe is quite committed to ambitious schemes of human-rights protection. There are many reasons for this, not all of them bad. But human-rights commitments seem, at least in part, a way for Europeans to exorcise the demons of the past. In Germany, a group of notable writers hailed the arrest of Pinochet for assuring “one of the great mass murderers of our century his long-overdue punishment.” That puts Heinrich Himmler in a comfortable perspective for today’s Germans.

Apart from other differences that might be worth noticing, however, Pinochet was different in the way he left power. Unlike Pinochet, the Nazi leaders (and their collaborators in France, Italy, and elsewhere) were not voted out of office, but had to be blasted away by the Allied Powers. A lot of Europeans, in their current enthusiasm for human rights, prefer to forget this fact.

At any rate, opinion in Western Europe is quite hostile to the deployment of force in international affairs. The EU itself has acquired almost all the earmarks of a sovereign state — except that it has no army of its own. It puts a lot of trust in “law.” Public reaction in most of Western Europe was highly critical of the U.S. -led war against Saddam Hussein. Many writers in Germany were nearly hysterical in their opposition to U.S. bombing at the start of the war and said quite openly that as victims of U.S. bombing, Germans understood how terrible it could be. Good Europeans now condemn all resort to force as “immoral.”

That attitude seemed to drive the negotiations over the new International Criminal Court. The United States sought safeguards, such as a requirement that prosecutions have the approval of the U.N. Security Council (where the United States has a veto). The Europeans would have none of it. So the ICC statute now includes, in its definition of “war crimes,” the “bombarding, by whatever means” of “buildings which are undefended and which are not military objectives” and the intentional “launching [of] an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects . . . which would clearly be excessive in relation to the . . . overall military advantage anticipated.” Many observers think that pretty well describes the U.S. cruise-missile attack on a pharmaceutical factory in Sudan last summer. But when actual genocidal massacres broke out in Bosnia, the EU was paralyzed, and American military intervention was required to stop the bloodletting.

Meanwhile, the ICC statute also defines “crimes against humanity” to include the “forcible transfer of population” — which, as the Israeli delegate protested at the conference (and as Arab delegations boasted) would make routine policies of the Israeli occupation on the West Bank into “crimes against humanity.” Given this provision, Israel refused to sign the ICC statute. No European country blinked an eye at the establishment of a court to prosecute “crimes against humanity” that is likely to target the very country born in the wake of the worst genocide of this century and one of the countries most seriously threatened by murderous neighbors. Europe, which would do nothing to save Israel from destruction by Iraqi weapons, will offer to try the perpetrators — if someone else manages to corner and capture them.

The Clinton administration, initially a strong supporter of the idea of an international criminal court, finally decided the venture was too dangerous for Americans and has been lobbying other countries not to ratify the project in its current form. But even without U.S. participation, the mere existence of the ICC treaty may spur the growth of customary international law, beyond what is in the actual text of that treaty. So, for example, the ICC statute forbids the new court to take jurisdiction of crimes committed before the new court goes into effect. But customary law is so vague that it is hard to know when it may go into effect or where it may be applied. General Pinochet had visited Britain several times before his current visit and had always been received with official honors as a former head of state. He arrived in October with no notion whatever that the might be suddenly held for trial for actions of his government in Chile decades ago.

This could not happen to Colin Powell or William Cohen or Ariel Sharon or Shimon Peres. Or could it? Would our allies join us in protesting an arrest and trial of such a figure by Algeria, say, or Malaysia? And would they support us if we retaliated with force? Perhaps the threat of American or Israeli retaliation is enough to prevent such indignities. But what sort of “law” is it that depends for its safe application on the assumption that it will never be applied to countries powerful enough to resist it? In fact, it is all too much like the historic character of international human-rights law, which has never been invoked in any serious way against the worst tyrannies — even those that have signed the human-rights conventions (such as the old Soviet Union and North Korea, which were proud signatories of the International Covenant on Civil and Political Rights).

In the end, the United States may not be able to cajole Europe into abandoning the sort of ventures exemplified by the Pinochet case. But shouldn’t we have tried to resist a trend so obviously threatening to American interests? Might we at least have registered our disapproval?

Not in this administration. The White House initially insisted that Pinochet’s arrest was “an internal matter between the governments of Britain and Spain.” Early in November, the Justice Department let it be known that it was considering seeking extradition of Pinochet to stand trial in the United States. But the press was told that Janet Reno had not yet been consulted. Presumably, the president will also deny responsibility for how these “legal matters” develop.

Past administrations have, on some occasions, deliberately defied international law — or what other countries took to be the pertinent norm of international law. They did not, however, leave international law to be redefined by judges and bureaucrats. Yet in this administration, buck-passing is the key to survival. In foreign policy as elsewhere, the Clinton administration tries to leave tough issues to others and hide behind legal dodges. Perhaps, too, our current leaders do not plan to travel abroad after they leave office.

Jeremy Rabkin is a professor of government at Cornell University. His book Why Sovereignty Matters is being published this month by the American Enterprise Institute.