Worlds Apart on International Justice

Leiden Journal of International Law

Volumn 15, Issue 4, 2002, Pages 835-857

  Rabkin, Jeremy ^a  

^a Department of Molecular Biology and Genetics   (United States)

Author keywords

International Criminal Court; transatlantic relations

Indexed keywords

EID: 85011452059     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156502000377     Document Type: Article

References (39)

1. S. Huntington, The Clash of Civilizations and the Remaking of World Order (1996). Though Huntington sketched a world divided into as many as eight civilizations and gave attention to tensions with China and the Russian-led states of eastern Europe, his main theme is the simmering conflict between Islamic nations and the West (as at 109-119, 174-182, 209-217, 254-258). He notes that as late as 1988, references to “the Free World” far out-numbered references to “the West” in both the New York Times and the Washington Post. As early as 1993, references to “the West” far out-numbered references to “the Free World” in both papers-though not in the Congressional Record (where speeches in the US Congress are reported).
2. The Rome Conference could not agree on definitions for “aggression,” so this crime remains to be defined by the conference of parties in the future.
3. Gegen Völkermord und Diktatur, Berliner Zeitung, 12 April 2002. The German Ministry of Foreign Affairs has posted this notice: “Germany is expected to be the largest contributor to the ICC budget. Accordingly, it will also be able to fill a considerable proportion (around 20%) of the positions [on the court].” Merkblatt: “Berufschancen und Bedarf, deutsches Personal am Internationalen Strafgerichtshof,” Auswärtiges Amt (available at http://www.auswaertiges-amt.de//www/de/infoservice/download/pdf/vn/job/istgh.pdf).
4. In fact, Germany did participate in the NATO war against the Government of Yugoslavia in 1999, after removing constitutional restrictions previously thought to bar such military action. And that war was not authorized by the Security Council. But at present, the German Government has emphasized the importance of a Security Council authorization for military action against Iraq. A future German government may decide that, after all, there is reason to send German troops into action in Europe, without the Security Council. If it does so, it may claim to be enforcing some implicit judgments of the ICC. In the meantime, the characterizations offered here follow those recently set out by a American observer of current or public discussion of strategic issues in Europe: R. Kagan, Power and Weakness, Policy Review, number 113, June-July 2002.
5. At the time, the German Government could not openly admit that it was releasing the perpetrators of the Olympic massacre as part of a wider deal. The Government claimed that it had been “forced” to make the release to secure the release of German civilians held by hijackers of a Lufthansa flight. But German officials have recently conceded that the hijacking was coordinated with the Palestine Liberation Organization to provide a cover for the release. S. Reeve, One Day in September 157-158 (2000), “Germany made secret agreements with Palestinian and other international terrorist groups in a desperate bid to keep them away from German borders.” The pattern was common in other European states. After Palestine Liberation Organization terrorists killed dozens of passengers at the Athens airport, the Greek Government convicted and imprisoned the perpetrators-and then released them, when Palestinian terrorists seized a Greek ship and used its crew as “bargaining chips.” (Id., at 200). When one of the masterminds of the Olympic massacre was caught by French police in 1977, French authorities arranged for him to be released and hustled out of the country: “The French authorities had been bribing and blackmailing terrorist groups to persuade them to avoid France during their attacks.” (Id., at 209).
6. On the differing arguments of European and US authorities in this controversy, see J. Rabkin, After Guantanamo, 68 National Interest 15 (2002).
7. American Service Members Protection Act: text at http://thomas.loc.gov/cgi-bin/query/ F?c107:6:/temp/~c107DHrmMe:e389581, under H.R. 4775.
8. An analysis of ratifying states, based on State Department human rights assessments, has been made by Lee Casey, a lawyer in Washington, D.C. and appears on the website of The Federalist Society for Law and Public Policy (available at http://www.fed-soc.org).
9. S.L. Myers, Kosovo Inquiry Confirms U.S. Fears of War Crimes Court, New York Times, 2 January 2000.
10. L.A. Casey, The Case Against the International Criminal Court, 25 Fordham International Law Journal 840 (2002) reviews US constitutional objections in detail.
11. After the famous opening lines, the American Declaration of Independence offers a long list of “injuries and usurpations” to establish “the necessity” of revolution. Among these grievances are new British laws “for depriving us in many cases of the benefits of trial by jury” and “for transporting us beyond Seas to be tried for pretended offenses.” The most insistent protest of the American rebels-against taxation by Parliament-also relates, of course, to legal principles of jurisdiction: taxes imposed by Britain in the 1770s were not greater than those which Americans soon accepted from their own legislatures.
12. Soering v. United Kingdom, 7 July 1989, 11 EHRR (No. 161) 439 (1989). The Court acknowledged that capital punishment (for which Soering would be liable, if extradited to the US) was not inherently “inhuman” in the sense of Art. 3 of the ECHR, but still ruled that extradition would violate the ECHR because of the long procedural delays required for the application of the sentence in the United States.
13. The doctrine requiring an actual “case or controversy,” before federal courts can pronounce on the law dates to 1793 and has been repeatedly reaffirmed, even in modern times. See L. Tribe, American Constitutional Law, 3rd Ed., 328-330 (2000). The requirement that challengers demonstrate “concrete injury” to gain standing before the courts was re-emphasized in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), holding that even an act of Congress could not confer standing in the absence of some showing of a “concrete” personal injury. Tribe's treatise (at 392-396) criticizes the doctrine as overly restrictive but does not predict its relaxation any time soon.
14. Tribe, The doctrine requiring an actual “case or controversy,” before federal courts can pronounce on the law dates to 1793 and has been repeatedly reaffirmed, even in modern times. note 13, at 658-660, reviews academic debates on the issue while acknowledging that “legal history is almost barren of judicial pronouncements regarding the legitimacy of […] uses of military force abroad in the absence of prior congressional approval” (at 658).
15. Compare D. Rivkin & L. Casey, No Declaration of War Needed, Wall Street Journal, 26 July 2002, at 10, with B. Ackerman, But What's the Legal Case for Preemption?, Washington Post, 18 August 2002, at B2.
16. J. Stoner, Common Law and Liberal Theory (1922) offers much detail on the common law roots of the US Constitution.
17. Immigrants, on becoming naturalized citizens, swear an oath of allegiance-not to the government but to the Constitution (8 USC, Sec. 1448). Military officers, on taking their commissions, are required to make a similar oath of allegiance to the Constitution (5 USC, Sec. 331), as are judges and legislators at the state level (4 USC, Sec. 101).
18. Internationale Handelssgesellschaft, Case 11/70, 1970 ECR, at 1125.
19. In Reid v. Covert, 354 U.S. 1 (1957), the US Supreme Court insisted that the guarantees in the Bill of Rights must take priority over an international agreement (here, an agreement allowing dependents of US servicemen, on overseas bases, to be tried by US military courts rather than by civilian jury trials). The Restatement (Third) of the Foreign Relations Law of the United States (1987), a respected academic reference work which is generally quite sympathetic to international law claims, acknowledges “the proposition that treaties and other international agreements are subject to constitutional prohibitions in the first eight amendments [to the Constitution-that is, the Bill of Rights] […] is now firmly established.” (Sec. 302, Rep. No. 1, at 155).
20. In a recent ruling of the Supreme Court, Atkins v. Virginia, 122 S.Ct. 2242 (2002), the majority ruled that capital punishment of convicted murderers would be “cruel and unusual” punishment when applied to mentally retarded offenders. The opinion rested principally on the evidence from legislative enactments to this effect by American state legislatures. A mere footnote reference to an amicus brief from the European Union (arguing against capital punishment) provoked extensive protests from three dissenting justices as to the relevance of “foreign laws.” Justice Scalia protested that the standards of “the ‘world community’ […] are not (thankfully) always those of our people.”
21. So, for example, the United States still participates in the Inter-American Commission on Human Rights of the Organization of American States. But the Senate has never ratified the Inter-American Convention on Human Rights, which would subject the United States to legal challenges before the Inter-American Court of Human Rights.
22. When, for example, the ICJ ordered US courts to stay the execution of a German national (for a murder in Arizona), the US Supreme Court simply ignored this directive and rejected the German Government's effort to challenge the sentence. Federal Republic of Germany v. U.S., 526 U.S. 111 (1999). The United States had ignored previous pleas from German lawyers to spare the execution of German murderers and did not regard the ICJ as adding any extra weight to such appeals.
23. Concerns about international arbitration were, if anything, more insistent in earlier times. The Senate rejected an arbitration treaty with Great Britain in 1895 on the grounds that too wide a range of subjects might be submitted to the determination of arbitrators. Subsequent plans for an international prize court-to determine the legality of seizures in naval warfare-were also rejected by the Senate in 1911 as a threat to the independence of US courts. On early resistance to open-ended arbitration, see C. DeArmond David, The United States and the First Hague Peace Conference 29-35 (1962). D.F. Fleming, The United States and the World Court, rev. ed. (1968) describes the historic pattern: Senate concerns about interference in domestic affairs prevented the United States from joining the Permanent Court of International Justice in the 1920s, despite support from Presidents Harding and Coolidge (at 52-67), even President Roosevelt was rebuffed by the Senate when he tried to bring the US into the Permanent Court of International Justice in 1935 (at 117-137). When the United States finally did adhere to the International Court of Justice in 1945, the Senate insisted on including a reservation, excluding the Court from interfering in domestic US concerns, as defined by the United States, itself (at 195).
24. J. Bodin, Six Livres de la République (at I, 10) (1576); S. Pufendorf, De Jure Naturae et Gentium, at VIII, v, 18 (1688).
25. The European refusal to confront China at the Commission on Human Rights is such a wellestablished pattern that it has a special section to itself in a leading text: H.J. Steiner & P. Alston, International Human Rights in Context, 2nd Ed., 624-641 (2000).
26. H. Rommen, The State in Catholic Thought (1945) associates the older view with natural law: “[…] the object of political authority is […] the common good” and “the right of pardon and amnesty therefore belongs to political authority.” He goes on to observe that it “is an unmistakable token […] of true statehood [even among ‘the members of a confederation'] that their highest executives retain the right of pardon.” Rommen speaks of justice within a state. Targeted assassination of terrorists may be a justifiable military policy, but it does not claim to be legal justice.
27. Second Inaugural Address, 1957. Public Papers of the Presidents (published by the US Government, National Archives and Records Service), “Eisenhower” series, Vol. 5, 64 (1957).
28. The bystander, of course, does not have to worry about consequences. Kantian doctrine, insofar as it emphasizes adherence to abstract rules, allows even a participant to regard himself as, in moral terms, no more than a bystander. So German judges duly implemented the murderous policies of the Third Reich. Only one judge in all of Germany is known to have resisted implementing National Socialist law. Allied occupation authorities tried to purge judges compromised by their wartime conduct. Virtually all were subsequently reinstated by the Government of West Germany-with accrued seniority claims from before 1945 and full pensions on retirement. The judges did their duty by following the rules and could not, in the view of postwar German officials, be blamed for doing so. They were, according to prevailing German views, mere bystanders. I. Muller, Hitler's Justice: The Courts of the Third Reich (English trans. by D.L. Scheider, 1991) offers much instructive detail on the general pattern. Even Eichmann pleaded that he acted from a Kantian sense of duty, since he was not following his own preferences. He had indeed read Kant's Critique of Practical Reason and gave a reasonably accurate summary of the categorical imperative at his trial-one which impressed a German-trained philosopher, observing the trial, with its aptness and cogency. See H. Arendt, Eichmann in Jerusalem, Rev. Ed., 135-138 (1977).
29. See, for example, I. Murray, Bomber Harris Still Flying Into German Flak, The Times, 28 September 1991, at 4, reporting protest of German officials that a statue to the commander of RAF Bomber Command was “particularly inappropriate in the border-free Europe of 1992,” along with acknowledgment from the deputy mayor of Dresden that “Germany had to be sensitive about the way it makes the protest because so many British cities suffered from Luftwaffe raids.” Others in Germany were more explicit about the equivalence of misdeeds on each side: Jurgen Möllemann, then serving as Economics Minister, criticized a ceremony in Germany marking the anniversary of the first V-2 rocket launches (celebrated by German participants as the first step toward exploration of outer space) and remarked that this ceremony was “just as tasteless as the erection of a statue to Sir Arthur Harris.” The Times protested that “an equivocating, self-exculpating doctrine seems to underlie this statement, echoed by the German media.” Moral distinction fudged (Leader), The Times, 3 October 1992, at 13. Herr Möllemann does not seem to have taken the point. In the spring of 2002 he described Israeli troops as engaged in a “Vernichtungskrieg”-that is, a war of annihilation, a term forever associated with German genocide in the Second World War. Human rights groups subsequently confirmed that fewer than two dozen Palestinian civilians had died, when terror fighters chose to battle Israeli army forces in a heavily populated civilian neighborhood in Jenin. Still, Germans of conscience could not tolerate a selective morality which would condemn SS crimes and then allow similar crimes-or at least, crimes which Germans could recognize as essentially similar-to pass without comparable condemnation.
30. “War of the Unknown Warrior,” broadcast from London, 14 July 1940: Hitler “had his plans for Poland and his plans for Norway. He had his plans for Denmark. He had his plans for the doom of the peaceful, trustful Dutch; and of course, for the Belgians.” R.R. James (Ed.), Winston Churchill, His Complete Speeches, Vol. VI, at 6249 (1935-1942). The Dutch seem to have been singled out for their pathetic “trustfulness” because, as Churchill had protested a few weeks earlier, they were most scrupulous in adhering to the dictates of neutrality: “Why only yesterday, […] Dutch aviators in Holland, in the name of strict and impartial neutrality, were shooting down a British aircraft which had lost its way.” “Hideous State of Alarm and Menace,” speech of 30 March 1940, in James, id., at 6200.
31. Res. 2002/8 of the Human Rights Commission affirmed “the legitimate right of the Palestinian people to resist Israeli occupation in order to free its land and be able to exercise its right of self-determination” and in support of this affirmation, invoked a 1982 UN General Assembly resolution on “the legitimacy of the struggle of peoples against foreign occupation” which endorsed all means of “armed struggle.” Since there was no word of condemnation against murder bombings of civilians-and virtually all the bombings had been directed at civilians-the inevitable implication was that the Commission endorsed murder bombings of Israeli civilians. This vote occurred more than a year after Palestinians had been offered nearly complete Israeli withdrawal from the West Bank and Gaza and responded by reverting to terror bombings. Britain and Germany voted against this resolution, but France, Belgium, Portugal and Austria voted for it.
32. In 1975, all European states stood with the United States in opposing the Soviet backedn resolution of the UN General Assembly that proclaimed “Zionism is a form of racism.” By 1997, with the Soviet Union gone, the EU took the lead in organizing a special conference to denounce Israeli violations of the Geneva Convention on the treatment of civilians in occupied territory. No such special conference, aimed at a specific country, had ever been held in the whole history of the Geneva Conventions. But the EU was quite prepared to accept the premise that Israel was so uniquely brutal that-more than China in Tibet, for example or the Soviet Union in Eastern Europe-that it required a unique international response. The United States opposed the conference and it was finally called off, when Yasir Arafat declared that it would be a distraction to peace negotiations.
33. In 1982, the World Heritage Committee condemned Israel for failing to maintain historic sites in the Old City of Jerusalem-though Israel was not a party to the World Heritage Convention. The “Old City” was treated as property under the jurisdiction of the Committee because Jordan, which was a party to the treaty, sponsored the resolution-though Jordan did not at that time claim authority over Jerusalem. The United States voted against this twisting of the rules-which provide that World Heritage sites can only be sponsored by states on whose territory they exist. No European state joined the United States in its opposition, though several abstained from endorsing the resolution.
34. R. Peters, Civilian Casualties, The Wall Street Journal, 25 July 2002, at 10. Less extreme statements, decrying resurgent anti-semitism in Europe, were published by American commentators earlier in the year. EU External Affairs Commissioner Chris Patten protested such accusations as “obscene rubbish.” Stop Blaming Europe, Washington Post, 7 May 2002, at A21. But a British journalist, after an extensive round of interviews in Washington, subsequently reported that “The US, at least at the elite level, and perhaps more widely, has become seized by the idea that we Europeans are […] anti-Semitic. Especially antisemitic.” The author rejects this perception as “horrifying” and “unfair.” His explanation for the misperception is that it is promoted by “American Jews” who are “numerous” among “intellectuals and commentators.” J. Lloyd, The US is increasingly dismissive of Europe, Financial Times, 3 August 2002, at 1. A wave of arson attacks on synagogues in Western Europe in the spring of 2002 might also have influenced American perceptions, since nothing of the sort has ever been seen in North America (though there are millions of immigrants from Islamic countries in North America and presumably they are also upset about events in the Middle East). But recent violence against Jews in Europe does not figure in this commentator's very long analysis of American perceptions. Instead, the author explains: “Many Europeans do ascribe the pro-Israel bias of US administrations to the power and wealth of the Jewish lobby.” It seems beyond the imagining of contemporary Europeans that Americans might have their own reasons to react against murder bombings of civilians in Israel-that is, reasons apart from what Europeans see as the “power and wealth” of American Jews.
35. H.M. Broder, Ende der Schönzeit, Der Spiegel, 3 June 2002, at 28, describes the eagerness of many Germans to be rid of moral inhibitions, rooted in the past: “Doch während die einen es schicker finden, sich zum Holocaust zu bekennen, statt ihn zu leugnen, sehnen sich die anderen nach einer ‘Normalität,’ von der sie nur eines wissen: dass es die Juden sind, die sie verhinderin.” (So, while they find it proper to acknowledge and not to deny the Holocaust, they yearn for a change to “normality,” of which they only know: it is the Jews who prevent it.) He reports the diagnosis of a psychoanalyst: “Die Deutschen werden den Juden Auschwitz nie verzeihen.” (The Germans will never forgive the Jews for Auschwitz.)
36. Israel's Fair-weather Friend, (Leader), Daily Telegraph, 20 June 2002, at 23.
37. As an example of critical commentary in the American press, see The Belgian Delusion, editorial, The Boston Globe, 22 July 2002, at A10 (from a newspaper which often criticizes Israel but could still denounce the attempted Belgian prosecution of Sharon as “perverse” and efforts by Belgian legislators to enact new legislation to resume the prosecution as “variations on a theme of narcissism”).
38. In 2002, the United States was not represented on the UN Human Rights Commission, because European states elected Austria in its place the previous year. In 2001, there were five resolutions on Israel before the UN Human Rights Commission, which consists of 52 states. The United States was the only state to vote against all five. In the General Assembly, the United States voted in a minority of two or three (that is, with Israel and sometimes Guatemala) in eleven resolutions in 2001.
39. W.R. Mead of the American Council on Foreign Relations sums up the prevailing view: Americans just don't trust Europe's political judgment. Appeasement is [Europe's] second nature. Europeans have never met a leader-Hitler, Mussolini, Stalin, Qaddafi, Khomeini, Saddam Hussein-they didn't think could be softened up by concessions. W.R. Mead, The Case Against Europe, 289(4) The Atlantic Monthly, April 2002, The Case Against Europe, at 26.