The Limits of Law

Since 1999, Belgium has had a law allowing anyone, from anywhere in the world, to sue any other person, for crimes against humanity, regardless of where or against whom the crimes were allegedly committed. Last year, a group calling itself Lawyers without Borders Congo brought charges against President Yoweri Museveni of Uganda and President Paul Kagame of Rwanda. The two sitting presidents were charged with abuses in their ongoing and brutal proxy war in the Congo. Accusations like this are nothing new in Africa; what was new was the Belgian courts' claim to be a suitable venue for such a charge. Christine van den Wyngaert, a law professor at the University of Antwerp and one of the law's co-authors, maintains that Belgium's assertion of universal, extraterritorial jurisdiction is a logical extension of the Nuremberg principles. And hers is not an idiosyncratic claim. In July 2001, a group of international legal scholars published the Princeton Principles on Universal Justice, which would make those accused of crimes—including piracy, war crimes, torture, crimes against peace, and crimes against humanity—liable for trial in any country in which they happen to be located. This movement toward universal jurisdiction suffered a setback, however, when it was revealed that Lawyers Without Borders Congo was simply a front group for the regime of Congolese president Laurent Kabila (since assassinated), who was exploiting the Belgian law for his own purposes. What began at Nuremberg, it seemed, was taking on the side-show aspects of a small-claims court.

By what right did Belgium assume the authority to be the human-rights watchdog for the world? Certainly, the claim does not lie in that country's history. Belgians were responsible for horrific colonial excesses in the Congo in the nineteenth century, later dramatized by Joseph Conrad in his story "Heart of Darkness." A few years ago, Belgians deserted Rwanda to its fate when eleven Belgian peacekeepers were murdered at the onset of the slaughter. What special quality gives Belgium the responsibility for punishing crimes committed anywhere in the world? In fact, as international human rights lawyers insist, and as the Princeton Principles preach, Belgium has no special brief. Every country should have a similar law and behave similarly.

But does this mean every country shall have the right to issue warrants and subpoenas against every individual on earth? And to compel testimony? The question is not academic - former Secretary of State Henry Kissinger was summoned by a French court in a case against former Chilean dictator Augusto Pinochet. Suppose these courts believe a witness is likely to flee their jurisdiction and not return, can they hold him in custody? Even if he is a national leader? Israeli prime minister Ariel Sharon recently had to cancel a trip to Belgium to avoid legal complications arising from charges of complicity in the massacres at Sabra and Shatilla that were committed by Lebanese militia during Israel's 1982 invasion of Lebanon. Clearly, the potential for abuse is unlimited.

The International Criminal Court
So, if national courts are not the answer, what about international courts, as exemplified by the International Criminal Tribunal for the Former Yugoslavia (ICTFY)? During the Cold War, human rights necessarily yielded to national security. But with the Cold War's end, tribunals, truth commissions, and other judicial and quasi-judicial organs have proliferated, claiming to be instruments for justice concerning human rights. Some, such as the ICTFY and Ethiopia's High Central Court (established in 1992), were convened to sort out the excesses of post-Communist conflicts. Others, such as the International Criminal Tribunal for Rwanda and another United Nation's tribunal being set up for Sierra Leone, address fairly recent atrocities. But this is only the beginning.

From mid-June to mid-July, in 1998, United Nations diplomats met in Rome to draw up a treaty establishing a permanent International Criminal Court. During his last month in office, President Bill Clinton signed the treaty, which would establish a standing international judicial body having the authority to investigate a large and ill-defined variety of human-rights abuses and "related offenses." (Fortunately, the Senate is unlikely to ratify the document.)

It is hard to accuse the proponents of these measures with excessive zeal in the pursuit of justice, especially when one looks at R.J. Rummel's figures in Death by Government: USSR: 62,000,000 dead; Communist China: 35,000,000; Nazi Germany, 21,000,000; Nationalist China: 10,000,000; Japan: 6,000,000; Cambodia, 2,000,000; Turkey: 1,800,000; Vietnam: 1,700,000; North Korea: 1,600,000. And certainly the response of the international community to these atrocities has been weak. Such events have been written off as internal matters, or they have been seen as the inevitable result of historical/tribal/economic or some other vaguely defined "forces" and thus impossible to stop. In the case of Soviet Russia, of course, the Western Left went into total denial regarding the very facts of the case.

From this perspective, then, the Nazi precedent seems praiseworthy. But it also poses a problem: Why, since Nuremberg, has there been no similar manhunt for Soviet, Chinese, Vietnamese, and North Korean leaders and collaborators? Proponents of tribunals can say only that we must look to the future and hope for progress in the establishment of standing bodies whose business it will be to record such crimes and take some sort of action. This, they aver, will not only lead to justice in future cases but will deter others from embarking on human-rights violations.

What Rights? What Laws?
One must wonder about those future cases, however. The Treaty of Rome puts forth pages of crimes. But are these really laws, as most people understand the term? And, in any case, who decides when there has been a violation? That is a critical question. As Chief Justice John Marshall observed, the ability to interpret what the law means is the key power defining a court. And nowhere is this more true than in the case of international human-rights laws, which are sufficiently vague that they could be interpreted to mean anything. Is global warming a crime against humanity? Well, the Treaty of Rome, in its desire not to miss out on any infractions, includes "inhumane acts" that cause "great suffering, or serious injury to body or to mental or physical health." Indict the leaders of the industrial powers! Are budget cuts in social services the "genocide of the poor," as Jesse Jackson said in the 1980s? It is disconcerting that Rosalyn Higgins, an eminent British lawyer and one of the world's leading advocates of international law, writes that the provision of food, shelter, and free primary education are among man's universal rights, as surely as freedom of speech. Will statesmen who attempt to implement laissez-faire capitalism be executed for crimes against humanity? (Ron Paul beware!)

These examples may seem fanciful, but the most severe impact of such legal ambiguity would be on America's pursuit of its interests through the use of force. The conduct of men and women in uniform is bound by many restrictions—Codes of Conduct, the Universal Code of Military Justice, the rules of engagement, even local statutes when applicable. In most cases, service personnel know the boundaries; they know what behavior is expected of them, what they can and cannot do. They try to stay within those bounds. But warfare is not something that lends itself to hygienic categories.

An example: A U.S. Marine was manning a watchpost at an embassy in an African country. A firefight between rebel factions was taking place just down the street. The Marine saw one of the fighters aim a weapon at him, and an instant later he was knocked from his chair and thrown to the floor - a round had struck his flack vest. The Marine, unwounded and enraged, loosed his .30 cal. machine gun on the street fighters, cutting down several of them as the rest scattered. Was this a war crime? The Marine answered to his commander, who viewed this as a case of self-defense. The Marine may have hit the man who shot him, or may not have. Whether or not he did may not have been important to him in that moment of rage. My opinion is that his actions were wholly justified by circumstances. Others might disagree. But the point is that he should not have to worry that his actions will be scrutinized by dozens of foreign courts decades later -nor by an international court staffed with bitter anti-Americans. Either circumstance would make it be impossible for him to do his job—and impossible for the United States to pursue its legitimate interests abroad through the use of force. Our men and women in uniform answer to their superiors, who answer ultimately to the president as commander-in-chief. He, in turn, answers to the voters, who are the repository of the sovereignty that establishes that Constitution the military takes an oath to defend. The system is a closed loop. There is no room for external enforcement mechanisms, and no need.

Are They Courts at All?
Proponents of tribunals are unfazed by such objections. Canadian Justice Louise Arbor, former prosecutor of the Yugoslavia Tribunal and a backer of the ICC, cautions that one should not assume that the court would be "run by incompetent people, acting in bad faith from improper purposes." As to incompetence, the following story gives little comfort. In 1995, the ICTFY indicted a Serb named Gruban on charges of running a "rape camp" at Omarska. It was a horrific crime, and the indictment made headlines worldwide. The indictment made headlines again in 1998 when all charges were dropped. Gruban, it turned out, was a fictional character taken from Miodrag Bulatobic's novel, Hero on a Donkey. For three years, Serbs had been laughing up their sleeves at the Hague's quixotic court and its well-intentioned heroes, who evidently knew little of Serbia, its culture, or its history. This farcical incident illustrates one reason courts should generally be located in the territory where an alleged crime took place: It is difficult for strangers to grasp the context of a community. Thus, among the complaints in the Declaration of Independence was: "transporting us beyond Seas to be tried for pretended offenses."

As to the matter of bad faith: It is difficult not to suspect incidents of bad faith when Belgium's law allows political enemies to bring actions. Far more frightening, though, was the case of a British law lord, one of the most senior judicial officials in the United Kingdom, who heard the case against General Pinochet despite having a conflict of interest that biased him against Pinochet. Only after someone leaked the conflict of interest to the press was the judgment overturned and the whole matter reheard. Even Nuremberg, the gold standard for human rights tribunals, was tainted by the presence of Soviet jurist Andrei Vyshinsky, architect of Stalin's show trials. But then the Nuremberg trials were held for the purposes of retribution, not to enforce an abstract ideal of human rights against all violators.

By contrast, tribunals of the modern sort will be posing as instruments of divine justice, though in reality they will be just one more realm in which policy disputes are played out. The somewhat harmless example of "Lawyers Without Borders Congo" provides a taste. But one can also imagine a dictator shopping for a friendly jurisdiction for his human-rights trials. Find a cooperative judge -or are we to believe that there is no corruption in the global legal community? - and get the right verdict. Then the dictator could charge double jeopardy if any less friendly jurisdiction indicted him.

And there is still more sinister evidence that "international law" tribunals will be biased instruments of policy, evidence to be found in the Treaty of Rome itself. Not taking any chances that Israel might fail to be convicted of war crimes, the treaty-writers built a conviction into the very text. For against what state is following definition of "war cime" aimed? "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory."

Beyond Law
The tribunal mania of recent years has yet to reach the point where its internal contradictions will cause it to collapse. So long as the tribunals act against defeated states and deposed rulers, they will probably continue without loud objections. But the recent actions by Belgian courts should be a caution that law has its limits. The power of a court lies in its legitimacy, which must be based on its acceptance by a country's citizenry, not on an abstract concept of human rights. In the words of the Declaration of Independence: A government's just powers—including its judicial powers—derive from the consent of the governed. Those who are governed cannot impose laws on those who are not governed.

This, however, is not to say that the United States must turn a blind eye to everything that happens within a foreign country. Libertarians sometimes equate sovereign states in the international arena with private citizens and conclude that no state should act against another unless the latter threatens aggression. That was not the view of Ayn Rand. In her interview with Playboy, she clearly stated that "A dictatorship . . . is an outlaw and can claim no rights." And she agreed that "any free nation today has the moral right—though not the duty—to invade Soviet Russia, Cuba, or any other 'slave pen.'"

Thus, though one country cannot subject a foreign ruler to law, it can subject him to compulsion if necessary. The standard, where there is no overarching government (as there is not in the international arena), is simply self-interest. When a government's national security requires that it dispatch a foreign leader, whether by exiling Napoleon, or locking up Slobodan Milosevic, or assassinating terrorists, it properly acts through its executive branch, and as a matter of policy not law. It need not humiliate the man or itself by pretending to be a knight-errant with a commission to enforce justice everywhere.

— James S. Robbins

James S. Robbins is a writer living in Alexandria, Virginia.

This editorial comment has been produced and distributed by The Objectivist Center. If you would like to reproduce or publish this piece, you may do so provided you include the biographical information found on this page.
For more information, please contact The Objectivist Center.

If you are distributing electronically, the following text must be included after the selection:

Copyright, The Objectivist Center. For more information, please visit www.ObjectivistCenter.org.