Wrong World Order - international law and international relations

National Review, June 28, 1999 by Arch Puddington

LAW

A new threat to American government.

Mr. Puddington is a vice president at Freedom House and the author of a history of Radio Free Europe-Radio Liberty, forthcoming from the University Press of Kentucky.

The indictment of Slobodan Milosevic for crimes against humanity has been widely hailed as a blow against both the Serb leader and potential aggressors in the rest of the world. Some laud the action by the International War Crimes Tribunal for the Former Yugoslavia because it ensures that Milosevic personally will be held accountable for the ethnic cleansing of Kosovo. Others are pleased by the tribunal's action precisely because, they believe, it will complicate negotiations and make it more difficult for President Clinton to agree to a settlement that amounts to something less than victory for NATO.

But the group that is perhaps the most pleased with the Milosevic indictment is composed of those who favor the expansion of international law into matters that traditionally have been resolved through negotiations between sovereign states. The advocates of an enhanced role for international law in the conduct of diplomacy had already seen their cause advanced by the establishment of an International Criminal Court last fall and the more recent attempt to place the former Chilean leader, Augusto Pinochet, on trial for crimes committed during his lengthy rule. With the Milosevic action, the question is no longer whether international law should supersede formal diplomacy, but in which cases and to what degree it should be invoked.

More to the point, the international-law idea can no longer be dismissed as a fringe phenomenon sustained by a tiny clique of cranks and utopians. The expansion of international law is today pressed forward by a global political movement. This movement has its ideologists in the lawyers and scholars who write treatises about the importance of global solutions to civilization's problems. And it has its activists in the extensive network of cause organizations that seek to globalize issues ranging from the prevention of war to discrimination against homosexuals to the international economy's impact on Third World development.

As is made clear by the above list, the international-law movement has a dual agenda. It seeks the full integration of human-rights law into international diplomacy while at the same time working to change domestic policies by invoking the standards set by international covenants as superior to the laws of sovereign states.

The contours of the debate over international law's role in foreign policy were spelled out during the debate over the International Criminal Court. Crucial to the refusal of the Clinton administration to sign the treaty was the fear that American soldiers could be indicted for vaguely defined war crimes. American apprehensions were clearly warranted: The ICC's definition of crimes against humanity is sufficiently wide-ranging to embrace the actions of every president from Roosevelt to Clinton. Furthermore, the court's supporters include those who have in the past accused American political figures of committing war crimes. Kenneth Roth, the director of Human Rights Watch, made a point of correcting a wire-service story that incorrectly quoted him as asserting that Americans had not committed crimes that come under the international court's jurisdiction. "In the past, American leaders have been responsible for such crimes," Roth declared, setting the record straight. Another Human Rights Watch official was less than reassuring when she wrote that it was unlikely that former President Bush could be indicted by the ICC since "the deaths of Iraqi civilians do not necessarily constitute a war crime" (italics added).

The Milosevic indictment can be supported because the war-crimes tribunal has been given a limited geographic and temporal jurisdiction, and a specific mandate-to say nothing of the very real atrocities for which Milosevic bears responsibility. The Pinochet case, however, is another story. It has potentially serious implications for countries where transitions to democracy require negotiations and compromise between the rulers and the ruled, such as in Nigeria or Indonesia. If the Nigerian military leaders who just handed power to a civilian government are subject to arrest and trial by Spain, France, or Switzerland (all of which have expressed interest in trying Pinochet), will other African despots follow the Nigerian example of ceding power to elected governments or conclude that a surrender of authority is too risky, owing to the possibility of indictment by a foreign judge? There is also the question of what constitutes crimes against humanity. Among the charges brought by the Spanish magistrate who issued the arrest warrant for Pinochet was that of genocide, something that shows just how elastic and subjective international law can be.

But the problems raised by the Pinochet case are relatively minor when compared to the potential repercussions of the extension of international law into America's domestic affairs.