International law 'vs.' the American Constitution

National Interest, The, Spring, 1999 by Jeremy Rabkin

So in October Britain's High Court of Justice ruled unanimously that Pinochet should be released. On appeal in the House of Lords, a five-man panel split 3-2 the other way in early December. But in a subsequent appeal, Britain's Lord Chancellor directed that a new panel should be convened to reconsider this ruling. One of the three Law Lords making up the majority turned out to have been closely associated with fund-raising efforts for Amnesty International, a human rights advocacy group that had strongly advocated Pinochet's extradition and prosecution. The Lord Chancellor held that this made the ruling of the original panel look improper and Pinochet should therefore be accorded a new appeal before a new panel of Law Lords.

But it is hard to say why Amnesty International had any less right to participate in the judgment of Pinochet - for misdeeds committed in Chile, against Chileans - than the governments of Britain or Spain. In fact, both the British prime minister and his Spanish counterpart insisted that their governments were leaving the matter to the courts and taking no policy stand on the issues. Both declined to exercise the statutory powers that political ministers in either country could have invoked to stop the extradition process. So the whole momentous prosecution was supposed to be proceeding on the say-so of career prosecutors - that is, essentially, bureaucrats - in each country.

While the British courts were deliberating, the European Parliament sought to ensure that the prosecution would go forward. It adopted a resolution urging Britain to extradite, and other governments to take up the prosecution, if Spain finally declined to do so itself. This intervention of the European Parliament had its own ironic logic: a parliament that is not a real legislature demanded enforcement of a new international doctrine that is not a real law.

And clearly, it cannot be a real law. Weak and distant Chile will not go to war with Britain or Spain or the EU. But the notion that "international law" will now hold evil-doers of all lands to account is absurd. If "international law" requires the trial of Pinochet in an outside country, then it must require similar trials to hold accountable far worse butchers from many other places. Nothing in international law, however, says that only former dictators from small countries can be held to account in this way. There is no distinction in the relevant human rights treaties between dictators and democratic officials, between top officials of small countries and top officials of powerful countries, or even between former officials and currently serving ones. But no one expects EU countries to hold a top Chinese leader to account for massacres in Tibet, or to hold former Russian officials for extradition to Latvia - or American officials for extradition to Sudan, which has been threatening to charge them with war crimes for the bombing of an undefended aspirin factory last August. The European Parliament seems to have in mind a "law" that applies only to Pinochet.