The New Road to Serfdom (15 page)

Looked at from an American perspective, it’s a heartening story. But, to a convinced Euro-integrationist, national feelings are transient, arbitrary, and ultimately discreditable. Simply by existing, Israel challenges the intellectual basis of the European project. As one Christian Democratic MEP put it in a recent debate,
“Why is Israel building walls when the rest of us are pulling them down?”

To be fair, the EU is being entirely consistent. It is doing precisely what many Europeans criticized the United States for seeking to do in Iraq and Afghanistan. It is doing what the Jacobins did when they took up arms against the old monarchies, what the Russian revolutionaries did when they declared war against the capitalist system, what the Iranian radicals do when they sponsor Islamist militias from the old Silk Road khanates to the Balkans. It is seeking to export its ideology.

The key component of this ideology is transnational integration, which Euro-diplomats prize above virtually every other goal, including democracy. When Slovenia declared its independence from the Yugoslav federation in 1991, following an overwhelming referendum result, the EU condemned the decision and cautioned the other Yugoslav republics against secession. To this day, the EU runs protectorates in Bosnia-Herzegovina and Kosovo, more or less for the sole purpose of preventing partition. Full democracy in those places would lead to ethnographic boundaries, with the Serbian minorities opting for autonomy or union with Serbia (as, in practical if not legal terms, they already have). Faced with a choice between democracy and supra-nationalism, the EU will always choose supra-nationalism.

Why should this bother Americans? Partly because the policy is wrong in itself, clashing as it does with the
United States’ commitment to democratic self-determination. Mainly, though, because the EU isn’t only imposing multiethnic states on the Balkans. It isn’t just encouraging other continents to form supranational blocs, and making its trade and aid deals conditional on participation therein. It is also seeking to replicate that model at a global level, to trammel and contain the will of sovereign democracies through international bureaucracies.

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Robert Bork, whose nomination to the U.S. Supreme Court was blocked by the Senate in 1987, has studied the ballooning of international jurisprudence since the early 1990s, and concluded that it amounts to a sustained attempt to impose on states from above laws and values that would never have passed through their national parliaments.

“What judges have wrought is a coup d’état,” he wrote in
Coercing Virtue: The Worldwide Rule of Judges,
“slow-moving and genteel, but a coup d’état nonetheless.”

Bork, of course, was mainly concerned about this process at an international level. But it is important to understand where the international phenomenon—a phenomenon from which the United States is not completely immune—originates. Once again, we find that the EU is internationalizing its internal values and
norms, in a way that Americans cannot afford to ignore.

I once shared a platform with Judge Bork and suggested that, if the U.S. government were looking to make budgetary savings, it might stop paying the airfares of American judges who attend international legal conferences, whence they return with strange ideas about jurisprudence. Judge Bork considered this for a moment and then replied.

“How about a more moderate proposal: We could pay their airfares
out…
”

Europeans cannot get used to the idea that American judges are elected: They consider the whole idea monstrously populist, and complain vigorously about “the politicization of the judiciary.” An impartial assessment of European judges, however, will show that they are, if anything, more political than Americans; they simply are not elected.

All of us have our assumptions and our prejudices. Judges don’t stop being human beings when they join the bench. But, unless they are elected, they don’t have to justify or explain their prejudices to the general population.

It is striking that, in Britain and in Europe, judges tend to be well to the left of public opinion, with the consequence that judicial activism happens overwhelmingly in the same political direction. For example, courts are forever stepping in to block deportation
orders: Britain’s prisons teem with foreign radicals whom the government is desperate to repatriate, but whom judges will not allow to be removed lest they face torture abroad. I cannot think, though, of a single converse case, where a judge has demanded the removal of an illegal entrant who had improperly been granted leave to remain.

Likewise, whenever a minister steps in to order that a prisoner serve a minimum sentence, judges line up to demand that the independence of the courts be protected from vote-grabbing politicians. But the reverse doesn’t apply. When, for example, in a quite blatant interference with judicial process, the government ordered the release of loyalist and republican terrorists under the 1998 Belfast Agreement, not a single judge complained.

Maximum sentences for certain offenses? Absolutely fine. Minimum sentences? An outrageous attempt by politicians to tether the courts.

Judges, in short, can make tendentious and imaginative interpretations of the law in order to advance an agenda that has been rejected at the ballot box.

It is this process that has been globalized. And, at the international level as at the national level, the judicial activism invariably comes from the same direction. The past decade has seen writs served, not only against dictators such as Augusto Pinochet, but against Ariel Sharon, Donald Rumsfeld, and other controversial
conservatives. In 2009, Tzipi Livni had to cancel an engagement in the United Kingdom because of an outstanding warrant. Oddly, though, no one ever tried to indict Yasser Arafat, Fidel Castro, or Robert Mugabe.

The internationalization of criminal justice has been one of the main drivers of judicial activism within states. When judges can find no domestic statute to justify the rulings they would like to make, they reach instead for the European Convention or one of many UN accords.

The notion of international law is not new. It has existed in something like its present form since the end of World War II. Prior to 1945, the phrase “international law” referred simply to the mediation of relations among states, not to their domestic behavior. The great English jurist William Blackstone defined offenses against international law as the violation of safe conduct passes, the mistreatment of ambassadors, and piracy.

The foundation of the United Nations and the Nuremberg trials substantially widened the definition of international jurisdiction. But the real revolution has come since, and largely as a consequence of, the end of the Cold War. In 2001, Henry Kissinger made a startling observation:

Kissinger was right. There has been a huge growth in international criminal law since the fall of the Berlin Wall. The process started when President George Bush Senior proclaimed a “new world order” on September 11, 1990. What he meant was that United Nations Security Council resolutions could be enforced by means of military force, since the East-West division in Europe and the hostility between the United States and the USSR had been overcome and the deadlock in the Security Council lifted. The United Nations would henceforth be able to call on its members to fight wars on its behalf, thereby giving international law a coercive quality that it had never had before.

The phrase “new world order” did not originate in the United States, though. It had been reintroduced into political discourse by the outgoing Soviet president, Mikhail Gorbachev, who rekindled the old Trotskyite dream of world government by calling for global governance and a unification of the world economy. Sure enough, institutions soon proliferated at an international level pursuing an overtly anti-conservative agenda
and transferring ever more power away from ordinary people into obscure and unaccountable international institutions.

The change was put well by a prosecutor at the Yugoslav War Crimes Tribunal, Louise Arbour, who said in 1999, “We have passed from an era of co-operation between states into an era in which states can be constrained.” The sentiment may be noble, but it immediately prompts the question: “Who is to check the powers of the person doing the constraining?”

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Until the 1990s, international law consisted essentially of treaties between states. States were free agents that concluded contracts with one another. Occasionally, they created large institutions such as the United Nations to oversee the terms of their agreements, and occasionally the terms of the treaties were based on appeals to universal values such as the Conventions on Genocide or Torture. But none of these treaties gave rise to systems of coercive law comparable to the national law of a state, enforced by the police and the courts. Any penalties imposed for treaty violations were accepted voluntarily by the states that had signed them.

Moreover, to the extent that international treaties created obligations, those obligations concerned only states, not individuals. The Genocide and Torture
Conventions, for instance, require
national
bodies to pursue persons suspected of these crimes.

The big exception to this general rule was, of course, the European Union. The EU differs from all treaty organizations in that its law penetrates into the very fabric of national life by imposing obligations on individuals. The European treaties do not simply bind their signatories as states; they create a superior legal order, binding on individuals, and directly enforceable by national courts, with or without implementing legislation by the national legislatures. This is why the EU’s power is so awesome. Once the new world order was proclaimed, the EU model was copied by other international bodies, and soon a host of international organizations had cropped up that claimed the right to regulate the most intimate details of people’s lives.

The main vehicle for this internationalization of law has been the doctrine of “universal human rights.” In the name of statements of desirable general principles, international organizations have been created that claim the right to interpret and even to enforce those principles as they see fit. People often react favorably when they hear that a new body has been created to protect human rights. What they perhaps do not realize is that ordinary people do not get any new rights as a result. What happens is that those working in the new institutions get to determine what our rights are. We
may disagree with them, but we can do nothing about it, as no one elects them.

The European heads of state and government signed the European Charter of Fundamental Rights at the Nice summit in 2000. Initially, it had no legal base, since the European Constitution that would have authorized it was rejected in referendums in France and the Netherlands in 2005. But the EU went ahead anyway and created a new Human Rights Agency in Vienna, which was belatedly regularized when the Constitution came into effect in December 2009.

The Agency’s remit is huge: the Charter of Fundamental Rights contains rules on everything—on the right to life, on liberty, on the right to a fair trial, and on the right to a family. There are rules on data protection, consumer protection, environmental protection, freedom of thought, freedom of religion. There is “the freedom of the arts” and “the right to education.” Asylum policy, multiculturalism, social security, health care, the right to vote—you name it, the EU has a policy on it. There is even a “right to good administration”—which is pretty rich, coming from Brussels.

The EU is only one international body that claims the right to make and enforce laws. The Council of Europe, a pan-European organization that includes Russia, Ukraine, and other former Soviet republics, is home to the European Court of Human Rights in Strasbourg. Although separate from the EU, this organization
has become the de facto Supreme Court for the whole of Europe. People with a grievance can pursue cases against their own national courts and national legislatures and obtain rulings from the ECHR made by judges who have nothing to do with their country; who do not have to bear the consequences of their own decisions; and who, in some cases, worked for the judiciary under communism.

The very existence of international courts like the ECHR violates the principle of territorial jurisdiction. According to this ancient doctrine, on which the rule of law is based, the rulings of judges are themselves embedded in the overall institutions of a state. They are governed by carefully drafted laws, and the national legislature and local authorities monitor the effect of these laws on society. So if a law gives rise to a judicial ruling whose effects are deemed unnecessarily expensive to society and its taxpayers, or detrimental in any other way, then the law can be changed. However, once international courts and international conventions become involved, this key link between national policy, the law-making process, and law enforcement is broken.

It was on these doctrines, and on this growing corpus of precedent, that the International Criminal Court was established, with the power to prosecute individuals, including heads of state and government, directly.

While Barack Obama has so far made no move to sign the ICC statute, his administration’s body language is easy enough to read. In March 2009, in a closed meeting of the Security Council, Ambassador Susan Rice declared that the ICC “looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda, and Darfur.” A week later Ben Chang, spokesman for National Security Advisor General James Jones, took a similar line, telling the
Washington Times:
“We support the ICC in its pursuit of those who’ve perpetrated war crimes.”