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THE AMORAL ELEPHANT by William K. Tabb All material copyright © 2001 by Monthly Review Press |
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Enforcing
Human Rights Internationally: No longer can it be said that a nation-state is the final arbiter of what happens within its borders. Apartheid, genocide, and torture can be condemned and punished by legitimate international institutions. Nor can a nation-state's leaders proclaim that they, like the sovereigns of old, are immune from prosecution and punishment. From 1945 onwards, it has been recognized more and more that even heads of state can be found guilty of crimes against humanity. Moreover, there is increasing recognition that the "race to the bottom" analysis that Chief Justice Marshall used to justify the slave trade no longer holds. That is, there are peremptory norms of international law binding on nation-states even without their consent. This view owes a great deal to Soviet theorists such as G. I. Tunkin, and even more to the work of human rights activists in the former colonies. Finally, and perhaps most important, it is now clear that international law is no longer "inter-national" in the sense of being only rules that govern relations between and among states. Individuals are recognized as possessing international rights, enforceable against their own sovereigns. In former days, an individual's claims could be heard by an international tribunal only if sponsored by that person's sovereign, or by some other sovereign who would sponsor the individual's claim. Today, there are even multinational forums, such as the European Court of Human Rights, in which individuals can sue their own sovereigns for violations of international human rights. Among the European Court's accomplishments has been denunciation of British torture of Irish prisoners and forced relocations carried out by the Turkish government. The United States has campaigned against the creation and operation of such forums, not wishing to have its own actions judged by "outsiders," but its opposition has only slowed progress, not halted it. This perceptual shift opens up avenues of struggle for justice. Of course, struggle remains the operative word. The great powers continue to manipulate principles of international law in their own interest. For example, the North Atlantic Treaty Organization states conducted a brutal bombing campaign against Yugoslavia in 1999. This campaign—which cost thousands of civilian lives and destroyed Yugoslavia's economic infrastructure—was undertaken ostensibly to protect the rights of ethnic Albanians in the province of Kosovo. It is clear that Yugoslav Serb troops and militias had engaged in brutal acts in Kosovo. However, the NATO powers had themselves recognized Yugoslav sovereignty over the province when it was in their strategic interest to do so. Hypocrisy aside, NATO deliberately bypassed the truly transnational United Nations mechanisms for resolving the conflict, thus violating the NATO members' treaty obligations. The bombing campaign triggered waves of violence, and created scenes of destruction, more widespread than would have occurred if an alternative and truly transnational solution were to have been sought. As the atrocity propaganda smoke clears it now appears quite possible that more civilians have been slaughtered by NATO bombing and Albanian nationalist armed groups than by Serbian troops and militia. Thus claims that "human rights violations" override "outdated" notions of sovereignty or the binding nature of multilateral treaties can be used to prettify policies of the most powerful states, based on the old-fashioned dictum that might makes right. In short, the term "universal" can and has been appropriated by powerful countries to achieve decidedly non-universal ends. It taxes credulity to term NATO bombing raids as an "enforcement mechanism" of the "international legal community." No trial in any fair forum ever decided that such a thing should happen. The findings of alleged fact that preceded the raid were sharply contested from many reliable quarters, and the military response was incompatible with the basic objectives of an international legal system— which is to preserve and protect life and not to take it. This contradiction lies at the heart of our present struggle for international human rights. We are at times drawn into a Faustian bargain. We take our claims to national tribunals, which may later convert our expressions of principle into results that are not consistent with human rights. We do not want for examples of how claims for justice may be presented based on the rediscovered norms of human rights. In assessing these stories, one must keep in mind that using legal ideology to present claims for justice is not an end in itself. That is, the claims are made by and on behalf of a movement for change, and the purely "legal" maneuvers are but one element of the movement's activity. To see matters otherwise puts law and lawyers too much in the center of things, and risks both reification of the norms and trivialization of the movement's popular base. As one episode, consider the case of Chile. In 1973, the government of Socialist Party leader Salvador Allende was overthrown by a military junta, led by General Augusto Pinochet. Pinochet became leader of a government that ruled until 1990. The junta was responsible for thousands of disappearances, tens of thousands of tortures, and for political assassinations of its opponents in Chile and abroad. On September 21, 1976, former Chilean Foreign Minister and ambassador to the United States Orlando Letelier and his American associate Ronni Karpen Moffitt were killed by a car bomb in Washington, D.C. Letelier, who had served in the Allende government, was an effective opponent of the junta on the international scene. The bomb was planted and detonated by Cuban-Americans hired by the Chilean secret police agency DINA and its successor, CNI. My partners and I sued the Chilean junta and won a judgment declaring it responsible for the killings. The damage award was eventually paid. This case thus helped to establish the principle of state responsibility for acts of terrorism conducted against political opponents. It was, of course, no secret that agents of reactionary governments used the United States as a base for operations against their own nationals. This was a pathbreaking decision on state liability for such conduct. In the meantime, with renewed vigor after the junta yielded power, lawyers in Chile brought cases dealing with the junta's abuses. General Manuel Contreras, head of the secret police, was tried and convicted by a military court. He then gave a statement implicating Pinochet in all the murders and tortures and disappearances. This statement added to a considerable body of evidence of Pinochet's personal involvement in those crimes. After all, Pinochet's favorite expression was "not a leaf moves in Chile but that I know of it." The question was: Could progressives make Pinochet personally accountable? To be sure, the principle of accountability for crimes against humanity had been reaffirmed by the post–Second World War Nuremberg prosecutions of Nazi leaders. In France, persecutors of the Resistance—including one former Gaullist cabinet minister—had been prosecuted. The United Nations had established war crimes tribunals for the former Yugoslavia and Rwanda. A Spanish lawyer and academic, Dr. Juan Garces, brought together these strands of doctrine and filed criminal charges against Pinochet in the Spanish courts. His theory was this: systematic torture of one's political opponents—because of their politics—is regarded under international law as a kind of genocide. Spanish criminal law expressly defines this kind of torture as the serious crime of genocide. Even though some Spanish nationals were tortured and killed, this is not necessary for Spain to have power over the case. Crimes against humanity are like the crime of piracy in traditional international law—any nation that captured a pirate could try him, for his crime was said to be committed "against all humankind." This is known as the principle of universal jurisdiction. Most criminal offenses are prosecuted based on territoriality: where the crime was committed. Some states also punish their own nationals for crimes committed anywhere: the principle of active nationality. And a state may punish those who commit crimes against its nationals anywhere in the world: the principle of passive nationality. This principle of universal jurisdiction is well enough established that the courts of Spain upheld the notion of prosecuting Pinochet. So in October 1998, while Pinochet was visiting London, he was arrested on a Spanish warrant, seeking his extradition. His case wound up before Britain's highest court, the law lords or Lords of Appeal, of the House of Lords. Those of us who had brought the Letelier-Moffitt case were called into service. Pinochet claimed that under British and international law, he was immune from prosecution for any acts he had committed while head of state. This principle of head of state immunity, like the similar idea of diplomatic immunity, is well established. But the Nuremberg principles, a host of treaties signed since the Second World War, and many judicial decisions, most of them from the United States, have established an important exception to this immunity. The head of state is immune from prosecution only for ordinary wrongs, and not for crimes against humanity such as torture and genocide. The House of Lords recognized this exception, albeit in a limited way. It held that Pinochet could be prosecuted for tortures committed between December 1988 and the time he left power in 1990. The lords chose this date because it was the date on which Britain had become a party to a treaty, the Torture Convention, which expressly denied immunity for torture. A London magistrate, Roland Bartle, then held that Pinochet could be extradited to Spain if Britain's Home Secretary approved, for extradition is ultimately a matter for the political branch of government to decide. Remarkably, magistrate Bartle had been regarded by the pro-Pinochet forces as a potential ally, due to his pro-empire political affiliations. However, his judgment against Pinochet was based upon an announced recognition that in the field of human rights, there must be "one law for one world." Britain's Home Secretary ultimately freed Pinochet to return to Chile, on grounds of ill health. Nonetheless, a point had been made. This account shows how claims for justice can find open space even in the legal ideology of bourgeois states. The erosion of state and head of state immunity, and the growing consensus that torture and genocide are crimes against the whole of humanity, are instances of international solidarity. The Pinochet case illustrates the Faustian bargain of which I spoke earlier. The principle of universal jurisdiction over human rights offenses puts a weapon in the hands of every country. Any nation can, in its own courts, accuse the leader of any other nation, claiming that he or she is guilty of such offenses. Powerful nations can particularly invoke this weapon against weaker ones. This difficulty will endure until the creation of genuine international tribunals. Indeed, even after such tribunals are created, there will remain problems of "prosecutorial discretion." That is, prosecutors may choose the wrong targets, as prosecutors have done time out of mind. The answer to such difficulties lies in the relationship between law and movements for social change. The Pinochet litigation in London and Spain would not have had a lasting effect unless a movement in Chile had taken up the call to bring him to justice. All of our work on the Pinochet matter, from 1976 forward, has been done in close collaboration with the movement for change in Chile. That movement redoubled its efforts when Pinochet was released in Britain, and the Chilean courts have now stripped him of his immunity from suit and prosecution. In the same vein, aberrational invocations of human rights and universal jurisdiction principles will be countered by responses from the people affected by the alleged conduct. If no movement for change responds to an initiative, it will lose force. Other examples of progressive use of human rights norms are not hard to find. In October 1999, a welfare rights group filed a petition with the Inter-American Commission on Human Rights, claiming that United States welfare policy violates international human rights norms. The United States Supreme Court has held that the U.S. Constitution does not obligate the federal or state governments to provide minimal subsistence, nor to create the economic conditions necessary to protect social and economic rights. Thus, the Court has held that legislatures may terminate social welfare programs at will, even while recognizing that when such programs are funded benefits may not be withheld on prohibited grounds such as race. While American courts have taken this view, international treaties and customary international human rights law have increasingly recognized economic and social rights to subsistence, to work, to organize, to education, to health, and to maintain family life. These rights are enshrined in, for example, the Universal Declaration of Human Rights, and the American Declaration of Human Rights, which is applicable to members of the Organization of American States. The petition was filed by several groups of poor working people, and their individual members, as well as law reform groups such as the Center for Constitutional Rights. It describes in detail how "welfare reform" legislation in fact pushes people below subsistence income levels, undermines family life, shuts off educational opportunities, and endangers the health and safety of children in poor families. Organizations of working poor and welfare recipients have battled for years against the injustices of the social welfare system. In this respect, the petition's claims are not new. What is new is the assertion that transnational norms that the United States is obligated to respect require major changes in how the welfare system is financed and administered. That is, the petitioners are looking to the progressive elements of legal ideology to formulate claims for justice. And they are explicitly recognizing that United States domestic law provides them no relief. The use of international norms as the basis to attack United States policy is a progressive development, for it enlarges the field of struggle and provides a coherent set of critical norms: critical in the sense that they judge the strictly domestic standards, and find them wanting. The ultimate success of this petition in an international judicial tribunal is, once again, not decisive. The United States has repeatedly refused to obey decrees of the Inter-American Commission on Human Rights or even to recognize the jurisdiction of the affiliated Inter-American Court of Human Rights. It has, for example, continued to execute juveniles, and to deny basic procedural fairness in capital cases generally. But as was the case with the campaign against apartheid and other human rights struggles, raising claims for justice as international human violations provided a rallying cry for the movement, and eventually influenced institutions. Principles of legal ideology, reflecting international consensus, become the basis for demands for change. And if the change does not come, the insistent argument that this represents a betrayal of "the law" helps to galvanize the movement for change. One need only look at the struggles for civil rights and against apartheid to see the point. To say that one desires change is one thing. To say that one is entitled to change, and to back that argument up by appeals to legal ideology, makes the demand clearer. And, as I noted above, the great powers no longer possess a monopoly on formulating principles of legal ideology. Thus, the conduct of the most reactionary government—as in Chief Justice Marshall's day—is no longer the defining principle of international norms. The availability of international forums in which to arraign domestic exercise of state power does not mean that purely domestic or internal legal ideology has become irrelevant. Struggle over the meaning and interpretation of key bourgeois democratic constitutional principles still has a role to play. If you have any technical comments or suggestions, about this web site, please send e-mail to Our Webmaster.  |
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