Headline: a barbaric view

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Copyright 1999 Council on Foreign Relations, Inc.

Foreign Affairs
May, 1999 / June, 1999

BYLINE: RICHARD FALK, Albert G. Milbank Professor of International Law and Practice, Princeton University

To the Editor:

I was disturbed by John R. Bolton's review of two recent books on war crimes prosecutions ("The Global Prosecutors," January/February 1999), in which he treats the obligations of international law as subordinate to the geopolitical whims of government.

Bolton writes that "customary international law meets none of the tests we normally impose on 'law.'" By "normally" he obviously means what qualifies as law within a well-ordered constitutional state -- but not even the most rigid legalist claims that international law operates in this way. Instead, international law is generally respected because most governments realize that their interests are best served by a law-oriented international society. And most value having a reputation for upholding international law. Although it is violated on occasion, domestic law is as well, indeed with greater frequency, and yet there is no impulse to deny the existence of domestic law or to regard violations as discretionary.

Bolton goes dangerously further, contending that even ratified international treaties "are not legally obligatory." He forgets that the U.S. Constitution's Article VI makes duly ratified treaties part of "the supreme law of the land" on par with congressional legislation. Bolton also overlooks the long-standing view of the U.S. Supreme Court that treaties (and even customary international law) impose legal duties on the government, above and beyond moral and political considerations.

Bolton appears to subscribe to an imprudent and extreme variant of political realism that leaves governments, especially our own, free to act internationally without regard for solemn legal obligations, whether embedded in the U.N. Charter or in a carefully negotiated agreement. It was precisely this attitude toward international law that the United States branded as "barbaric" in 1979 when Iran seized the U.S. embassy in Tehran and kept its occupants hostage for months.

True, the move to hold dictators responsible for "crimes against humanity" is a big step, especially when viewed against traditional ideas about sovereignty and the immunity of heads of state. It was the United States that once proudly challenged such notions, championing a legal approach to the punishment of Germany's and Japan's defeated leaders after World War II. At the time it promised that these new ideas would frame the duties of all future governments, so as to soften the charge that Nuremberg was nothing more than a kangaroo court.

Perhaps the reach of the Nuremberg promise was not fully understood at the time, but Bolton's contention that it is "euphoric impracticality" to seek the prosecution of Augusto Pinochet ignores both grassroots pressure and the political-legal logic that recently led to the establishment of the ad hoc tribunal in The Hague. This criminal court has the authority to indict and prosecute all those it can catch for both crimes against humanity and genocide committed in the former Yugoslavia and Rwanda.

Behind Bolton's diatribe against extending the rule of law is a disagreement over U.S. interests in the world. I think that if we re-examine the "lawless" initiatives of the past half-century, we find that few, if any, have benefited the United States or its people. I believe that as an American citizen I would be better served by a government that accepted the constraints of law as surely in international affairs as in domestic. Indeed, I would even contend that the next leap forward in legitimate governance will be giving citizens an enforceable, constitutional right to a "lawful foreign policy."

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