The globaloney of international law.

The globaloney of international law.

The globaloney of international law.

The law, lawyers, and the court.
May 10 2002 12:59 PM

The Globaloney of International Law

More courts, but less justice.

Call it the triumph of L.A. Law. Or the globalization of O.J.

In pursuing the war on terror, the United States has adopted the presumption that there can be no justice without the whirling and grinding of a justice system. So persuaded are we that fairness happens only in court that we have become dependent on a phantom international justice system, modeled after our own domestic system. But international justice is by definition different from national justice since nations pursue their own interests.

By what measure of international justice was the United States replaced on the U.N. Commission on Human Rights by Sudan of all countries? By which corpus of international jurisprudence was Syria deemed worthy of being appointed to the Security Council? In our massive failure to realize that international rules of justice are different from our national system of justice—even when they may look similar—we are harming ourselves and endangering the world. In fact, by insisting on applying the trappings of the American court system—objective investigations, accumulation of evidence, achieving unanimity by a jury of peers, affording painstaking due process to every international decision—we may actually be denying true justice.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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In the days following Sept. 11, Colin Powell's first actions involved becoming the world's attorney general, assembling what he claimed would be irrefutable evidence of the link between Osama Bin Laden and the massacre at the World Trade Center. The "evidence" was of course deemed sufficient by America's friends (did Tony Blair even look at it?) and woefully circumstantial by our enemies. Last week a young Indonesian girl told the New York Times' Thomas Friedman that "they have not found evidence to prove that [Bin Laden] is the one who did it." The notion that enough "evidence" would somehow persuade Osama Bin Laden's followers to join in the American cause is laughable, which is why we proceeded to bomb Afghanistan regardless of whether the entire world agreed about his guilt.

Now we seek  to achieve what we deem another objectively "just" goal—of ridding the world of Saddam Hussein—and we again revert to our penchant for the trappings of our justice system. Despite mountains of irrefutable evidence, and despite his consistent refusal to abide by  U.N. demands, we are paralyzed as he accumulates weapons of mass destruction. Why?  Because we cannot induce our international jury of peers to join in. Is their failure to indict and pursue Saddam animated by some sophisticated interpretation of "international law"? No. It's animated by national self-interest (oil, anti-Americanism, or placating the street). Does this international silence in the court of the world mean that Hussein is legally innocent? That he has submitted to international justice? Or does it only mean that there is no law between nations?

Iraq is only an extreme example of this globalization of domestic justice processes. Consider our own inability to pursue a war on terror while attempting to satisfy the demands of our justice system:

The Moussaoui Variety Show

The Zacarias Moussaoui trial has become a showcase, as I argued last week, for the inadequacies of prosecuting an international terrorist using traditional American criminal due process. Not only is Moussaoui refusing to recognize the legitimacy of the proceedings, he's also using them to broadcast his anti-America, anti-Israel views. The possibility that Moussaoui can have anything resembling a truly "fair" trial by American constitutional standards grows more remote with every motion he files from his jail cell. But since we treat his involvement in an act of war as a crime, we must live with the consequences.

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"You Have the Right To Remain Silent, Just Put Down the Rocket Launcher"

The John Walker Lindh prosecution is similarly disappearing through the cracks between American notions of law and war, principally as a result of Lindh's claim that he wasn't properly Mirandized on the battlefield. At the heart of the case against the "American Taliban" is his confession, clearly obtained in violation of the constitutional Miranda rules. Of course, Walker wasn't arrested for dealing drugs in Chicago. He was taken as a prisoner of war in Afghanistan while enlisted on the side that sought to kill Americans. Since when is there a constitutional obligation to Mirandize our enemies (even American enemies) in wartime? Only after we began to thoughtlessly conflate what happens in a courtroom with what happens on a battlefield.

Move Over Judge Judy, Yasser's in Town

To end the siege against his Ramallah compound last week, Yasser Arafat assembled a makeshift Palestinian "military court," which tried four militants for the assassination of Israeli Tourism Minister Rehavam Zeevi. While neither the judge nor the lawyers involved in the case had any legal training (all were policemen holed up along with Arafat), they hastily sentenced the four to prison terms ranging from a year to 18 years. With all the trappings of a "court," Arafat's kangaroo tribunal appeared to be imposing justice. But the "crime" at issue was not murder. It was "harming the interests of the Palestinian Authority." This was not law; it was national strategy. Arafat proved only that the law of war is the pursuit of national self-interest.

"Your Honor, Please Ask the Defendants To Stop Making Faces at Me"

The trial of the alleged kidnappers and killers of American journalist Daniel Pearl in Hyderabad, Pakistan is yet another example of something that only passes for international law. In this closed-door session in a prison, from which reporters are barred, the proceedings have been adjourned at least three times, in part because defense counsel shows up only when they feel like it. The judge has now been replaced twice. (Judge No. 1 was replaced because one of the defendants confessed in a pretrial proceeding. Judge No. 2 was replaced for failing to stop the defendants from making "threatening gestures" toward the prosecutor.) The trial degenerates as the defense team yesterday accused prosecutors of "blasphemy against Islam." We are witnessing, again and again, the failure of any international consensus on legal principles or procedures. All that is left is an international passion for law of the "I'll-sew-the-costumes-you-paint-the-barn" variety.

By the same token, the world now knows that there was no "massacre" in Jenin. There was an attempt to stage, with the help of the United Nations, what would have been a show trial. As it turns out, this included manipulation of evidence, the empanelling of a "jury," and the collection of statements and narratives—all the accoutrements of a real trial. But there was no body of law guiding these actions. It would have been simply a show of hands: "Who thinks this was  valid?"

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What is "international law?" Not international human rights law (which we can almost agree upon, at least among civilized countries), but what law controls in wars between nations—aside from the laws of self-interest, which have controlled wars for all time?

In an effort to mount an ex-post-facto defense of his siege on Ramallah, this week Israeli Prime Minister Ariel Sharon confronted President Bush with his "Pelican Brief." The 100-page Israeli report details the involvement of Arafat in financing and supporting criminal acts of murder and terror. While as an evidentiary matter, the Israeli report is compelling, the Palestinians dismiss it as a "forgery," and U.S. officials say it's "too early to comment." It's not too early to comment. It's simply that there is no forum in which to test the authenticity of Israel's "evidence." There is no "war court" to examine the justness of Israel's war. And when, as is the case here, there is no court, the evidence is immaterial. Even a smoking gun has no value without a jury to examine it. So the world, including my Slate colleague Robert Wright, dismisses Israel's "Exhibit A" without even reading it. We do not ignore great hunks of evidence in domestic criminal trials. But when it comes to war—against Saddam Hussein or Yasser Arafat—the domestic legal model fails. Evidence is irrelevant.

This is not an argument for reckless, unchecked international aggression. It is an argument against trusting that the only other alternative is slow, deliberate international tribunals, imposing phantom rules invented on the fly. Law is a system best imposed after the fact. The Nuremburg trials occurred only after the atrocities. It is only because we've become so reliant on the illusory comfort of our justice system that we believe it can apply, without question, to aggression between nations.

Despite a great surplus of trials, mock trials, fact-finding missions and tribunals, there remains a paucity of justice in the world just now. When the United States chose this week to renounce participation in the International Criminal Court, the world recoiled at the U.S. implication that simply because someone has a robe and a gavel does not mean that justice will be done. If there is an international calculus with which to determine when wars are just (as opposed to just a pursuit of self-interest), the International Criminal Court has yet to invent it. And in lieu of such a body of law, the International Criminal Court risks being to international criminal law what the United Nations is to world peace—an aggregation of self-interests, bringing the kind of bargaining and influence-trading  inevitable in a regime of majority rules.

The United States should bear some responsibility for the world's sudden insistence that there can be some kind of international consensus on justice between nations. We became so enamored with our own court system we convinced the rest of the planet that a war on terror that doesn't include infinite numbers of trials and fact-findings and rulings is illegitimate. Now we pay the consequences by accumulating unheeded evidence, making unheard opening statements, and taking depositions while Rome burns.