Thursday, May 5, 2011

The Hubris of the International Lawmongers

Here's a very short and necessarily superficial summary of the theory of lawmaking in modern democratic societies.

The people are sovereign, or rather the broad section of the people which comprises the electorate. The electorate periodically chooses its representatives and sends them to the legislature. The legislature legislates: it debates, formulates and passes laws, which thus express a rough approximation of the people's will. The laws are sent out into the real world, where they are tested, refined, and elaborated through a complex process of decrees, practice, litigation and adjudication, and general public discussion, not in any particular order. On the contrary, this is a permanent multi-layered process. Decrees are promulgated by the executive, which is itself subordinate to the sovereign people; adjudication is done, obviously, by judges, and they too are subordinate to the electorate either because they must deal with the law as legislated, or through the mode of their appointment, or through whatever channels each democratic society chooses to control its judges. Ultimately much of the ongoing creation of the law and its application reflect moral values as they're defined by each society. Does it prefer to encourage risk taking over security, say, or how it chooses to allocate its limited resources. Successfully functioning democratic societies strive towards a common ground, a rough consensus around which most members can coalesce, and they navigate inevitable changes in social mores, technology, and all the myriad other things that change and evolve over time, in an approximation of general agreement. Societies which cannot roughly agree, because they're too diverse or haven't agreed on principles of managing legislation and its evolution, run the danger of disintegration or worse.

Telegraphic summary of the summary: the sovereign people figure out how they wish to organize their particular society and how they wish it to evolve, and their institutions strive to express this agreement.

International law doesn't have a sovereign, and worse, it doesn't have a universally accepted notion of priorities, mores, or institutions to express them. True, there are valiant attempts to pretend otherwise, and over the past half century or so they've grown ever more valiant. These include the creation of international institutions with a cursory appearance of democratic institutions such as a parliament, an executive and courts. There is a conceit whereby there's a set of fundamental documents which define universal mores, and these documents enjoy democratic legitimacy since they've been ratified by national institutions such as parliaments or governments. Yet the obvious fact that most of the parliaments or governments which did the ratifying were themselves not democratic should give us pause; the lack of credible accountable institutions for applying and evolving the old fundamental documents ought to convince that the entire system may be a noble and well-intentioned attempt, but it's not remotely possibly successful. Nor can it be: the idea of having a sovereign electorate is to preserve its power to change its mind. Almost by definition different societies will change their minds in different directions: because they're different.

An interesting example rarely mentioned in such discussions but which I have seen close up many times is the availability of archival documentation. Roughly speaking, American archivists reflect the will of their society by assuming documentation should be thrown open to public scrutiny as much as possible. Europeans, meanwhile, and especially Germans, are far more wary. Neither side is "right", and both sides have reached their present positions through an understanding of their respective histories; since the histories are very different, so is the legislation. Anyone who reads newspapers perceptively can easily put together their own long list of other examples. This is inevitable, it reflects the human condition, and it should be celebrated not bemoaned.

Unless you're of the opinion that there's a set of universal rules in which one size fits all. To an extent, the European Union project sort of takes this position - but the extreme reluctance to let in the Muslim Turks or the impoverished and hardly democratic Ukrainians demonstrates loud and clear that the EU project isn't universal, it's merely European, and can include only those societies who can be trusted to agree to the same broad consensus. I expect it will take another century or three to know if this can work even in Europe. Imagine trying to incorporate the US and you see how silly the conceit of universality is; then think of China or Russia. Heh.

None of which stops folks from pretending. The German Der Spiegel magazine, for example:
What is just about killing a feared terrorist in his home in the middle of Pakistan? For the families of the victims of the 9/11 attacks, and for patriotic Americans who saw their grand nation challenged by a band of criminals, the answer might be simple. But international law experts, who have been grappling with the question of the legal status of the US-led war on terror for years, find Obama's pithy words on Sunday night more problematic. Claus Kress, an international law professor at the University of Cologne, argues that achieving retributive justice for crimes, difficult as that may be, is "not achieved through summary executions, but through a punishment that is meted out at the end of a trial." Kress says the normal way of handling a man who is sought globally for commissioning murder would be to arrest him, put him on trial and ultimately convict him. In the context of international law, military force can be used in the arrest of a suspect, and this may entail gun fire or situations of self-defense that, in the end, leave no other possibility than to kill a highly dangerous and highly suspicious person. These developments can also lead to tragic and inevitable escalations of the justice process.[my emphasis]
Translation: Claus Kress and other unnamed self-appointed legal experts trump the sovereign will of the American people. It's not historical fact that punishment can be meted out only via trials, so Kress can't be talking history. He's talking law, or anyway he thinks he is. Except that of course he's not, since he allows no room for an adaptation of law to new circumstances. Nor does he grant the American people the right or legitimacy to fashion their own response to a new situation. If the murder of 3000 people in New York is hiding in Pakistan, America may not chose the manner it will deal with him, rather it must do what Claus Kress says, since he represents a higher justice than the mere will of the American people. Moreover, his interpretation trumps theirs, since he knows he's right. And of course, Claus Kress is against capital punishment, as most Europeans are, and the international court he's referring to has no capital punishment on its books, so there's no way in which the Americans could have legally caused the death of Osama Bin Laden unless he was shooting at American policemen with a legal arrest warrant.

Kress isn't important as an individual. I'm criticizing him because he represents a widely accepted Weltanschauung.

Kenneth Roth agrees, but takes the hubris a very important step forward. Roth is an American, so on one level he, unlike Kress, is a legitimate participant in the American discussion of how America should deal with its enemies. Yet Roth doesn't refer to American law, rather to international law; actually, he doesn't refer to law at all, rather to a philosophical principle which he adheres to and demands that all the rest of us do, too:
It's not "justice" for him to be killed even if justified; no trial, conviction.
What makes this statement positively comic is that it came in a tweet in which he rebutted the Secretary General of - are you sitting? - The United Nations! Ban ki Moon, you see, had just announced his satisfaction at the death of Osama bin Laden. Roth then turned to the American government and demanded:
White House still hasn't clarified: OBL "resisted" but how did he pose lethal threat to US forces on scene? Need facts
It's a fine thing that individual citizens can place demands on their government. It's an essential part of democracy. What's so repulsive is the strident demand that a democratically elected government justify its actions - pronto! - to an unelected, and very much unelectable private individual who sees himself as superior to the democratic process of his country, in the name of an undemocratic system which lacks all the elements of a living legal system.

It's tempting simply to write people like Kress and Roth off as kooks. Sadly, Kress represents a widely accepted theology in Europe, and Roth has an impressive cachet in some circles in America; they are supported by many very cynical governments who have very limited patience with their sentiments when it comes to their own societies, but find the appeal of intervening on the sovereignty of other lands irresistible Feeling superior at the expense of America is fun; garnering points from the large Muslim contingent at the UN by rigorously applying these notions to Israel is painless. On that level, it's hard to know if Roth is a knave or a dupe. Knave for propagating a crooked and anti-democratic system, dupe for being the tool of hard, undemocratic and unscrupulous regimes. I expect he's both.

Update: Apropos theology, the Archbishop of Canterbury joins the chorus.


Silke said...

it's not only Ban Ki-Moon it is this guy also

I wonder if this will in any way influence the Human Rights Council ;-((((

On the whole I am beginning to wonder whether it isn't time to establish a supranational Human Rights Pope or Vatican.

But the good news is that my harvest of radio headlines from today seems to suggest that at least in Germany the approving of the Americans ones are starting to fight back and will hopefully outclass the Kresses to the places where they belong. As usual the sane ones probably didn't anticipate that so many could be so stupid and thus enter the game a bit late.

UN Special Rapporteur for Human Rights on Bin Laden Killing
by Benjamin Wittes

Martin Scheinin, the United Nations Special Rapporteur on the promotion of human rights and fundamental freedoms, also says the Bin Laden killing was legal–and also hinges this judgment on the opportunity given him to surrender. I think this is already proving to be a thin reed on which to hang the legality of the operation. But if it’s a fiction that works for people, okay.

Sérgio said...

You nailed it when you call this "international law" movement a theology. Because it is exactly that, with their high priests in academia, law, journalism and media and its branches are the QUANGOS
(quasi-unaccountable NGOs). It is what Kenneth Minogue calls "the politico-moral" movement, that mixes morality with politics (particularly
foreign policy) transferiing national sovereingty to unelected international bodies based solely on their alleged good intentions. It´s suicidal and deeply authoritarian and it´s already damaging democratic principles worldwide. It´s a hypocritical sham devised by narcissistic ivory-tower "transies" (transnational progressives) and should be exposed as such.

Silke said...

and to go on with the isms

I perceive its utterances more often than not as supremacist and racist

they suffer from advanced megalomania, from we are the saviours-ism

all the good they may have once brought into the world is destroyed by their hail to the theory to hell with men and his low life needs (except us of course)

sorry I just had a full dose of them but today slowly belatedly the reasonable ones the ones with a connection to reality seem to get into gear but the first wave of public moral pontifications and faux ethics and international law pronouncements was dominated by them.

Either the moralisers (BedenkenTräger=ConcernCarriers) are preferred by radio (which I get most of my German news from) or they can't see right away the idiocies their colleagues will spread if one lets them get to the phones first.

Silke said...

chuckle chuckle - the Quangos seem to have missed something???

With all the was-it-legal-to-kill-UBL talk, I’m a bit surprised that this morning’s news out of Yemen is getting so little attention. Jeb Boone at the Washington Post reports that a missile struck a vehicle in Yemen’s Shabwa province, killing two brothers associated with AQAP. There has been no public claim of responsibility for the attack, but Boone presumes that it was a US drone strike.

Borg said...

The Archbishop of Canterbury has no Christian constituency, so the Archbishop has to cater to his Muslim constituency, which is more vital and vocal that the formaldehyde preserved corpse of English Christianity

Thomas von der Trave said...

Silke, one hopes the Bedenkenträgers' backs don't bend from carrying all that concern around with them all the time!

Y. Ben-David said...

The classic television comedy series "Yes, Prime Minister" had a hilarious episode where they skewered the Church of England, particularly its leadership. The episode is entitled "The Bishop's Gambit". The current Archbishop of Canterbury's comment is exactly in line with the way the Bishops are portrayed on the show. The show points out that the Church of England is NOT an institution really interested in faith and religion but has three main interests (1) Business-it owns a considerable amount of property, (2) Leftist Political correctness and (3) kissing up to the aristocracy and the moneyed Establishment.

I recall the current Archbishop was in New York when 9/11 and he said something to the fact that Americans needed to "understand" the causes of the anger that drove the terrorists to do what they did.

No wonder the Church of England and its American counterpart, the Episcopalian Church have virtually evaporated in terms of the numbers of worshippers they have.

milton said...

Not that I am troubled at all by OBL's assassination, but the State of Israel took the trouble to try Eichmann.
And the difference is?

Yaacov said...


Eichmann in Argentina really was a harmless has-been who in no way threatened anybody. The war OBL was part of is very much ongoing; there was no way those Seal men could know how much resistance they were going to encounter, if major or minor.

NormanF said...

I think of Judah and his brothers. No doubt today's civilized minds would condemn them for what they did to avenge their sister Dinah.

Its a telling lesson true justice is not always exacted with the strict letter of the law in mind.

Lorenzo said...

Milton, the difference is that there were no equivalent of jihadis willing to take hostages to demand Eichmann's release. Putting ObL on trial would have a likely cost in innocent lives.

Silke said...

somebody of a sane and shrewd mind, i.e. the state of Israel, probably decided (and IMHO got it right) that at that time and in that place it would be good for Israel to put Eichmann in front of a jury.

Would I have blinked an eye if Eichmann had suffered an accident? Of course not. Would I have assumed that the state of Israel had good reasons to decide to handle it that way? Of course I would.

That said, no matter what a state decides on matters like this, it will always be a gamble.


I just hope that everybody will notice AND remember what a dismal "Hasbara" job the US authorities, homeland of the presumably highest paid PR-people in the world, are doing with this one.

How can it happen that Panetta says one thing and Obama another?

So remember that one when next you engage in condemning Israel for what more often than not turns out to be a minuscule, can't be helped, shit happens blunder in the Hasbara department.

Thomas von der Trave said...

Silke, as one who follows the German media, you may be interested to see my reply to Herrn Jörg Schönenborn of the Westdeutscher Rundfunk, who seems to be one of the leaders of the "awful, those Americans" set. It looks as though the moderators on the ARD site where the "discussion" (read "tongue-clucking") is going on have deep-sixed my commentary (, so I might as well publish it here:

Jörg Schönenborn ist vielleicht der pompöseste unter den Zeigefinger-Predigern, die ihrer Entrüstung über den Jubel der Amerikaner zum wohl verdienten Abgang Osamas Luft machen.

Man kann nur froh sein, dass solche enorm evolut-involuten Menschen (noch) nicht vom weltweiten Islamofaschismus in ihren eigenen Wohn- und Arbeitsvierteln heimgesucht worden sind – sonst fielen ihnen diese moralischen Klimmzüge vermutlich etwas schwerer.

Ich gratuliere jedenfalls zum glühenden Gefühl der eigenen seelischen Überlegenheit, das solche halbseidene Besserwisserei und Scheinheiligkeit dem bigotten hyperhumanitären Blinzelbruder offenbar vermittlen.

Anonymous said...

Will Osama Bin Laden now be Irrelevant?

Barry Meislin said...

I think of Judah and his brothers. No doubt today's civilized minds would condemn them for what they did to avenge their sister Dinah.

Psst. Actually, they happened to be condemned by Dear Old Dad.... Oh, and by the way, Judah had nothing to do with it---unless you happen to be in the neo-Midrash(?) business, in which case, well, good luck....(but maybe you should try to find another line of work?....)

NormanF said...

Revenge sounds so old fashioned... But I think sometimes it is deserved. And in hindsight, Dear Old Dad would have agreed the law does not always produce justice.

Sometimes the best response to evil is the most brutal one. It won't lead your enemies to love you but they will make them fear your strength.

Anonymous said...

There is no such thing as "international law". Law is the product of the social contract between a people and their government, not one nation's people and another nation's government. Treaties can regulate relations, similarly to laws, between nations, but they are not really laws either. The left's obsession with "international law" is nothing more than mass narcissm--they cannot conceive that everyone in the world does not think and feel just like them; ergo, they presume everyone will follow their path of least resistance and hedonism, despite hard, hot, bloody evidence that many, many people not only don't share their simpering infantilist views, but actively wish to irradicate them. The fact that Al Qaeda exists proves international law is a crock.

RK said...

How is Kress not a legitimate participant in the discussion about how America ought to deal with its enemies? This American is more than willing to have him participate till he's blue in the face. I have to say that I find totally mystifying this habit -- seemingly common amongst Israelis and Europeans -- of bristling at criticism from foreigners. I haven't heard of any Americans objecting to Kress because he's German; they object because he's ridiculously detached from reality.

The notion that it's illegitimate for an unelected citizen to demand answers from his elected government is essentially an assertion that numbers determine truth. (Actually, not even that, since elected governments often do things that a majority of their electorate opposes.) The salient difference between Barack Obama and Ken Roth is that lots of people with guns are prepared to obey Mr. Obama -- but unless you're a latter-day Thrasymachos, that has nothing to do with legitimacy. Talk all you want about the "people's will" or sovereignty being mystically vested in politicians, but those are just abstractions. Who was it who said that there was no such thing as society?

Silke said...

have you indulged in smoking recently?

Anonymous said...

I am a lawyer. Whilst I have no expertise in international law I know as a lawyer that good arguments can be made on both sides of a particular case. I also know that each case turns on its own facts. It is easy for academics and eminent Senior Counsel to sit in their comfy chairs and pontificate in hindsight that perhaps OBL should have been served with a Summons to attend Court and then given a fair trial. The fact is, Al Qaeda declared war on the US and its allies. They are brutal and ruthless terrorists and must be defeated. OBL was the commander-in-chief of the enemy and had to be taken out. If OBL's liquidation contributes to the eventual decline and defeat of Al Qaeda in the long term then it was more than justified.


RK said...

Silke: Nope -- maybe that's why my comments aren't up to snuff?