What the European Union has, instead, is a central bureaucracy in
Brussels (the European Commission) that elaborates new regulations.
And it has a central court in Luxembourg (the European Court of
Justice) that directs courts in the member states on the application
of EU law. With the ready cooperation of national courts, this
European Court has assumed the authority to hold even the acts of
national parliaments invalid when they conflict (in the ECJ's view)
with regulations of the Brussels bureaucrats or other requirements of
EU treaty law. So half a continent is now governed by a curious
collaboration of bureaucrats and judges, loyally supported by
specialized interest groups that lobby the bureaucrats for favorable
policies and then litigate before the judges to ensure their
implementation by national governments.

It may be too soon to concede the success of this remarkable form of
government, however--if indeed it can be considered a government.
Even today, after decades of integrationist effort, European "law"
does not mean the same thing in Greece or Italy as it does in
Britain. While specialized interests lobby for specialized policy
measures in Brussels, popular political protests still center on the
elected governments of the member states. And European authorities,
lacking the confidence of a direct electoral mandate, are wary of
leaning too heavily on recalcitrant member states.

For the United States, at any rate, the problems of the EU are, for
the moment, other peoples' problems. Indeed, by the classical
principles of international law, the United States would have no
clear right to object to how European states decide to share out
their governing powers with neighboring states. The European Union,
however, is only the most extreme instance of a larger trend that now
does threaten to engulf the United States.

Pinochet's Revenge?

Former Chilean President Augusto Pinochet was sought by a Spanish
magistrate wishing to try him for human rights abuses committed by
the Chilean government while Pinochet was head of state. In
September, with no prior warning, he was seized by British police,
weeks after he had entered Britain--on a diplomatic passport for an
arms-buying mission for the Chilean government. No one disputes that
the military coup that brought Pinochet to power in 1973 was followed
by nearly three thousand deaths or disappearances, the work of
government security forces acting outside the restraints of due
process. But it is also true that Chile has had a freely elected
democracy since 1990 and that successive elected governments there
have declined to challenge the amnesty law that protected Pinochet
from domestic prosecution. Indeed, Chile's democratic government has
declined even to challenge the constitutional scheme that made
Pinochet commander-in-chief of the armed forces until 1997 and
senator for life thereafter. So when British police arrested
Pinochet, the Chilean government launched sharp and persistent
protests and tried to assist Pinochet in his legal battle in the
British courts.

The case for Pinochet's release turned on what had seemed a firm
point of law. There has long been a customary rule of international
law that courts of one country will not sit in judgment on the
sovereign acts of, or the officials exercising sovereign power in,
another country. As a matter of principle, to let courts in one
country put the government of another on trial would be tantamount to
an assertion by the first country that the second was actually
subject to its authority and hence no longer fully sovereign: it
would be, in effect, an attempt at conquest by courts. As a more
practical matter, putting the government of another country on trial
was assumed to be such a belligerent act as to be virtually an
invitation to war. Thus the only exceptions to this rule until now
have been cases where the home country of the defendant did not
object--as in the Nuremberg trials (where the occupying Allied
powers, which organized the trials, claimed to be the lawful
government of Germany at the time), or in the more recent U.S. trial
of deposed Panamanian dictator Manuel Noriega (whose successors were
delighted to have him taken into U.S. custody and removed from their
midst).

Now, of course, the world at large has no legislature to establish a
new rule of international law, supervening the customary rules about
sovereign immunity. Supporters of the Pinochet prosecution claimed
that the rules had been changed by a succession of human rights
conventions, by which governments around the world have promised to
suppress and punish genocide, torture and other human rights abuses.
But none of these treaties gives clear indication that it is supposed
to supersede the customary rules of sovereign immunity, and certainly
none gives explicit authority for third-party states to try
government officials from other countries.

So in October Britain's High Court of Justice ruled unanimously that
Pinochet should be released. On appeal in the House of Lords, a
five-man panel split 3-2 the other way in early December. But in a
subsequent appeal, Britain's Lord Chancellor directed that a new
panel should be convened to reconsider this ruling. One of the three
Law Lords making up the majority turned out to have been closely
associated with fund-raising efforts for Amnesty International, a
human rights advocacy group that had strongly advocated Pinochet's
extradition and prosecution. The Lord Chancellor held that this made
the ruling of the original panel look improper and Pinochet should
therefore be accorded a new appeal before a new panel of Law Lords.

But it is hard to say why Amnesty International had any less right to
participate in the judgment of Pinochet--for misdeeds committed in
Chile, against Chileans--than the governments of Britain or Spain. In
fact, both the British prime minister and his Spanish counterpart
insisted that their governments were leaving the matter to the courts
and taking no policy stand on the issues. Both declined to exercise
the statutory powers that political ministers in either country could
have invoked to stop the extradition process. So the whole momentous
prosecution was supposed to be proceeding on the say-so of career
prosecutors--that is, essentially, bureaucrats--in each country.

While the British courts were deliberating, the European Parliament
sought to ensure that the prosecution would go forward. It adopted a
resolution urging Britain to extradite, and other governments to take
up the prosecution, if Spain finally declined to do so itself. This
intervention of the European Parliament had its own ironic logic: a
parliament that is not a real legislature demanded enforcement of a
new international doctrine that is not a real law.

And clearly, it cannot be a real law. Weak and distant Chile will not
go to war with Britain or Spain or the EU. But the notion that
"international law" will now hold evil-doers of all lands to account
is absurd. If "international law" requires the trial of Pinochet in
an outside country, then it must require similar trials to hold
accountable far worse butchers from many other places. Nothing in
international law, however, says that only former dictators from
small countries can be held to account in this way. There is no
distinction in the relevant human rights treaties between dictators
and democratic officials, between top officials of small countries
and top officials of powerful countries, or even between former
officials and currently serving ones. But no one expects EU countries
to hold a top Chinese leader to account for massacres in Tibet, or to
hold former Russian officials for extradition to Latvia--or American
officials for extradition to Sudan, which has been threatening to
charge them with war crimes for the bombing of an undefended aspirin
factory last August. The European Parliament seems to have in mind a
"law" that applies only to Pinochet.

Human rights advocates insist that the whole problem could be
equitably handled if there were an international criminal court. And
a UN conference did indeed come out with a treaty proposal to
establish such a court in the summer of 1998. Its provisions were so
vague and all-encompassing, however, that even the Clinton
administration felt compelled to refuse its assent and the United
States has since been lobbying other countries not to ratify the
International Criminal Court (ICC) Statute. In effect, Spain's
prosecution of Pinochet was a forcing of the issue by asserting the
right of national courts to proceed in the name of the international
community without waiting for the explicit agreement of other
countries. It thus presents reluctant nations with the choice of
submitting to the ICC (which does have a number of explicit
procedural safeguards not recognized here by Spanish courts) or
trusting to the vagaries of legal reasonings in the national courts
of dozens of separate countries.

But even the ICC bids to force its jurisdiction on unwilling
participants. The new court will be empowered to assert jurisdiction
over war crimes and extreme abuses, not only when committed by
nationals of signatory states, but also when committed against
victims who are nationals of a signatory state. In theory, then, the
ICC could be turned against the United States at the behest of Sudan,
even if the United States does not itself ratify the treaty
establishing the ICC. So we are back to the same basic problem.
Either the ICC does not act, because its independent prosecutors have
the bureaucratic nimbleness to avoid confrontation with a great
power, or we have in store for us some troubling confrontations down
the road.