Friday, January 2, 2015

Here Come de Judge

Top of the headlines these past two days, has been the announced intention of the Palestinian Authority to “join the International Criminal Court”.   The Israel-friendly layman’s first reaction, one might suppose, would be, “At last!  Those blighters are finally ready to recognize the rule of law.”  But no:  The move is being described, in terms of utmost alarm, as “provocative”;  culminating in the bizarre lead editorial in this morning’s New York Times.

Now, I have not the least intention of saying anything about the Palestinian-Israeli conflict per se.  You don’t care what I might opine on the matter -- and in this case, neither do I.  The point at hand is rather a logical one of journalistic rhetoric.  To make clear that the crux has nothing to do with the fraught particularities of the two entities just named, we shall henceforth refer to them only as “Entity A” and “Entity B”.
So, the facts:  Entity A and Entity B have an often bloody, ongoing dispute -- ongoing for over half a century.   They do not form part of any larger entity that could adjudicate.  So Entity A prepares to “join” -- and thus allow itself to be bound by -- the rules of a sort of court, based in Europe.  Yet this move, we learn from worthy sources like NPR or the NYT, is a “provocation”.  If Entity A had announced its intention to join the Axis of Evil, or the Islamic State, or Donald Trump’s Twitter feed, one could understand the outrage.  But submitting its fate to a court?  Yet these news sources by no means explain the basis of their opposition;  they report the matter blandly, as one might a traffic accident.  On croit rêver.

(1)  The Rule of Law among Nations.

Throughout most of history, and still over most of the globe, there has never been any rule of law among nations.  After the carnage of the Thirty Years War, there followed a peace, the Treaty of Westphalia,  and with it a top-down experiment, the  “Westphalian Arrangement”.  This great moment in European history is made the centerpiece of Henry Kissinger’s trenchent recent book, World Order.
Later, after the disaster of the Great War, the Western world decided (partly upon the urging of the American President Woodrow Wilson) to found a broader and more democratically based entity, the League of Nations (Société des Nations); but when push came to shove, the Senate refused to ratify;  and this would be the pattern for future U.S. behavior.

"Music Minus One"

(2)  The Misrule of Law

Yet -- peek behind the curtain just a bit, and you can spot some justification for the stubborn U.S. stance.  Peer further, and you see why media like the New York Times  refuse to come clean about the reasons for their stance -- though really, the reasons are reasonable enough.

For the fact is:  Entity A is jurisdiction-shopping.  Strike out at the Security Council -- no biggie, try your luck at the next venue.   And the further fact is:  There are some pretty wonky jurisdictions.
Las Vegas was once the capital of the quickie divorce, back when marriage actually meant something.  And now London is gaining a reputation as the go-to place to go, for wives who want to take their husbands to the cleaners; just as it was long the favored venue for exposed scoundrels seeking the protection of draconian libel laws, or for undeportable jihadis like Abu-Hamzah al-Misri.  Political considerations quite peculiar to the U.S. recently resulted in astonishing sanctions against foreign banks (see Bank Robbery). Most relevant to the Entity A matter, however, is a recent case adjudicated by the Cour européenne des droits de l’homme, brought against Switzerland by an ornery immigrant, which we thumbnailed here :  

            Torture Inflation

Thus,  consider the prickly reactions of Americans to decisions of the U.S. Supreme Court  perceived as wayward or overreaching.  (For our (nomo)logical point, it is irrelevant whether such perceptions are justified.)   Whatever the intellectual or moral frailties of its individual members on this day or that, the Supreme Court is a body which, as an institution, has existed for over two hundred years, consisting entirely of American-born Americans, appointed by the President and approved by our elected representatives in the Senate, and bound by a publically available and widely revered body of doctrine, the U.S. Constitution.  By contrast, consider a stateless foreign body, from a hodgepodge of national cultures, bound by no common and recognized body of legal theory, and responsible to no-one in particular, not even an electorate; and whose decisions have, historically, often seemed quite fanciful, even to members of some of the cultures from which the membership is drawn. The question, then, is why Entity B should feel itself in any way bound by the decision of the Cour pénale internationale, sitting off in the far-away Hague.  (Nor should Entity A feel bothered by the blast of criticism from the likes of the New York Times, who are writing, not analytically, but ex parte.)

An observation:   Though there are some Supreme Court decisions that I wish had gone the other way, I still must attest:  the Court -- hearing, by its nature, almost exclusively the most fraught cases -- typically acts judiciously, without grandstanding, and not yielding to the frenzied pressures of the media or the masses, which often beset their deliberations.  Their sobriety and solidity are in stark contrast to the irresponsibility of the Congress, and of the electorate, in recent years.   They say you get the government you deserve;  at present, we have a Court better than we deserve;  though God knows how long that will last.

Republican right-wingers (misnamed “conservatives”) have nonetheless been loud in denouncing “judicial activisism”;  but the stance is, quite apart from its empirical shakiness, purely opportunistic, and swivels when the wind shifts:  Witness the lead article in this morning’s New York Times :

(3)  Calling a johnny-mop a johnny-mop

Back to the observation which prompted this post, which was merely that liberal/MSM reporting on this story  has had a through-the-looking-glass quality, that is cognitively quite annoying.   The reason is that they dare not come out and say plainly that the European courts -- and supranational organisations in general -- are nothing that non-Europeans should feel bound by.   Similarly, at the United Nations,  Samantha Powers will wax eloquent over the wonders that the African Union is sure to perform (chronicled here), while privately knowing otherwise.   Publically, we maintain the fiction that there is such a thing as a settled body of “International Law” (a phrase pronounced in hushed tones, with breathy respect);  but in practice, we apply it as the breeze pleases us (one way in South Sudan, another in Crimea).

The New York Daily News, unrestrained by considerations of decorum, used to refer to the United Nations under U Thant as “Mr Clean and the East River Gang”.  By comparison with the contemporary code of silence, that is almost refreshing.

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