europe’s post democracy?

Society Abroad

EUROPE'S POST DEMOCRACY?

David Jacobson

T he rift be tween the United States and West- ern Europe over the International Criminal

Court is symptomatic of a more deep-seated divi- sion over the future of the nation-state and democracy. The European Union in containing the

nation-state has also diminished the democrat ic

process, and in its place p romoted what can be called"judicialism."Judicialism is more about post-

national rights than citizenship, and more about

regulations arbitrated by judges and administrators for the public welfare than an expression of popular self-rule.This judicialist phenomenon cuts

across the democrat ic world but is most marked in Europe, and it is causing internal rifts there as

in the recent shift to the Right. It also increasingly shapes Europe's approach to international affairs.

For some thirty years now a silent but veritable revolution has been taking place, that of a stun- ningly expanded judiciary, with more laws, more courts, more rules, greater caseload, more regulations, and more administrative and adjudicating bodies (in the private as well as the public sec- tor).What's more, we have more courts that reach across borders - -na t iona l judges invoking universal jurisdiction or international law and, more strikingly, courts like the European Court of Jus- tice and the European Court of Human Rights.The European Union itself is primarily a judicial, ad-

ministrative and regulative mechanism, and in this

r e s p e c t E u r o p e has led the c h a r g e o f "judicialization 7

The expansion of the judiciary and judicial-like bod ies - - commi t t ees and administrators that ar- bitrate over issues from asylum applications to complaints of gender discrimination--changes the very purpose of government. Democracy or, more

precisely, republicanism, is about, at heart, the

collective determinat ion of who "we the people" are, about a sense of shared mores, destiny and

purpose. It is reflected in the political process voting, civic engagement, and in the legislative and executive branches of government , which are accountable to the w)ters. In such a republic, ju-

dicial review has been limited to ensuring rights that were essential to the functioning of democ-

racy, and that the republican character of the na-

tion was served. But an expanding judiciary in

recent decades, especially in Europe, has jumped

over such cons t i tu t ional or par l iamentary re- straints (while, not eoincidentally, hurdling over national juridical boundaries at the same time).

While there has been much debate in the United States in the last couple of decades about "activist" judges or how closely judges should hew to the Constitution, judicialism is a qualitatively different from judicial activism, if a related phe- n o m e n o n . No mat te r h o w activist individual

judges or courts in the United States may have become, they have largely ( though not entirely)

l imited themselves to the jur isdic t ional con- straints of the Constitution. As such, the U.S.courts have not challenged the basic system off'checks and balances" of the Constitution, or viewed themselves as anything but one of the branches of government of a self-contained,American nation.

When courts and administrative or regulative bodies view themselves, as is increasingly the case in Europe, as not subordinate to national concerns,

but as representing a distinct set of supranational

or transnational concerns (such as, notably, inter-

national human rights law) then we have a shift by judicial and administrative bodies from the

"checks-and-balances" of republican government to a compet ing form of governance.This is not to say that organizationally such judicial bodies are

separate from states, or that judges or similar administrators are hostile to states ( though they may

be). Rather, certain courts view themselves as representing certain universal and ineluctable prin-

70 SOCIETY �9 JANUARY / FEBRUARY 2003

c ip les . The E u r o p e a n Cour t of Human Rights

(ECHR) is no tab le in this regard. It is accoun tab le

to the European Convent ion of Human Rights,

wh ich in turn is v iewed as a real izat ion of the

Universal Declarat ion of Human Rights, not to any

states or state const i tu t ions . From its founding in

the 1950s to the early 197Os the ECHR could only

hear cases brought by m e m b e r states, and conse-

quent ly heard only a handful of cases reached the

court . But then from the 197Os the ECHR largely

broke free of states, and individuals were able to

pe t i t ion the court; it now hears hundreds of cases

a year.

British, German , F rench and o t h e r na t iona l

cou r t s turn to the European Cour t of Jus t i ce

(ECJ)--a separate cour t from the European Court

of Human R igh t s - - t o guide thei r in te rp re ta t ions

of European Community law. In Europe, aside from

the regional courts, historically pliant courts, such

as in the United Kingdom, have thus been signifi-

cant ly e m b o l d e n e d by new power s they have ac-

c rued th rough associa t ion wi th European institu-

tions, including the European Court of Justice.And

some legislatures in Europe will turn to thei r na-

t ional cour ts before legislat ing to make sure their

p r o p o s e d law will pass judicial muster. Such judi-

cial p o w e r is b e y o n d anyth ing we see in the

Un i t ed S ta tes .This jud ic ia l i s t d e v e l o p m e n t is a

p r o c e s s tha t in r e c e n t d e c a d e s has cut ac ross

d e m o c r a c i e s ; even in the Uni ted States, in some

no tab l e federa l cases, the cour t s d i spensed with

the n o t i o n tha t t he i r j u r i s d i c t i o n a l a u t h o r i t y

should be l imi ted by "the wa te r ' s edge" in issues

like immigra t ion and foreign policy. But in the

United States this is as yet a marginal phenom-

enon.

On a legal case-by-case basis, the changes have been almost impercep t ib l e , even to the judges

themselves , let a lone outs ide observers . But over

t ime this shift has been fundamenta l in its im-

p a c t - - a " q u i e t r evo lu t ion" - - c rea t ing a compe t ing

inst i tut ional and normat ive mechanism to democ-

racy and the nation-state.This tension has become

more than pa lpab le in the area of immigra t ion in

Europe, and the recen t swing to the Right. Immi-

grant popu la t ions in Europe have gained a foot-

hold largely th rough judicial rules and state obli-

g a t i o n s to i n t e r n a t i o n a l h u m a n r i g h t s law.

Non-d iscr imina tory asylum laws, family reunifica-

t ion law, and the prohib i t ion of mass and arbi t rary

depor ta t ions (that one saw in the 1950s), enforced

at the behes t of the courts, have rendered extraor-

dinar i ly difficult sweep ing act ions by states on

immigrat ion. This is in good par t is to be com-

mended.

But the e x t e n d e d judicial reach has c rea ted an

enormous conundrum. Cont ra ry to the usual be-

l ief that the expans ion of human r ights (in its

t ransnat ional , not national , form) is synonymous

with the expans ion of democracy, instead we have

compe t ing forms of governance .The swing to the

Right in Europe ref lects the crisis of gove rnmen t

by consen t cha l lenged by governance based on

ineluctable , t ransnat ional rights. In o the r words,

the expans ion of judicial ism has c rea ted a crisis

of legitimacy, wi th compe t ing modes of rule, one

based on col lec t ive and nat ional self-determina-

t ion ( r e s t ing in the leg i s la t ive and e x e c u t i v e

branches) and the o ther in human rights ( rest ing

in the judic iary and o ther quasi-judicial and ad-

minis t ra t ive bodies) .

In Europe, or more prec ise ly Western Europe,

the rise of the Right ref lects in signif icant part

the unease of an e lec tora te wi th the growing in-

t r u s i on of the E u r o p e a n Union (EU) and the

c i t izenry ' s felt loss of cont ro l over de te rmin ing

issues like immigra t ion pol icy.The EU is a regula-

tory, adminis t ra t ive and judicial set of bodies that

rest on different p remises from the his tor ical tra-

di t ions of the states that cons t i tu te it. Immigra-

tion, European in tegra t ion and global iza t ion be-

c o m e an i n t e r l i n k e d b lur in the m i n d of the

European voter.Thus the resentment of unelected

Eurocrats and the talk of the EU's"democratic deft-

t i t2 The judicial and administrative push, taken to

its logical conclusion, ends in the des t ruc t ion of

state sovereignty and, wi th it, the republ ican ideal.

It is here also where we see the fundamenta l

d i f ference of the United States wi th E u r o p e - - o r

at least wi th many in Europe 's pol i t ica l classes

and intel l igentsia. For the European elite, the Eu-

ropean Communi ty model , wi th its in te r locking

regula tory mechanisms, rule largely by adminis-

trative fiat, and powerful courts, serves as the blue-

pr in t for in te rna t iona l relat ions generally.As John

Palmer, d i rec to r of the European Policy Center,

was quoted as saying in the Washington Post,"The most ser ious threat to the U.S.-Europe al l iance is

the fundamenta l app roach to global governance .

The European Union, from its own e x p e r i e n c e of

c r ea t i ng a m u l t i - na t i on uni t , is c o m m i t t e d to

multilateralism." Palmer adds a crit ical point :"That

means a global base of law, wi th all nat ions giv-

ing up some sovere ignty in the interest of coop-

erative solutions."With the reliance on"law" comes

the acc ruemen t s of l aw- -admin i s t r a t i on , judges,

EUROPE'S POST DEMOCRACY? 71

arbitration bodies and the judicialization of international politics, as in the International Criminal

Court (ICC). Such sentiments about global governance do

e x p r e s s to s o m e e x t e n t s i n c e r e be l i e f s in

multilateralism, and through organizations like the International Criminal Court, in human rights. But

the elitist presumptions of judicialism--judges, regulators, lawyers and intellectuals determine

what is the " l a w ' - - a l s o marries well with the

underlying anti-Americanism of a significant part

of the European political, intellectual and bureau- cratic elite. Chris Patten, the unelected mandarin of external relations for the European Commis- sion, reflects this age-old distaste of some of the European "aristocracy" for the Americans and their supposed lack of sophistication in his attacks on the United States'"simplistic" approach in the war

on terror.The European countries most support- ive of the EU tend to be the most suspicious of the United States--France traditionally being the

prime case in point. Europe's distinct, more post-national (and, one

could add, post-democratic) values become a ba-

sis for anti-Americanism and anti-Americanism reinforces attachment to European distinctiveness. Likewise the commitment to human rights: the expansion of the European Court of Human Rights

is truly impressive. But on the international stage, human rights for a significant part ( though not

all) of the European press and political class is a battering ram against the United States and its ally,

Israel. Indeed, the differences between Europe and the United States regarding Israel are also indica- tive of this divide: for the United States, Israel is a fellow robust democracy under attack. For many Europeans, a nation-state like Israel fails the "post- national test." (That said, many in the United States and some in Europe view the tone of swaths of the European media and political elite vis-'a-vis Israel as intemperate and greatly disproportion- ate.This tone suggests, to a variety of critics, that

currents are at work here other than simply that

of human rights. In contrast , the vastly more

b loody conf l ic ts in Chechnya, Kashmir or Sri

Lanka, for example, get much less attention, and the over one million killed in the Sudan receives

barely a ment ion by these same bodies.)

The use of "soft" legal power to contain the United States involves no small irony. It is the United States which historically nurtured a strong

judiciary. It is the United States which in the wake o fWor ldWar II carried the flag of human rights.

(It was also the United States that nurtured Euro- pean institutions and societies, at great expense, alter the war.) But the difference with Europe is that for the Americans, human rights are to be nurtured within a democratic framework. Institu- tionalize self-governing nations with accountable

and transparent governments, and human rights practices would follow. Judiciaries, rather than

transnational actors, would in the majorityAmeri-

can view, serve to uphold the democratic process.

But on another level, this development is not so ironic.The process of judicialism, and the central

role of regulative and administrative bodies and mechanisms, is a highly elitist set of (unaccount- able) institutions, with its reliance on lawyers, experts, appointed politicians and others in the knowledge industry like journalists. In this regard, this judicialist system follows the European elit-

ist tradition. In that light, the developing argument

b e t w e e n the Uni ted States and Europe has changed little from Tocqueville's day.

The World Pre- and Post- 9/11 In the much more optimistic and heady days

prior to September 11,2001, the European model, predicated on a "global base of law" was more broadly acceptable , at least in the democra t ic world. There were differences with the United

States, but those differences were not so marked. Up to 9/11, and in the European regard still,

the trajectory was (or is) towards a"world of laws"

(which would grow out of the more familiar "nation of laws') . This vision, which reflects an em- pirically more legally dcnsc world, can be articu- lated as an extension of Norbcrt Elias' "Civilizing Process." Elias described how the monopolizat ion of violence by the state was essential to creating a "civil" space - -a physical and social space free of everyday, random and individual violence. In- dividuals had to be c i v i l i z e d - - t h a t is, show self- restraint and not act on the passions of the mo- m e n t - f o r a "civil" society to emerge.This was in

turn was critical for the emergence of a republi-

can form of the state; it is also inherent in the

idea of the citizen. Similarly, the "civilian," in prin-

ciple insulated from the arena of combat, could

only resonate in a world where the state had, or aspired to, a monopoly of violence.

What we were seeing in the recent interven- tions, justified on human rights and humanitarian grounds, most notably in Kosovo, is that the "civilizing process" had t ranscended the state. In the

bulk of the Euro-Atlantic arena, war is precluded


as an i n s t r u m e n t of c o m p e t i t i o n b e t w e e n s t a t e s - -

a w a r b e t w e e n G e r m a n y and France , or Br i ta in

and D e n m a r k , o r Canada and the Un i t ed Sta tes is

i n c o n c e i v a b l e . T h e Euro-At lan t ic a r ena has b e e n

c iv i l ized , in Elias ' s e n s e o f the t e r m . A n d w h a t w e

w i t n e s s e d in Kosovo, u n d e r t he b a n n e r of NATO,

was a regional e x p a n s i o n o f " t h e c iv i l i z ing pro-

cess." NATO a n d UN p e a c e k e e p e r s have g o n e

t h e r e to s e p a r a t e the c o m b a t a n t s , en fo r ce a n o r m s

o f i n su l a t i ng c iv i l i ans f rom v i o l e n c e , and to t ry to

i n s t i t u t e a n o r m of se l f - res t ra in t so local ins t i tu-

t ions can f o r m w i t h o u t t he p r o p p i n g - u p of ex te r -

nal forces . F u r t h e r m o r e , t he v i o l e n c e i n f l i c t e d by

NATO is v i e w e d as l eg i t ima t e as it pa ra l l e l s the

s ta te m o n o p o l y of v i o l e n c e - - e x c e p t n o w it is le-

g i t i m a t e d c o l l e c t i v e l y . T h e f lag of a c o l l e c t i v e en-

t i t y - - N A T O , the UN, and so o n - - i s n e c e s s a r y to

l eg i t ima t e t he use o f force , w h i c h f u r t h e r m o r e

s h o u l d be in t he n a m e of h u m a n r ights , no t "na-

t iona l i n t e r e s t " ( n a r r o w l y c o n c e i v e d ) .

W i t h i n th i s " c i v i l i z e d " s p a c e - - s t a b l e d e m o -

c ra t i c c o u n t r i e s , g e n e r a l l y r e s p e c t i v e of h u m a n

r ights , in all r e g i o n s of t he w o r l d - - v i o l e n t con-

f l ic t is p r e c l u d e d and e v e n the "zero sum game"

o f t he p o l i t i c s o f s o v e r e i g n s may bc la rge ly ab-

s e n t . T h e legal f r a m e w o r k w h e r e i n ac t iv i t i e s t ake

p l a c e - - b e t h e y e c o n o m i c , civi l , soc ia l , o r cul-

t u r a l - t a k e s p l a c e in t he a f o r e m e n t i o n e d d e n s e

lega l w e b b i n g w h i c h p r o m o t e s (or, i n d e e d , in-

d u c e s ) a c iv ic- l ike o r c o n t r a c t u a l set o f re la t ion-

sh ips . In p r i n c i p l e , c o m p e t i t i o n a m o n g all k inds

o f un i t s is s t e e r e d in to a p o s i t i v e - s u m game . In

p l a c e o f t he co re p r i n c i p l e of sovere ign ty , w h i c h

s t r e s sed e x e c u t i v e ac t ion , s ta tes and i n t e r n a t i o n a l

i n s t i t u t i o n s f ind t h e m s e l v e s p l ay ing an increas-

i n g l y m e d i a t i v e a n d j u d i c i a l ro l e , f r o m r i g h t s

c l a ims o f e t h n i c and g e n d e r m i n o r i t i e s in t he na-

t iona l and r eg iona l c o u r t s to t r ade d i s p u t e s in t he

W o r l d Trade Organ i za t i on .

The t r e m e n d o u s e x p a n s i o n of law- g loba l ly re-

i n fo rce s th is ro le of i n s t i t u t ions , as p a r t i e s de f ine

t h e m s e l v e s to fit the legal f r a m e w o r k , and t h e n

m a k e legal c l a ims of o n e k ind o r a n o t h e r . T h e le-

gal p r o f e s s i o n also e x p a n d s , as we l l as t e c h n i c a l

and p r o c e d u r a l ru les to i m p l e m e n t laws n o t on ly

in t he p u b l i c s p h e r e bu t in p r iva t e c o r p o r a t i o n s

and en t i t i e s .We have, f rom the m i c r o to t he m a c r o

level , a s s i m i l a t e d the i d i o m of c o n t r a c t u a l rela-

t ions .

So the d e n s e legal and i n s t i t u t i ona l w e b b i n g is

t h e m e c h a n i s m u p h o l d i n g t h i s " c o n t r a c t u a l "

( b r o a d l y c o n s t r u e d ) f r a m e w o r k . I n s t e a d of sover-

eignty, and its m e c h a n i s m - - b a l a n c e o f p o w e r and

the t h r ea t o f v i o l e n c e ( h e n c e the s a l i e n c e o f mili-

t a ry s y m b o l i s m in n a t i o n a l c e r e m o n i e s of na t ion -

s t a t e s ) - - w e have w h a t is, in e f fec t , p r o m o t e d as a

g loba l "rule of law." Tha t is n o t to say the t h r e a t

of v i o l e n c e is a b se n t : it r e m a i n s cen t r a l , ye t it is

o r g a n i z e d a m o n g a c o l l e c t i v e o f ( d e m o c r a t i c )

s ta tes u n d e r a c o m m o n flag, l ike NATO. It is vio-

l e n c e w h i c h , as w e have w i t n e s s e d in t he f o r m e r

Yugoslavia , can be r ead i ly u n l e a s h e d in the p ro-

cess o f "c iv i l i z ing" r e c a l c i t r a n t s in to t he n o r m s o f

h u m a n r igh t s w i t h , again , i ts i nd iv idua l i s t i c and

v o l u n t a r i s t m o r a l p r e s u m p t i o n s . Th i s c r e a t e s

w h o l e n e w i n t e r v e n t i o n i s t d y n a m i c - - n o t neces -

sar i ly m i l i t a r y - - a s we l l as n e w ins t i t u t ions , such

as t he I n t e r n a t i o n a l Cr imina l Cour t .

Since S e p t e m b e r 11, t he A m e r i c a n p e r s p e c t i v e

has, no t surpr i s ing ly , c h a n g e d . T h o u g h t h e r e w e r e

A m e r i c a n r e s e r v a t i o n s a b o u t t he ICC p r i o r to 9 /

11, t h e s e c o n c e r n s b e c a m e m o r e m a r k e d conse -

quent ly . As R o b e r t Kagan w r o t e in a m u c h - r e a d

a r t i c l e in Policl, Review:"Europeans b e l i e v e t h e y

are m o v i n g b e y o n d p o w e r in to a s e l f - c o n t a i n e d

w o r l d of laws and ru les and t r a n s n a t i o n a l nego-

t i a t ion and c o o p e r a t i o n . E u r o p e i t se l f has e n t e r e d

:t p o s t - h i s t o r i c a l p a r a d i s e , t h e r e a l i z a t i o n o f

I m m a n u e l K a n t ' s ' P e r p e t u a l Peace . ' T h e U n i t e d

States, m e a n w h i l e , r e m a i n s m i r e d in h i s tory , exer -

c i s ing p o w e r in t he a n a r c h i c H o b b e s i a n w o r l d

w h e r e i n t e r n a t i o n a l r u l e s a r e u n r e l i a b l e a n d

w h e r e s e c u r i t y and the p r o m o t i o n o f a l i be ra l or-

d e r still d e p e n d on the p o s s e s s i o n and use o f mili-

ta ry m i g h t . T h i s is why, on m a j o r s t r a t eg ic and in-

t e r n a t i o n a l q u e s t i o n s today, A m e r i c a n s are f rom

Mars and E u r o p e a n s are f rom V e n u s : T h e y ag ree

on l i t t le and u n d e r s t a n d one a n o t h e r less and less.'"

Judicialism in Conflict Resolution From the A m e r i c a n (off ic ia l ) p e r s p e c t i v e , t he

d a n g e r l ies in t he way h u m a n r igh t s are c o m i n g

to b e i n s t i t u t i o n a l i z e d . T h e s t u n n i n g e x p a n s i o n of

h u m a n r igh ts l aw and cases has c o m e in to p u b l i c

eye r e c e n t l y due to t he p r o s e c u t i o n of Mi losov ic

in t he Hague , t he a t t e m p t s to p r o s e c u t e P i n o c h e t

and the d e b a t e on the p e r m a n e n t I n t e r n a t i o n a l

Cr imina l Cour t . But th is is on ly t he sur face , as

n o t e d ear l ier , o f t he t e c t o n i c shif t t o w a r d s t he

" jud ic ia l i za t ion" o f po l i t i c s .

O n e o f the i r on i e s in a w o r l d of s u p p o s e d l y

s o v e r e i g n s ta tes tha t it is the judic iary , u n d e r t he

u m b r e l l a o f h u m a n r igh ts , tha t n o w has g loba l

r e a c h - - n o t t h e e x e c u t i v e , n o r t h e l e g i s l a t i v e

b r a n c h e s . The j u d i c i a r y has no a r m y to c o n q u e r

t he w o r l d , b u t its p o w e r if b e s t o w i n g l e g i t i m a c y


on states through the idiom of human rights is substantial. Perhaps it is because the judiciary has no army that it is reach could extend as it increas-

ingly does. Few people desire a global executive or legislative power because the dangers are ob- vious; yet the judiciary, while shaping the arma- ture of global political discourse, remains in the background in the minds of most. But one central problem with courts with universal jurisdiction in human rights issues is the absence of checks and balances in the form of an equally global ex-

ecutive and legislature.

With the rise of the modern democrat ic state, going back to at least the e ighteenth century, political theoris ts raised the critical need for

checks and balances be tween the three branches of government .Too powerful an executive could lead to dictatorship. Too powerful a legislature

could lead to a "tyranny of the majority."The judiciary ensured individual rights (for certain classes of citizens at least) but the risk was that too-powerful judges would cease to act in the broader

public and legislate from the bench. Each of the

respective branches of government would suppos- edly blunt the excesses of the other branches. How would the judiciary be contained?

Alexis de Tocqueville noted that the legislature could simply re-legislate to preclude judicial in- terpretat ions it disliked. With more effort, the United States Constitution could be amended if necessary. On the global level, it is nigh impos- sible to "re-legislate." Globally, the executive and legislative branches are divided among some two

hundred sovereign countr ies-- imagine organizing them to re-legislate. Besides there is no "global public" with a c o m m o n vision of the world to imagine the possibility of mutually legislating on any particular issue (and we have to just look at h o w the UN World Conference Against Racism conference in Durban, SouthAfrica, transpired to see how a global parliament could turn ou t - - i t would risk being the "tyranny of the majority" writ

global). States can theoretically withdraw from

treaties, but in the area of international human rights treaties this is politically difficult, and has

not happened in any significant case since World

War II. In any event, under universal jurisdiction,

a court such as the one in Belgium does not have to pay attention to the nationality of any person on the dock, whatever her or his state thinks about any particular treaty.

But the risks of transnational judicialization

may already be evident: the "global" courts under

the principle of universal jurisdiction are largely not accountable for their particular application or interpretation for the "rule of the law2The court can target individuals and groups that it finds undesirable for the narrowest and most prejudi- cial of reasons.This is an explicitly stated Ameri-

can concern regarding the ICC. It can become a political body, with few safeguards to push it back. (The ICC is supposed to be triggered only when

national judiciaries are unable or unwilling to prosecute cases of serious human rights viola-

tions. But this is a rather weak mechanism. As we

have seen with the ECHR or ECJ, for example, the tendency over time is tor such courts to interpret

their mandates rather broadly. Thus the ICC could conceivably interpret a national court as "unwilling" if a national judiciary, for example, does not pursue a case vigorously e n o u g h - - a s the ICC de-

fines it.) We have such judicial "risks" within states, and

not only in authoritarian states.The "rule of law," or what was presented as the rule of law, was applied inequitably against populat ions who have

not had the most basic political r igh ts - - the Jim Crow South being a case in point .The rule of law in any genuine sense is meaningless if applied selectively. It was exactly the political mobilization in the civil rights movement byAfricanAmericans and others that would ensure, among other things, relative fairness in the way the law was applied.

Some would argue this is an ongoing process in, for example, in the argument over the death pen- alty and the disproport ionate degree it may be

used against minorities. Internationally the mechanisms to ensure an

equitable application of the rule of law, in this case primarily of human rights law, are weak at best .There is a real danger of more sectarian and political motivations coming into play in who gets to be prosecuted and who doesn' t . This is an issue that has arisen theoretically in debate with regard to the International Criminal Court. But

already in Europe, beyond the debating stage, we

can see at least the appearance of the political

use of judicial action in the Sharon case, where attempts were made to try the Israeli prime min-

ister in Belgium for war crimes. A group of Bel-

gian lawmakers even pushed that Shimon Peres,

Israel's dovish foreign minister, be put on trial as well.

Regardless of the merits of the case (an Israeli judicial inquiry had in fact already investigated

the case and found Sharon indirectly responsible


for massacres by Christian Phalangists of Pales- tinians in Sabra and Shatilla in 1982, prompt ing his resignation from the Israeli government of the time), what was striking in Israeli eyes was the near absence of European media discussion of

parallel charges against Palestinians and Palestin- ian leaders directly involved in a much longer list

of terrorist acts--c lear ly war crimes, though this is seemingly over looked in some quarters. The case against Sharon was filed the day after a BBC

documenta ry targeting him, together with other programs on the BBC hostile to Israel that were

shown in the previous days. Israelis and others

not surprisingly felt that the law in this case was being used selectively and for the basest reasons.

More on the level of media if not in the courts, Americans can receive similar treatment: thus, in the American perspective, the vivid response of significant outlets of the world media to the, for example, blindfolding of detainees at Guantanamo Bay,

seemed vastly out of sync with the actual severity of the case, or with the political geography of gross human rights violations around the world. Exactly

how, in such an environment , can the equitable

application of human rights law be ensured?

On a broader level, for related reasons, the

claims of judicial "justice" could have a perverse effect on resolving or even diminishing conflict in the international arena. Many suggested, including this writer, that in the post-Cold War world human rights could be the mechanism to dampen conflicts: human rights could ensure the fair treatment of minorities and even peoples without ter- ritorial self-determination (like the Kurds or the Basques) could find their "voice" on the international stage under the aegis of international hu-

man rights. And in certain circumstances this may still be true. But in other cases, such as in North- ern Ireland, Sri Lanka, the Kashmir, and the Israeli- Palestinian conflict, we must ask ourselves if the language of "'justice" helps lessen conf l ic t - -or , indeed, exacerbates it.

The painful irony is that, in some cases at least, the language of justice may be perpetuat ing our most apparently intractable conflicts. The prob-

lem with the language of justice in international ethnic, civilizational and regional conflicts is that

"justice" is cast in absolutes: rights and wrongs,

good and evil, the just and the unjust. In this con-

text, justice generates claims for vict imhood, and creates cur rency in being the victim (which a

"just" solution to a conflict would rectify).And in seeking the status of victim, constant renditions

and counter-rendit ions of the genealogies of conflict are produced, each making claims on who is the ultimate victim of the other side; the perspective is to the past, thus constantly rubbing the sores of discontent in this historical tit-for-tat.The trouble is, of course, that most of these conflicts

are morally in shades of gray not black and white, and in claiming the absolute of justice, the less- absolute politics of compromise and reconcilia- tion are precluded.And in looking to the past, future oriented resolutions are ever more opaque.

Justice as rendered in these conflicts, and its

orientation to rectifying past wrongs, real or per- ceived, overwhelms a more pragmatic approach

of forgetting the past to resolve present differences (as the French and Germans, or the Danes and Swedes, essentially forgot their bloody histo- ries). I say"pragmatic,"but we have to ask what is the m o r a l imperative he re - the moral imperative of justice or the moral imperative of resolving conflict for present and future generations? The

moral imperative of justice, or someone ' s version of justice, has come to eclipse the moral imperative of confl ict resolution (and one can surely

claim the latter is much more urgent now in the

dark shadow of the violence of Sri Lanka, the Middle East, Kashmir and elsewhere).

Policy Implications What conclusions can we then draw? One, is

the continuing important role of the state as a

potential mechanism in the system of checks and ba l ances - - an unfe t tered judiciary with global reach would not be a good thing, and a global executive or parliament (to counter such a judi-

ciary) would be even worse. Given, then, the important role of a multitude of states for a more pluralistic w o r l d - - a more truly cosmopo l i t an w o r l d - - w h a t of the many despotic states? How do we advance human rights, if not through global justices? The judicial enforcement of human rights, in this context , would be most effective if run through the institutions of states, and the international pressure ( through various forms of executive or state-to-state intervention, including military) must be d i rec ted towards requir ing

states to respect democrat ic and human rights norms.This pressure is going on in any event, but

it should be directed towards creating the domes-

tic and internal judicial mechanisms within states

to deal with rights violators. The developments described here also have

pol icy implicat ions for the United States. The


judicial is t a p p r o a c h to governance in Europe is

mostly, though not entirely, a p h e n o m e n o n of the

pol i t ical and in te l lec tual c lasses .There are forces

wi th in Europe that ob jec t to this loss of account-

abil i ty (land not only on the far right). Rather than

por t ray ing a s truggle b e t w e e n the United States

and "Europe" as such, we must tease out the ideo-

logical and ins t i tu t ional d imens ions of this de-

b a t e - o f a contes t b e t w e e n judicial ism and repub-

licanism, albeit we igh ted in significantly different

ways in Western Europe and the United States.

F u r t h e r m o r e , we are w i tnes s ing a s t ruggle ,

though not fully ar t iculated, over the way human

rights are framed. In the struggle over the ICC,

the United States is implici t ly seeking to wres t

back cont ro l of the framing of human r i g h t s - - i n

fact back to the t rad i t ion of Woodrow Wilson,

Abraham Lincoln, and Thomas Jefferson. In this

light, human rights should be a mechanism for

r e in fo rc ing-no t supe r sed ing -democracy . Rather

than "global judicial izat ion" through cour ts like

the In terna t ional Criminal Court, or o ther cour ts

invoking universal jur isdict ion, nat ional judicia-

ries should, in this t radi t ion, be e n c o u r a g e d - -

whe re they need to b e - - t o revert to thei r role of

ensur ing the func t ion ing of democracy and na-

t ional self-government.

In this regard, we also should nur ture an ac-

cep tance of a b road range of s o c i e t i e s - - t h a t fit

wi th in the pa rame te r s of funct ioning democra-

c i e s - b e t h e y in t he l i be r a l or in the m o r e

communi ta r i an t radi t ions .The rhe tor ic of organi-

zations favoring t ransnat ional human rights de-

manding a "one size fits all" post -nat ional model

for states unfairly delegit imizes republ ican nation-

states. It is also a rhe tor ic which by its nature is

an overly na r row cons t ruc t ion of cosmopol i tan-

ism, and even threa tens to exacerba te or indeed

create confl icts .

Finally, f rom the angle of const i tu t ional reform,

it is i m p o r t a n t w e pu l l the r e p u b l i c a n and

judicialist (or t ransnat ional human rights) threads

apart . As our t e n d e n c y to v iew ( t ransna t iona l )

human rights and democracy as synonymous is

b l inding us to cri t ical problems; it is the very dis-

junct ion be t w e e n the norms of t r ansna t iona l hu-

man r ights , on the one hand, and d e m o c r a c y

(in its r e p u b l i c a n sense) , on the other , tha t is

g e n e r a t i n g a " l eg i t imacy cr is is" in Europe (in

terms of the EU and the immigra t ion issue, for

e x a m p l e ) . I f w e c o n t i n u e to i n s i s t t h a t

t ransnat ional human r ights (as o p p o s e d to "na-

tional" human rights) are part-and-parcel of repub-

lican nation-states, we will be c o m p o u n d i n g the

d i lemmas facing us.

Dat,idJacobson is associate professor o f sociology at Ar i zona State Unit,ersiO: His research is ht political sociology f r o m cl global and legal perspective, with a part icular interest in immigration, citi- ze,tship attd internat ional institutions. He is the att tbor o f Rights Across Borders: Immigration and the Decline of Citizenship attd Place and Belong-

ing in America.

Human Rights Review Published Quarterly Subscription rates: Individuals: $76/yr; $140/2yrs; $192/3yrs. Institutions: $196/yr; $376/2yrs; $540/3yrs. Outside North America add $38/yr. air expedited delivery. (Rates subject to change annually) Visit us on the web at www.transactionpub.com


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