Wednesday, April 25, 2007

The EU and the Belgian Human-Rights Court

As a concerned democrat, I find great reason for apprehension in the recent decision of the Belgian government to capitulate to US pressure and retract the controversial human-rights legislation, which, even if only for a short period of time, made possible the prosecution of crimes against humanity under the authority of Belgian law. The various critics of this legal act have pointed to the apparent contradiction of a national legal system assuming universal authority over a specific category of criminal activity. As is the case with any national legal framework, the validity of Belgian law is by definition confined within the territorial boundaries of Belgian national sovereignty. So one may ask, what is the legal basis for the claim of Belgian courts to adjudicate on humanitarian offenses, irrespective of the location in which they transpired, or the nationality of the alleged perpetrator?
In spite of appearances, it is my view that no logical inconsistency exists between the territorially-bound applicability of Belgian law and the inclusion of crimes against humanity in its legal trajectory. On the contrary, I feel that the systemic connection between the Belgian judicial system and the principle of the inviolability of Belgian national sovereignty should serve to make the aforementioned legislation all the more sustainable, given that it comprises the pragmatic institutional supplement which most international law constructs lack, both with respect for designated law-enforcement agencies and an apparatus of organized violence under their control.
Furthermore, I would be compelled to agree with the, predominantly American, critics of the Belgian initiative, if any evidence existed that the general principle of impartiality which is the functional si ne qua non of any sovereign legal formulation was being violated by virtue of an integrated legislative bias in favor of individuals or organizations with connections to the Belgian national interest. One way by which to achieve this would be to introduce a regime of exemption of Belgian nationals from the authority of human rights legislation. Yet, no legal measure has been instituted to this direction. On the other hand, such an attitude is in stark contrast with official US policy on the matter of the creation and recognition of the International Criminal Court. Not only have the US refused to ratify the establishment of the ICC and recognize its authority to deliberate on cases involving US citizens, but President Bush has also made it clear that the US would not refrain from using violent means for the purpose of ‘extracting’ US military personnel charged with crimes against humanity from the Court’s custody.
A second way, in which the new legislation could be used as a partisan tool for furthering Belgian interests, would be to invest Belgian law with extra-territorial powers, that is to assert the right for its application beyond the territorial domain of the Belgian state. Again, no such step was taken by the Belgians. The Belgian human rights court is an integral part of the national judicial system and its authority does not purport to extend outside the Belgian border line. On the contrary, the legal precedent for the expansion of the power of national legislation beyond national borders has been set by the most ardent critic of the human rights court, the US, on at least three different instances.
First, the official assertion that the US has a ‘right’ to organize rescue operations on foreign soil for the purpose of extracting US servicemen who have been taken under custody and transferring them back to the States, carries the implicit suggestion that US citizens are at all times under the protection of US law and are subject to prosecution only by American courts, irrespective of the legal arrangements that apply in the country in which they are stationed. By implication, the supremacy of American law vis-à-vis the legal systems of host-nations is affirmed.
Secondly, the threat of economic sanctions issued by the US Supreme Court against European companies which have commercial dealings with communist Cuba in spite of the US-imposed embargo against Castro’s regime, means that the US government perceives the legal measures taken against Cuba as having a universal validity, which should be equally binding to both American and foreign commercial actors and organizations.
Thirdly, the above applies to the recent anti-terrorist extradition treaty which the US has signed with the European Union. Most European member-states are under the express legal obligation, enshrined in their respective constitutions, not to proceed with the extradition of suspected criminals when there is sufficient reason to believe that the accused will not receive a fair trial in the country of destination, or where capital punishment still applies. The US falls short on both counts since, a) under the US Patriotic Act, suspected terrorists are liable to be tried by military tribunals directly under the control of the executive branch of government (President, Pentagon) and, b) the death sentence is still very much applied by American civilian courts and is likely to be the outcome in the majority of cases tried by the emergency military tribunals. It follows, that the extradition treaty under its current form constitutes a flagrant violation of related constitutional arrangements in most European countries and is irreconcilable with the EU’s professed commitment for the defense of human rights.
The truth is that the implementation of human rights legislation by the Belgian parliament was an act of exceptional courage and of rare moral integrity, for Belgian MPs were no doubt aware of the complications that such a move would create in the standard manner of conduct of Belgian foreign relations. For instance, had the controversial legislation not been repealed, it is conceivable that the US President would be unable to set foot in Brussels, where the NATO headquarters are situated, for fear of being arrested and prosecuted under the authority of the Belgian human rights law. Tony Blair, the British Prime Minister would be presented with a similar dilemma, given that a lawsuit for crimes against humanity was pending against him, right up until the Court’s dissolution by the Belgian government. Under this light, the existence of the Belgian human rights court would most likely develop into a permanent source of friction between the US and its European allies, straining relations between the two parties and further undermining the cohesion of the North Atlantic alliance.
I believe that this is the main reason why Belgium should not have been left alone to face the overwhelming pressure resulting from US animosity towards the institution of the law. US opposition to the Belgian legislation and the controversy which ensued thereof, should not be treated as a mere bilateral dispute. Instead, it should be viewed in the context of a broader, systematic campaign conducted by the Bush administration with the express purpose of achieving the modification of international legal structures in conformity with US Imperial perceptions and aspirations. This is a strategy which has been aggressively pursued by US officials in all international conventions where the possibility for the formulation and implementation of an array of international treaties, on subjects ranging from the ban on chemical weapons to children’s rights, was being discussed.[i] The intransigent position of the US on these subjects derives from two principal assumptions which guide US foreign policy on the issue of international law: a) that the US legal system is inherently superior to the legal systems of other states as well as to international law itself and should thereby serve as a model for emulation by the international community[ii], and, b) that the extra-legal status of US policy instruments and governmental agencies (whether they be diplomatic, economic or military) should be officially recognized and integrated in the legal provisions of the treaties. The controversy over the Belgian law is one more episode in the neo-conservative drive for US global domination and as such, the EU should not have remained a mere spectator of events.
After all, quite apart from the question of the disrespect for Belgian national sovereignty an additional challenge arises with respect to US involvement in the internal affairs of an EU member-state. During the recent Iraqi crisis Belgium was an energetic participant of the anti-war bloc and supported the multilateral position of the Franco-German axis. Furthermore, it has opted to align itself politically with France and Germany on matters pertaining to European integration and unification, playing an auxiliary role to the latter’s effort to act as a locomotive towards the development of a common European framework on the sphere of security and defense. A blatant assault on Belgium’s internal legal structures, particularly when it is aimed against the commitment to uphold human rights, represents a direct assault on the EU’s political identity and an open admission on the part of the US leadership of the conflictual and irreconcilable nature of EU democratic principles on the one hand, and US global strategy on the other.
The inability exhibited by the EU to issue a single statement expressing the solidarity of EU member-states with the Belgian government and encouraging Belgium to withstand the threats of diplomatic counter-measures directed against it by the US administration, can be explained as symptomatic of the internal political divisions which prevent the EU from establishing itself as a dependable actor in the international arena. One might expect for example that Tony Blair or Jose Maria Aznar would have little cause to offer their endorsement for such an official gesture of support for Belgium, not least due to their position on the Iraqi question. Yet, this is a historical junction for the future of the common European project and if France and Germany are genuinely committed to ever-closer integration and political unification, aggressive diplomatic initiatives are not to be avoided.
It seems to me that the prescribed course of action for the Franco-German axis would be to have made some sort of joint public announcement in favor of the Belgian initiative. In this manner, the fundamental divergence between the EU and the US on matters pertaining to the principles of international governance (international rule of law, protection of human rights) would be reaffirmed and would be made more visible to those interested third parties who are outside the Union, namely, Russia, the Muslim world and Latin America who currently seems to be undergoing a period of radical democratization. Furthermore, the position of the multilateral forces within the EU would have been further strengthened, given that it would have served as a demonstration of the practical benefits accruing to a policy of alignment of smaller European states with the Franco-German axis on the issue of the political unification of Europe.
On the diplomatic front, it would have served as a powerful lever of pressure aimed against Tony Blair’s staunch support for US imperial policies. By presenting an unequivocal joint statement of support for Belgium, centered on the theme of the defense of basic European democratic values and respect for human rights, the British Prime Minister would be offered an opportunity to renew his professed commitment to the European ideal. Had he refrained from such an action, the absolute subordination of British foreign policy to the calculus of US strategic interests, so much loathed by the British electorate and openly criticized even by segments within the New Labor party, would have been exposed once more, thereby making Blair’s political position at home even more untenable. Overall, it would have had the effect of establishing the Franco-German axis as a credible alternative power-center, vis-à-vis the imperial Anglo-Saxon alliance of Britain and the US.
If they aim not to lose the ongoing surrogate struggle for the restructuring of the system of global governance and the reallocation of political power on an international scale, of which the Iraq war was merely the first episode, France and Germany must be willing to engage into bold diplomatic action. The gradual emergence of Europe as an autonomous actor in world affairs is the sole alternative to complete subordination to US global monarchical domination. However, a democratic and politically cohesive Europe is the only vehicle by means of which France and Germany can gain sufficient international weight so as to sustain their role as global strategic actors. Belgium’s frustrated venture to incorporate crimes against humanity into its national legal system, represents the first serious attempt undertaken by a Western government to apply aspects of international law outside the biased context of ad hoc legal instruments such as the international courts for Yugoslavia and Rwanda. The ensuing forced abolition of the court is proof of the logical incompatibility between the democratic aspiration of the EU to structure an international environment in which the interactions between states will be regulated primarily by established legal norms and international conventions and the legal requirements stipulated by those proponents of Empire, who base their conception of international order solely upon the ability of the US and its allies to engage into timely and effective military actions, unilaterally and unfettered by legal constraints and prior technicalities. As with the war in Iraq, the case of the Belgian human-rights court has shown the two projects to be fundamentally at odds with one another.

[i] See for example US Position on International Treaties in
[ii] As in the case of the UN sponsored international convention for the development of a disability-themed human rights treaty, in which “Ralph Boyd, the US Assistant Attorney General for Civil Rights said a global treaty on disability and human rights was not necessary. Instead, he said countries should follow the US model and adopt non-discrimination laws. The US would help craft such model laws, he said, but ‘not with the expectation that we will become party to any resulting legal instrument’”. In M. Russell, Too Many Human Rights, in

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