WESTFAILURE:

Europe’s approaching train wreck (Stanley Kober, March 22, 2007, International Herald Tribune)

The momentum toward independence for Kosovo seems irresistible because it is unlikely that the predominantly Albanian population there will accept anything less. […]

If 1244 is ignored, it is unreasonable to expect that our actions would not be treated as a precedent to ignore other UN resolutions in the future. Russian Defense Minister Sergei Ivanov and Foreign Minister Sergei Lavrov have both made this point.

Russia, and many other nations, have been irritated by the tendency of NATO countries, and the United States in particular, to bypass the Security Council when they cannot obtain a resolution they want.

The dilemma confronting policymakers is acute. Kosovar aspirations cannot be denied much longer, but the effort to satisfy them absent an agreement with Serbia is bound to alienate the Serbs and, by extension, the Russians.

And if we craft solutions that bypass existing law, we should recognize that we are creating opportunities for mischief down the road.

Indeed, if we attempt to buy peace at the expense of law, we might find out we end up with neither.

With Ahtisaari’s declaration that further negotiation is pointless, Europe’s trains — Kosovo independence vs. Serbia’s territorial integrity, legitimacy vs. law — are hurtling toward each other.

If the Russians (and possibly the Chinese) oppose revision of Resolution 1244 to grant Kosovo effective independence, and if the United States and its allies ignore these concerns and endorse the Ahtisaari plan, the reverberations will be felt well beyond the Balkans.

It’s a quaint enough notion that regard for international law forbids the majority of a discrete territory from declaring themselves a state, but you have to ignore at least the 20th and 21st centuries to still believe it.

NO ONE HAS SOVEREIGNTY IN AN UNGOVERNED AREA:

U.S. fires into Pakistan to hit back at Taliban (ROBERT BURNS, 2/12/07, The Associated Press)

Asserting a right to self-defense, American forces in eastern Afghanistan have launched artillery rounds into Pakistan to strike Taliban fighters who attack remote U.S. outposts, the commander of U.S. forces in the region said Sunday.

The skirmishes are politically sensitive because Pakistan’s government, regarded by the Bush administration as an important ally against Islamic extremists, has denied that it allows U.S. forces to strike inside its territory.

The use of the largely ungoverned Waziristan area of Pakistan as a haven for Taliban and al-Qaida fighters has become a greater irritant between Washington and Islamabad since Pakistan put in place a peace agreement there in September that was intended to stop cross-border incursions.

It’s a free-fire zone.

TRANSCENDING TRANSNATIONALISM:

International laws hinder UK troops – Reid: Defence secretary calls for Geneva conventions to be redrawn (Richard Norton-Taylor and Clare Dyer, April 4, 2006, The Guardian)

John Reid demanded sweeping changes to international law yesterday to free British soldiers from the restraints of the Geneva conventions and make it easier for the west to mount military actions against other states.

In his speech, the defence secretary addressed three key issues: the treatment of prisoners, when to mount a pre-emptive strikes, and when to intervene to stop a humanitarian crisis. In all these areas, he indicated that the UK and west was being hamstrung by existing inadequate law.

Mr Reid indicated he believed existing rules, including some of the conventions – a bedrock of international law – were out of date and inadequate to deal with the threat of international terrorists.

“We are finding an enemy which obeys no rules whatsoever”, he said, referring to what he called “barbaric terrorism”.

Unless the rules of war could be guaranteed to bind our enemies–which they never have and never will–they’re not just useless but intolerable.

NOT AS MUCH AS THEY DESERVE FOR ADOPTING TRANSNATIONALISM:

Judicial activism or restraint? (Walter E. Williams, March 29, 2006, Creators Syndicate, Inc.)

Are federal, state and local justices appointed to office to impose their personal views on society or to interpret law? Is it a judge’s duty to uphold the U.S. Constitution, and state constitutions in the cases of state and local judges, or is it their duty to uphold foreign law and United Nations treaties? Should what a judge sees as “evolving standards of decency that mark the progress of a maturing society” and the U.N. Convention on the Rights of the Child and the International Covenant on Civil and Political Rights govern court decisions, or the U.S. Constitution?

It was the former – not the U.S. Constitution – that determined last year’s Roper v. Simmons decision, in which the U.S. Supreme Court overturned the execution of a convicted murderer because he was 17 years old at the time of his offense. […]

Alabama Supreme Court Justice Tom Parker has little patience with his colleagues who use their office to impose their values instead of applying the written law, but he’s in trouble for saying so. Judge Parker wrote an opinion article that was published in the Birmingham News on Jan. 1. It criticized the U.S. Supreme Court’s 5-4 decision that banned executions for murderers who were under 18 when they committed their crimes. […]

Joel Sogol, former chairman of the American Civil Liberties Union’s litigation committee, filed a complaint against Judge Parker with Alabama’s Judicial Inquiry Commission. The complaint charges Parker with violating Alabama’s judicial ethics standards when he publicly criticized his eight Supreme Court colleagues and the Roper v. Simmons U.S. Supreme Court decision. Sogol says that Judge Parker’s criticism breeds contempt for the law.

Sogol has it wrong. It’s the court’s failure to meet its constitutional duties that breeds contempt for the law.

At any rate, we can all agree about the contempt.

SOMEWHERE BOMBER HARRIS CRINGES:

Special report: America’s Long War: US introduces radical new strategy (Simon Tisdall, Ewen MacAskill and Richard Norton-Taylor, February 15, 2006, The Guardian)

>European governments are still digesting the contents of the US report and are expected to give full responses in the next few weeks. But initial reaction appears to be one of caution.

The Ministry of Defence said yesterday it had been consulted by the Pentagon as the review was drawn up and was pleased to see references to working with allies. As the consultation took place, Royal Marine commandos arrived at their base in southern Afghanistan yesterday at the start of a mission described in the Commons by government opponents as confused and unclear.

But British commanders expressed concern that increased attacks on suspect terrorists using drones – in which decisions are made rapidly by secret watchers based thousands of miles away – could have legal implications. They also highlighted potential infringements of sovereignty and the bypassing of political controls and of established rules of engagement.

Never mind the 21st century political correctness that would pass up a shot at the enemy just because of transnational legal fictions, if they haven’t figured out yet that our recognizing the sovereignty of others depends on their meeting our liberal democratic standards then they have their other foot in the 19th century.

A FEW GOODIE-TWO-SHOES MEN:

The Army’s deadliest enemy is at home (Max Hastings, 22/01/2006, Daily Telegraph)

Last week’s court-martial proceedings against a Royal Navy submarine captain accused of bullying his officers made bleak reading. I have no opinion about the merits of the case, and no sympathy with bullies. Like most people who care about the Armed Forces, however, I felt my heart sink at yet another public embarrassment. Their via dolorosa seems endless.

There are high-profile prosecutions (many of which collapse) resulting from alleged misdeeds in Iraq; fears about the impending deployment in Afghanistan; regiments disbanded and recruitment ailing; controversy about the treatment of recruits. The Sunday Telegraph reported last week on despondency at Catterick’s Infantry Training Centre, where instructors live in fear of accusations of abuse. […]

We are getting ourselves into a shocking tangle about what we expect from warriors. Throughout history, it has been understood that wars make unique demands on those who fight them. These can be met only by creating a service ethos utterly different from civilian life, not least in its willingness for sacrifice.

Today, politicians and lawyers have thrust upon the Armed Forces restrictions and legal burdens designed to drive them into line with modern civilian practice. This is madness. Those who administer the Infantry Training Centre at Catterick are scarcely allowed to impose discipline on new recruits, lest they quit or sue.

Many line battalions have to run their own training programmes for alleged trained soldiers from the ITC, to render them fit to serve. Faced with the most rudimentary discipline – punctuality, kit inspections, morning runs, obedience to orders – many young men literally pack up and go home.

The excesses of European Human Rights law are bad enough in civil life, but disastrous when imposed upon the Services. The current issue of British Army Review carries a letter from a veteran warrant officer, suggesting that young soldiers no longer find it acceptable to give “casual salutes” to officers. The First Sea Lord, Sir Alan West, said this month that the Armed Forces face “legal encirclement” from human rights. Every officer knows what he means. Circumstance and misguided policy unite against discipline, confidence and morale.

The one good thing is that rendering the human beings totally unfit to wage war will get us to use our non-human lethal means more readily. Of course, that’s hardly a humantiarian result, but then the Human Rights crowd isn’t really interested in that anyway.

THE BREAD IS BUTTERED ON THE U.S. SIDE:

Jordan will not hand US citizens over to ICC (Reuters, 1/08/06)

Jordan’s parliament on Sunday approved a law that prevents Amman handing over U.S. citizens accused of war crimes to the international criminal court, lawmakers said.

The United States is firmly opposed to the ICC, set up in 2002 as the world’s first permanent global war crimes court, fearing it will be abused for politically-motivated cases against its troops and citizens. […]

Instead, Jordan would be required to surrender them to the custody of the U.S. government, in apparent contravention to Jordan’s obligations to the ICC.

They know who the good guys are.

THE END RUN AROUND AMERICAN DEMOCRACY:

Alabama Justices Surrender to Judicial Activism (Tom Parker, January 1, 2005, Birmingham News)

[M]y fellow Alabama justices freed [Renaldo] Adams from death row not because of any error of our courts but because they chose to passively accommodate — rather than actively resist — the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.

Those liberal justices declared last spring in the case of Roper v. Simmons that “evolving standards of decency” now make it “unconstitutional” to execute murderers who were minors at the time of their crime. The justices based their ruling not on the original intent or actual language of the United States Constitution but on foreign law, including United Nations treaties.

Ironically, one of the UN treaties invoked by the U.S. Supreme Court as a basis for its Roper decision is a treaty the United States has refused to sign. By insisting that American states submit to this unratified treaty, the liberals on the U.S. Supreme Court not only unconstitutionally invalidated laws in 20 states but, to do so, also usurped the treaty-making authority of both the President and the U.S. Senate.

I am not surprised that the liberal activists on the U.S. Supreme Court go to such lengths to usurp more political power. I am also not surprised they use such ridiculous reasoning to try and force foreign legal fads on America. After all, this is the same Court that has declared state displays of the Ten Commandments to be unconstitutional.

But I am surprised, and dismayed, that my colleagues on the Alabama Supreme Court not only gave in to this unconstitutional activism without a word of protest but also became accomplices to it by citing Roper as the basis for their decision to free Adams from death row.

The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. By keeping Adams on death row, our Supreme Court would have defended both the U.S. Constitution and Alabama law (thereby upholding their judicial oaths of office) and, at the same time, provided an occasion for the U.S. Supreme Court, with at least two new members, to reconsider the Roper decision.

Irrespective of your opinion on the underlying issue (the death penalty and its application), it’s obviously anti-democratic to force Americans to abide by legal standards they refuse to adoipt for themselves.

THE CONSTITUTION SUFFICES:

<a href=http://www.calendarlive.com/printedition/calendar/cl-et-yoo12dec12,0,5099357.story?track=tothtml
In wartime, this lawyer has got Bush's back (Anne-Marie O’connor, December 12, 2005, LA Times)

As Secretary of State Condoleezza Rice attempts to lessen anger in Europe over reports that the CIA has operated secret prisons in European countries, it might not be the best time for [UC Berkeley law professor John Yoo, the author of a new book, “The Powers of War and Peace,”] to argue his contention that the Bush administration has the right to hold “enemy combatants” indefinitely without charges, and question them without a lawyer present, in wartime. Although even Rice seemed to reverse her administration’s contention that the prohibition on cruel or inhumane prisoner interrogations didn’t apply overseas, Yoo is still ardently opposed to such a ban, saying it could cripple the effectiveness of coercive interrogations abroad.

And even some of Yoo’s fellow conservative intellectuals are disturbed by his contention that President Bush has the constitutional power to unilaterally start a war. […]

Yoo doesn’t employ the usual rationale for a strong Bush presidency. He says in his book that it is not the 9/11 terrorist attacks that justify the extraordinary presidential powers he advocates. In Yoo’s view, the constitution itself gives the president lots of leeway, allowing him to invade Iraq without congressional permission and to disregard such treaties as the Geneva Convention, which governs the moral code of conduct of war.

“I’m pretty sure that’s an argument no one has ever made before,” Yoo, 38, said recently with evident pride. Most people, he said, “say the world’s too dangerous and the Constitution’s obsolete.”

While he’s unquestionably right that detainees have no constitutional rights, the fact that the Constitution itself expressly makes Treaties the law of the land makes just ignoring the Geneva Convention problematic. Rather we should break the treaty and any other that may infringe on our sovereignty, not least GATT.

MORE:
The International-Law Trap: What Europe thinks is “cruel, inhuman, and degrading” doesn’t govern us. (Andrew McCarthy, 12/12/05, National Review)

Who should decide what obligations the United States owes to the world? Who should determine what measures are necessary to protect the United States from attack? Should it be the American people or the European Commission? The American people or the United Nations? The American people or Human Rights Watch?

These are the questions at the heart of the controversy swirling around interrogation tactics. […]

In remarks especially noteworthy because State Department officials reportedly egged inquiring journalists on, Rice asserted without qualification that the United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) “prohibits, of course, cruel, inhumane [sic] and degrading treatment.” She further declared that ” [a]s a matter of U.S. policy, [American] obligations under [UNCAT] … extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.” (Italics mine.)

Rice’s statements were both wrong and extremely unwise. […]

UNCAT came open for ratification in 1984. It targets two related but significantly distinct types of conduct: (a) torture, and (b) treatment that is “cruel, inhuman and degrading” (CID). The United States mulled UNCAT for a full decade before finally approving it under our Constitution’s treaty procedure (Art. II, Sec. 2) by the required two-thirds super-majority of the Senate. That ratification treated torture and CID very differently.

That torture was the dominant American concern is illustrated by the care taken to define it. As recounted on NRO last Friday by Mark Levin (a Justice Department official during the Reagan administration), President Reagan’s transmittal of UNCAT to the Senate expressly provided that the word torture was to be interpreted in a “relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned.” The State Department added that torture was “usually reserved for extreme, deliberate, and unusually cruel practices … [such as] sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging positions that cause extreme pain.” It would not, State elaborated, envelop even such “deplorable” practices as “police brutality.”

The order of the day was narrowness and the avoidance of loose language that could result in the unintended extension of American obligations to conduct that was not egregious enough to be considered torture. Thus UNCAT’ specifically defined torture as involving the “intentional inflict[ion]” of “severe pain or suffering” to interrogate, punish, or intimidate a person. With that clear, the Senate ratified this part of UNCAT without qualification, and prompted the enactment of federal anti-torture statutes to support and carry out this treaty obligation.

FOREWARNED IS FOREARMED:

Be Forewarned about Sovereignty-Diminishing Treaties (Paul M. Weyrich, December 8, 2005, Accuracy in Media)

Britain and other European nations once again may be waging a fight to retain their sovereignty from a European power with expansive designs of power. The bệte noiré is not an armed, aggressive state but a supranational body that promotes Politically Correct ideology in its attempt to subdue the sovereignty of European nations. The agenda of the European Commission (“EC”), the body charged with “represent[ing] the European interest common to all Member States of the Union,” may sound attractive but thank heavens there are at least some British politicians who realize the true implications of what is sought.

Anthony Browne of THE LONDON TIMES reported on November 24, 2005, “The European Commission listed seven offences that it insisted should become European crimes immediately, including computer hacking, corporate fraud, people-trafficking and marine pollution. The ruling means that for the first time in legal history, a British government and Parliament will no longer have the sovereign right to decide what constitutes a crime and what the punishment should be.” Possible future crimes include racial discrimination and intellectual property theft.

By all means every crime listed above indeed should be matters of serious concern of our country and of other countries. (The racial discrimination issue would be a crime were it to involve the government but it is less clear were it to involve individuals.) The question is where the power should reside to determine what is unlawfulness and to assess penalties. […]

The British politicians and diplomats who are willing to stand up for their nation’s sovereignty against the onslaught of the European supranational justice and parliamentary systems are setting an example from which our own politicians and diplomats could profit. Defenders of American sovereignty and the Bill of Rights owe Senator Inhofe appreciation not only for his willingness to take on LOST but his effort to ensure the Senate does not rush to ratify the Cybercrime Convention without thorough consideration of its implications. Too often the Senate has essentially rubber-stamped treaties without giving due consideration to the fine print. There is plenty of fine print in both LOST and the Cybercrime Convention and the Senate needs to perform a thorough job of considering the impact of these treaties on our sovereignty.

Not every threat to American sovereignty derives from armed aggressors such as Churchill confronted. Too many Americans were raised believing that foreign countries which control supranational bodies have extended us good will out of gratitude for the vital role we have played in promoting freedom and democracy. Nothing could be further from the truth. Fortunately, some select leaders – Senator Inhofe and UN Ambassador John Bolton stand out – who realize that the world is indeed a dangerous place and it’s not just bullets that can destroy our American way of life. Sovereignty-diminishing treaties would be just as harmful.

If such things are worth doing, they’re worth each nation doing without some transnational institution imposing its will.