by Jonathan Wallace email@example.com
General Pinochet of Chile presided in the 1970's at the overthrow of a democratically elected Socialist government. Thousands of leftist Chileans were tortured and murdered in the months after; American media reported on a warehouse full of bodies, and on a camp for female prisoners in which most of the inmates had been raped by their guards. The general's secret service reached out to murder an adversary, and his American assistant, on the streets of Washington D.C.
(Though its irrelevant to the thesis of this essay, I'll pause to recount my favorite example of sociopathic political cynicism. When the Nixon administration was scrambling to find a palatable excuse for its support of the overthrow of the Chilean government, someone suggested Chile's geopolitical importance. "Yes," Henry Kissinger said, laughing, "Chile is a dagger pointed at the heart of Antarctica.")
Later, after Chile had been returned to democratic rule, General Pinochet continued in a position of power, respect and immunity. As Chileans came to grips with the crimes of the past, he mocked them.
Last year Pinochet, now in his eighties, went to England to undergo medical treatment and was arrested at the request of a Spanish judge who is bringing charges for the murder of some Spanish citizens during and after the coup. (Pinochet's troops also killed some Americans in Chile; the book and movie Missing recount the story of one of them.)
The arrest was embarassing to the Spanish government (it appears the prosecuting judge is somewhat of a rogue, not under the control of his government) and even more so to the British. Last week, the British government issued a ruling that Pinochet was medically unfit to stand trial. If the Spanish judge fails to bring a successful appeal to the British courts or the European community, the general will be back home in Chile, enjoying his retirement and taunting his opponents again.
I was a college student when the Chilean coup occurred and it formed a significant part of my education. From where I stood, our own president was a gangster, intent on eliminating anyone even slightly to the left of him in this country and abroad. It was hard to imagine what kind of a democracy we could claim to be while overthrowing a neighboring democracy and supporting a bloody gangster like Pinochet--then turning a blind eye to rape camps and the murder of an American in our own capital.
Nevertheless, the successful prosecution of Pinochet would have been an example of a dangerous thing: substantive justice at the expense of procedural. There is no moral distinction to be drawn between a Spanish judge claiming jurisdiction for domestic acts which are prosecutable (if anywhere) only under Chilean law, and an Iranian mullah issuing fatwas against foreign authors he believes have offended Islam.
The problem is that trying Pinochet under Spanish law for acts committed in Chile is a very poor substitute for prosecuting him in a proper international court for clearly defined war crimes. An international tribunal based on the consent of the world's nations would be able to act with more legitimacy and a reduced likelihood of political bias than a national government. Also, an international law of war crimes would be able to pick off malefactors like Pinochet, who are immune from prosecution in their home countries.
There is an idea in the air today that we need a permanent international criminal court (driven by recent experiments in Nuremberg-style temporary courts trying war crimes in Rwanda and the former Yugoslavia.) The U.S. is opposed to it because of the very real fear that American military folk could end up being prosecuted (and in fact there are a few law professors out ther trying to bring about that exact result.)
However, any prosecution today pursuant to a treaty passed yesterday would be an ex post facto act of doubtful legitimacy. As Nuremberg was. Any scholar of international law could tell you that under nascent international legal norms of the thirties, the murder of Jews inside Germany was a purely internal act of complete legality, because decided by the elected government which had undisputed jurisdiction. Retrospectively postulating the existence of rules under which to try Nazis was an act of moral closure but of legal wishful thinking. Winston Churchill suggested for this reason that the Nazi captives be shot out of hand as a substitute for the Allies pursuing a show trial of dubious legality.
Though there are treaties going back to the postwar period which are a decent first attempt to create an international law of war crimes, they are of confused and weak status. They create no permanent tribunal for the trial of these crimes; they are not agreed to unconditionally by a wide enough spread of countries; and too many Chilean-style coups, too much governmental torture and murder have gone unprosecuted around the world in the last fifty years for these treaties to provide a secure basis for action today.
From a strictly legal standpoint, Pinochet should go free, though the college student in me would like to see him locked up for the rest of his life.
The morality of fishing would itself be a fit subject for an essay one day in the Ethical Spectacle. Technology has allowed the creation of ever huger nets, to the point that we are effectively "strip mining" the ocean, pulling in and killing thousands of "trash" species along with the fish we are actually seeking. A particularly serious problem is that endangered air breathing species, such as dolphins and sea turtles, get enmeshed in the big nets and drown.
Dolphins especially are regarded by the American public as adorable "megafauna" and saving them is politically popular. Turtles also have more cachet than snail darters or or other ugly small fish species. Over the years, the U.S. Congress has legislated various solutions to protect these highly visible animals. American shrimp boats have been required to install "turtle excluder devices"(TED's). Foreign caught tuna and now shrimp are barred from sale in this country unless certified to have been caught in a fashion less likely to kill dolphins or turtles.
As I mentioned last month, our government's laudable desire to protect endangered species has run afoul of its even stronger desire to promote uniformity of international commercial rules via the World Trade Organization. One of the cause celebres of the Seattle demonstrators was the fate of the turtles under a WTO ruling that the US cannot legally exclude shrimp caught without TED's.
Turtles and dolphins are completely unaware of national borders or they would all be congregating in US waters (cf. the John Denver parody song, "I Wish the Whales Could Live in Colorado"). Like Spain prosecuting Pinochet, the U.S. is attempting to fill an international vacuum by taking domestic action to adress an international problem.
Complete national sovereignty would dictate that we can exclude any damn product we want to, for any reason. International commercial treaties such as the GATT (predecessor of the WTO) set limits on our ability to do so. Originally targeted at national tariffs protecting domestic industries against foreign competition, these treaties are now beginning to have a massive impact on domestic environmental and labor laws as well.
While the use of American economic power to protect turtles in foreign waters is morally salutary, it is doomed to failure as a solution to a global problem, just as the use of Spanish law to prosecute a foreign dictator is doomed. Even without WTO interference, one nation cannot effectively solve worldwide problems. As libertarians will tell you, a law to be effective must be backed up by force. While the execution of the Nazi defendants after Nuremberg was, unfortunately, an example of force without law, American legislation to protect turtles is a law unbacked by force. America is not going to go to war for the turtles.
The United Nations
For much of the nineteen-nineties, the U.S. withheld its dues (aggregating more than one billion dollars) to the United Nations. This year, Congress finally voted to pay much of that debt, placing conditions: the money could not be spent on abortion-related services. Last week, Senator Jesse Helms appeared before the U.N., delivering a speech which left many in his audience quivering with rage: they had better hew to the U.S. line or they might no longer have the U.S. as a member of the organization.
Each of these three examples--the dictator, the turtle, and the United Nations--involves an attempted application of national power to address a matter of international policy. The chances are pretty good that no reader will approve equally of all three attempts: if you were offended by the attempt to punish Pinochet, you probably disapproved of the attempt to protect turtles but liked Senator Helm's initiative to get the U.N. to line up with the American far right on abortion. If you were upset about the last, you probably agreed with the other two goals.
Thus falling into the classic fallacy of judging the means based on whether you approve the ends. Procedurally, the use of national power to force international policy seems to be much more of a binary phenomenon: either everyone can do it to advance any national goal, or no-one should do it.
Count Talleyrand's famous comment about some government action: "Not only is it a crime--it is also a mistake." National power will never be effective in addressing any type of international problem consistently. It will punish occasional dictators (usually only those of a particular stripe, for example, the way the US for thirty years punished only leftist dictators and let the right murder with impunity.) It will save a few turtles. And that's about all.
Even while attempting to accomplish laudable goals, such national efforts are no substitute for international laws, with genuine enforcement. " "Want of a common judge with authority puts all men in a state of nature," said Locke in his Second Treatise of Government. It is really quite remarkable that after so many thousands of years of recorded human history, we should still prefer to live in a global state of nature, even as our population becomes so pressing, and our technology so powerful, that we are constantly creating problems which can only be solved globally.
"Think globally, act locally," is the famous environmentalists' slogan; the words sound so persuasive that it is an afterthought to ask, why? Why should we act locally if we can act globally? Most environmentalists would probably answer, because we can't. We do local things because we can, because it is convenient, because the world itself is in a state of nature but our community is not, because the mass of people in the world don't think the way we do. Why would people trying to solve global problems oppose an organization like the WTO? Answer: because local laws protecting a few turtles is preferable to an international rule protecting none.
But local action will inevitably fail for the reasons set forth in Barry Commoner's famous essay, The Tragedy of the Commons. He has since said that he should have titled it "The tragedy of the unregulated commons"--the commons in a state of nature. If it is to all our benefit to preserve the commons for future generations, but any individual is free to say "fuck the future" and destroy a piece of it--then there is no way we will preserve it. Because--to adopt the terms of a closely related concept, the Prisoner's Dilemma, there is no penalty for defection. No common judge, no police. Without international rules and enforcement, some among us will continue to strip mine the oceans and add aerosols to the atmosphere, in amounts that will offset the noble but doomed efforts of others to preserve these common resources.
Early in the last century (first time I've written those words to refer to the 20th!) someone derisively commented that the nations of the middle east were no more than "tribes with flags." But that is what we all are, the United States included, as long as we choose to live in a global state of nature.
The correct largest unit of government should be at the level of the largest problems we need to solve. Where humans live in densely packed proximity, and wars occur, it seems very clear that the proper largest umbrella would shelter the entire planet. Iran and Iraq have fought each other in recent memory, but New York and New Jersey never.
The voluntary accretion of the European countries into a union--really a mega-nation--provides an example of what the future may hold for the rest of us. As we embark on a third millenium, it is an easy prediction that we will see its close either as a global nation or as fragmentary tribes grubbing for subsistence again in a new stone age.