Imagine that Keir Starmer or Rishi Sunak had been convicted of a serious criminal offence – a felony as we called it until 1968 – in the run-up to the general election. Clearly, an offender could no longer seek to lead the country. Nobody would now be discussing whether a conviction might be an electoral advantage.
As we know, they do things differently in the US. Leave aside the unprecedented federal charge against Donald Trump – a series of bookkeeping falsifications that were intended to cover up another, unspecified crime. Leave aside the shaky nature of his defence – if the former president had nothing to hide, why did he not give evidence? The US justice system is politicised from top to bottom.
Trump knows this better than anyone. He appointed three conservative justices to the US Supreme Court. Can he really complain if the Manhattan district attorney who prosecuted him is a Democrat? He can and did, criticising not only the prosecutor but the judge at his trial: Juan Merchan had donated $35 to Democrat political groups in 2020.
President Biden could rightly say it was reckless, dangerous and irresponsible for anybody who did not like the guilty verdict to claim that Trump’s trial had been rigged. Biden would no doubt say the same about the current trial of his son Hunter, who denies lying about his drug addiction so he could buy a handgun in 2018. But that does not make Trump’s trial fair.
Charges of bias against our own prosecutors and judges are fortunately rare. But claims of judicial overreach are not uncommon in the international arena.
After the prosecutor of the International Criminal Court chose to announce in a single statement last month that he was seeking to arrest the leaders of both Hamas and Israel, I was not the only person to accuse Karim Khan KC of moral equivalence – of treating the attacker and the defender in the same way. Under the court’s principle of complementarity, Khan should first have allowed Israel an opportunity to investigate allegations against its prime minister and defence minister, bringing charges only if the national authorities were unwilling or unable to act.
Less than a week after the prosecutor’s announcement, judges in a different part of The Hague were accused of ‘an untenable overreach’ by issuing an order that ‘could be erroneously misunderstood as mandating a unilateral ceasefire’. The International Court of Justice was criticised for ‘micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives while leaving its enemies, including Hamas, free to attack without Israel being able to respond’.
That condemnation came from Judge Sebutinde, the court’s vice-president, in a dissenting judgment.
But an even stronger dissent had been delivered a month earlier by the British judge at the European Court of Human Rights. ‘The majority in this case has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation,’ Judge Eicke (pictured) said. Interpreting the human rights convention ‘comes with immense responsibility; a responsibility which, in my view, is reflected in the court’s normally careful, cautious and gradual approach’. In his view, Eicke’s colleagues had ‘unnecessarily expanded the concept of victim status’ and ‘created a new right’.
This was in the KlimaSeniorinnen judgment on climate change. By a majority of 16 votes to one, the court found that Switzerland had breached Article 8 of the human rights convention, which protects the right to private and family life. Judges decided that Article 8 encompasses a right to effective protection by the state authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.
Next week, the same judges will hear four interstate claims against Russia. Ukraine launched the first of these after Russian troops seized Crimea in 2014 and the last in response to Russia’s invasion more than two years ago.
That led to its expulsion from the human rights convention later in 2022. Although Russia has been invited to attend the hearing in Strasbourg, there must be very little chance that it will be represented.
Russia has clearly been responsible for innumerable breaches of the convention and, as a matter of law, it is responsible for actions it took before it was expelled from the Council of Europe. But now that it is no longer a member, enforcement of the court’s rulings is even more difficult than it was before 2022.
International courts do not come equipped with international police forces. They rely on states to give effect to their decisions. Overreaching themselves – pretending they can end wars or mend the planet – merely damages their standing.
National courts do make enforceable decisions. But prosecutors and judges must take the public with them. What happens when they do not is becoming alarmingly clear.
joshua@rozenberg.net
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