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Europe is torn between essential solidarity and national egoism

Timothy Garton Ash: Europe is torn between essential solidarity and national egoism | Comment is free | The Guardian

This situation is now unsustainable for everyone, whether within the Eurozone or still out in the cold


Everything is being stress-tested in this crisis. Europe, too. The weak points in the way the European Union has been put together, politically and economically, over the 20 years since the world changed in 1989, are all showing up. As we saw with the investment banks last autumn, if one bulkhead bursts, others are likely to follow.

Start with the eurozone. To those that have it, the euro has been a source of stability and strength in this storm. Aspirants to membership of the eurozone, like Poland, pray that they were already members. Even in Britain, a discussion has revived about whether or not we would be better off with the euro. Yet at the same time, the stresses between different members of the eurozone are becoming acute. They go back to its original design.

Asked for the first lesson he draws from Japan's decade of stagnation, a leading Japanese analyst says: you need the closest possible co-ordination between your monetary and your fiscal authority. The eurozone has one monetary authority but 16 different national fiscal authorities. They are, in practice, only loosely bound by a growth and stability pact, while subject to intense domestic political pressures - for democratic politics in Europe are still almost entirely national. This has consequences. So, for example, because eurozone governments have behaved differently over the years, their bonds have been valued somewhat differently in the markets. In times of crisis, these tensions increase. Safety first, says the investor. So even if the Greek government offers me a better return for lending it money, I may prefer to lend to the German government. The more investors think that way, the greater the difference grows. In the end, something has to give.

One way out of this, recently advocated by George Soros and others, is to create a single eurozone government bond. Since that would include weaker and riskier governments, Germany would have to pay slightly more to borrow the money it needs through such a bond. Now imagine how that will play with German voters. What, as Germany plunges into recession, we, the German taxpayers, must pay to save Greeks or Italians from the consequences of their own fiscal irresponsibility? Unerhört! Unmöglich! So the politicians who have to make this decision would pay the price in the European elections this summer and the federal election this autumn. For them, there are no votes in Greek or Italian gratitude. In short, because we have a monetary union but not a political one, decisions that put the long-term European interest before the short-term national interest are at once more needed and less rewarded.

Even more dramatic is the predicament of the east central European countries that joined the EU over the last decade but are not yet (with the exception of Slovakia and Slovenia) in the eurozone. In recent weeks, the tempest has hit them with a vengeance. Far from finding safety through being aboard the good ship EU, their close financial relationship with western Europe has become part of their problem.

Twenty years ago, after the velvet end of communism in 1989, they set out to build capitalism without capital. Therefore they opened up liberally to western investment. Most of their bigger banks now have western owners or majority shareholders. Hit by a financial crisis whose origins did not lie in east central Europe, those western owners pulled in their horns. Their core business and home markets came first, while east central Europe fell victim to a blanket warning against "risky emerging markets". Western loans dried up. And as east central European currencies fell, these countries were left struggling to pay the interest on existing loans denominated in western currencies. This is not just a problem for governments and companies. Quite a few middle-class Polish families, for example, have taken out new home loans denominated in Swiss francs. When the value of the Polish zloty collapsed, their interest payments almost doubled overnight.

Of course different countries have fared differently. Hungary and Latvia have already had to go cap in hand to the IMF. The rating agency Standard & Poor's has just cut Latvia's credit rating to junk status, where it joins Romania.

What they all have in common is a sense of desperation and injustice. At a panel discussion in Vienna last weekend, I heard the leader of Hungary's main opposition party, Viktor Orban, complain of "financial protectionism" on the part of the west. That is mild language compared with the populist, anti-western and anti-liberal rhetoric that will flow if this continues.

More dramatic still is the plight of countries not yet in the EU: the third circle, so to speak, of Europe's current hell. Even before the financial crisis hit, the EU's magnetic power was visibly fading in places like Turkey, Ukraine and Bosnia. Now even more so. Ukraine is a mess. There are alarming reports that Bosnia is sliding backwards, with the Bosnian Serb leader stirring the old devils of ethnic separation.

I do not say that the fissiparous tendencies will inevitably triumph in any of the three circles. I do say that the future of the whole European project, as we have known it since the late 1940s, and particularly since 1989, is now at issue. The forces of integration and disintegration, of European solidarity and national egoism, the centripetal and the centrifugal, are finely balanced. There are a few signs of Europe getting its act together, such as last weekend's Berlin summit and yesterday's announcement of proposals for a Europe-wide financial supervisory framework. Optimists will argue that crises have been the catalysts of European integration throughout its history.

It is clear is that we cannot stay where we are. If we don't go forwards we will go backwards. Forwards not, I emphasise, to some idealised United States of Europe, but to a practical construction strong enough to weather the storm. Whether we achieve that will depend on three things: global forces beyond our control, the quality of European leaders, and the space and trust they are afforded by their national electorates.

Earlier this week I visited Jean Monnet's touchingly modest home in the countryside south-west of Paris. It contains reminders of even more dramatic times, including a copy of the 1940 proclamation of a Franco-British Union and an old typewriter on which was drafted one of the original proposals for what became the Schuman declaration - which led to the European Coal and Steel Community, which led to the European Economic Community, which eventually became the European Union. Europe, Schuman famously declared, "will not be made all at once or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity."

Monnet himself liked to quote a saying that there are two kinds of people: those who want to be someone and those who want to do something. Yet even if today's European leaders prove themselves to be of the latter sort, in democracies they can only do as much as we, their national publics and voters, let them do. Whether I look at Britain or Poland, France or Germany, Latvia or Austria, I do not, today, think we will let them do enough.

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The Ethics of Defending Hitler

Opinio Juris » Blog Archive » The Ethics of Defending Hitler

by Kevin Jon Heller

A few months ago, I mentioned in the comments to my now-infamous grape soda post that although I have no ethical qualms about advising Dr. Karadzic, I would not have defended Hitler if he had lived to see the inside of an Allied courtroom. That statement led to a number of pointed — and understandable — criticisms, such as this one:

Fair enough, but tell me where is the principle in admitting that as a Jew you wouldn’t represent Hitler, but you are happy to represent somebody else’s Hitler? (No I don’t think Karadzic was a Hitler, but nevertheless some see him that way). Again some pulling the wool over ones own eyes is necessary, its either that or to admit that it is rather unprincipled to be willing to represent one man accused of mass murder, but not another.

I tried to address the issue in more depth during my Bloggingheads.tv interview (the discussion is about 50 minutes in). Most of the comments on the interview focused on the Hitler question — with sentiment divided regarding my position. Indeed, Mark entitled his UN Dispatch post linking to the interview “Would You Defend Hitler?”

Few people, I imagine, will subject themselves to listening to me for an hour. (My students, of course, have no choice.) So I thought I would explain my position here. In my view, the question “would you defend Hitler?” actually consists of two very different questions:

* If Hitler had been prosecuted, would he have deserved a skilled and zealous defense?
* If you think Hitler would have deserved a skilled and zealous defense, would you have volunteered to provide it?

I am very interested to hear how readers would answer those questions. As I have implied, my answers differ: I would answer “yes, unequivocally” to the first question, and “no, definitely not” to the second one. The first question is easy for me: when an adversarial criminal-justice system chooses to prosecute someone, that person deserves a skilled and zealous defense no matter how serious his or her alleged crimes. Indeed, I think the obligation to provide such defense inheres in the very form of the adversarial criminal trial. (Hence the name of the system.)

To be sure, there are non-legal methods for dealing with heinous criminals — as most people know, Churchill initially favored summarily executing leading Nazis over providing them with fair trials. I am glad the Allies decided to create the IMT instead, because I believe (as Justice Jackson eloquently insisted) that the Allies needed to show the Germans and the rest of the international community that they were better than the Nazis. But, to be honest, I would not have been particularly troubled by Churchill’s solution: at least he would not have cloaked the summary executions in the mantle of legality. The executions would have been political justice pure and simple, the rightness of which would have been for the world to judge.

The second question is where things become more complicated for me. Although I believe Hitler would have deserved a skilled and zealous defense had he lived to be prosecuted, I simply could not have defended him. A defense attorney does not have to believe that his (or her) client is innocent to provide him with a zealous defense. A defense attorney does not have to like his client to provide him with a zealous defense. But a defense attorney cannot provide his client with a zealous defense unless he is is capable of reconciling himself to the possibility that his efforts might lead to his client being acquitted. The ability to accept that possibility is, I believe, the sine qua non of effective representation. It is not enough for a defense attorney to have an abstract commitment to the idea that every defendant deserves a skilled and zealous defense. Nor is it enough for a defense attorney to represent a defendant because he believes that, no matter how skilled and zealous the defense, an acquittal is unimaginable. On the contrary, a defense attorney has to be able to say to himself “my commitment to the idea that every defendant deserves a skilled and zealous defense is so strong that I will be able to live with myself if, as a result of my representation, my client is acquitted.” If he cannot say that — and mean it — he has no business representing that defendant.

And that is where I fail the test concerning Hitler. I believe that I could zealously defended any of history’s other mass murderers — the Saddam Husseins, Pol Pots, and Pinochets of the world. But for personal reasons, not legal or ethical ones — I’m Jewish, my family is originally from Poland and Russia, I had family (albeit distant) perish in the Holocaust — I simply could not have defended Hitler and lived with myself if, as a result of my representation, he had been acquitted.

Does that make me a hypocrite? To be honest — yes, it does. I completely agree with what one of the commenters at Bloggingheads.tv said (I am combining two of his or her comments):

The whole premise of an international court is that prosecutions transcend particular religious, political and ethnic identities. In other words, everyone (or no one) is a Jew in a Hitler prosecution and everyone (or no one) is a Tutsi in the Rwanda genocide… I don’t think “I am Jewish” justifies the recusal. If you really believe that genocide is genocide is genocide, i.e., a crime against humanity, you are participating in a trial for the sake of humanity, not for the sake of Jews or Rwandans or Bosnians.

I have no defense to that argument, other than to admit that I am not always capable of living up to my own ethical ideals. I wish my commitment to the idea that all defendants deserve a skilled and zealous defense allowed me, in good conscience, to provide such a defense to anyone, even — perhaps especially — to Hitler. I wish my commitment to the idea that the lives of those who are close to me are no more valuable than the lives of others meant that I could view Hitler’s crimes as no different than the crimes of Saddam Hussein, Pol Pot, or Pinochet. They simply don’t.

I don’t think I’m alone in my limitations. In my experience, all defense attorneys have the one kind of case or the one kind of defendant they simply cannot bring themselves to defend. (To offer a humorous example, I know a federal public defender in Arizona who can defend absolutely anyone — except people who blow up waterfalls in national parks. It happens more than you might imagine.) My exception is Hitler. Fortunately, I am far from the only defense attorney in the world. There are many others who are not Jewish and who probably could in good conscience provide Hitler with a skilled and zealous defense. And for that I’m grateful, because it gets me off the hook. The goal is to ensure that all defendants receive such a defense, no matter how heinous their alleged crimes — not to require individual defense attorneys to put themselves in situations where, justifiably or not, their representation would be less zealous than professional ethics require. So as long as there are other skilled attorneys available to defend the Hitlers of the world, I see nothing wrong in recognizing that even the most zealous defense attorney has his or her limits. Despite suggestions to the contrary, defense attorneys are humans, too.

As for what I would do if the Allies had prosecuted Hitler and no other defense attorney in the world would defend him — that I’d have to think about…

Asymmetric Legal Enforcement in Gaza

Opinio Juris » Blog Archive »

As this BBC report suggests, investigating war crimes in the Israel-Gaza conflict is a pretty much hopeless task because there is no single entity with the expertise, knowledge, and legitimacy to find out the “truth.” Any investigation, whether it is the UN or the ICC or Human Rights Watch, will be simply dismissed by the two sides as biased. So I rashly predict that there will be no international investigation. This leaves us with the national mechanisms, which is what UN Secretary-General Ban has said is the proper level of investigation. But this means, in effect, that only Israelis are subject to law of war-enforcement measures.

Israel at least has a mechanism for conducting investigations of its own people who might have committed war crimes Its armed forces are governed by the law of war and its armed forces are subject to military command and control as well as civilian judicial review. Indeed, if it were subject to ICC jurisdiction, Israel would have a decent case for claiming to have fulfilled its duty to investigate and punish war crimes committed by its nationals or on its territory.

The Deputy Spokesman at the Israeli Ministry of Foreign Affairs, Andy David, told the BBC that “Israel investigates all its actions regardless of outside calls.” He said the country did not need “external intervention to conduct any investigation”.

He said: “Israel acts according to international laws and with highest regards to morality during combat, even beyond the requirement of the law.”

A spokesperson for the Israeli army said the hits near the UN school and on the UN compound were being investigated.

The same cannot be said for the Palestinians. Notice this response:

The Israeli army, and a number of human rights groups, say Hamas violated the rules of war by using civilians as human shields.

Human Right Watch says Hamas has done nothing to investigate.

A senior Hamas official, Ahmed Youssef, said allegations of violations were “completely baseless and nonsense”, the result of the “Israeli propaganda machine of fabrication”. He said there were “no violations by Hamas.”

Mr Youssef added: “It was ridiculous to say human shields were used. No Palestinian would use another Palestinian as a human shield”.

He said Human Rights Watch was not a credible institution, taking its findings from Israel. “They need to ask the people of Gaza what happened,” he said.

I wish I could believe Mr. Youssef, but any lawyer would find this response lacking, and it doesn’t seem to fulfill the requirements of conducting national investigations under the ICC Statute.

Therefore, one of the ironies here is that Israelis are much more likely to be held accountable and punished for violations of the laws of war than any Palestinian. This does not mean the Israelis have perfect law compliance. But it is almost certainly true that Israelis actually face the possibility of legal punishment, whereas it seems fairly clear that no Palestinan does.

Obama Administration Will Oppose Extending Judicial Review to Afghanistan

Opinio Juris » Blog Archive » Obama Administration Will Oppose Extending Judicial Review to Afghanistan

by Julian Ku

Again, this news is not exactly shocking:

The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release.

Jack Balkin, who is quoted in the article, notes that it is too soon to tell what the full position of the administration will be on these questions. And I agree that it would be odd for the U.S. to give up its argument now. It can always backtrack later, but if it waives its argument now, it is going to be very tricky to “take back” the judicial review genie.

Still, we can at least see the outlines of a mini-trend: Announce the closure of Gitmo, but quietly maintain a system of renditions and overseas facilities like Bagram to hold people who you really don’t want to release or whom you really need to interrogate.

The Administration might be thinking that, as long as it introduces “humane” standards for confinement in Bagram, and makes sure renditions are to places where there isn’t torture, and comes up with a better administrative system for sorting out who should be detained, the existence of judicial review won’t matter much.

This sounds like a good argument! But it is the same one that the Bush Administration made over Gitmo for the past seven years. I suppose Obama may get a pass on this, but he doesn’t deserve one.