The Quality of Justice

Power and justice have always been uneasy partners. Last week they clashed spectacularly. The big issue was how the United States squares its outrage at al-Qaeda fighters now in detention with standards of international law it has long espoused. For most Europeans, the virtuous course seemed clearly marked by the Geneva Conventions. In France and Italy, though, murkier struggles between government leaders and recalcitrant judiciaries showed that finding the righteous path can be a matter not just of principle, but of political dispute.

For all the espousals of transatlantic solidarity since Sept. 11, the gulf between the U.S. and Europe reopened last week over the treatment of Taliban and al-Qaeda prisoners at the U.S. naval base in Guantánamo Bay. British Prime Minister Tony Blair, having carried the water for his American allies for so long, was put in a difficult spot as his own ministers expressed concern about the treatment of what the U.S. calls "unlawful combatants" captured in Afghanistan.

The Bush Administration insists there is nothing to worry about. Defense Secretary Donald Rumsfeld said he didn't have "the slightest concern" about the treatment of the captives. Though the U.S. refuses to accord them status as prisoners of war under the Geneva Conventions — as United Nations human-rights chief Mary Robinson recommended last week — U.S. Marine Brigadier-General Mike Lehnert, commander of the detention center at Guantánamo, asserted that the U.S. was "being guided by" the conventions in its treatment of the detainees. Defense Department officials insist the men are being handled humanely.

Many Europeans aren't so sure. They have grave doubts about the captives' confinement in open cages, about U.S. plans to try them before secret military tribunals and about the possibility that they may receive the death penalty, which is banned in nearly all of Europe. In Britain, the debate was sharpened both by London's support of U.S. actions in Afghanistan and by the fact that a number of prisoners claim to be British subjects. As some party colleagues expressed concern, Blair called for the prisoners to be treated "in accordance with the Geneva Convention." The Prime Minister stopped short of saying who could attest to that, but former Foreign Secretary Robin Cook was hardly alone in noting that Rumsfeld's views do not qualify as "independent corroboration." French, German and other European officials were more circumspect, but newspapers were full of their unattributed concerns that the U.S. was once again acting unilaterally on the world stage.

On Friday U.S. military authorities allowed a team from the International Committee of the Red Cross to monitor conditions at Camp X-Ray and British officials achieved consular access. Those concessions are unlikely to allay European concerns that the U.S., having pushed for a coalition against terror, is now abandoning some of the common principles that undergird it. "If we can build a bomb that can go through a cave complex, we can construct secure, humane prisons," wrote commentator Alice Thomson in the conservative Daily Telegraph. "This is not great P.R. for the civilized 'we want to police the world' West."

While they were fretting about whether the U.S. was living up to international standards of justice, several European countries were enmeshed last week in explosive disputes about how justice is meted out at home. On Monday French judge Eric Halphen, whose investigations since 1994 led to allegations that President Jacques Chirac was involved in construction kickback schemes when he was mayor of Paris, dramatically threw in the towel. He said he was putting aside his mandate in disgust because his investigation had been been "sabotaged" at every turn.

Many of the particulars of Halphen's travails had been known for years. In 1994 a top official of Chirac's party had attempted to discredit the judge by handing a briefcase full of money to his father-in-law; in 1996 the judicial police had refused to aid Halphen in a raid on the residence of then Paris Mayor Jean Tiberi; last October France's highest court ruled that Chirac, as a sitting President, was immune from judicial action in the case. But Halphen's claims that he had been systematically followed and bugged, and his condemnation of France's "two-speed justice" — one for the powerful, another for the powerless — made for a sensation.

Halphen's timing was auspicious: the first round of France's presidential election will take place on April 21, and his book detailing his charges — Seven Years of Solitude — will be published March 6. The allegations are likely to be uncomfortable for Chirac but probably not decisive. The President maintains a narrow lead in most pre-election polls.

Chirac has so far stayed above the fray, but others are eager to expound on what they see as the overweening power of France's independent magistrates. Last week, another magistrate placed three top executives of the bank Société Générale under formal investigation for money laundering. Ernest-Antoine Seillière, chairman of the powerful employers' organization Medef, condemned the action. Seillière claimed that half the heads of companies in France's leading stock index were under investigation, demonstrating "to what extent we [entrepreneurs] suffer from the abuses of the justice system."

That statement might have come right out of the playbook of Italy's richest entrepreneur, Prime Minister Silvio Berlusconi. His ongoing tussle with the country's justice system also took a new turn last week. Top Milan prosecutor Francesco Saverio Borrelli, a key figure in the "Clean Hands'' investigation into political corruption in the early 1990s, accused the Berlusconi government of demonizing the judiciary in the guise of reforming it. In a fiery speech at the judiciary's annual inauguration ceremony for the new year at Milan's Palace of Justice, in front of dignitaries, fellow judges and politicians, Borrelli urged his colleagues to "resist, resist, resist'' what he claimed was a concerted effort on the part of the government to undermine the justice system.

For many Berlusconi supporters, Borelli's assault bolstered their contention that Italian magistrates wield too much power. Even former Italian President Francesco Cossiga, who has said that Berlusconi should resign if found guilty in an upcoming corruption trial, criticized Borrelli, arguing that "in a democracy, power is exercised only by those legitimated by the popular vote."

In fact, democracies achieve fairness by more than mere popular vote. They set up institutions — and sign treaties — that answer to more constant standards than the passing whims of the electorate. That is a principle Berlusconi and Bush might do well to review together, each in his own way.