When courts undermine the rule of law
Supranational and national courts are increasingly being used for political and activist purposes, posing risks to their independence.
The European Court of Human Rights (ECHR) last week found Switzerland in violation of human rights in a ruling for “KlimaSeniorinnen,” a group of elderly Swiss women concerned about the climate. The plaintiffs claimed that every individual is owed protection from the state against the damaging consequences of climate change to their health, well-being and quality of life. Considering the government’s measures to mitigate climate change to be insufficient, they argued that Switzerland was violating their rights.
That some activist busybodies – eager for attention and unafraid of seeming ridiculous – might proclaim such theories is legitimate. But it is grotesque to see a supposedly professional and serious court, which is meant to uphold the rule of law, find in their favor. In doing so, the ECHR created a “human right” that did not previously exist; one that is vague, lacking the clarity required of law, and simply cannot be practically enforced. The judges bowed to populism and tried to create new law against fundamental principles of rationalism and the separation of powers.
The problem is that the ruling will not be seen as it should, like a belated April Fool’s joke. It will take effect in all member states of the Council of Europe – practically the whole continent – and become a pretext for unreasonable and authoritarian measures in the name of climate protection. The resulting activism may also damage reasonable policies to protect the environment. And it could create a precedent for further rulings, overstepping the judicial system’s broader role. Just as the legislative and executive powers must respect the independence of the judicial system, the judiciary is also bound to respect its own proper limits.
Partisan tool
Unfortunately, we increasingly see cases in which the judicial system, whether for ideological expediency or sheer ignorance, is allowed to become the tool of political or populist games.
Last month, the Nicaraguan government of the brutal socialist dictator Daniel Ortega sued Germany before the International Criminal Court (ICC), which somehow failed to dismiss the charges immediately. Managua claims that Germany failed in its obligation to prevent “serious breaches of peremptory norms of international law.” It blames Berlin’s discontinuation of aid to UNRWA, the United Nations agency for Palestinian refugees, and its financial support for Israel generally. Through its relations with Israel, it is alleged, Germany is supposedly “facilitating the commission of genocide” against Palestinians. The plaintiff requested immediate measures by the court to halt German support for Israel.
In fact, Germany cut aid to UNRWA after revelations that agency staff members had participated in the October 7 terror attacks against Israel by Hamas, which triggered the catastrophe in Gaza. It is hard to believe that an authoritarian such as Mr. Ortega, who regularly commits crimes against his own population, sincerely cares about the welfare of Palestinians. The case should rather be seen as an attempt to deflect attention from his own rights violations. For the sake of the prestige of the ICC, we can only hope that these unreasonable charges will be dismissed without delay.
Just as the legislative and executive powers must respect the independence of the judicial system, the judiciary is also bound to respect its own proper limits.
National judiciaries must also be careful to avoid misuse of their systems for political purposes. It is becoming more popular to bring charges against disfavored political candidates. This does wonders for the media but is detrimental to liberal democracies – especially if the accusations are based more on suspicion than facts. Many of the charges against U.S. presidential candidate Donald Trump will likely backfire and prove ineffective, but they fuel the sentiment that the judiciary has become wrapped up in partisan campaigns.
This perception is very dangerous for the maintenance of the rule of law. Yet prosecutors and judges increasingly appear to care more about media attention. Unfortunately, the independence of the courts is increasingly being damaged by ideological and activist members.
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