Might makes right. Or?...

Might makes right. Nobody incarnates that saying better than Donald Trump right now. The erosion of the rule of law is painfully visible in the US. Trump seems to be above the law. This week the prosecutor dropped two federal cases against him, as he will be untouchable as President. Trump moreover dismissed all criminal charges against him as politically motivated, and verbally attacks and smears judges and prosecutors.

However, it is not an exclusively American phenomenon. In Europe too, politicians are undermining the authority of the judiciary. There is a growing trend of court rulings being ignored by governments, and the legitimacy of the judiciary called into question. Judges and prosecutors are being discredited and suspicion of partiality and political motivation is cast on them. Not by common criminals, but by the political leadership.

If political leaders do not accept the authority of the judiciary, it will severely erode trust in the rule of law and institutions. We take the rule of law for granted, like the air we breathe or water from the tap. But the system relies on general recognition of the authority of the institutions.

Increasingly however, court rulings are treated as non binding. The implementation of rulings of the European Court of Justice in Luxemburg, and the Human Rights Court in Strasburg is weak and in sharp decline.  An alarming report by the European Implementation Network finds that the non-implementation of court rulings has become systemic. The European Commission feels no responsibility whatsoever for ensuring full implementation of the rulings of ECJ and ECHR. Whether it concerns migrant pushbacks, LGBTI rights or data retention rules: national governments refuse to implement and the Commission turns a blind eye. So in practice there are no consequences for national governments if they do not respect the court’s decision. Citizens are left empty-handed, no justice is done.

At national level too pressure is growing on the courts. Not just by governments who refuse to implement national court rulings, but also by growing attacks on the institutions. Populist leaders systematically reject any legal conviction as “politically motivated” by “left-wing” judges, even if the cases often concern non partisan matters like corruption or misuse of funds. They verbally attack judges and prosecutors, challenge their impartiality, launch smear campaigns and phoney criminal charges, and even physical attacks. Mainstream democratic politicians too increasingly attack the judiciary. For example labelling judges as “activist” in response to rulings on migration or climate matters that are not to the liking of the powers that be.

The reactions to the arrest warrant recently issued by the International Criminal Court against ao Israeli Prime Minister Netanyahu are deeply worrying. Instead of addressing the substance of the case, attacks are launched at the court itself and it is accused of being politically motivated. The fact that an arrest warrant was also issued against a Hamas leader is conveniently ignored. If member countries no longer recognise the authority of the ICC, it is effectively dead. And the international legal order dies along with it.

The European Union is a community of law. The rule of law and the institutions are its very foundations. They ensure that Europe is an area of justice for everyone, not just for the powerful. Right, not might.