The International Criminal Court as theater

There are certain bloggers with whom I seem to be in synch--we're interested in the same issues, often at the same time. Sometimes I find myself writing a post only to discover that one of these simpatico bloggers has just covered the same topic. Or, I go to one of my favorites and find a post there that sparks a train of thought and leads me to write a response in a sort of time-delayed cyberdialogue.

Lately, Austin Bay's posts have been resonating with me. Today is no exception. Here he writes on the topic, "Bad International Law," citing John Keegan's recent article in the Telegraph which defends the martial law system over criminal law (international or otherwise) in dealing with allegations of war crimes.

Keegan begins by quoting a Roman saying: When arms clash, the law is silent. That is no longer true, of course--the law has quite a few things to say about war. But, although the law is no longer silent, I would submit that it is often irrelevant and/or powerless--mere propaganda.

A while back I wrote a short post on the topic of the international law of war, entitled, "International law, and order?". In it I said the following:

International law is a beautiful idea, but it can work only with the consent of the governed. Ideally, all nations would hold hands and sing "Kumbaya," and then international law would function seamlessly. Short of that, the "law" has to have the "order" part as well--the teeth, as it were. And that requires force.

All law functions that way. If there were perfect consent (hardly possible), then force wouldn't be needed; if enough force is present, consent isn't needed--but law is most effective and humane when both are present, which they ordinarily are. The international law of war, however, runs up against a consistent failure to have either. I can't imagine a realistic set of circumstances under which that lack will be remedied any time soon--or perhaps ever.

Why were we able to hold the Nuremberg trials, and to sentence Nazi war criminals and afterwards carry out the sentences? Quite simply, it is because we had won the war. That is what gave us jurisdiction, and that is what gave us the actual men to put in the actual docks. If we had attempted to put them on trial before that, it would have been merely a form of propagandist theater, a way to label them as war criminals but not to actually do anything about it. We would have lacked jurisdiction, one of the major elements of any case. Simply declaring that we had jurisdiction would not have made it so--except in our own minds, for propaganda purposes.

So, what of the International Criminal Court in the Hague, set up to try war criminals? It only has jurisdiction over those countries who consent to give it jurisdiction, because it has no natural territory (the Hague, after all, is rather small, as is the Netherlands) which it governs. Furthermore, it makes rulings only with the consent of the signitaries, since it has no method of enforcement in the face of defiance (the order part of law and order). Therefore, the Hague court is merely a propaganda machine, albeit one with a large worldwide audience. As such, it can (and most definitely will), be used for propaganda purposes--to further a certain agenda or agendas, such as focusing on the actions of the US allies in the Iraq War. It would go after the US too, of course, if we had signed onto the Court, but we have not done so.

The court martial system is quite different. The courts involved have the elements needed for trials: jurisdiction, consent, and teeth for enforcement. Each country has its own system, of course--I'm not aware of any international court martial system, even for international armed forces such as those of NATO (calling all experts on this subject for further information). Of course, a country's ability to root out war criminals is only as good as its court martial system and its willingness to do so. Our system, I believe, has stood the test of time--although, like everything else, it's hardly perfect. If it needs improvement, it should be improved on the national level. I would be highly reluctant to turn these issues over to the Hague, a venue I see no particular reason to trust.

The international justice system regarding war crimes is highly subject to abuse by special interest groups. In a sense, it is a polite fiction that such a system can exist and be meaningful, because it lacks the true characteristics of a functioning legal system. As such, we are correct to have opted out of the game.