The Sudan, The Wall, and Why I Hate the International Criminal Court

O.K., this is a bit off the beaten tack for me, but it plays off what I read this morning. And side note to John, can we get some different catagories in our drop down menues? Everything I write is “general.”

Today’s Washington Post (2/25) (my birthday, go me!) has two interesting op eds. One, by Eric Reeve about the the ongoing genocide in the Sudan, the other by George Will about the revival of antisemitism in intellectual circles. Juxtapose that with the news coverage of the International Criminal Court’s hearing (at the request of the U.N.) on whether Israel’s proposed “security fence” violates international law.

The U.S. took much heat for refusing to sign on to the treaty that created the International Criminal Court (“ICC”). The U.S. argued that the ICC would be compromised for political ends and would represent an dimunition in its sovereign rights well beyond the current limits of international law. Critics of the Bush administration as rejected this argument and cited the refusal to join the ICC as more evidence of the Bush administration’s unilateralist policies.

I’ll state a few prejudices up front. I’m a lawyer and, although international law is not my specialty, I have studied it some. I’m an American citizen and Jewish, something I do not see as a contradiction in terms but which other people do. And yes, I feel strong emotions for Israel. But I also come from a city where the St. Patrick’s Day Parade is a huge event celebrated by thousands of Irish Americans who have no problem feeling “Irish” and “American” at the same time.

But as an American Jew, I’ve also seen antisemitism up close and personal, as in death threats and fist fights. Just as Clarence Thomas could speak about cross burning and the First Amendment from a unique cultural perspective, despite being a Yale Law graduate and among the most elite members of our society, I think I have a little street cred on antisemitism. At least, my experiences color my view of things a bit.

But back to the ICC, Sudan, and The Wall. Those who favor the ICC argued that it was absolutely critical to have a standing court to deal with international criminal law rather than the ad hoc courts created to address specific events such as the massacres in Rwanda and Serbia. Had an ICC existed, proponents argued, there would have been a standing legal institution to address these matters immediately and head them off before they happened (or got worse). Proponents also argued that former dictators like Pinochet, who murdered thousands in Chile, would be reachable by justice.

But the U.S. didn’t like it. On the legal side, international law is a rather wacko field and does not — in the opinion of some legal types including me — lend itself well to the same kind of adjudication that national laws do. Laws binding on people inside nation states derive from various processes with culturally acceptable checks and balances. In the U.S., we view this as a legislature passing a law and then a court applying neutral principles in an adversarial proceeding to determine how the law applies in a particular case. Other countries have their own standards, many of which would not make us happy if we lived there. Even countries that we consider democratic have very different ideas about things like due process and how to conduct a trial. For example, in English common law and its progeny (U.S., Canada, Australia) due process calls for the judge to act as a neutral referee while opposed parties (in criminal cases, the state and a defendant) present evidence under a set of rules designed to ensure fairness as we see it and, in theory, favor the defendant with a presumption of innocence. (this doesn’t actually work out in practice, but the theory is important). In Civil law countries (most of continental Europe) the judge is an active participant conducting an investigation into the facts.

International law has none of these built in cultural referents. Nor does international law have anything like a legislature. In democratic societies, we have legislatures that create law and derive their powers from the people so governened since, if social consensus agrees that a law sucks or a law is needed, the people can elect legislators to pass the necessary legislation. If courts make decisions people don’t like, the legislature can change the law.

International law has no such mechanism to keep laws current with societal norms or check unbridled judicial expansion. Indeed, the organs for clarifying and limiting international law remain nebulous and without any traditional checks and balances.

Until recently, therefore, international law was extrodinarily minimalist. Sovereign nations could do whatever they wanted unless they vioilated the territory of another sovereign nation or unless they agreed to bind themselves by treaty. A treaty was a contract between sovereigns, and not a criminal law.

International law could also arise out of “customary norms of behavior” that gained broad recognition. Traditionally, however, courts had been very, very reluctant to find such consensus emrging because of the very sensible idea that this is a political matter and not a judicial matter. Judges are specialists in applying law to facts, not diplomacy or even legislation. Nor do they have armies with which to enforce their rulings. If you hand down enough rulings that nobody listens to, sooner or later everyone else stops listening to you.

Until the second half of the 20th century, we did not have a real notion of “crimes against humanity.” We had certain activites and people regarded as “the enemy of all mankind.” Notably piracy and slave trading, but these ideas went back centuries and dealt with the pragmatic coincern of mobile bad guys. Even then, the concept only meant that every nation had an obligation to punish such bad actors under its own national laws. British antislavery ships siezed American slavers in the 1850s in international waters. They never attempted to enter American ports on the theory that International law gave them a right to violate territorial sovereignty.

But the second half of the 20th Century has seen an explosion in international criminal law. Some of this has been through treaty, but some has also been with the development of the concept of crimes against humanity. Under this legal concept, activties legalized by sovereigns might still be triable by others because the offenses are so heinous they offend inherent rights of human beings regardless of the legal system.

While the theory is good, the problem is that there is no legislature or other recognized body that can set a standard or limit the reach of international jurisidiction if the principle runs amok. And it raises severe political difficulties. Consider the Pinnochet example. He murdered thousands of people. But he was only persuaded to give up power on a promise from the incoming Chilean government that he would be granted immunity for his actions. The Chilean people decided this was worth it, and cut a deal. This is routine in criminal justice, where prosecutors cut “plea deals” or grant immunity to serve larger interests.

But if a few judges somewhere else on the other side of the world don’t agree, you can’t make such deals. Would Chile be better off if Pinochet had said “no, I won’t step down, because there is no way to guarantee my safety because some random judge somewhere in the world may decide I’m guilty of violating some new standard in international law which no one even thought could exist at the time I committed the acts in question.”

And Pinochet is the easy case. Lets get a little harder. Many Europeans consider capital punishment immoral. Suppose we wake up one morning and discover that the International Criminal Court has decided that our system of capital punishment violates international law. While I am not a fan of capital punishment, I am even less a fan of someone on the other side of the world having the potential to mess with our justice system.

Nonesense, replied the defenders of the ICC. The ICC will stabilize international law by creating a body that can create precedent and remove decisions on international law from national judges. After all, it was a Spanish judge that tried to try Pinochet. If the ICC existed, it could have preempted and created stability.

But we have had bad experiences with international courts in the past. For example, there used to be something called the World Court. The U.S. initially supported it and joined it. Then we noticed a funny thing: judges voted on the basis of nationality and national interest. Not all the time, of course, but enough to make the U.S. (ever unpopular in certain quarters) highly suspicious of such international ventures — especially when our record quickly became 0 wins and 11 loses, the last being on the legality of a decision of the U.S. to support rebels mining the harbors in Nicuagua. Eventually, we pulled out of the World Court.

And then there was the experiment in Belgium. Belgium passed a law that gave it jurisdiction to try anyone for crimes against humanity. They acted to give relatives of victims in the massacres in the former Belgian Congo a place to file and hope for justice. Quickly, anyone with a political ax to grind filed complaints against any government they didn’t like. And lo and behold, the only case the Belgians ever decided to prosecute was the complaint against Ariel Sharon for involvement in the Sabra/Shattila massacres (for which he was cleared by a jury in New York about 15 years ago). Did this have anything to do with the massive unpopularity of Sharon and the policies of his government in Europe after he became Prime Minister of Israel?

the Belgian experimenty ended when, just before the second Iraq War, the Belgian prosecutors office began to investigate prosecuting Colin Powel and former President Bush for crimes against humanity in the first Gulf War (the one where Hussein invaded Kuwait). Again, the link between the pursuit of justice and the prevailing political winds (the vast majority of Europeans opposed the U.S. invasion of Iraq) is fairly clear. While this prompted the Belgian government to pull the plug on the law, it did not reassure those suspicious of the ICC that it, too, would be manipulated for political gain.

Meanwhile, the U.S. observers, the actions of others seem to go unnoticed. To take one example, The world obsessed over the siege of the Church of the Nativity in Bethlehem where Israeli troops declined to use lethal force because of the non-combatants inside. By contrast, a few months later, the Russian military police summarily executed 50 Chechen rebels who were holding hostage hundreds in a Moscow theater. (The police pumped knock out gas into the theater, rendering the rebels and hostages alike unconscious. Apparently, knock out gas causes mysterious bullet-like holes to appear in the heads of Chechen rebels.) Amazingly, no one reacted (except, I suppose the Chechens, but who cares about them?).

Now we come to the first high profile case of the ICC. The ICC does nothing to stop the ongoing genocide in the Sudan where, according to the Op Ed., the Sudanese government and arab militia are killing other muslim civilians because the residents of Drufur Province are black africans rather than arab/mediteranean. Nor does the ICC address the ongoing issues in Chechnya, settle border disputes in Kashmir, or issue opionions on ongoing abuses in Sri Lanka’s long civil war.

Instead, it has focused its legal energies on a quintessentially political question: Israel’s building of a large wall to screen out terrorists. The claim that Israel does so in Palestinian territory — a necessary pre-requisite for any finding of international law violation — requires a predetermination of the boundaries of any Palestinian state. Yet the boundaries of a final Palestinian state are themselves a political question subject to further negotiation.

Yes, I know the ICC is acting purusant to a U.N. request that it examine the issue. But that hardly assuages my feeling that the ICC makes the already difficult area of International law even more subject to poliutical manipulation in the same nasty politics that keeps the U.N. going (any organization that puts Libiya and Syria on its human rights committee should be subject to nothing but contempt). Call me cynical, but I can’t help but wonder why the ICC chooses to place an arguably political item on the top of its agenda while real genocide — which the ICC was designed to prevent — goes unattended.

Stay tuned . . .


  1. First, Thanks for being such a prolific poster here. I had originally thought that I wanted the feel of wetmachine to be vaguely technoparanoaic, or at least technoskeptical — in other words, not on subjects like this — but I’ve changed my mind. I just want Wetmachine to be interesting, and your post passes that test.

    I share your concerns about the hypocrisy and political motivations of the ICC. Yet I have some sympathy for the idea of the ICC and similar institutions as restraints on the USA. The USA is like Shaquille in a room full of kindergarten kids. If Shaquille decides to start stomping ass indiscriminately, there’s precious little that the others can do about it, no matter how many of them there may be. And even if logical “Shaquille” isn’t stomping ass, he certainly knows how to bully his classmates by using not-too-subtle riminders of his size and strength. So I view ICC and similar, with regard to USA, as a counterbalance.

    As to the case of the ICC and the wall in Israel, I expect that there’s a similar dynamic at work, given the preponderance of military strength held by Israel. Which is not to say that there’s no hypocrisy in evidence: obviously there is. But there’s also some realpolitic at work, perhaps?

    As to the questions of genocide and why we don’t, as a species, don’t do a better job of dealing with it, I wish I knew, because I despair. As a former Peace Corps Volunteer who has lived among some pretty desperately poor people in Africa, I have always taken an interest in the troubles of that continent. And I’ve written to my Senators and Congressmen about genocide in Africa: this whole subject is just heartbreaking.

    And yes, I’ll look into categories. I haven’t done anything with that yet, but I’m feeling another burst of Wetmachine creativity coming upon me. There’s a bunch of things I’ve been meaning to look into; I’ll add that to the list.

  2. I agree with your basic analysis of why we make other countries nervous, and our conduct in foreign policy is justifiably open to criticism.

    But these countries are not trying to build a system that’s fair, they want to build one where _they_ wield the power instead.

    So the U.S. ends up being like Microsoft facing its various competitors, and winning time and again because when some company looks like it’s going to pull ahead, like AOL, it starts acting an awful lot like the evil monopolist it seeks to displace and breaks up its support.

    Perhaps someday we’ll end up with an international equivalent of open source, where you have a community movement that displaces the monopolist without trying to be the monopolist, but I’m skeptical. That’s why I’ve come back to liking sovereignty and disliking trade agreements that aborgate local government. At the least, governments need to be accountable to their own people.

  3. Thanks for info about international law. I find it interesting that until recently, IL met libertarian standards, at least if you count governments instead of people as the important entities.

    Afaik, Bush opposed the ICC on the grounds that Americans shouldn’t have to put up with that sort of thing rather than on the more reasonable ground that the ICC lacked checks and balances.

  4. I’m afraid you’re a bit confused. The ICC has not looked into the wall/barrier/fence in Israel. That the ICJ, the International Court of Justice. They’re two very different systems. The ICJ is also known as the ‘World Court’ and is much older than the ICC, which only opened very recently.
    The ICJ investigates disputes between states, and cannot try or ‘punish’ individuals. Its mostly about border disputes, etc, and issues advisory decisions that have no enforcement mechanisms.
    The ICC in contrast, is about trying indivudals for crimes against humanity. The current cases it is involved with are Darfur, Democratic Republic of Congo and Uganda. The ICC has not considered any cases to do with Israel, and has not had any such cases referred to it by the UN.
    Hope this clears it up a bit.

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