International Law and the Problem of Enforcement – an Analysis

Part I – Anthropomorphizing the Nation State

One of the defining characteristics of modern Western culture is individuality. Most people in the West take it for granted that they have the right to free expression and personality development. However, in practice, this right is not open ended. It is fine if you want to express yourself as a musician, a painter, a film maker, a writer, etc. Equally legitimate is your desire to express yourself as an engineer, accountant, bus driver or auto mechanic. Things become very different if you have a great desire to express yourself as a thief or want to develop your personality as a serial killer. There are rules, in the form of laws, against these latter avenues of expression. If you choose to ignore these laws there are police forces and courts systems that will seek to force you to do so. Another way of saying this is that within states or nations, people usually must confine their right of self expression to activities that do not impinge in a harmful or unwanted way on others in the community

It was at the end of the 18^th and throughout the 19^th centuries that Western leaders of both established nations and aspiring nationalities began to apply this language of self expression to the nation state. In other words, they claimed the same right of self expression for the collective as for the individual. This represented a melding of romanticism and politics that allowed for the anthropomorphizing of the nation. That is, something that was not a human being (the nation) was being treated as if it was. The French Revolutionaries spoke of “France” as the growing embodiment of human freedom with a mission to export liberty to others, German nationalists such as Herder and Fichte believed that the “German nation” embodied a volkgiest, or “spirit of the people” that had to be free to create a unified and enduring state. Italian, Russian and other nationalists made the same argument for their nationalities or ethnic groups. In each case, the claim that the collective, with its unique cultural personality, had the right to unfettered development led to a serious and continuing problem.

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Part II – The Problem

One half of the problem expresses itself in the form of “exceptionalism.” That is the assertion that the nation has rights because its culture and people are, in some way, superior to others and/or because they are “God blessed.” Being superior to others means the nation, striving to realize its uniqueness, has priority claims to a “homeland” and its resources. Those who stand in the way of this goal can be evicted or otherwise persecuted. Or, perhaps, the nation in question has evolved a special way of life (democracy, capitalism, communism, or some religion) that its leaders feel it must share with others–whether they want this gift or not. So it sends out missionaries and diplomats and then usually follows them up with gunboats. Empire building based on a claim of superiority often results. It turns out that almost all great powers, Western and non-Western, have expressed some form of exceptionalism.

The second half of the problem lies in the fact that these anthropomorphized nation states, with their insistence on the right of self expression, are acting in an arena of international relations that lacks sufficient rules to limit their behavior. There is nothing to actually force them to confine their acts of self expression to activities that do not impinge in a harmful or unwanted way on other states or populations. Certainly, traditional diplomacy and the use of standard treaties has not been able to do so. Until the end of the Second World War there were a few Geneva conventions that, with mediocre success, sought to ameliorate the treatment of civilians and prisoners during wartime. Come the world wars of the 20^th century even these were ignored. The horrors of WWII gave new impetus to establishing enforceable international rules or laws, including laws against genocide and crimes against humanity, but over time these too have been eroded. And, here again, exceptionalism has been the motivator. We can see how this has taken place by looking at the case of the International Criminal Court (ICC).

Part III – Undermining International Law

The ICC was created in 2002 by the a founding treaty known as the Rome Statute. The court was designed to be an independent body capable of prosecuting major transgressions such as genocide, war crimes and crimes against humanity. However, there were also conflicting amendments built into the founding document. Among others, the Court's jurisdiction is usually limited to crimes committed by a national of a state that is party to the treaty or committed on such a state's territory. Nonetheless, the Court is also obligated to investigate any case referred to it by the United Nations Security Council, whether the nation or individuals involved are covered by the treaty or not. Presently, 114 countries are party to the treaty and thus subject to the jurisdiction of the ICC. Some 34 others, including Russia, have signed the treaty but are yet to ratify it. Thus, they are still outside its jurisdiction. An additional 44 states, including China, have never signed the treaty. And finally, several states such as the United States and Israel, while having initially adhered to the treaty have subsequently “unsigned” it and thereby withdrawn from its jurisdiction.

Just what is going on here? It would seem that the leaders of many of the major world powers, China, Russia and the United States, know that they operate in the world on the basis of exceptionalism. They actually are or likely will occupy foreign lands, pursue foreign wars, massacre civilian populations, etc. In other words, the behavior of their nationals is very likely to transgress the laws against war crimes and crimes against humanity, and perhaps genocide as well. So they seek to stay clear of the ICC's jurisdiction. And, in the case of the United States, the government is tied so closely to the criminal behavior of the Israelis that it has dedicated itself to protecting Israeli nationals also.

That is why, if you look at the record of ICC prosecutions, all of them have to do with smaller states, mostly African, who have relatively little power and no great power patrons. Yet this skewed record gets worse, for the United States and other great powers, which are not even a party to the Rome Statute, have found a way to turn the Court into a weapon to be directed at their assumed enemies. They have done so by taking advantage of the treaty clause requiring the ICC to pursue cases referred to it by the UN Security Council. This harmful bit of hypocrisy has recently been examined in an article by Stuart Littlewood, using information and analysis supplied by Dr. David Morrison of Ireland. Here are some of the points they make:

1. “Libya is not a party to the ICC….Yet three months ago the UN Security Council voted unanimously, in Resolution 1970, to refer the situation in Libya to the prosecutor of the ICC. Five of the states that voted for this referral [including the United States]…are not parties to the ICC and don't accept its jurisdiction. So here we see the US among those forcing Libya to accept the jurisdiction of the ICC, when it refuses to do so itself.”

2. This is a situation that cannot happen to countries like the United States because they can “wield their veto to block any attempt by UN colleagues to extend ICC jurisdiction to their territory.”

3. David Morrison concludes that “a court with universal jurisdiction is fair. A court whose jurisdiction you, as a state, can choose to accept or reject has some semblance of fairness. But a court like the ICC, whose jurisdiction can be targeted, at the whim of the Security Council, on certain states that have chosen not to accept it, but not others, is grossly unfair.”

Part IV – Conclusion

It is the sad height of hypocrisy when the United States, whose leaders claim to have the secret to world salvation (both politically and economically), not only corrupts international law to target others, but simultaneously goes to extraordinary lengths to protect its own nationals from that same law. For instance, if Americans were to commit war crimes in the territories of states party to the Rome Statute, those states could refer the matter to the ICC and the Court could then go after US citizens. Washington has negotiated bi-lateral agreements with over one hundred nations that specifically forbid those states from doing just that. No nation can receive military aide from the US without making this pledge.

This is the behavior of a government that knows it acts in a criminal fashion, be it on a small scale or large, and claims the exceptional right to do so with impunity. The leaders of the US do this because, as so many presidents have told us time and again, the free expression and expansion of the American way of life is best for the world. God has decreed it so. This is extraordinary hubris in action and it is why so much of the rest of the world have, at best, a love-hate relationship with the US and what it claims to stand for.

The notable English thinker and politician, Edmund Burke (1729-97), once observed that “the greater the power, the more dangerous the abuse.” What can be more powerful, and therefore more abusive, than great powers claiming the right of free expression in an international arena devoid of restraining rules? In a world that is, like ours, mostly lawless.

[On the topic of international law the reader might want to take a look at my earlier essay “Does International Law Have a Future? – An Analysis (9/11/10)” to be found in the archives of this blog under the category OTHER.