Folly of International Law

The idea that international law tribunals have legitimacy is based on the concept of consensus. There is a paradox in this, because in order for a tribunal to be created, the countries of the world must all agree with the following: 1) that a group of people committed atrocities, 2) that these atrocities were so bad that they demand international attention, 3) that the atrocities were committed with the sanction of the state, 4) that those in power in the state who gave the orders or committed the acts are identifiable, and that 5) the sentences of those convicted will justify the considerable expense and time of the trials. In other words, for all countries of the world to agree on the applicability of international law, there must be agreement that the target of the international law is guilty and worth the expense of prosecuting. For a shorthand description of this process, we can turn to the Queen of Hearts in “Alice in Wonderland” who exclaimed during the Knave of Heart’s trial for stealing the tarts: “Sentence first—verdict afterwards.”

The entire edifice of international law is based on consensus of those who agree to be bound by it or to enforce it. This consensus is based on the acceptance of certain traits that are common to all people around the world. McDougal and Lasswell developed a classification of human desires that they published in “The Identification and Appraisal of Diverse Systems of Public Order” in 1981. Their classification of human requirements included security, enlightenment, wealth, well-being, skill, affection, respect, and rectitude. Chander, in “Globalization and Distrust” argues that “Underlying even these values is a commitment to a world public order of human dignity.” (Pg 1230) While there may be a philosophical underpinning for international law, the calculus of power requires that the powerful governments of the world agree on whom to try, and where.

The classic examples of international tribunal conducted with maximum consensus were the Nuremberg Trials of the Nazis and the Tokyo War Crimes trials after World War II. The powers of the world, after extended conflict, had just vanquished regimes that practiced atrocities. There was little doubt that those regimes and the leaders of them would face justice. However, even though such a trial would seem to be a slam dunk in terms of consensus among the government of the world, some see it differently.

Donald Bloxham, in his book Genocide on Trial: the war crimes trials and the formation of Holocaust history and memory, page 4, calls the International Military Tribunal ‘the most significant manifestation of what came to be known critically as “victor’s justice’”.

So even though the world had to recognize that the Nazi and the Japanese leadership had conducted numerous acts that were an affront to human dignity and world public order, there were still those who questioned the legitimacy of those trials.
Additionally, international conventions have layered intricate rules of procedure and evidence onto the process that extends the length of trials. For example, Milosovic’s trial had lasted 5 years before he died, making the whole thing moot. But even absent the consensus that would seems to be a pre-requisite for prosecuting war criminals, given the structures of international law already in place, there is ample opportunity for the unscrupulous to use those structures. The latest news regarding international law is the idea that Germany is going to charge US Secretary of Defense Rumsfeld with crimes against humanity. While it is impossible to conceive that the Supreme Court would allow the extradition of Rumsfeld, this kind of mischief will make it difficult for Rumsfeld to ever again travel lest some eager magistrate seize him to satisfy the German warrant. Given such daunting standards, is it possible that international law will ever be considered anything other than rump victor’s justice or a vehicle for mischief making?

Probably not.

Further, the prospect of “international law” being brought to bear also tends to make a mediator’s job more problematic. What incentive would a despot have to relinquish power if he knew that regardless of the assurances he has in his own country regarding immunity, an international body or another country might indict him and drag him before some tribunal for years of endless hearings and a possible death penalty?