TIMES (UK), August 29, 2000
Forget the rhetoric, this court is just another excuse for superpower bullying
Courts are supposed to protect the weak from the arbitrary bullying of the strong. But the new International Criminal Court, which Robin Cook wants Britain to support, will do precisely the opposite. It will be another example, in our over-globalised world, of an institution that lends legitimacy to the Great Power bullying of weaker nation states. The court is little more than the legal equivalent of dropping bombs from a height at which your enemy cannot shoot back.
Robin Cook admitted as much when he replied rather testily on Newsnight to the suggestion that the British and American bombing of Iraq might one day become the subject of an ICC investigation. "If I may say so," he jabbed, "this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States." His remarks recall the statement by the prominent human rights lawyer, Geoffrey Robertson, QC, that the new court will enable "the civilised nations of the world to teach savages how to behave".
The ever-invoked precedent of Nuremberg reveals the authoritarian assumptions that underlie the project. Then victorious allies sat in judgment over a prostrate and defeated nation. They had quite literally taken over Germany: according to the judges, the promulgation of the International Military Tribunal's charter was "the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered". When the Germans suggested that other countries be allowed to appoint judges, to establish a truly international tribunal, the idea was brushed aside. Who, one might ask, are the victorious nations in the new world order of which the ICC is supposed to be the cornerstone?
Nuremberg is repeatedly adduced as an example of how, for the first time, international humanitarian law trumped the absolute sovereignty of the State. In reality it did no such thing. Nuremberg showed how national state authorities (or their provisional substitutes) can apply standards of objective justice. Moreover, once the International Military Tribunal had been wound up (when the Americans realised they needed the Germans in their new battle against the Soviet Union), the German authorities prosecuted and convicted many Nazis under domestic law.
Nuremberg is therefore unfairly exploited to delegitimise the nation-state and to grab power for supranational institutions like the new international court. Supranational government by the "international community" is always assumed to be more wise and objective than the allegedly narrow pursuit of self-interest by nation states. In reality, no form of state or superstate power can escape the failings or the logic of human frailty.
This much is clear from the new court's statute. Despite all the rhetoric about how it will end sovereign immunity - a concept which, it is alleged, has protected tyrants from the consequences of their actions - Article 48 of the Rome statute announces that the judges and prosecutors of the new court "shall enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity". General Pinochet could not have put it better.
However, unlike a national jurisdiction, that of the ICC - whose statute is a comprehensive criminal code covering a whole range of violent behaviour - will be neither accountable to, nor rooted in, any particular society. Being the creation of states, it will reflect their political priorities. In the negotiations over the ICC statute, for instance, 18 Arab states said it should be a war crime to transfer or deport civilian populations from occupied territories. Strangely, Israel dissented from this view. More broadly, the statute reflects the latest political fads of the apparatchiks who conceived it, as the extensive space devoted to sexual "war crimes" testifies. Human rights activists, it seems, are always fighting the last propaganda war.
America and the world's other major nuclear powers have so far refused to sign up to the treaty. But the US participates in the UN negotiations on the treaty text, while it supports the ad hoc tribunals on which the ICC is based and the supranational logic that underpins them. This logic has a long, sorry history: the first Hague conference in 1899 made aerial bombardment illegal under international law. Much good it did us in the Blitz.
The inability of such agreements to do good in the world is not, however, a temporary setback on the long road to success. It is the inevitable result of a dishonest approach to the real power relations that govern mortal affairs in a fallen world.