ICC: As Useless as the United Nations

Eric Posner has an article at Slate about the International Criminal Court, pointing out that it has been almost entirely useless in prosecuting war crimes and human rights violation. But like the United Nations, the major powers — us especially — made sure that it was ineffective.

The winners of World War II did not repeat this mistake. The Germans were not held collectively responsible for Nazi atrocities. Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

After the Cold War, the idea of prosecuting warmongers was revived. The civil war in Yugoslavia and the genocide in Rwanda spurred the U.N. Security Council to establish two tribunals to try participants for international crimes. These tribunals rested on a somewhat firmer legal basis than Nuremberg and Tokyo. Yugoslavia and Rwanda had given theoretical consent to Security Council authority decades earlier and so could be considered bound to its resolutions. Still, the Yugoslavia trial could be seen as victor’s justice—an impression reinforced by the fact that the tribunal was deprived of authority to try any Westerners who committed war crimes, such as NATO pilots who dropped bombs on civilians. Serbians in particular claimed that the tribunal was biased against them.

The ICC was meant to put an end to the cycle of doubt. The rosy vision was that all countries would voluntarily submit to its jurisdiction, so no single country could claim that it would be singled out for victor’s justice. The logic is similar to the logic behind arms-control agreements: I concede that chemical weapons are bad, but I will not give up my chemical weapons unless I’m sure that my possible enemies will give up theirs as well. International cooperation is a delicate business in which all the protagonists gradually lay down their knives while keeping an eye on one another to ensure that no one gains a slight advantage by laying down his knife more slowly than the others.

So when the United States, Russia, China, India, Pakistan, Turkey, and Israel all refused to ratify the ICC treaty, the court was crippled from the start. The United States feared that the ICC might pick on Americans, given that an independent body—staffed largely by foreigners—might believe that by singling out the United States, it could establish its bona fides with the rest of the world. Other countries that refused to ratify simply did not want a foreign court meddling in their affairs. They did agree that the U.N. Security Council would have the power to authorize the ICC to investigate and try anyone in the world for international crimes—a provision acceptable to the great powers because they control the council.

Exactly. Giving veto power in the UN Security Council to the US, China, Russia, France and the UK ensured that it would never be effective in doing anything that those great powers don’t want done. The UN is pretty good at refugee relief efforts, small peacekeeping missions in countries no one cares about (and that don’t have resources that the big nations can fight over, of course), and some humanitarian programs. But it isn’t just useless when it comes to larger questions, it is entirely captive to the most powerful countries.

The same is true of the ICC. If the court really had any authority to prosecute war crimes, George W. Bush would have been tried years ago, along with Cheney, Rumsfeld and a few others, for torture and extraordinary rendition. Same with Bashar Assad and many other leaders around the world.

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  • http://www.gregory-gadow.net Gregory in Seattle

    I would really like to see the UN entirely replaced by a parliamentary organization, similar to the one that oversees the European Union. I’m not holding my breath, mind you.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Oh, come on, Ed! Did America submit to International Communism? No! Then why would it submit to International Court? Punishment is for Losers. America’s a Winner! U! S! A! U! S! A! Woo!

  • Olav

    The US did not just not ratify the ICC treaty. It threatens military action against the ICC: The Hague Invasion Act.

  • Olav

    Gregory, I hope you are not under the illusion that the position of the European Parliament within the EU is anything but rather weak. It is only a “co-legislative” body. It is directly elected though.

  • k_machine

    It’s pretty complicated. Take the ban on wars of aggression that happened after WWII. The US has not declared war a single time since then, although it has been in plenty of wars. Americanists will swear up and down that all US wars have been justified but the lack of declarations of war are pretty much signed confessions. But when war is outlawed, the powerful merely move the goalposts, so that they’re fighting “police actions” and whatnot. The problem after a war is with the victor, he now believes that violence pays, who is going to stop him?

    The United Nations (as the League of Nations before it) is powerless by design, but the problem is that if it had, on paper, power over even the most powerful nations, those nations would simply walk out and that would be the end of the UN. The vampires are guarding the blood bank, so to speak. So without transnational power, the UN can’t really do anything, and the UN has no place to get that power either. The Russia, the US etc. will not supply the armies to support their own downfall. And a transnational power creates other problems, who watches the watchman?

    Another issue with war crimes trials is that it makes diplomacy more difficult. If leaders sign a peace treaty only to turn around and get thrown in jail for war crimes, they are much less likely to negotiate. In theory it would be nice if all war criminals would go to jail, but if the price for that is perpetual war, I don’t think it’s a good idea.

    Of course, war crimes are in fact already against the law in most countries. After the Song My massacre, the US Army investigator concluded that the commanding general of Lt. Calley’s division should be prosecuted for the murder and rape (and mutilation etc) of the ~200 victims. In the event, this did not happen, and Lt. Calley ended up serving a whopping 2 days in jail for killing hundreds. So concerned people could start there, in their own countries. Song My only got attention because the anti-war movement was at its height. What is needed is organized political action to bring war criminals to action. Screaming for the heads of war criminals in countries that America hates is well and good, but it will never be seen as something other than another form of warfare if it isn’t accompanied by an equally applied standard of justice. This is true for a lot of countries, look at Britain and its nightmarish terror against the Kikuyu (literal rape camps, as in male Kikuyu were forced to rape female Kikuyu because I guess it’s not genocide if we only kill their spirit). These people are still walking around, chest full of medals, drawing benefits. Do something about that, and maybe then we can talk about international courts.

    A final anecdote. Twice upon a time there was a terrorist group that massacred a group of Olympian athletes. When this happened to Israel in Munich (14 dead), the perpetrators were hunted down by death squads. When this happened to Cuba (120 dead) the perpetrators were protected on US soil, because the US believed they couldn’t be guarantees a fair trial in Venezuela. So there is much to be done. Dig where you stand!

  • http://www.gregory-gadow.net Gregory in Seattle

    @Olav #4 – It certainly has more influence, and is more democratic, than the United Nations. The UN was specifically designed to divide up the world amongst the winners of WW II: the United States, the United Kingdom, China, Russia and France. As an oligarchy, they control the UN and nothing can be done without their unanimous consent. The General Assembly can, using some arcane parliamentary procedures, issue a resolution without the approval of the Security Council, but the resolution is not enforceable without Security Council action.

    An EU Parliament style organization, with more equitable power sharing, would be a good thing.

  • http://www.thelosersleague.com theschwa

    This makes total sense! It is the same reason Dick Jones had OCP install directive 4 into RoboCop!!

  • http://www.ranum.com Marcus Ranum

    The Germans were not held collectively responsible for Nazi atrocities

    No, not at all. They weren’t bombed flat then used as a raping-ground by the red army, and partitioned into mutually opposed pseudo-states. No, that wasn’t collective punishment at all. It was – what – a fucking lawn party?

  • http://www.ranum.com Marcus Ranum

    George W. Bush would have been tried years ago, along with Cheney, Rumsfeld and a few others

    Obama would fit well in that company. Would he be the first winner of a Nobel Peace Prize to be convicted of crimes against humanity?

  • doublereed

    Is there another option?

  • sundoga

    I’m sure I’m going to regret asking this, but Marcus, for what would Obama be convicted?

  • naturalcynic

    George W. Bush would have been tried years ago, along with Cheney, Rumsfeld and a few others

    Obama would fit well in that company. Would he be the first winner of a Nobel Peace Prize to be convicted of crimes against humanity?

    Henry Kissinger [and Le Duc Tho] were awarded the 1973 Nobel Peace Prize. At least, Le Duc Tho had the good grace to decline the prize.

    Obama’s faults are very pale in comparison to Henry K’s.

  • zenlike

    Torture? Illegal imprisonment? Global destruction of every noting of right to privacy? Extrajuridical assassinations?

  • naturalcynic

    I’m sure I’m going to regret asking this, but Marcus, for what would Obama be convicted?

    For starters, he failed to prosecute Bush, Cheney et al.> which is required under the UN [anti-]Torture Treaty, which the US is a signatory [thank you Ronnie, this gold star really shines with your not-so-bright background]

  • wscott

    International cooperation is a delicate business in which all the protagonists gradually lay down their knives while keeping an eye on one another to ensure that no one gains a slight advantage by laying down his knife more slowly than the others.

    The crazy thing is, this does seem to actually work; it just happens on a near-geologic time scale. I think it’s been at least a week since I pimped Steven Pinker’s Better Angels Of Our Nature, but one of the most surprising parts of that book for me was the section on how effective UN Peacekeepers really have been, particularly since the end of the Cold War. So as frustrating as the ICC is, it’s still a marginal improvement over what was there before it (ie – nothing), and will eventually be replaced by something marginally more effective.


    This incredibly-tepid optimism brought to you by the color beige.

  • Konradius

    I expect better of you Ed:

    countries no one cares about

    I bet the people living in those countries care about them.

    And I second the comment by Wscott. The UN is pretty ok as long as they manage to keep their workings out of the interest of the big powers. And that means it gets kept out of mainstream media as well.

    One of these times countries like Brazil and India will demand to get vetoes. It would be nice to have a compromise getting rid of vetoes alltogether.