The Rule of (Who’s) Law

The Winter 2011/2012 issue of the Claremont Review of Books was packed full of interesting reviews and essays (as they all are.)  One of these provided the inspiration for this article.  The Limits of Justice by Jeremy Rabkin, is a review of two recent books which begins by stating:

International criminal law is now taught in law schools.  it is a subject with its own specialized case books.  It is treated as a well-established branch of the law.  But it is, in fact, quite new and not at all well-established.

Rabkin then discusses the conclusions reached by the authors of The Nuremburg Tribunals and the Origins of International Criminal Law, by Kevin Jon Heller, and The International Criminal Court: Europe’s Guantanamo Bay? by David Hoile.

In the case of the Nuremburg Trials, the proceedings were largely an American affair, despite protestations to the contrary.  Although the sentences were not particularly harsh in most cases (only 12 of 25 death sentences were ultimately carried out and of the 38 defendants who were sentenced to 20 or more years, all were released within 10), and on the whole minimal.  The German people resented them as “revenge trials” and “victor’s justice.”   Sadly, these so called military tribunals did not succeed in educating the German people against National Socialism or racism.

Rabkin asks,

Would trials be more effective if removed from the distracting concerns of an occupying power?

.. and concludes no.

Ethnic strife following the break up of Yugoslavia prompted the UN security council to establish the International Criminal Tribunal for the Former Yugoslavia in 1993.  It was hailed as the “first international war crimes tribunal since Nuremburg.”  Unlike the Nuremburg tribunals, this one was not an instrument of an occupying power, since the scattering of U.N. peacekeepers in Bosnia could not even keep the peace there, let alone control all the neighboring territories.

Still, people in Serbia noticed the new tribunal’s sense of timing.  It was not until six years after its creation that the ICTY indicted Serb President Slobodan Milosevic.  The indictment was announced in 1999, just as NATO was bombing Belgrade in a dispute over the Serb province of Kosovo — at a time when nationals of NATO states predominated on the prosecution staff and on the tribunal’s bench.  After Milosevic was overthrown and subsequently extradited to the Hague, broadcasts of his trial actually revived his popularity.  Before his sudden heart attack in 2006, pollsters found he had become the most highly esteemed politician in Serbia — despite all his failed wars and abuses of power while in office.

After documenting the failures of a second UN International Tribunal in addressing the genocide occurring in Rwanda, he examines the record of the UN’s next iteration – the permanent International Criminal Court.

The ICC’s achievements in Africa has been less than stellar, earning no respect and no little resentment from countries being adjudicated by outsiders.  The ICC is suspected of neocolonialism – with good reason.  The E.U. has pressured aid recipients threatening to withhold assistance from those who refuse to buy into ICC jurisdiction.

Rabkin explains,

Perhaps it is not surprising that people do not trust outsiders claiming to deliver justice to them – without their consent.  Of course, genuine evil-doers don’t want justice imposed on themselves under any conditions.  In this world, justice almost always requires coercion.  But it makes a difference if those who wield the sword of justice are at least connected with the community in which justice is enforced.

With the ever increasing impetus to apply international law, as specified in various UN resolutions, to Americans at the expense of national sovereignty, we should mind, not only the lessons of the ICC’s brand of justice, but hearken back to the words of James Madison at the end of Federalist No. 62,

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

In Federalist No. 62, Madison was arguing the importance of a government which affords a predictable and stable system of laws.  But it is no less applicable to the danger faced by ceding sovereignty  to an unelected international authority with its own goals and agenda.  The United States is a nation built upon the rule of law, not the rule of any law, but that of a stable system in which the laws are the product of an elected legislature and based on fundamental principles applicable to all citizens.  In the same Federalist, Madison reminds us,

Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?