The first question is: “Who has the right to rule?” Do international judges in The Hague have the right to say who is a criminal in Sudan? More generally, is it better that international organisations have the right to rule, or should nation-states have this right? The question has to be decided one way or another because although there can be much interpenetration of international and national law, on all sorts of issues, the normal basis for this is consent by the nation-states concerned, who express their consent in the form of treaties. States can consent to very intrusive international regimes, for instance the European Union or the World Trade Organisation, but the ICC represents something qualitatively different – an international regime which exercises power outside the territory of those states which have consented to it.
The second question is, “When is it right to use force?” We normally take it for granted that force is justified to prevent crimes. But to what extent is the criminal law an appropriate conceptual instrument for analysing war? There may, I suppose, be some cases in which it is excusable for a policeman not to act when he sees a crime being committed, but they are marginal exceptions. By contrast, it is very easy to envisage cases in which the cessation of hostilities is preferable to continuing violence in the name of justice. Indeed, peace treaties are often signed between former enemies which precisely contain clauses drawing a line under any future prosecutions.
In the Bosnian civil war (1992-1995) the numerous attempts to broke a peace agreement were attacked by human rights activists in the name of justice. Politicians who accepted their arguments scuppered these agreements saying that aggression should not be rewarded. Eventually, when everyone was exhausted, a peace agreement was signed along the very lines proposed and rejected at the beginning of the conflict. In other words, the war was prolonged needlessly for three years and tens of thousands of people were killed for nothing. “Justice”, in other words, can be a very poor guide in wartime.
And to show where the individual perception of "justice" and the desire of it's radical enforcement can lead, Laughland continues:
This basic structural problem causes international organisations to go slightly mad. We are all familiar with the lunatic policies which emerge from the Berlaymont building in Brussels but ideas which emerge from the glass and steel offices of the ICC in The Hague are no less daft and repellent. An excellent example of this was provided before Christmas by David Scheffer, Bill Clinton’s former Ambassador at Large for War Crimes Issues and a firm advocate of military and judicial interventionism. Scheffer wrote (“Rape as genocide”, International Herald Tribune, 4 December 2008) that the centrepiece of the indictment against President Bashir of Sudan for genocide is the claim that Sudanese forces or their proxies are practising mass rape and that this is wiping out ethnic groups. Scheffer writes,
Babies born following the rapes are called ‘Janjaweed babies’ who rarely have a future in the mother’s ethnic group. Infanticides and abandonment of such babies are common. One victim explained, “They kill our males and dilute our blood with rape.”
Just pause for a moment and let the enormity of this sink in. A leading human rights activist, a former diplomat and now a law professor, a man who presumably thinks of himself as the epitome of liberalism, is aligning himself formally, in public, and on a matter of law, with perhaps the most radically tribal conception of human identity one can imagine. He is saying that miscegenation should be regarded as equivalent to murder. He is arguing that a “people” is defined by bloodlines and racial purity, and that a group whose women give birth to miscegenated children is thereby being eradicated.
Since the signature of the genocide convention in 1948, the charge of genocide has been ridiculously abused, for instance in 1988 when a former Bolivian president was convicted of genocide on the basis of a shoot-out which killed twenty people. The “rape as genocide” charge, however, which the ICC prosecutor has brought and which David Scheffer supports, puts even these in the shade. It draws its inspiration not from the legal principles we associate with the Nuremberg trials of 1945 but instead from those formulated in the so-called Nuremberg race laws of 1935, which also legislated against miscegenation. What an ironic turn of events.
So there you have it! What seems to be a shoe-in for the supporters of "international humanitarian interventionism" at first glance, turns out to be a very strong case for the application of the "prime directive". And all that while scarcely discussing whether the governement of Sudan is really guilty or the number of times that those who are most voiciferous about the Sudan intervention have cried "wolf" already.
The notion of "international justice" is too a complex matter, involving not only legal but moral and philosophical issues as well, to be left to narrow-minded professors who never left their campuses or bureaucrats looking to spice-up their dull and dreary CVs, and least of all to legacy-seeking politicians.