In 1945, when the Nuremberg tribunal indicted the leaders of Nazi Germany for war crimes, the official psychiatrist at the trials asked each of the defendants to write his reaction on a copy of the indictments. Herman Goering, former Reichsmarshall and head of the German Air Force, wrote: "The victor will always be the judge, and the vanquished the accused." For once, at least, the ex-Reichsmarshall seems to have been right, as the establishment last week of the International Criminal Court should tell us.
The official function of the court, as Reuters reported it, is to "prosecute individuals for war crimes, genocide and other gross human rights violations," supposedly regardless of where they come from or how much power they or their countries possess. It's anyone's guess as to whom the Court will decide to put on trial first: Yassir Arafat? Ariel Sharon? Saddam Hussein? George W. Bush?
The United States has refused to ratify the treaty creating the ICC, as the court is known, and for entirely good reasons. The Bush administration worries that American soldiers could be put on trial for actions they might have taken in the course of waging war. That worry is quite reasonable, but not only soldiers might face trial; national political and military leaders could find themselves standing in the dock as well. Indeed, as Goering and his colleagues could have told you, it's the leaders, not the small fry who merely obey the orders they're given, who are always the main targets of "war crimes" proceedings. That's why people like Arafat, Sharon, Hussein and President Bush need to worry.
They need to worry also because to this day no one is exactly certain of what terms like "genocide," "war crimes," and "human rights violations" (especially "gross human rights violations") mean. Leave aside the agonizing question of whether what Mr. Sharon's troops have been doing in the West Bank for the last few weeks, as well as Palestinian suicide bombings, are any of the above; there are plenty of people on both sides of both questions. Indeed, that's the point, and it's closely related to the point Goering was making. In the absence of clearly defined criminal offenses, such as ordinary common and statute laws provide, virtually any action (and sometimes even statements) can be "human rights violations" or "war crimes." So who decides what is and what is not?
The answer is: The victors, those who have enough power to defeat a hostile nation, nab its leaders, haul them into something called a "world court" and decide, by whatever procedures and rules the superior power has chosen to impose, that the leaders are guilty and should be hanged, shot or imprisoned for life. That is why Herman Goering was right: "The victor will always be the judge, and the vanquished the accused."
Of course, the whole concept of the rule of law is the antithesis of this. The whole point of the "the rule of law, not of men," as the motto of Harvard Law School puts it, is that some permanent standard, above and beyond the wills and passions and powers of human beings, will regulate how power is apportioned and used, and the powerful, the rich, the well-connected will be subject to the same rules of justice as the poor and the powerless. Sometimes—let us not be too cynical—that happens.
But it happens only within a legally constituted state whose rulers and citizens understand and share the "rule of law" concept. Between states, where there is no such consensus and human relationships are regulated not by shared rules but by sheer power, it's nothing more than chicken dropping.
The International Criminal Court, of course, is an essential part of what President Bush's father once called the "New World Order," a post-Cold War "architecture" of a world government that regulates trade, war and peace, and criminal law enforcement among what used to be called "sovereign" nations. But the New World Order is no more than the paper its utopian plans are scribbled upon unless it has the power to enforce its will.
Right now, neither the New World Order nor its cute little playroom "World Court" has any such power, and certainly not enough to disturb the United States or those whom we choose to protect from its jurisdiction. But Americans should make no mistake that the movement to give these transnational institutions real power is very much alive and that, should the movement ever succeed, the victors who will always be the judges will not necessarily be the United States, and the vanquished who will always be the accused may not necessarily be the sinister foreign characters whom most Americans think are the most likely candidates to stand in the prisoner's dock.
COPYRIGHT CREATORS SYNDICATE, INC.
April 18, 2002