America is uncertain about international laws which conflict with its own.
Internationalism, in the sense of substituting negotiations for war to settle national disputes, probably reached its high point in 1945, at the Nuremberg Military Tribunal. Europe lay in ruins from World War II, and the rest of the world was exhausted. Millions of people had died as a result of that war, and the consequences of genocide on both sides of the war cried out for Justice. Like the situation facing the ancient courts of Equity, an obvious injustice existed, but no agreed remedy had been provided in advance. From that point until today, it is probably fair to observe that internationalism has gone steadily downhill, as conventional governments have become stronger.
But genocide persists. At least once a decade, the world has seen new genocides claim victims in the hundreds of thousands, occasionally in the millions. No doubt the people active in the peace movement were tormented to see the opportunity for peaceful settlements, slipping away. The outcome was the Treaty of Rome, acting in concert with the United Nations, which modified the International Military Tribunal and other similar attempts at international justice systems, into the International Criminal Court (ICC). Jurisdiction was limited to nations who had agreed to be bound by the process, with the loophole created that the Court might not accept a case if the local nation had conducted investigations. This provision seemed to satisfy President Clinton, who signed it for the USA, but in the subsequent war presidency of President George W. Bush, the USA "unsigned" it. In his defense, it must be admitted that no nation could be expected to conduct a war, under circumstances where the opponent could appeal to surrogate nations to institute legal proceedings which would hamper the war effort. Since that war had been provoked by running airplanes into the World Trade Center, with video recordings of the event endlessly confirming the validity of the grievance, President Bush probably had little political choice in his own actions.
Meanwhile, the ICC floundered ahead for ten years producing only one completed trial, which has yet to go through the appeal process and spending a hundred million dollars a year doing it. Some politicians are almost certain to seek the popularity of grasping the mantle of a leader who faces facts, and lays this mistake down.
Under the circumstances, historians can at least recognize that the last time the international community had a workable system for this problem was prior to the Treaty of Westphalia of 1648. At that series of convocations, it was decided that a nation-state would have unchallenged jurisdiction over crimes within its boundaries. Since the Peace of Westphalia put an end to the Eighty Years War and the Thirty Years War, few observers familiar with the history of the 17th Century would dispute that ending those protracted European wars was at least as important an achievement as ending the genocides of tomorrow. The problem can be re-defined: how can any international court enforce its decisions, if the nations who are likely to defy the rulings are militarily stronger than the nations who stand behind the court?
That seems to leave us with the conclusion that the International Rule of Law must be indefinitely postponed, until the forces which control it become stronger than the largest nation governed by the rule of force. Even then, the moral posture of enforcing peaceful settlements with force will predictably have a hard time of it.
Originally published: Tuesday, June 12, 2012; most-recently modified: Wednesday, May 22, 2019