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Slate has this great article:

Assad and the Death of the International Criminal Court

The thesis is according to Eric Posner is:  The failure to prosecute him will be the end for the ICC’s brand of global justice.

So I had to read it.  It should be required reading for every homeschooler.  Here’s what he says about the Nuremberg trials

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.

So the legitimacy question continues even to this day:

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.

Gee, I wonder why the Serbs might think so?  Now the Kosovo War (unconstitutional since the House did not consent to it!) was not only an unnecessary invasions free from any sort of ramifications:  Madeleine Albright never has to look over her shoulder like President George W.  Bush does when she goes abroad.  Maybe she should.

But the ICC was supposed to provide that legitimacy and protect the world’s people from genocide etc.  Something happened on the way to the goal:  The leading nations refused to sign the pact:

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.

So, the ICC needed the leading nations to enforce its orders and verdicts.  The result was that only small nations could be prosecuted (much like the sports sports imperialism of the Olympics but with graver effects!) and thus the ICC lost much of its legitimacy:

For example, the Security Council authorized the ICC to investigate Sudan, whose president Omar al-Bashir was indicted for his role in ethnic killings in Darfur. (He has refused to appear for trial.) Even a country like Uganda, which invited ICC participation, later found that as a result it could not offer an amnesty to insurgents in order to establish peace. As the ICC increasingly interfered in their affairs, African countries took the view that the court, in the words of Ugandan President Yoweri Museveni, is now being used by Western powers “to install leaders of their choice in Africa and eliminate the ones they do not like.” Meanwhile, the ICC—with an annual budget of more than $140 million and staff of about 700—has been able to convict only one person (the Congolese warlord Thomas Lubanga) in more than a decade.


The ICC has indicted two Kenyan leaders—President Uhuru Kenyatta and Deputy President William Ruto—for their role in fomenting violence during elections in 2007. In an odd twist, the leaders have voluntarily agreed to appear in court while working behind the scenes to undermine the prosecution. Witnesses are pulling out, most likely because of intimidation or bribery. And the Kenyan Parliament has voted to withdraw Kenya from the ICC. Other African countries have taken Kenya’s side and have expressed support for Sudan’s Bashir. If Kenya withdraws from the ICC, other African countries may follow its lead. And why shouldn’t they? Why should their leaders subject themselves and their constituents to the risk of criminal prosecution if the leaders of other countries don’t do the same?

Now they might refuse me admission to Kenya for this (or the new President might hire me as part of his legal team!) but I think there are serious issues of legitimacy here:  First, this is an internal matter to Kenya.  Second, the ICC is set up with the connivance of the major powers and thus prosecution is always selective and political.  The appeal from the trial court is to a tribunal with no more legitimacy vis-a-vis the national court systems than the original trial.  And the Security Council has no power to try and jail someone – anyone.

Posner suggests (probably not as hopefully as I write it!) that finally the ICC will have nothing to do:

The ICC is not going to start bringing cases against Sweden and New Zealand so that it looks evenhanded. And it won’t even bring cases against conflict-ridden countries like Afghanistan that are clients of the great powers for fear of provoking them, as American University professor David Bosco explains. So if the ICC stops prosecuting Africans, it will have nothing to do. It is only a matter of time before the ICC fades away.

I sure hope Posner is right.  It will be good for liberty and bad for world government if the ICC fades out and takes the UN with it…


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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