The International Criminal Court is, after the UN and European Union, the next most significant Tranzi project (Kyoto being dead on arrival) and arguably the most significant with regard to the laws of war. A majority, if a bare one, of the world’s sovereign states have signed onto it while about half have ratified it.
The ICC claims jurisdiction over all the crimes mentioned in its founding statute, irrespective of who committed them, where they were committed, or whether the “crimes” are actually criminal under the traditional and customary law of war. This is called “universal jurisdiction.”
Universal jurisdiction, as a concept, has a number of flaws. Among these are that it has zero valid legal precedence behind it.
Zero precedence? Tranzis will cite at least two precedents. One of these is the jurisdiction exercised from times immemorial by any sovereign power over pirates at sea, when any were caught. The other is Nuremberg. These are flawed. In the case of Nuremberg, the jurisdiction exercised was not “universal” but national jurisdiction of the coalition of the victors over a Germany whose sovereignty had been temporarily extinguished by crushing defeat in war.
The piracy precedent as applied to modern notions of universal jurisdiction doesn’t stand close scrutiny any better. The Tranzis claim that universal jurisdiction was exercised over piracy because piracy was, in its conduct and effect, so ghastly. This is wrong on both counts. In the first place, pirates were not necessarily subject to universal jurisdiction except insofar as they were caught where national jurisdiction did not run; typically at sea, in other words. Moreover, alongside piracy there existed privateering. In their conduct the two were often enough indistinguishable. In other words, however “ghastly” privateering may have been — and the former residents of Portobello and Panama City could have told one it could be ghastly, indeed — it was still not subject to universal jurisdiction. No matter that piracy was no worse than privateering, it was so subject. The difference was that sovereign powers, nation-states in other words, exercised sovereign jurisdiction over privateers, were responsible for their actions, and punished them at need, while they did not and could not with pirates. It was the lack of sovereign jurisdiction, both as to their persons and as to the locus of their crimes, that left pirates open to universal jurisdiction and not any supposed “ghastliness” of those crimes.
Along with the lack of valid legal precedence, the ICC and universal jurisdiction suffer other flaws. Recall, dear reader, the lack of Tranzi logical consistency on the questions posed above about abortion and the laws of war.
Anti-imperialism is yet another Tranzi tactical cause. But what is imperialism beyond one or several states or people using force or color of law to make rules for another or other state or people? And what is the ICC, using all the staggering moral and military power of… oh… Fiji… France… West Fuckistan… but the attempt at enforcing rules made by one group of states upon others? It’s imperialism, in other words.
Of course, imperialism in the service of a higher cause — the raising of unelected, self-styled, global elites to power, for example — is praiseworthy, in Tranzi terms.
Nothing deterred, the Tranzis claim that Tranzi courts, to include notionally national Tranzi courts like those of Spain, have universal jurisdiction. Why?
Tranzis hate national sovereignty. It cramps their style. It interferes with their program. It’s aesthetically unappealing.
Their goal is the destruction of national sovereignty. The right of a people to democratically make their own laws, to govern themselves, is anathema to Tranzi goals and dreams. When they say “global governance,” boys and girls, they mean it. They really intend that unelected bureaucrats and judges, and self-selected elites ought be able to tell you what to do, how to live, what to pay in taxes, what rights you are not entitled to.
Sovereignty stands in the way. The ultimate expression of sovereignty is a nation’s and people’s armed forces. No army; no ability to defend one’s own laws and way of life; no sovereignty.
But how to do away with sovereign control of national armed forces? It’s a toughie. They’ve got all these guns and shit, while the poor Tranzis have none.
“Aha! We know,” say the Tranzis. “We can control a nation’s armed forces if we can punish the soldiers and especially the officers and a nation refuses to stand up and defend them. No nation which permits a foreign court to exercise jurisdiction over its military can any longer be said to own that military. Instead, that military will be owned by the courts able to punish the leaders. Onward, into the future, comrades!”
Let them punish your soldiers and the soldiers can no longer be counted upon to defend the nation. Nor would you deserve being defended by your soldiers. Let them punish the soldiers and there is no principled distinction to prevent them punishing the President, the Legislature, even the Supreme Court. For who would defend the President, Legislature and courts once the same have let down their soldiers? Let them punish your soldiers and you deserve what you get… and to lose what you will lose.
It would be one thing if the ICC were something more than a misguided exercise in legalistic Tranzi mutual masturbation; if it could, in other words, be effective in limiting the horrors of war.
It cannot be effective. Ever.
This is because of the very nature of war itself. There is nothing a court can do that, in terms of punishment that deters, even begins to approach the horror men inflict on each other in war, routinely, in the course of normal and legal operations. There is nothing any court can do that can even hope to catch the interest of tired men, hungry men, men fighting for victory and their lives. No sensible court would even try.
There is some conduct which cannot be deterred. When life is at stake, the law recognizes no “no trespassing” signs. When the choice is between picking pockets at a mass hanging of pickpockets, and risking the noose, or facing slow starvation… well… at least the rope is fairly quick.
Similarly, when the choice on the battlefield is life or death, what power has some uncertain court distant in both time and space to deter anything? The simple answer is; it has none. What trivial power has the law with its trivial possible punishments to deter conduct that might save soldiers’ lives, their comrades’ and their country’s in the here and now?
Yet we can see that, however imperfectly, the customary law of war has often worked — even without any such body as the ICC and without Spain’s recent disgusting, illegal, morally putrescent attempt at exercising sovereignty over American soldiers. It has worked imperfectly, to be sure. Yet it has worked often enough… indeed, within western war it has worked more often than not.
Where the laws of war have worked to mitigate the horror and protect innocent life they have, by and large, done so when the combatants were of the same culture, shared the same values, and had what we might like to think of as a basic decency.
That’s rarely been quite enough. It needed a little something else, some other reason to follow the rules.
The other reason was the threat and fear of reprisals.
Tranzis hate reprisals, which are war crimes in themselves but war crimes which become legal in order to punish an enemy who violates the law of war, deter him from violating it, and remove the advantages which accrue from such violations. The Tranzis don’t hate reprisals merely because they’re ugly, cause suffering of innocents, etc., though they hate them for those reasons, too. No, Tranzis hate reprisals because reprisals work to enforce the laws of war and their own silly courts fail.