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United Nations' courts are a threat to democracy

A fearful blow has been struck against national sovereignty. The International Criminal Court has launched a prosecution against a head of state - a state, moreover, that has not signed the ICC treaty. International human rights apparatchiks are enjoying the warm glow of self-righteousness; but they have just made the world a darker and more dangerous place. Don't get me wrong: the man they have arraigned, Omar al-Bashir, is an unutterable swine. Having seized power in a military putsch, he has maintained himself in office by displacing and terrorising millions of his citizens. Some 300,000 Sudanese are estimated to have been killed in his civil wars and, while the government does not bear sole responsibility for each of those deaths, it must be reckoned the worst offender.

How, then, could I possibly object to bringing such a monster to trial? If the defunct Sudanese legal system can't deal with him, shouldn't someone else? Well, maybe: but this will mean conquering Sudan. Bashir is the head of state, the supreme repository and exemplar of Sudanese sovereignty. Indicting him amounts to a declaration of war. Now there may well be an argument for military intervention in Sudan. Quite apart from having presided over the genocidal purges in Darfur, Bashir has given the rest of the world ample cross-border provocation. He turned his country into a base for terrorists of every stripe: the Ugandan child-kidnappers of the Lord's Resistance Army, Carlos the Jackal, even Osama bin Laden. I'm not a big fan of invading other countries but, if we're going to pick on one, Sudan is a pretty good candidate.

Except that the international community is emphatically not proposing an invasion. The prosecution is a narcissistic act, intended to make liberal internationalists feel superior and to bolster the ICC's damaged reputation (its first case, against a Congolese militia leader, has just collapsed) rather than to ameliorate the lot of the Sudanese. Declaring war without meaning to wage it - which is what the indictment means - will simply deter the ghastly Khartoum regime from reaching any kind of accommodation with its opponents. Rather like an insistence on unconditional surrender, the prosecution will serve chiefly to make the autocrats more determined.

That's the problem with these international law codes. By definition, the only countries on which they have any effect are democracies: tyrants simply ignore them. For the sake of being rude about Bashir - without any practical consequences - the ICC will substantively and genuinely diminish the sovereignty of free nations. And if, in some weird parallel universe, Bashir were somehow brought to trial, the trial would be a travesty. We know this, because all political trials are travesties.

By coincidence, I am in the middle of a stupendous book: "A History of Political Trials" from Charles I to Saddam Hussein by John Laughland. The cases he charts are all, more or less, appalling: they involved retroactive jurisdiction, specially convened tribunals and an utter disregard for what ought to be the basis of the rule of law, namely the principle that laws should apply indiscriminately. Due process was subordinated to a pre-ordained result, and all context was removed to ensure a guilty verdict. As Laughland puts it, "one often has the same disturbing impression that one would have of a description of one man beating another unconscious which omitted to mention that the acts occurred during a boxing match".

Of all the cases that Laughland examines - Louis XVI, Pétain, Quisling, Honecker, Milošević and many more - not one ended in an acquittal. The sentence had been decided before legal proceedings began. This is not to say that the defendants weren't guilty. Some of the leaders Laughland describes were every bit as awful as Bashir. But while they may have got what they deserved morally, they didn't get what they deserved legally. Bad men - perhaps bad men especially - none the less deserve justice. When they don't get it, it is the rest of us who are diminished.

Dit opiniestuk van Daniel Hannan verscheen oorspronkelijk in The Daily Telegraph en werd overgenomen door tal van weblogs.

Meer teksten van deze Britse MEP op

6 Reacties:

At 21:32 Larry Hayes said...

Daniel Hannan says that "Bashir is the head of state, the supreme repository and exemplar of Sudanese sovereignty".

Well, as far as I'm concerned Sudanese sovereignty belongs to the Sudanese people. They could of course decide at any time that they preferred to no longer hold that sovereignty in common, but would rather divide it, establishing two or more separate sovereign states. Or, they could decide that they preferred to hold that sovereignty in common with others, merging their states (or parts of their states) into one or more new sovereign states.

But, ultimately, each people - each self-identifying people - should decide on how it wishes to govern itself. Otherwise there is no hope for democracy, and therefore arguably no hope for freedom, anywhere in the world.

The question therefore is whether the Sudanese people wish Bashir to be their "head of state, the supreme repository and exemplar of Sudanese sovereignty".

I don't know the answer to that. Maybe they see him as a monster, but at least he's their monster. Or maybe they would prefer to remove him, but lack the means to do so.

One thing that I am sure about - the sovereignty of the people in Sudan, divided or undivided, merged or unmerged, should not be transferred to laywers at an international court.

Who are these lawyers? Would the Sudanese willingly cede supreme authority over their territory to foreign lawyers, who are apparently accountable to nobody but themselves, if there was any alternative?

Bashir stands condemned, even before that has been formalised through a trial. If the "international community" really believes that, why not arrange for his removal, by one method or another, and allow the Sudanese to freely choose another repository for their sovereignty?

Why make the idle gesture of issuing an indictment, when even if a trial ever took place it would reveal nothing new of significance, and achieve nothing in practical terms? Why not just arrange for the firing of a bullet? Because his successor would be even worse?

At 12:03 Danish Dynamite said...

Agreed, this whole business is going to end badly. Apart from the issues raised, there is also the issue of self-determination. If a people have a right to determine their own political future, that must include the right to determine badly. But where was this comment when we tried Pinochet? An exactly parallel case. We had no right to try someone for acts committed as a sovereign head of state. Only the Argentinians had that right. And if they chose not to, our option was to hold the Argentian people accountable for their lack of political morality.

So, let us treat the Sudanese people as children, as hapless victims of some monster. So much easier than thinking that the 'monster' might be the representation of the Sudanese people's struggle to determine their own political future.
Bashir .. and, for that matter, Mugabe .. are mad dogs and should probably be dealt with. But you don't put mad dogs on trial, you just shoot them. And being shot at is a danger any sovereign power has to reckon with.

Going after the individuals is just the cheap and easy option: a bit like criminalizing motorists instead of having a transport policy.

At 12:03 R. O'Sullivan said...

It a serious topic Vincent, that raises important dilemmas. Max Weber defined a state as the entity with the monopoly on physical force. Some of the world’s heads of state are prepared to use that power either against their own citizens or in aggressive acts targeted against other peoples. The best means to prevent this is democratic government because government by the people is unlikely to be governed applied against the people. The Americans objects to the ICC on these grounds and have a point, but history has plenty of examples (from Hitler to Mugabe) of leaders that were elected once but then succeeded in shaking off the shackles of democratic accountability, who then proceeded to use the state monopoly of physical force against those of their own citizens that they considered to be political opponents. In such circumstances the citizen has no hope of appeal to state authorities and can only ever seek redress from the higher authority of an international court. There are undemocratic states in the world such as China or Russia that do not want their citizens to be able to seek such higher redress and so object to the ICC on quite different grounds to the Americans.

It seems to me that democracy is the best answer to despotic government but there are still too few countries in the World where democracy is sufficiently ingrained in the political culture to be relied upon.

The other danger that we see, especially in Europe, is of a self-aggrandizing international bureaucracy that will use the legitimate issue of human rights to establish the principle of an international court, but then rapidly proceed from there to extend its competence into other affairs that should only ever be decided by democratically elected politicians. If there is to be binding international criminal law it should only be superior to democratically decided national law in very specific areas of ‘negative law’ (of which human rights are the most obvious example) and should be completely divorced from self-aggrandizing pseudo-democratic legislative assemblies like the EU Parliament.

At 12:04 Larry Hayes said...

"... the higher authority of an international court" is exactly the point. There can be no higher legal authority within the territory of a sovereign state than that derived from the people and vested in their state, notwithstanding the pretensions of the EU's Court of Justice. Why should we assume that unelected, unaccountable and virtually anonymous lawyers sitting as an international court should be granted that "higher legal authority", a superior legal authority to that which they would enjoy when they were serving on a national court in their own country? How can they possibly have a "higher legal authority", when their authority is derivative, lent to them by the sovereign states which agreed to the treaty establishing the international court in the first place? It's a nonsense.

At 12:05 R. O'Sullivan said...

@ Larry Hayes

I agree that all legitimate power should derive from the people, but not all states are democracies, and there should still be liberal limits to the use of state power even in a democracy. Just as each rational individual should agree to be part of a state in which he is bound by the criminal law which, by being applied equally to all, actually protects him from the harmful acts of rogue elements in the society in which he lives, each rationale people should agree to be bound by international law that protects that nation from the harmful acts of other (rogue) states and indeed from their own state authorities should these turn bad and act against their own citizens.

We might think this as of purely theoretical concern in Britain where we feel our government will not violate our human rights, and our military is a better guarantor against external aggression than an international court, but not every country is so fortunate. If you are a policeman or a soldier in Zimbabwe and are instructed to carry out some action by your superiors against your fellow citizens then it is important that you can refuse the order by referring to international law, and indeed that you know you will still be held accountable for your actions even if you try to claim that you were “just following orders”. The problem of course is that without enforcement international criminal law is just empty words. The only power on earth which could ever fulfil the role of enforcer of international (i.e. would be sufficiently strong to coerce rogue states against their will) is an alliance of the strongest military powers on Earth such as the UN Security Council. A big problem today is that the UNSC can be blocked by the vetoes of authoritarian states like China and Russia. Indeed this happened last week when the democratic powers wanting to take action (sanctions) against Zimbabwe were prevented from doing so by the authoritarian states who feared a precedent would be set which might be used against them when they shoot Tibetan protesters. Senator McCain has recently proposed a “League of Democracies” (a kind of UN-lite consisting only of democracies) that would avoid this problem and Senator Obama has a similar idea so it may be that we will see some progress here after the US presidential elections.

Even if the “League of Democracies” were to come into being, it will be very important that international law must be extremely restricted in its scope (i.e. limited to fundamental issues of human rights) such that we can still elect national governments with the power to decide all other issues that do not cross the human rights threshold. No state should be able to murder its own citizens or start aggressive wars even with a democratic mandate from its people, but equally no international judge should be able to overrule the democratic will of a free people in their internal affairs if no principle of harm is at stake.

At 12:05 Danish Dynamite said...

An interesting point that Dan raises is whether the ICC should be able to try the head of a state that has not signed up to the ICC. I would say not, though it means the people most in need of its protection (citizens of despotic regimes) will not be afforded whatever protection it can provide until such time as they have a benevolent government willing to sign up to protect its citizens from its successors.

Another question is whether the Americans are right not to sign up to the ICC. I would say they are right not to. The US state has a good record of protecting individual liberty, with well-established constitutional arrangements that include a Bill of Rights and a powerful Supreme Court that can strike down presidential or congressional action. The US military is the most capable on earth affording its citizens greater security from external aggression than anyone else on Earth. Therefore Americans would get less practical benefit from the ICC than the citizens of any other country. Furthermore it is the country that most executes the jealousies of others such that it would be its politicians, soldiers and other state officials that would be most likely to hauled up in front of the ICC if it became a politicised court prone to judicial activism like the ECJ.

Another question is if the UK should have signed up the ICC. Like the Americans we do not get a lot of practical benefit, but American citizens are more privileged than us in living under a state with a written Constitution (including a Bill of Rights) that guarantees their Human Rights. There can be absolute power or absolute rights but not both and in the UK it is the former because Parliament and not the people are sovereign. We may have a Bill of Rights of our own, but there is nothing to stop Gordon Brown using a 3-line Whip to abolish it tomorrow if he were so inclined. The only way we in the UK can hope to get anything that resembles absolute human right protection against our state authorities is by ratifying an international treaty which no government of the day would easily get out of. Never-the-less the ICC does in my opinion represent a danger to democracy in the future because world federalists will undoubtedly want to expand its jurisdiction beyond human rights over time. In my view this danger is greater than the largely theoretical benefit that we get from the ICC.


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