“Dubious Truth and Doubtful Reconciliation”
Protecting human rights and punishing those who abuse them is universally accepted as a proper use of the law. But what is increasingly contentious and questionable is the growing use of ‘international courts’ to this end.
Asked about international law, the first reaction from most lawyers is ‘what is international law?’ It is a good question.
For centuries sovereign states have had the unique power to try and judge their own citizens by their own laws, so how, and why, are international courts supplanting them?
What right do they have to assume that function? The way in which these courts are authorised, who writes their rules and determines the law they dispense are all obvious and fundamental considerations in reaching judgments that are both fair and just. Nothing could be more anomalous than an illegal court and yet that is just what the International Court for the Former Yugoslavia -ICTY – proved to be. It was the point at which the law became politicised and polluted, infecting all that followed.
The idea of an international court to advance primarily American interests was conceived by the CIA and duly delivered in 1992 by US Secretary of State Madeleine Albright. Funded and staffed by Americans it served US and NATO interests by giving a highly questionable narrative of the Balkan wars the stamp of adjudicated fact.
The ICTY was established by a resolution of the UN Security Council even though UN Charter granted them absolutely no power to do so. UN Secretary General Boutros Boutros Ghali was clearly not happy saying the normal way to set up such a court would be by signing a new international treaty.
Chapter 7 of the UN Charter was then invoked which states:
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
No mention of any court. But the UN Secretary General, under huge pressure from Madeleine Albright, concluded that The Hague tribunal would be what he termed ‘expedient.’
Once the first Tribunal was in place, many more quickly followed. They were nodded through the legal processes on the basis that the Hague Tribunal had established the precedent.
War crimes and other international courts have now become the go-to solution for alleged humanitarian crises. All it seems to require, as in the case of Yugoslavia, is a consensus in the western media that there is a crisis and a mood of ’something must be done’.
No one seems bothered by this casual replacement of the carefully drafted and negotiated treaties which underpinned the creation of the UN and efforts to make it far more difficult for the world to become once again embroiled in a disastrous global conflict.
The reasons for the lack of concern are plainly apparent. It is convenient for those western powers who are so minded to have a permanent pretext to intervene in the affairs of sovereign states. Interestingly the US itself has consistently refused to recognise the International Criminal Court for fear of being judged by it.
An ad hoc international court does away with the tiresome necessity of seeking consensus to amend the UN Charter or agree a new international treaty. It suits the fast-growing humanitarian establishment to support this freedom because it hugely increases their economic strength and influence while creating new and lucrative opportunities for lawyers, commentators, politicians, the media and many others.
Even those whose role is to protect the law against the erosion of core legal principles have simply stood by watching the edifice of due process being steadily dismantled. Despite being fully aware of what’s happening they have remained silent and lost sight of the best traditions of the law. They should be mindful the old legal proverb – ‘where the law is uncertain there is no law.’