Anti-Americans love to focus on the refusal, by successive U.S. administrations, to sign up to the International Criminal Court. How arrogant! How chauvinist! How backward-looking! But, all of a sudden, America is starting to look like a trend-setter. Gambia has just followed South Africa and Burundi in withdrawing from the ICC’s jurisdiction, and a mass walk-out by African states is now on the cards.
The people who decry Americans as isolationist cowboys are, oddly, keeping quiet about this exodus. Why? Because the departing African states know exactly which buttons to press with liberals. Here is how Gambia justified itself last week: “The ICC, despite being called International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.”
Ah, racism: the charge that trumps all other charges, the accusation that turns the tables on any accuser. And, on this occasion, Gambia has half a point. The ICC may not be racist — its chief prosecutor happens herself to be a Gambian, for example — but its assumptions are colonialist. What, after all, is colonialism, if not a belief that some countries are not fit to govern themselves?
Today’s champions of global jurisdiction, like 19th-century imperialists, have convinced themselves that they are acting from selfless motives. Just like those colonial officials in their khaki suits, they are able to hold this belief even though the system benefits them personally. Oh, yes: International human rights law is a multi-billion dollar business.
A multi-billion dollar business, moreover, that has only recently been created. Until the 1990s, international law did not concern itself with behind-border issues. Its scope was limited to such questions as piracy on the high seas and the rights of diplomatic personnel. In the course of a single generation, an entire corpus of law has come into being, with the establishment of the ICC in 2002 as its centerpiece.
Before then, at least since the Treaty of Westphalia of 1648, international relations had worked on the basis of a well-understood principle, namely that a crime is the responsibility of the state on whose territory it is committed. The Nuremberg trials, for example, were conducted by the Allies because, under the terms of the surrender, they were the legal government of Germany.
Some states, of course, are autocracies in which citizens cannot find redress through the courts. This prompts many well-meaning people to argue that justice must be done somewhere. Since Serbia wouldn’t give Slobodan Milosevic a fair trial, shouldn’t he be tried at The Hague? What about Omar al-Bashir, the president of Sudan, who has overseen abominations against his citizens?
There are three problems with this line of reasoning. First, who gets to decide? Once we abolish the notion of territorial jurisdiction, on what basis do we claim legitimacy? We tell ourselves that we must uphold basic human rights in benighted parts of the world, but other countries might turn that logic against the West.
Saudi Arabia, using precisely our argument, might say: “It is outrageous that adulterers and blasphemers go unpunished in decadent European countries. They should be brought to a place where they can get a proper trial.”
Second, the internationalization of the legal process does not automatically make it fair or efficient. The Milosevic trial was a travesty: The court admitted hearsay evidence, changed its rules of procedure 22 times and, when the old monster proved surprisingly eloquent in his own defense, took the extraordinary step of imposing counsel on him. Eight years and millions of dollars later, no closer to a verdict, both judge and defendant were dead.
Third, bad guys ignore the rulings. President Bashir, for example, knows that the only way for the ICC to enforce a writ against him is to invade Sudan, which no one is proposing. So he carries on tyrannizing his wretched subjects. The same would not be true, though, if Donald Rumsfeld or Benjamin Netanyahu were indicted. In pluralist, liberal states, judges enforce writs against politicians.
Which brings us back to the basic objection. International human rights law allows jurists to advance an agenda that has been rejected at the ballot box. It reverses three and a half centuries of progress toward parliamentary rule under Westphalian state sovereignty, and revives the pre-modern idea that important matters should not be left to voters.
America, more than any other nation, was founded in the cause of representative government. It was right to reject the ICC at the outset. Let’s hope many now follow.
Dan Hannan is a British Conservative MEP.
