Ruminations 11: The Criminalizaton of Politics and the Judicial forms of Warfare

(Pix (c) Larry Catá Backer)

This is another in what I hope to be a month long series of quasi-aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope is that, built up on each other, the series will provide a matrix of thoughts that together might lead the reader in new directions. Though each can be read independently of the others, they are intended to be read together and against each other.

One of the great innovations of the end of the 20th century was the creation of a mechanism to implement the rule-culture of violence management between states and, within states, between political rivals. Thge object ostensibly was to create an architecture within which the transaction costs of violence would always exceed it value.  But its real value was regressive--to move back to sensibilities in which people are understood to have a value worth preserving to the leaders of the various state apparatus, while at the same time cultivating the idea of mass democracy as engaging all citizens in the occupation of violence.

The most effective way to manage violence, and preserve the productive value of the goods and residents of states, was to provide an apparatus of government that could manage the behaviors of states and individuals connected to states.  That mechanism was implemented through the elaboration of a criminal law of politics to be policed through a global prosecutor serving a global criminal court.

The international community has long aspired to the creation of a permanent international court, and, in the 20th century, it reached consensus on definitions of genocide, crimes against humanity and war crimes. The Nuremberg and Tokyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War.

In the 1990s after the end of the Cold War, tribunals like the International Criminal Tribunal for the former Yugoslavia and for Rwanda were the result of consensus that impunity is unacceptable. However, because they were established to try crimes committed only within a specific time-frame and during a specific conflict, there was general agreement that an independent, permanent criminal court was needed.

International Criminal Court, About the ICC.

States now use it, or laws similarly sourced, to hide their aggressive interventions in the affairs of other states. It is a substitute for military raids and has the added benefits of masquerading as principled neutral behavior. "Spanish judge, Fernando Andreu began an investigation Thursday into seven current or former Israeli officials over a 2002 bombing in Gaza. The bombing killed a top Hamas commander, Salah Shehadeh, and 14 other people including nine children." Israel Vying to Avoid Prosecution in Spain, Al-Jazeera Magazine, Feb. 3, 2009. In the name of international criminal law, Spain permits its judges to choose against whom to proceed and for what purpose. "Andreu acted under a doctrine that allows prosecution of foreign nationals in Spain, and other European countries, to reach far beyond national borders in cases of torture or war crimes." Id.

It is used by states in the context of civil wars, inter-ethnic contests of dominance, and internal political contests. Kenyan MPs Reject Violence Court, BBC News Online, Feb. 12, 2009. "The Kenyan parliament has voted against a bill to establish a special tribunal to try those implicated in the 2008 post-election violence. This could pave the way for a list of suspects to be handed over to the International Criminal Court (ICC)." Id. The reason was simple--the fidelity of the Kenyan legislature to the divisions that lead to the violence in 2008. "A growing number of MPs had opposed the bill, saying they did not have faith in Kenya's justice system and that those involved in the violence should be tried at The Hague.The tribunal was recommended by a commission of inquiry into the violence, chaired by Justice Philip Waki, which was established during mediation talks chaired by former UN chief Kofi Annan. " Id.

And it can be used by prosecutor of the ICC in the service of this criminal law without a state, to intervene in a racial-ethnic conflict within a state that as proven beyond the power of international politics to manage to resolution. "Following press articles published today, the International Criminal Court (ICC) wishes to inform the media that no arrest warrant has been issued by the ICC against President Omar Al Bashir of Sudan. No decision has yet been taken by the judges of Pre-Trial Chamber I concerning the Prosecutor’s application of 14 July 2008 for the issuance of such a warrant. The Pre-Trial Chamber’s decision will be made public by the normal way of a press release and publication on the Court’s website." International Criminal Court, No decision concerning possible arrest warrant against President Al Bashir of Sudan, ICC-CPI-20090212-PR389, Press Release 12.02.2009 )responding to news reports to the contrary, see, e.g., Marlise Simons / Neil MacFarquhar, Warrant is Approved for Leader of Sudan, New York Times, Feb. 12, 2009. The one interesting note in the story: "The prosecutor became involved in the case after the Security Council asked him to investigate the conflict in Darfur, where massacres, disease and starvation have led to the deaths of up to 300,000 people and driven millions from their homes. . . . " Id. The implications for the freedom of state officials to act freely within their territory are large and evidenced by the frustration of the likely soon to be indicted President of Sudan directed against the Secretary General of the Unted Nations.

"Relations between Mr. Ban and Mr. Bashir continue to be strained by Sudanese government actions in Darfur and by Mr. Ban’s refusal to deal with Mr. Bashir directly. But on Sunday the two men had an unscheduled encounter at a summit meeting in Ethiopia. Diplomats described it as “a stormy meeting” and “a shouting match” in which Mr. Bashir vented his anger at the court, though it is independent of the United Nations. Mr. Ban, in turn, insisted on the safety of United Nations staff members and peacekeepers, and demanded that Mr. Bashir stop the attacks on civilians." Id.

The International Criminal Court structure has added a new layer to the legal framework within which conflict is managed. Yet the ICC system is larger than the formal legal framework within which it is constituted and operates. It now serves as a centerpiece of an emerging system of a globalized bureaucratization of managed warfare, that uses the stylized forms of judicial combat as a symbolic representation of physical warfare it means to supplement. It has become an always ready second front in any conflict resulting in violence. . . at least potentially. Warfare has not been eliminated--only its forms have changed--and the fields of battle expanded. All for the preservation of the spoils of victory--the civilian populations over whom power is asserted or from whom things are taken but whose productive potential is maintained. See Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, Penn State International Law Review, Vol. 21, No. 3, pp. 509-567, 2003.