Michael Rubin's August 9th piece, "Indict Saddam," did not address two key questions
upon which international criminal courts rest: are they founded on a universally
recognized basis, and are their processes being uniformly applied?
Basis
Fundamental questions have been raised regarding the legal and moral foundation of ad
hoc judicial forums, such the War Crimes Tribunal in the Hague and Rwandan tribunals.
Both were created by the U.N. Security Council though its charter mentions no such
authority. Isn't this little more than mob justice carried out by nation states?
Come to think of it isn't the purpose of all murder trials "civilized Vengeance"
(small c, big V)?
The espoused purpose of these courts is to enforce "norms of justice in the
international community." But who constitutes that community and what are those
norms? The truth is justice like beauty is in the eye of the beholder. Historically,
the notion of what is just has varied considerably and often based on economics and
religion. Modern western justice tends to ignore these factors and so sets the stage,
indirectly, for a trial of cultures. Even within the west these norms seem to be
rapidly changing. Can or should such norms be used a basis for international law?
Uniform Application
Like the Nuremberg trials before them, these tribunals appear ripe with application of
ex post facto "laws" and inattention to technicalities. They often bear little
resemblance to the laws and their application within the major U.N. member states.
The states have no great interest in either bringing a consistent moral basis to their
foreign and domestic policies or establishing strong extra-national courts which could
conceivably bring national leaders to account their actions.
All potential violators must be investigated with equal vigilance and judged according
to a uniform standard or none should be. Serious charges have been leveled against
Henry Kissenger yet no criminal indictments have been brought or even discussed by the
tribunals. Unless these courts are held by world citizens to the motto "Equal Justice
Under Law" carved on our Supreme Court building then no courts should be convened.
Current procedures brand the courts as a propaganda puppet show merely using forms of
justice to carry out a predetermined policy.
Competition
Despite frequent evidence that economics trump justice, national governments continue
the charade of representing all the interests of their citizens. Mohammed Douri,
Iraq's U.N. ambassador's quote in the article put it cynically and succinctly,
"Politics is about interests. Politics is not about morals." I believe Mohammed is
right. That these courts aren't better is because, like most governmental services,
they have no need: there is no viable alternative.
If one accepts the American Constitutional notion that all rights are originally
vested in the sovereign individual and that competition is usually the best path to
maximizing quality of a service, then a clear path extends to a market based solution.
Effective private justice may not provide a fairer outcome but it will offer an
alternative which will challenge the current tribunals and their masters to either
abandon pretexts that they are impartial, abandon the tribunals altogether or improve
them.
Any attempt to establish a private global (as opposed to international, as in between
nations) justice system are likely to be met with harsh responses by the major nation
states. They don't want the competition and some of their current or former leaders
and their lieutenants could be the first facing indictments. So, anonymity of
supporters is a prerequisite.
The Internet has shown us that it can be an effective medium for annealing those with
out of the mainstream political views into formidable groups whilst offering effective
privacy. Money often buys justice. So, a means for moralists to anonymously fund
their interests is needed. Fortunately, a number of effective and popular electronic
currencies (e.g., e-gold) with adequate privacy features exist.
Every successful social movement requires leadership. Hopefully someone of great
character and stature will step forward or emerge and take the reins to either bring
all to account for their war crime actions (by whatever means necessary) or thwart (by
whatever means necessary) the ability of the U.N. tribunals to operate from their
baseless pedestal.
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