When I was a law student, I visited the Fosse Memorial and United Nations Food and Agriculture Organization (UNFAO) headquarters in Rome, Italy. The purpose of the visit was to demonstrate the need for and utility of ‘international law.’ These trips were intended to impress the value and importance of International Law upon us. Personally, however, these trips raised questions as to whether international law exists in any meaningful way at all.

The Fosse Memorial recalls hundreds of Italians murdered by the Germans in retaliation for the Italian resistance’s attack on SS men on leave just prior to liberation of Rome by the Allies. The UNFAO is a U.N. agency tasked with setting and enforcing U.N. policy on global hunger.

Some treaties, like the Convention on the International Sales of Goods, or “the convention” as it is commonly known, deal with “civil” or trade issues. The Convention provides a framework for drafting and interpreting transnational commercial agreements. This is not what most people think of as international law – the underlying theory of international law – at least since 1918 – has been that arresting and trying perpetrators of violations of international law (e.g. war crimes, crimes against humanity, crimes of aggression, or genocide – collectively known as “atrocity crimes”) will deter future would-be criminals. Luis Moreno, while serving as a chief prosecutor of the International Criminal Court (ICC) even claimed: “[L]aw is the only efficient way to prevent recurrent violence and atrocities.”[1]

Despite Mr. Moreno’s claim, experience shows that laws do little to prevent crime of any sort absent enforcement. While visiting the UNFAO, officials there admitted that, like all other U.N. agencies, UNFAO has no way of enforcing its decisions. The International Criminal Court (ICC) for example has no way of enforcing its indictments or subpoenas. Notorious African warlord Bosco Ntaganda ended up before the ICC, not because of any enforcement of international law but because he was pressured to do so by Rwanda after infighting within his forces forced Ntaganda to flee the Democratic Republic of the Congo for Rwanda.[2]

History shows that criminal governments and rogue dictators routinely ignore ‘international law.’ It was no secret to the Germans in the 1940s that rounding up and murdering civilians, even in wartime, was a criminal act. The League of Nations, laughably, even outlawed war.[3] German treaty obligations to the United Kingdom and the Republic of France – not to mention the Kingdom of Italy – did nothing to prevent the massacre at Fosse. German ‘international law’ obligations under the Kellogg-Briand Pact[4] and the Hague or Geneva Conventions[5] did nothing to prevent German massacres of American, British, French, and Soviet POWs across Europe[6], not to mention the larger atrocity of the Holocaust.

John R. Bolton, former US Envoy to the United Nations and former National Security Advisor wisely asks, “Why should anyone imagine that bewigged judges in The Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the weak and vulnerable amounts to a cruel joke.”[7]

The theory of the deterrent effect of law presumes that perpetrators rationally consider the consequences of their actions when deciding to commit crimes. However, experience raises serious doubts whether the threat of punishment deters anyone from committing a crime[8]– even the sorts of atrocities ‘international law’ purports to guard against.

Undoubtedly, the Germans were cognizant of the basic legal principle that murder is wrong – even when the victim is a Jew – and this did nothing to deter the German government, people or military from committing murder on an industrial scale during the Second World War. No one questions whether the Japanese understood that rape is a crime – even when the victim is Chinese – but this did nothing to deter the Japanese at Nanking.

Postwar experience provides no shortage of cases that demonstrate that ‘international law’ is no deterrence to criminal state action. Despite indictments by the International Criminal Court, Ratko Mladić and Radovan Karadžić organized the Srebrenica Massacre in the former Yugoslavia[9]; Bosco Ntaganda oversaw atrocities in the Democratic Republic of the Congo[10]; and Sudanese President Omar al-Bashir’s government continues to commit atrocity crimes in southern Sudan.[11]

Many potential explanations are offered for the failure of international law to deter perpetrators of these kinds of atrocities. Perhaps the perpetrators are moral defectives, or just evil; perhaps the pressures of war lead them to ignore legal penalties for their crimes. Even where a modern war crimes trial takes place, as in the case of Bosco Ntaganda, the process can last years. Ntaganda was first indicted by the ICC in 2003, he surrendered in 2013, his trial began in 2014 and it continues as of mid-2018 – with a verdict due in 2019.[12]

These facts suggest the ideals and existence of international law do little to deter the perpetrators of atrocity crimes. The general lack of any real acceptance of international law, the cynical and unequal application of international law standards, and the dubious moral record of transnational government make a mockery of any concept of ‘international law.’

The defenses offered for international law are weak at best. Claims that international legal institutions have not had enough time to establish themselves are laughable. The first Hague Convention was signed in 1899, League of Nations was established in 1918, the United Nations was chartered in 1946 and the Nuremberg Court convened in 1947. Six generations have been born since the basic structures and assumptions of ‘international law’ were first put forth. 

Others claim free speech, when it takes the form of ethnic hate speech, overrides any deterrent effect of ‘international law.’  If we accept this, then why not simply abandon the entire concept of free speech or open inquiry? Why not simply prohibit any speech that is critical of or offensive to anybody? Experience shows, however, even when speech restrictions are introduced, the tenor of the crimes might change, but their frequency or seriousness does not. 

The crisis in Darfur is illustrative. The situation changed from open genocide by the National Islamic Front/National Congress Party (NIF/NCP) regime in Khartoum against Christians and Animists to a low-intensity and long-term conflict that the world conveniently ignores so long as the banditry does not make big headlines in the West.[13] The Sudanese government stopped carrying out large-scale massacres and continued their crimes by interfering with the delivery of humanitarian aid to the already displaced Christians and Animists in Darfur.[14]

Even if one is indicted and tried before the ICC, the chances of actual punishment are slim. Of the forty-four (44) people indicted by the ICC, only nine (9) have been convicted in the 17 years the court has existed as of 2018.[15] Of those convicted, about half were sentenced to only a few months in prison.[16] Either the ICC is deliberately bringing cases it cannot make, is aiding and abetting the flight of accused war criminals or excusing the behavior of the criminals brought before it in over 70% of the cases it has ever heard.[17] Hardly the sort of conduct that is likely to inspire confidence in the public or fear in those who would flout ‘international law.’

Even where the ICC claims success in handing down justice, one must maintain a healthy skepticism. In Uganda, for example, the ICC claims it reduced the mortality rate inflicted by the so-called ‘Lord’s Resistance Army’ (LRA.) However, the LRA did not stop committing atrocities.[18] Instead, the LRA simply moved from Uganda into the Democratic Republic of the Congo, the Central African Republic and Southern Sudan after the world took notice of the on-going barbarity in Uganda.[19] Casualties continued at the same rate, but since the casualties fell in the neighboring countries, the ICC cynically claimed it had enforced ‘international law’ in Uganda.[20]

The inability of any U.N. body to enforce any of its decisions against a member state (and more so against non-member states, non-governmental actors such as terrorists and criminal cartels) gives the lie to claims of deterrent effect of international law. The ICC, for example, only has jurisdiction over state actors that are referred to it by the U.N.[21] This means that terrorists and ‘revolutionaries’ are exempt from ICC jurisdiction as are nation states that have the protection of some major voting bloc in the U.N. International law can most charitably be described as aspirational rather than operational.

The mechanisms of “international law,” even when applied, fail to meet the modern, legal norms of justice as the free world understands them. For example,  In the case against Thomas Lubanga Dyilo, the first person ever convicted by the ICC, the prosecution team admitted that it withheld potentially exculpatory evidence from the defense.[22] The ICC judiciary held that this failure made it “impossible to piece together the constituent elements of a fair trial.”[23] Nevertheless, in 2008, the ICC allowed the trial to proceed.[24] The ICC rejected the idea that the fact that it was “impossible to piece together the constituent elements of a fair trial” was any bar to prosecuting Dyilo.[25] Dyilo was convicted in 2012 and sentenced to fourteen (14) years imprisonment despite these irregularities.[26]

The cynicism and hypocrisy of the U.N. itself hamper any real acceptance of ‘international law.’ The U.N. passed resolutions calling for the protection of Arab children in the Mideast Conflict[27] – a noble sentiment – but has explicitly and repeatedly rejected calls by the United States and others to demand similar resolutions for the protection of Jewish children.[28] The U.N. repeatedly calls for the humane treatment of those displaced by the Iraqi and Syrian civil wars[29] – again, a high-minded concept – nevertheless, just as regularly, the U.N. ignores atrocities committed against women and children in West Africa, Somalia, Sudan, and Congo. The fundamental disregard of any rational notion of fair-play and the U.N.’s blatant hypocrisy makes it unlikely anyone will take any system of justice administered by the U.N. seriously

As previously mentioned, any system of law assumes lawbreakers possess some rational basis and culpability which justifies punishment for their criminal acts. Any functional justice system requires a fear of the law by potential criminals – laws that are not or will not be enforced are understandably ignored. Any just system of law relies on at least a modicum of equality before the law.

Therefore, one might concede, ad argumentum, that the perpetrators of modern crimes against humanity undertake rational decisions to organize and commit large-scale atrocities.  Nevertheless, the essential lack of fear of punishment given the international community’s unwillingness to confront the perpetrators of these crimes, provided the right victims are involved, renders the entire concept of an ‘international law’ ludicrous at best, and sadistically cynical at worst.

As a result, the takeaway from these visits to UNFAO and the Fosse memorial is that ‘international law’ is, in the words of Mr. Bolton, a “cruel joke”[30] and that force remains the only protection against force.

---

[1] Luis Moreno, Building a Future on Peace and Justice, (2008).

[2] BBC Staff, ICC hails ‘Terminator’ surrender, BBC News (2013), https://www.bbc.com/news/world-africa-21842788 (last visited Jun 25, 2019).

[3] League of Nations Treaty Series Volume 94, 57 (1929).

[4] Id.

[5] Convention relative to the Treatment of Prisoners of War, Art. 1, Part 2. (1929)

[6] Bloody Murder – Nine of the Most Shocking POW Massacres of World War Two, MilitaryHistoryNow.com (2014), https://militaryhistorynow.com/2014/12/12/bloody-murder-10-of-the-most-shocking-pow-massacres-of-world-war-two/.

[7] John R. Bolton, The United States and the International Criminal Court 2001-2009.state.gov (2002), https://2001-2009.state.gov/t/us/rm/15158.htm

[8] Bradley R. E. Wright et al., Does the Perceived Risk of Punishment Deter Criminally Prone Individuals? Rational Choice, Self-Control, and Crime, 41 Journal of Research in Crime and Delinquency 180-213 (2004).

[9] R. Jeffrey Smith, Srebrenica Massacre, Encyclopædia Britannica (2017).

[10] David Smith, Congo conflict: ‘The Terminator’ lives in luxury while peacekeepers look on, The Guardian, 2010, https://www.theguardian.com/world/2010/feb/05/congo-child-soldiers-ntaganda-monuc (last visited Jun 18, 2018).

[11] “The [ICC] warrant was delivered to the Sudanese government, which did not recognize it nor the ICC. The indictments allege that Bashir is ‘suspected of being criminally responsible, as an indirect co-perpetrator’ of atrocities in Darfur. The warrant is opposed by the African Union, League of Arab States, Non-Aligned Movement, and the governments of Russia and China.”  Congressional Research Service, International Criminal Court Cases in Africa: Status and Policy Issues (2011).

[12] Ntaganda Case, Icc-cpi.int, https://www.icc-cpi.int/drc/ntaganda

[13] Nicholas Hanlon, Genocide against Christians continues in Sudan, Washington Times, 2015, https://www.washingtontimes.com/news/2015/apr/14/frank-gaffney-genocide-against-christians-sudan/.

[14] Miles Windsor, Human Rights Violations Against Christians in Sudan, https://humanrightscommission.house.gov/sites/humanrightscommission.house.gov/files/documents/Miles%20Windsor-testimony_0.pdf.

[15] List of people indicted in the International Criminal Court, En.wikipedia.org, https://en.wikipedia.org/wiki/List_of_people_indicted_in_the_International_Criminal_Court

[16] Id.

[17] Id.

[18] Ikwebe Bunting, Lords’ Resistance Army Encyclopædia Britannica (2017).

[19] Id.

[20] Yussef Hassan, Thousands flee, many killed as Lord’s Resistance Army steps up attacks UNHCR (2010), https://www.unhcr.org/news/latest/2010/5/4bed660a9/thousands-flee-killed-lords-resistance-army-steps-attacks.html.

[21] How the Court works, Icc-cpi.int, https://www.icc-cpi.int/about/how-the-court-works/Pages/default.aspx#legalProcess

[22] Situation in the Democratic Republic of the Congo In the Case of the Prosecutor v. Thomas Lubanga Dyilo, ¶20 (2008). (Retrieved from archive at https://web.archive.org/web/20080625052042/http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1401-ENG.pdf)

[23] Id at ¶90

[24] Agence-France Presse, Road cleared for start of ICC’s long-delayed first trial, 2008, (retrieved from archive at https://web.archive.org/web/20090314083408/http://www.google.com/hostednews/afp/article/ALeqM5h9G0ngqaMx513TRwakptt11ZrdCQ)

[25] Id.

[26] Thomas Escritt, Congo warlord jailed for 14 years in landmark case Rueters.com (2012), https://af.reuters.com/article/worldNews/idAFBRE8690C120120710

[27] UN General Assembly urges greater protection for Palestinians, deplores Israel’s ‘excessive’ use of force, UN News (2018), https://news.un.org/en/story/2018/06/1012162

[28] Security Council fails to adopt competing texts on protection of Palestinian civilians in Gaza, UN News (2018), https://news.un.org/en/story/2018/06/1011231

[29]  ‘Hell on earth’ in Syria’s eastern Ghouta must end – UN chief Guterres, UN News (2018), https://news.un.org/en/story/2018/02/1003572

[30] Bolton, Supra note 7