Abolishing America, (Cont`d): ICC Will Put Americans On Trial

In 1945, when the

Nuremberg tribunal
indicted the leaders of Nazi
Germany for war crimes, the official psychiatrist at the
trials asked each of the defendants to write his
reaction on a copy of the

. Herman Goering, former Reichsmarshall
and head of the German Air Force, wrote:

“The victor will always be the judge, and the vanquished
the accused.”
For once, at least, the ex-Reichsmarshall
seems to have been right, as the establishment last week
of the

International Criminal Court
should tell us.

The official function of the court,
as Reuters

it, is to “prosecute individuals for war
crimes, genocide and other gross human rights
violations,” supposedly regardless of where they come
from or how much power they or their countries possess.
It`s anyone`s guess as to whom the Court will decide to
put on trial first: Yassir Arafat? Ariel Sharon? Saddam
Hussein? George W. Bush?

The United States has refused to
ratify the treaty creating the ICC, as the court is
known, and for entirely good reasons. The

Bush administration
worries that American soldiers
could be put on trial for actions they might have taken
in the course of waging war. That worry is quite
reasonable, but not only soldiers might face trial;
national political and military leaders could find
themselves standing in the dock as well. Indeed, as
Goering and his colleagues could have told you, it`s the
leaders, not the small fry who merely obey the orders
they`re given, who are always the main targets of “war
crimes” proceedings. That`s why people like Arafat,
Sharon, Hussein and President Bush need to worry.

They need to worry also because to
this day no one is exactly certain of what terms like
“genocide,” “war crimes,” and “human rights violations”
(especially “gross human rights violations”) mean. Leave
aside the agonizing question of whether what Mr.
Sharon`s troops have been doing in the West Bank for the
last few weeks, as well as Palestinian suicide bombings,
are any of the above; there are plenty of people on both
sides of both questions. Indeed, that`s the point, and
it`s closely related to the point Goering was making. In
the absence of clearly defined criminal offenses, such
as ordinary common and statute laws provide, virtually
any action (and sometimes even statements) can be “human
rights violations” or “war crimes.” So who decides what
is and what is not?

The answer is: The victors, those
who have enough power to defeat a hostile nation, nab
its leaders, haul them into something called a “world
court” and decide, by whatever procedures and rules the
superior power has chosen to impose, that the leaders
are guilty and should be hanged, shot or imprisoned for
life. That is why Herman Goering was right: “The victor
will always be the judge, and the vanquished the

Of course, the whole concept of the
rule of law is the antithesis of this. The whole point
of the “the rule of law, not of men,” as the motto of
Harvard Law School puts it, is that some permanent
standard, above and beyond the wills and passions and
powers of human beings, will regulate how power is
apportioned and used, and the powerful, the rich, the
well-connected will be subject to the same rules of
justice as the poor and the powerless. Sometimes—let us
not be too cynical—that happens.

But it happens only

within a legally constituted state
whose rulers and
citizens understand and share the “rule of law” concept.
Between states, where there is no such consensus and
human relationships are regulated not by shared rules
but by sheer power, it`s nothing more than chicken


International Criminal Court,
of course, is an
essential part of what President Bush`s father once
called the “New World Order,” a post-Cold War
“architecture” of a world government that regulates
trade, war and peace, and criminal law enforcement among
what used to be called “sovereign” nations. But the New
World Order is no more than the paper its utopian plans
are scribbled upon unless it has the power to enforce
its will.

Right now, neither the New World
Order nor its cute little playroom “World Court” has any
such power, and certainly not enough to disturb the
United States or those whom we choose to protect from
its jurisdiction. But Americans should make no mistake
that the movement to give these transnational
institutions real power is very much alive and that,
should the movement ever succeed, the victors who will
always be the judges will not necessarily be the United
States, and the vanquished who will always be the
accused may not necessarily be the sinister foreign
characters whom most Americans think are the most likely
candidates to stand in the prisoner`s dock.


April 18, 2002