It was a sad day for conservatives when, on December 5, 2011, Laurent Gbagbo rose to speak in the antiseptic courtroom of the International Criminal Court. Polite, old-fashioned (if a little verbose), well-dressed (but obviously not very well), the 66-year-old former president of Ivory Coast was clearly upset to find himself a prisoner, having been a dignified head of state for the last decade. He said he regretted that he had been taken to the airport even before he knew that he had been indicted, but he uttered his reproach in a soft voice and more in sorrow than in anger. Although he is not a particularly long-serving head of state—he became president in 2000—Gbagbo had spent his time in office struggling to conserve the integrity of his state against the tripartite threat of communitarianism, Islam, and immigration. So as he addressed the court, he seemed to have landed in The Hague from an earlier, more diffident era.
But it was a happy day for progressives. The third head of state to have been indicted by the International Criminal Court (after President Omar al-Bashir of Sudan and the late, lamented Muammar Qaddafi of Libya), Laurent Gbagbo is the first actually to appear at the bar. Bashir continues to flout the court and to be received in pomp by other African states (including, most recently, in post-Qaddafi Libya), while the former Guide of the Libyan revolution was dispatched to another world by our new allies in that country, who pulled the trigger to demented screams of “Allahu akbar!” and videoed the murder for the world to see—the first democratic snuff film. But leaving revenge killing and fundamentalism delicately to one side, progressives welcome these indictments (and the deployment of military violence that usually accompanies them) because they correspond to their deepest ideological urge—namely, that regimes deemed authoritarian must be destroyed and replaced by consensual ones, using force if necessary. “No liberty for the enemies of liberty” was the excuse for terror in 1792, and not much has changed since then.
At its deepest level, indeed, the progressive agenda behind the ICC project is overtly globalist: The court’s whole raison d’être is to create a universal regime adjudicating crime and punishment, war and peace, over the whole planet. The court came into being after a group of supposedly nongovernmental organizations (in reality funded by governments) met in New York in 1995 and formed the Coalition for the International Criminal Court, the convenor of which was one William Pace, executive director of the World Federalist Movement. As its name suggests, this organization wants the United Nations to be reformed along federal lines to become a world government. At its founding congress in 1947, the World Movement for World Federal Government, which later renamed itself the World Federalist Movement, adopted the Montreux Declaration, which calls for the “limitation of national sovereignty”; the “creation of supranational armed forces”; the “suppression of all attempts against the security of the federation”; the control by the world federal government of “atomic development and other scientific discoveries capable of mass destruction”; and the power for the world government to raise taxes directly. All these goals figure on the movement’s website today, and many of them have been put in place by NATO’s emergence as the armed wing of the U.N. Security Council.
It is in pursuit of this universalism that the ICC president energetically emphasizes that over 100 states have ratified the Rome Statute, creating the ICC. In fact, these states represent less than 30 percent of the world’s population. It is for the same reason that the ICC prosecutor’s own indictment policy—confirmed by its “judges” (mostly former diplomats or state officials, and not actually judges at all)—has undertaken brazen attacks on the very foundations of international law, especially by issuing indictments against heads of states that have not signed the ICC treaty. It is a basic principle of customary and positive international law that states are bound only by the texts they have ratified, yet the indictments of the Sudanese president and the now-late Libyan leader were justified in the name of “referrals” to the ICC prosecutor by the U.N. Security Council of “situations” in the countries in question. Since such “referrals” are to be found nowhere in the U.N. Charter, they are clearly ultra vires. Their illegality is equaled only by their absurdity: The Security Council is dominated by veto-wielding states that have not ratified the Rome Statute (Russia and the United States), one that refuses to sign it (China), and one, France, that has ratified it but only on condition that the ICC cannot indict French nationals. (The United States has, in essence, rescinded her signature.) This body has given itself the right forcibly to subject third states that also have not signed the ICC treaty to the very jurisdiction its members reject for themselves. So there is one law for the strong, and one for the weak.
The usual argument in favor of the ICC, like that of ad hoc international criminal tribunals in general, is that some war crimes are so horrific that the usual niceties of international law must be superseded. There is some rhetorical force in this argument, but the ICC’s prosecutorial policy does not support it. Prosecuting only Africans (while run by Europeans), the ICC has in fact sought out obscure conflicts in the Dark Continent, or relatively minor violations of the laws of war (such as the use of child soldiers, for which Thomas Lubanga is on trial), while ignoring the West’s headline wars in Afghanistan and Iraq. Where it has taken up causes célèbres, like Darfur or Libya, it has deliberately exaggerated what was going on there in order to conjure up politically convenient indictments whose real goal is regime change. This was especially clear in the case of Ivory Coast, where Gbagbo was indicted by The Hague following his ouster by French forces in the wake of a disputed election: Had he stayed in the country, the victory of his opponent might have been further contested. The goal of regime change is also clear in the latest indictment issued by the ICC, which concerns postelectoral violence in Kenya. The ICC, in other words, has pushed the interpretation of its mandate so far that this war-crimes tribunal now intervenes even in countries where there is no war. Such behavior is intelligible only if we understand that the ICC aims to be part of a world government.
Lenin once wrote, “The Court is an instrument of power. Liberals may forget this but it is a sin for a Marxist to do so.” He was right about liberals. The ICC continues to bathe in an aura of progressivism (embodied by the personal vanity of its celebrity but incompetent prosecutor, the former TV show host and “crusading magistrate” Luis Moreno Ocampo), even though its behavior stinks of the rankest cynicism. Gbagbo’s transfer to The Hague within weeks of the online murder of Colonel Qaddafi is a case in point, not only because of the prosecutor’s sinister silence about the latter (killing a disarmed and wounded combatant is a classic war crime, but he does not seem interested in prosecuting it), but because of his simultaneous decision to allow Qaddafi’s son to be tried in his home country. The whole world has just seen how justice is done in postrevolutionary Libya, and yet the prosecutor of the ICC thinks that Saif al-Islam Qaddafi (who was indicted at the same time as his father) can get a fair trial there. There is only one way to make sense of these contradictory decisions: Ocampo is acting according to political imperatives—to get Gbagbo out of Ivory Coast, where half the population still supports him, and where he could be a rallying point, but to prevent the eloquent, cocky, and Anglophone son of Libya’s former leader from appearing in court, where he would be happy to spill the beans, in English and on live TV, about how European leaders accepted bribes and contracts from his late father. As it is, he will now rot in a Libyan jail for the rest of his life, as forgotten as the stories he would have told.
The situation is therefore the same now as it was in 1999, when the International Criminal Tribunal for the former Yugoslavia (ICTY) indicted the Yugoslav president, Slobodan Milosevic, at the height of NATO’s bombing campaign against that country. All the liberal outrage at the Iraq war, and the invocations of international law, have been forgotten now that there is a Democrat in the White House again. This is in spite of the fact that the claims made by NATO over Kosovo have been proved baseless in the very ICTY set up to prove them. The same pattern has been repeated in Libya, where dubious claims about human-rights violations were the pretext for violent regime change: The evidence adduced in support of the arrest warrant for Qaddafi and his son, issued in May 2011 shortly after NATO started to bomb Libya, has been censored in its entirety from the publicly available version of that indictment. These claims, incidentally, were initially made by a Benghazi-based opposition NGO, the Libyan League for Human Rights, whose members are miraculously now ministers and officials in the new Libyan government.
The double standards are also the same. Just as in 1999, NATO’s attack on Yugoslavia attracted not so much as a peep from the prosecutor of the International Criminal Tribunal for the former Yugoslavia—even though it was blatantly incompatible with the law against wars of aggression adjudicated at Nuremberg and Tokyo—so in 2011 the ICC prosecutor reacted with silence at the deliberate targeting of pro-Qaddafi civilians in Sirte. According to the Daily Telegraph (September 28, 2011), the rebels justified killing the town’s inhabitants because they had “chosen to die.” Yet the protection of civilians was the original legal and political justification for both the ICC indictment and the NATO attack.
The ICC is a product of progressivism’s narrative about itself—that it is morally superior, that it is politically advanced, that it is needed to guarantee order in the world. The fact that the court has become a caricature of colonialism—it is paid for and staffed by whites but prosecutes only blacks and Arabs—only underlines this by obscuring the key difference between it and colonialism—namely, that colonies were actually governed by colonials. The ICC, by contrast, swoops in only as an avenging angel, and its only instrument of power is punishment. Structurally disconnected, like all international institutions, from the people over whom it wields power, it never has to bear the consequences of its decisions. It is the very embodiment of power without responsibility—and that is why liberals love it.
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