ICC, ICJ and World Court confusion

I have seen comments saying Vladimir Putin should be taken to the World Court.  Individuals are not taken there, it is not that sort of court.  Instead it should be to the International Criminal Court (ICC). ‘World Court’ is the common name for the International Court of Justice (ICJ).

The International Court of Justice is a United Nations organisation. It exists to settle questions of international law and give legal opinion on disputes between nations. It has said what Russia is doing in Ukraine is wrong. It is a panel of judges who give an opinion: any action has to be taken by nation states.

The International Criminal Court  is a very different body. Although it is an intergovernmental organisation, it is not part of the United Nations. It exists to prosecute individuals for matters such as genocide, crimes against humanity and war crimes. It can issue arrest warrants, try people and has a detention centre.

It issued an arrest warrant for Putin on 17th March 2023 for the situation in Ukraine.

Confusingly, both are based in The Hague, Netherlands.

Press release about Putin’s arrest warrant.

 

ICJ’s judgement on Israel

The International Court of Justice is an important part of the United Nations.  It adjudicates disputes between nations and provides legal advice on international law.  Its rulings and opinions on a case are binding on the parties involved.

On 26th January 2024 the ICJ ruled that Israel must prevent genocidal acts in Gaza.

On social media, many people are saying this is meaningless as the ICJ has no teeth.

I think it does have some effect.

In the workplace, when someone bullies another, one can either call it out or let it go. When someone objects to poor behaviour, we can support them or just say “toughen up” or “that’s just they way they are”.

Another outcome is to stand up and say “This is wrong. Do not behave that way.” That gives others the confidence to also stand up and say “We agree, that is wrong.”

That makes most other people think twice before also bulling people. They don’t want to be called out and embarrassed. We have said bullying is no longer normal behaviour.

The same thing really does apply on the world stage. When the ICJ says “This is wrong”, it might have little effect on Israel, but it does send out a message to diplomats, politicians and the media round the world that it is not acceptable. They can’t say “But Israel did it, so we can too”. People feel empowered to say to their leaders “I don’t think we should do that”.

Some see it as ironic that it is South Africa calling it out, given their history. It is not ironic, it was inevitable. They have been through the pain of apartheid, terrorism, revolution but then peace and reconciliation process. South Africa today is not the South Africa of 50 years ago. Change can be radical, and a bad example can become an exemplar.

It is one of the ways the world is very slowly becoming more humane.

Quis custodiet ipsos custodes?

It is being argued the British Army should not be prosecuted for war crimes committed in Northern Ireland.  The argument goes that if the terrorists can get away with their crimes because of The Belfast Agreement, then it is only fair the Army does too.  But this assumes there was a level playing field in a combat between terrorists and the Army.  Yet that is not how it was.  The Army was called in to support the police; the Army were there as a policing force.  The combat was between the loyalists and nationalists, between paramilitary republicans and paramilitary unionists; the Army were apart from them and intended to keep the peace.  As such, they are not exempt from adhering to civil, military and international laws.

It is indeed unfair that at an individual level a squaddie should be subject to laws and punishment that a terrorist is not.  But that is how it must be: the police who uphold the law must be subject to those laws.  And that includes the Army when they are the police force.  It is also unrealistic to compare the expectations of behaviour of a salaried, trained, professional soldier with a support structure and command structure to a civil terrorist operating within a totally different social environment and structure.  Yes, it is reasonable to expect the Army not to be criminal in their operations and so yes it is reasonable to expect them to be subject to punishment if they break the law, especially when they are there to keep the peace.

The state and its agents must work within the law or they are not entitled to be in their position of authority.  Unless, of course, we are to live in a criminal autocracy or dictatorship where the agents of the state can kill its citizens without fear of redress.

Because once the British Army is granted exemption from law in their operations, they will be expected to commit war crimes as expedient ways to achieve results.  And then we will be the bad guys.

 

The more you practise, the luckier you get

tl;dr: Do independent study with a purpose.

Last year, doing my history research module, I used to get distracted when doing independent study and wander off spending hours reading irrelevant stuff. But I did get into the habit of thinking about the module themes as I did so, and I did use the primary and secondary document analysis techniques.

On the afternoon before the exam—when I should have been revising—I came across the Commissar Order: the instruction to German soldiers to not take Russian political Commissars prisoner. I remembered that from reading gory Sven Hassel war stories and proceeded to waste the entire evening reading about it. But I did so using my newly-learned research and historiography skills; that way I could pretend it was ‘revision’.

It turned out this document was genuine and was later hugely significant in the Nuremberg war trials and, as a consequence, has been key in influencing international war crimes legislation prosecution since then. It also gives exquisite insight into the war on the Eastern Front.

Courtesy of module A327 Europe 1914-1989: war, peace, modernity, I was able to appreciate the significance of this document, evaluate its authenticity and put it into a political context. I actually got pleasure from using those skills to gain a much broader and deeper understanding of this tiny, trivial, scrap of history than I otherwise would have done. That scrap is still influencing international relations in the world but for the better now.

Anyway, so blinking what?

The next morning when I saw the exam paper, one of the documents to evaluate in the first question was… The Commissar Order! Either the gods smiled on me, or it is true that the more you practise, the luckier you get.

I have a problem with Max Weber

Max Weber, an influential German sociologist, said in 1918:

the state is a human community that successfully claims the monopoly of the legitimate use of physical force within a given territory.

This statement is used as the argument for policing, criminal justice, prisons, war and all manner of violent acts initiated by the state that cause harm to its people.

Note that he said ‘territory’ not ‘people’, and that he said it immediately after Germany lost the Great War.

Weber, a Prussian by birth, was raised by a strict pro-Bismark politician and a strict puritan Protestant and grew up in Berlin surrounded by the political elite that were promoting the development and growth of a united Germany on the world stage.  He was a strong proponent of liberal imperialism: imperial expansionism that would allow Germany to compete with France and Britain.

He had identified a strong correlation between capitalist success in Germany and Protestantism.  This he attributed to predestination associated with protestant puritanism that was elsewhere suppressed by the Catholic Church.

During the Great War, Weber argued for strength and unity for Germany.  In 1916 he said the conquered nations of Europe should, in Germany’s long-term interests, remain as independent political countries within the greater German economy.  In 1917 he was one of those advocating ceasing the war, when Germany put the proposition to the Allies to leave the boundaries at their new positions based on the front line, that is, accept Germany had won.  This would allow the extended Germany to keep Belgium and other territories gained in the war to that point.  Unfortunately for Germany, the Allies decided to fight on.

During the Great War, Germany had committed ‘the Rape of Belgium’.  This was the taking from Catholic Belgium – at that time one of the world’s largest and most modern industrialised economies – of its machines and resources.  Its male population was transported to Germany to provide forced labour for the German war industry.  Belgium was stripped of its factories and experience and has never recovered from what Germany did.

After the Great War, discussions took place in Paris about what reparations Germany should be making for what it did in Northern France and Belgium.  It was during these discussions that Max Weber, pro-German, anti-Catholic, pro-capitalist gave his speech about the state being entitled to use violence within its territory.  That is, that Germany was perfectly entitled to do what it like to Belgium as it was German conquered territory.

That his quote “the state is a human community that successfully claims the monopoly of the legitimate use of physical force within a given territory” is still used today as an excuse for police brutality, the death penalty and genocide is beyond my comprehension.  Max Weber was an apologist for this worst atrocities Germany committed in the Great War and his defence of Germany in the context of a horrific war in which war crimes and genocide occurred is being used today in modern democracies to excuse immense social harms committed by states upon their citizens.

And yet he is considered a founding father of modern social science and this quote appears in text books as an essential foundation for functioning societies.

Some more of his statements from that period of the post-war German revolution:

The decisive means for politics is violence.

and

the world is governed by demons and that he who lets himself in for politics, that is, for power and force as means, contracts with diabolical powers and for his action it is not true that good can follow only from good and evil only from evil, but that often the opposite is true.

and

Whoever wants to engage in politics at all, and especially in politics as a vocation…lets himself in for the diabolic forces lurking in all violence.

The Protection of Women and Children in Emergency and Armed Conflict

I noticed this on the 1974 entry on Wikipedia’s page Timeline of women’s legal rights (other than voting):

Article 1 of the declaration specifically prohibits bombing of civilian populations.

Article 5 of the declaration requires countries to recognise the destruction of dwellings as a criminal act.

This applies to all member states of the United Nations and has since 1974.

Think on that when you see news stories of wedding parties being hit by drones or see destroyed apartment blocks and homes in the Middle East.

If these are war crimes, who are the criminals and where are the trials?