And there’s the rub. This is not clearly lawful. On the contrary, the special court has no standing to try Taylor. Sierra Leone, yes; if he was delivered into their custody. But the special court, if I understood their brief correctly, was not acting on behalf of Sierra Leone but taking upon itself the authority to try him. And if you ask, no, I don’t think the Nuremberg trials stood on any firmer ground.
Suppose I took upon myself the authority to try the Saudi king for crimes against humanity in supporting the mutaween. I could find him guilty in absentia and try to arrange for someone to execute him. I wouldn’t be alone in condemning him. A lot of people would agree that he’s guilty, even if they might not go along with such a sentence. The point is that there is no chain of authority that would give me the authority to do so, and there is no chain of authority giving the ICC authority over Charles Taylor. Adding the magic phrase "crimes against humanity" doesn’t suffice as an incantation. Iran did the same thing with Salmon Rushdie and "blasphemy," remember? If you claim that "blasphemy" is a lesser offense, the Iranians can respond that you are a child of your culture and you haven’t thought the matter through.
The matter may be different for countries that explicitly defer to the ICC. But even there, the deference can be revoked.
I’m not saying Taylor shouldn’t hang. He deserves to, and a 40-year sentence would be dangerously merciful (I mean that literally—his supporters in Liberia may still make trouble). I’m saying I don’t see any legal way of achieving justice here. Neither Sierra Leone nor Liberia have the facilities to safely try him or the political stability to take responsibility for a trial on their behalf elsewhere.
I wonder which makes for a worse precedent, hanging a foreign dictator when you catch him or pretending you have the right to try him. Probably both, in this broken world where there are sometimes no good choices.
3 comments:
Exactly. It is not like a door or window, which can be opened for one by shut for another. It is more like a hole blown into the side of the house, letting in all things fair and foul.
There isn't really any such thing as international law or international justice, except whatever we cobble together to deal with the most egregious atrocities. We've had a stable criminal justice system in this country, and in England before that, for so long that it's easy to think that long prison sentences or death sentences are 100% legitimate if they're "legal" and intolerable when they're not. Obviously there is a huge risk of ad hoc passion when you don't have a big, cumbersome, traditional system with lots of checks and balances that's supported by nearly everyone living within the affected countries. But not all enormous crimes are committed in that context, and while vigilante international justice is scary, there's also a big danger to approaching global-scale crimes with paralysis of the will. That's part of why it's so hard to decide whether and when anyone should ever go to war.
I suppose sometimes you can't say the real reasons. It seemed obvious enough that the second Irag campaign was to shut down the nuke program and put the squeeze on the Saudis and the Iranians. Or better say some of the Saudis and the Iranian regime. But talking about that might be counterproductive, sort of like complaining about Pakistani ambivalence plays into the hands of the unfriendly Pakistani politicians.
So we talk about the lesser details instead.
WRT international law, there seems to be one fundamental principle: encapsulation. You limit the number and complexity of interactions with other groups by channeling them through a recognized interface.
Of course it doesn't always work right, and you find egregious evils that you can't do much about. And sometimes one or more countries (it only takes one) figure a war is worth the risk. That also is supposed to be channeled through recognized interfaces, where the armies do the fighting until some recognized authority gives up or arranges a treaty.
The encapsulation (sovereignty) model doesn't seem to work very well with groupings like Pakistan or Somalia. That's going to require some serious rethinking about what should take its place. The opportunities for mischief are frightening.
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