Suing ain’t getting

Law by which the prisoner at the bar is also legislator and bailiff

Image: seal of the International Court of Justice.¹

My father was a military man (air force). Just like Douglas Bader, the World War II ace, he trained in an Avro Tiger Moth, though he moved on to Lancaster bombers rather than Hurricanes and Spitfires. Whenever the government asked him to do something, like “Please complete section A of this form”, he refused. He didn’t do things that his paid servants—by which he meant said government—asked him to do, because a request—to his mind—came associated with no sanction. Only when he was ordered to do something, like “Complete section A (you ’orrible little man)”, did he actually do it. My father, rightly or wrongly, held to the view that failure to comply with a polite request cannot entail a penalty. He perhaps erred slightly: it costs nothing to be polite, but it can cost something not to comply. Can.

How did all the international courts end up in The Netherlands? Both the International Criminal Court and the International Court of Justice have their seats, their locations, in the city that everyone who’s not Dutch learned is the “other” capital of The Netherlands, and which Dutch vehemently—and how!—deny is a capital at all of The Netherlands—THE capital being Amsterdam, then conceding that this other place is, admittedly, the seat of government (which, in most, if not all, other countries, is how capital city is even defined)—The Hague. Hague is derived from Dutch haagh, or haag in its modern spelling, which means hedge. Appropriately.

The International Criminal Court (ICCt (or ICC, which also means International Chamber of Commerce, an arbitration centre in Paris, which I have been to (preen, preen))) “is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression” (to quote Wikipedia).

Regular criminal courts have, over the course of history, seen fit to debate who exactly it is that can be prosecuted within their confines, and for what (in both senses). Kings appointed by divine right might not perhaps be subject to the King’s Writ. Then there were times when animals could be prosecuted, and I never heard of one who got off, so their executions were always by due process. Deities could be prosecuted in some religions, and damnation was always available as a suitable sanction for anyone who contravened a deity. When it comes to individuals, the question is who is culpable: a child? a person of diminished responsibility? a foreigner? someone who isn’t there at his own trial? someone who wasn’t there at the locus of the alleged crime? Then what of bodies corporate? Companies? Political parties? Countries? Jurists always seem to have answered the question by looking less at causation and mens rea (intention) than at who or what it is, precisely, that one wishes to prosecute.

One thing has remained constant—or has been cited as being constant, whether it was or not—since the time of Justinian, is the notion that, to be guilty of a crime, the accused must have intended to do the act constituting the crime. In the case of felony crimes, a great deal of trouble is gone to in order to discern whether or not such intention was present: it is deemed to be of crucial importance that guilt be associated in such cases with the intention to cause the alleged harm. Intention is, of course, a matter for the individual, and individuals can lie about what their intention is: the oops reaction. Intention, lawyers tell us, is quite distinct from acting (actus reus in legal Latin) and oops is certainly acting.

Take the two defendants in the case of the murder of Matthew Shepard, who pleaded that, upon learning of Matthew’s homosexuality, they were both driven momentarily insane, for the time it took them to rob Matthew, pistol-whip his skull into cracking and string the lad up on a barbed-wire fence. Their sanity then was restored to them as they piled into their pick-up and merrily drove down the road home. These are the kinds of lengths that a court will go to in order to determine what, during that episode was all going on in the two men’s minds. Not unnaturally, when it came to deciding what it was that was going on in the two men’s minds, the court in that case looked at what had been going on in the two men’s hands. Like wielding the handle of a pistol to crack a skull, and hauling a body onto a barbed-wire fence. Hence, the actus reus is generally the basic starting point for even assessing what might have constituted the coterminous mens rea.

Emperor Justinian I was the father of the Corpus juris civilis, which would become the foundation of much of the modern civil law systems of the world. Justinian’s wife, Theodora, was an ex-actress and he couldn’t marry her until the law against marrying ex-actresses had been changed. If some people think that we have a problem with drag shows and same-sex marriages these days, the grandfather of all laws had no lesser a problem. The concepts of mens rea and actus reus stem from a time 1,500 years ago and more, ever since when man has defined the one in terms of the other, thereby virtually ignoring the distinction Justinian was driving at. Just like with ex-actresses.

A thousand years it would take (1,111 to be precise) until the notion of criminality was extended to include the notion of law as incumbent upon a nation state. And it is who did this that maybe explains why the International Criminal Court and the easily-confused and closely related (in terms of the criminal acts within its jurisdiction) International Court of Justice sit in The Hague, for he was Dutch. His name was Hugo Grotius and, if Justinian is the grandfather of all European law, Grotius was the father of international law.

The prime philosophical concerns of Grotius (which means big) extended to the rights and duties owned and owed among countries, and the rights and duties owned and owed upon the waters of the sea, and he viewed these two matters as being related but not identical. His work concerning the open seas was, unfortunately, controverted in toto by the one European power that, at that time, already had widespread suzerainty of the world’s oceans and, in the years that followed, would come to exercise as good as absolute hegemony over the world’s oceans, and that was Great Britain. The great James VI and I of Great Britain had little regard for Big the Small of The Low Countries.

All that aside, it is the other international court, the International Court of Justice, or ICJ, that has drawn the world’s attention of late, for that is the court of the United Nations. I read last week in The Guardian that the ICJ is the highest court of the United Nations, and this sent me scurrying to verify my information. Highest being a superlative, and therefore requiring not one but two points of comparison to justify its use, The Guardian is wrong. The ICJ is not the highest court of the United Nations; it is the court of the United Nations.

I no longer use the abbreviation UN for the United Nations. UN is often associated with a singular verb: the UN is. But the UN isn’t. They are. The organisation may be a separate entity to its constituent members, but it means nothing without its constituent members and my own feeling is that by insisting on using the full term and a plural verb, this point has some chance of remaining to the fore when referring to the otherwise faceless and largely feckless organisation.

The case of South Africa v. Israel, which is being compared favourably to the similar, recent case of The Gambia v. Myanmar, entails a claim by one nation state, a member of the United Nations, against another. The complaint is not that Israel has done anything to harm South Africa or even to harm South Africa’s eminent interests; it has to do with the fact that South Africa takes the view that, in acting the way it is doing, Israel is harming the interests of its own people in the Gaza Strip part of its country, and this, South Africa contends, is contrary to international law, which is why the case was raised in the ICJ. If one pauses to reflect on these salient aspects of the case, it might cause one to wonder that so few cases are raised before the ICJ. But, there you are.

The harm of which Israel is accused can be summed up as genocide, for which there is an international treaty, the terms of which Israel is alleged to have breached. It is the same treaty as was sued on in The Gambia v. Myanmar. The ICJ has handed down an interim order pending consideration of the full case, which, it is estimated, will take about another two years. Just to pause there a second, once again: Israel is accused of having committed genocide, and the court designed to consider that accusation will take two years to decide definitively whether the accusation is justified. And the people being genocided? They too will need to wait two years. But there is that interim order, of course.

What the precise terms of the interim order are is irrelevant for the purposes of this article. That may surprise you, but, to repeat the phrase, there you are. This article is not about whether Israel is guilty of committing genocide or not. It’s related to that, but it’s not that. It’s about the legal mechanisms that have led to that order being issued.

First, it is sad to have to relate that Israel’s culpability, if it be proved, will be linked to obligations incumbent upon that country in terms of the 1948 United Nations Genocide Convention. For, there is another document to which Israel is a signatory that would, if the same acts be proven on Israel’s part, render Israel, and anyone else indulging in similar culpable acts, guilty in the terms on which South Africa has sued, and that is the Charter of the United Nations itself. The only difference between that Charter and the Convention is that the Convention sets out particular criteria for the crime of genocide as committed by a nation state. The Charter, on the other hand, simply sets forth an exhortation. And, in my father’s terms, the one issues a command, the other issues a request; my father was right, and Grotius was wrong: international law comprises polite requests, which one can ignore at will.

The International Criminal Court is a creature of treaty, and only those are subject to its jurisdiction who have signed up to the treaty. One notable absence among its signatories is the United States of America, which does not therefore recognise the jurisdiction of the ICCt.

The International Court of Justice has jurisdiction over all member states of the United Nations, of which, of course, the United States of America is one. But that jurisdiction can be either compulsory or discretionary. You can submit to the jurisdiction of the court and then decide yourself whether you agree with its verdict. And, in 1986, the US switched from compulsory to discretionary.

When the USA was claimed against before the ICJ in 1986 on grounds that it was conducting a covert war in Nicaragua, the court found against the USA. However, the one crucial point in any jurisdiction (whether it be a code of conduct needed to rein in judicial impropriety, as in the case of the Supreme Court of the United States, or a finding in international law against the United States) is that its bite is felt most effectively in its enforcement. There is a cathartic satisfaction in physically hurling a criminal into his prison cell, and not many would go there if simply politely asked to do so. There are exceptions.

George Mikes in his book Switzerland for Beginners mentions the prison in Vaduz, Liechtenstein, for which the sole prisoner at one time held the key and was asked to kindly lock himself in when he came back after a weekend at home. Which he did. However, petty criminals in Vaduz are one thing, but telling nation states to kindly lock themselves in when they get back after a weekend away makes a little bit more of a mockery of the legal system than the rule in Vaduz does of the legal system of Liechtenstein: because Liechtenstein law works, and international law doesn’t.

If you want to institute a criminal law jurisdiction, you don’t go and ask the criminals whether they wouldn’t mind awfully signing up to it, do you? Don’t you set up a police force to make sure the criminals do as the law says, and then catch them when they don’t, and hurl them into their prison cells when they’re found guilty? Is that not how criminal jurisdiction works? And, if criminal jurisdiction works only with Myanmar but not with Nicaragua, because enforcement lies in the hands of the prisoner at the bar, through the Security Council, whose law is it, then, that looks the most ludicrous: international law, American law, or Liechtenstein law?

I had a comment on an article recently that proclaimed that America should not be the world’s policeman. It cannot engage in conflict and war to batter the rest of humanity into following its great democratic traditions. The world must sort its own problems out. Mr Trump said America will not honour its article five obligations under the North Atlantic Treaty. That is all well and fine. We do not need America to be the world’s policeman; we have the United Nations. And, like every police force in the world, the United Nations are ineffectual, corrupt, say a lot and do little. Because their organisation is set up under a Charter that has no real meaning. It has as much meaning as I have a dream. But America, if it won’t police the world, could at least lead it by example, and that it shirks into the bargain.

America will never be a policeman of the world as long as it is a criminal of the world, refusing to submit to the jurisdiction of decency, and supporting others who flout its standards of decency. America may rather be the world’s bully, but even bullies can reform themselves. Maybe this one will. It’s a kind request, not a command, hey, dad?

1. By vectored byFOX 52 - commons file, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=49564533.