As a well-known adage holds: “To the victor go the spoils.” But it might well add: “Meanwhile, the losers go to the gallows.”
This is the logic of victor’s justice. It is the logic of the Treaty of Versailles, which demanded unpayable reparations from the vanquished German nation. It is the logic of the Tokyo War Crimes Tribunal, where perpetrators of war crimes pronounced judgment on the war crimes of the defeated. It is the logic of Abu Ghraib, where the US military tortured and killed its enemy captives.
Throughout human history, victorious nations have gone too far in exacting revenge from their defeated foes. The entire notion of “international law”—from the Geneva Conventions to the International Law Commission to the International Criminal Court—has been sold to the public as a check against this unfortunate tendency to impose victor’s justice on the fallen. But just as history is written by the winners, so, too, is justice decided by the victors, and the International Criminal Court is the prime example of that.
Think of international war crimes in the recent era and what comes to mind? America’s wars of aggression in Iraq and Afghanistan based on premeditated lies about weapons of mass destruction and 9/11? The indefinite detention of captives at Camp X-ray, Guantanamo, or other military prisons that resulted from those illegal wars? Israel’s use of white phosphorous in its 2009 massacre of civilians in Gaza? Saudi Arabia’s campaign of genocide in Yemen (made possible by Uncle Sam’s unwavering support)?
Well, let’s compare that list of violations of international law to the list of “situations” that the International Criminal Court has investigated since its formation in 2003. Notice anything? Like how not a single one of the glaring war crimes we just noted are anywhere on the list? Or how every single one of those investigations (save one) targeted an African conflict?
No justice for Afghanistan. No justice for Iraq. No justice for Palestine. No justice for Yemen. No justice for any victims of any Western-allied aggression. Make no mistake: These “omissions” are not by accident but by design.
The most recent demonstration of this fact—as if another demonstration beyond the ones I just cited were needed—came late last month when senior ICC judge Christoph Flügge resigned in disgust over American meddling with the court’s activities. Actually, “meddling” is the way many of the headline writers chose to frame America’s interference with the ICC, but that word doesn’t quite do justice to the situation, if you’ll pardon the pun.
Let’s put it as plainly as possible: Judge Flügge resigned because the US had directly threatened ICC judges and prosecutors for even looking into the possibility that Americans had violated international law in Afghanistan.
I know, I know: You need a minute to recover from this shock.
The story starts in 2017, when the ICC’s chief prosecutor conducted a preliminary investigation into US war crimes in Afghanistan, finding “a reasonable basis to believe that war crimes and crimes against humanity” were committed in the country by US military personnel. Logically, the prosecutor followed up by announcing that she would formally request an investigation by the ICC into the charges. Apparently, this particular prosecutor hadn’t received the memo that the ICC is only to be used to prosecute African despots in kangaroo courts and that Americans are off limits.
To make sure that everyone did have the memo, Trump’s new national security adviser, John Bolton, hand delivered it during his very first speech last fall. “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court,” he warned, adding that the Trump administration “will fight back” against the ICC. And then, just in case the message wasn’t quite clear enough, he added:
“We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.”
Well, Christoph Flügge, for one, got the message. And, having been effectively told that the ICC is a farce and will never be allowed to prosecute the US or any other elephant in the room, he resigned.
The episode demonstrates precisely how the International Criminal Court operates—or, more precisely, how it is allowed to operate by its real rulers. For, you see, the ICC was set up by the Western powers and their allies to put a fig leaf of legitimacy on the concept of victors’ justice.
Commenting on Bolton’s remarks in his exit interview with the German weekly Die Zeit, Judge Flügge fumed:
“The American security adviser held his speech at a time when The Hague was planning preliminary investigations into American soldiers who had been accused of torturing people in Afghanistan. The American threats against international judges clearly show the new political climate. It is shocking. I had never heard such a threat.”
Well, Christoph Flügge might never have heard such a threat before, but Christopher Black certainly has. He’s an international criminal lawyer (and previous Corbett Report interviewee) who successfully defended former Rwandan Gendarmerie General Augustin Ndindiliyimana at the International Criminal Tribunal for Rwanda. The story of Black’s legal journey at the international court is incredible and highlights exactly the types of “shocking” interference that so upset Flügge.
Commenting on Judge Flügge’s resignation, Black noted that the intimidation tactics of Bolton are by no means a new phenomenon.
“It goes way back. Ever since the international courts and bodies have been established, the US has tried to interfere and to use them for political purposes. [. . .] Not only was a judge in my case at the Rwanda tribunal pressured but I myself was threatened by the CIA while I was there to stop raising questions and presenting evidence they [the US side] did not like.”
While this may not be news to people who have already seen my reporting on international law in general and my reporting on the International Criminal Court in particular, at least it is “news.” You know, that socially-constructed concept that is weaponized by the likes of Newsweek and The Guardian and is deployed against the public in the ongoing information war.
But, as you might expect, these kinds of cases are only mentioned in the establishment lapdog media because they can be used to further bolster the legitimacy of the ICC. The sleight-of-hand is readily apparent in mainstream coverage of the court, where the ICC’s short-comings are used as an excuse to further erode national sovereignty. The problem, you see, isn’t the centralized trough of power that is there precisely to be abused by the ruling powers; it’s that the centralized trough of power isn’t centralized enough.
Of course, Corbett Reporteers know that if the US and Israel and other international pariah states were to become state parties to the ICC, they would, at best, allow a show trial of some low-ranking American or Israeli servicemen to demonstrate that the court is “fair and impartial.” And then the neocons and their neoliberal friends would resume menacing the world while their ICC lapdog went back to prosecuting Africans.
Victor’s justice never went away. It just moved to The Hague and set up court. Literally.