January 26, 2009


National Sovereignty Is More Important than International “Justice” (John Laughland, 2009-01-23, Brussels Journal)

If, as is expected, the judges of the International Criminal Court in The Hague confirm the indictment for genocide of the president of Sudan (an indictment having been issued by the prosecutor in July 2008, which requires confirmation by the judges for it to be valid) then the principle of national sovereignty will have been definitively buried in international law. What used to be the uncontested cornerstone of the international system will have become a dead letter – and even a principle associated with the worst abuses of human rights. [...]

Human rights activist are, of course, eagerly awaiting the confirmation. For many years they have said that the fight for universal human rights is a fight against national sovereignty. On the face of it, it seems obvious that states do not have unlimited rights within their own borders and that they can be legitimately attacked or condemned if they abuse their own citizens. Not only is such behaviour shocking in its own right; it has a specially shocking quality akin to that of sexual abuse committed by fathers against their children. When a state abuses its own citizens, it breaks a very fundamental contract by violating its duty to protect them.

However, just as the original authors of the concept of the rights of man, the French revolutionaries, wanted to supplant the sovereignty of the king and replace it with their own sovereignty instead, so the proclamation that nation states do not have certain rights is in fact a proclamation that someone else, in this case the ICC but often “the international community”, has the right to adjudicate the matter. To say that Sudan does not have the right to commit genocide is a truism; to say that it is committing genocide and that a criminal indictment of the head of state is the best way to achieve peace in Darfur are political judgements.

They may well be true. But if they are then used to justify acts of violence – for instance military intervention in Sudan, or the capture and imprisonment after conviction of the Sudanese president – then such acts of violence, like all state or super-state acts, will themselves be based on sovereign decisions not susceptible to further counter-appeal or condemnation. In law, at least in the law of the countries leading any such attack or in the law of the ICC, they will not be criminal acts but instead acts of justice.

It may seem perverse to rehearse the niceties of constitutional argument in the face of mass death in the civil war in Sudan. But the creation of coercive supranational jurisdictions like that of the ICC – coercive because Sudan, unlike the signatory states of the ICC Charter, has not consented to it – poses two fundamental (and related) political questions. These two questions, indeed, are among the oldest in political philosophy; indeed, one can even say that they express the very essence of politics itself.

The first question is: “Who has the right to rule?” Do international judges in The Hague have the right to say who is a criminal in Sudan? More generally, is it better that international organisations have the right to rule, or should nation-states have this right? The question has to be decided one way or another because although there can be much interpenetration of international and national law, on all sorts of issues, the normal basis for this is consent by the nation-states concerned, who express their consent in the form of treaties. States can consent to very intrusive international regimes, for instance the European Union or the World Trade Organisation, but the ICC represents something qualitatively different – an international regime which exercises power outside the territory of those states which have consented to it.

The second question is, “When is it right to use force?”

The redefinition of sovereignty effected by America and its allies asks a preliminary question first: Who has the right to rule a nation-state? And the only acceptable answer is a consensual liberal democratic regime. It is right to use force any time that situation does not obtain, though not always necessary. Where genocide is ongoing, however, it is necessary as well as right.

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Posted by Orrin Judd at January 26, 2009 1:25 PM
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