Wednesday, July 17, 2002

Patten’s Havering

Having lived in Europe and worked for both the United Nations and the International Red Cross for five years, I’ve grown accustomed to the kind of unthinking blather I read in Chris Patten’s article in the July 9 edition of the Washington Post, entitled “Why Does America Fear This Court.”

The piece deals with the recent US decision to revoke America’s support for the International Criminal Court, its main point being that American concerns regarding the politicization of the court are unfounded. Patten defends his position by pointing to concessions demanded, and secured, by the US during negotiations at the Rome Conference which established the court. According to Patten, safeguards were put in place to avoid politically motivated cases against US diplomats, statesmen and soldiers, but even these were not enough to ensure American accession to the court.

The result of all this is that the US appears as a “rogue state” backing out of treaties even after receiving assurances addressing American concerns. To the rest of the world (read here the EU, international humanitarian organizations and NGOs), this leaves the US looking like a hypocrite that seeks to place itself above the law while preaching democratic standards to everyone else.

To some extent, Patten is correct. It’s not in the US’s interest to aggravate its allies or provide fodder for anti-Americanism. To this end, Patten even quotes Henry Kissinger: “America’s ultimate challenge is to transfer its power into a moral consensus, promoting its values not by imposition but by their willing acceptance.”

This is all well and good, but is it even possible? Can power be transferred into morality, and what does this really mean?

While issues regarding politically motivated prosecutions against the US are certainly relevant, the key here is not really America’s fear of the court, but whether or not the notion of international law, especially in its current incarnation, will foster rather than prevent atrocities.

Towards the end of his article, Patten argues that the point of the court is, “to deal with international tragedies like Rwanda,” and “to ensure that genocide and other such crimes against humanity should no longer go unpunished.” His remarks here are rather telling. The court is intended to punish crimes against humanity, but what about stopping such crimes from occurring in the first place? Who will undertake this task? And even if no one bothers to stop the crimes, someone will still be needed to engage in action to apprehend the perpetrators.

There is a great deal of irony in the spectacle of the EU Commissioner for External Relations expressing disappointment with the US for failing to sign up to the ICC. The promotion and advancement of humanitarian values is often cited as a key EU focus by Europe’s political and media elite. Europe’s bureaucrats and opinion makers constantly deride the horrors of war while espousing the sanctity of humanity. But when it comes to enforcing these values, it’s not the Europeans in the forefront, because, in military terms, Europe is at best a second-tier player. The EU folk love to strut their humanitarian moralism, but it’s this same moralism that undermines the militaristic virtues needed to defend morality. In short, Europe is unable to transfer its morality into power.

The reason for this is rather obvious: Europe’s governing classes hate Europe’s nation-states. The EU itself is built on the premise that the nation-state was largely responsible for the debacle that was the twentieth century in Europe. War and the nation-state go together in their eyes, so the only way to ensure peace is to sunder power and morality, to associate power with the nation-state and then subsume it under the moral authority of a bureaucratically managed international law. Power and morality are radically separated in order that a mystical transference from one to the other might come about. This is the driving force in Europe today.

The sad point here is that Europe is projecting its own historical experience, and its own misreading of that experience around the world. Certainly nation-states were involved in Europe’s twentieth century wars, but equally it was nation-states that served to overcome the worst elements of European politics. Indeed, it was those nation-states (Germany and Russia) that conceived of a radical separation between power and morality that caused much of the problem. The EU and institutions such as the ICC, rather than ensuring the prevention of future wars, are further entrenching the very ideology that caused those wars.

For the US, there is no such ambiguity regarding the nation. America is an outstanding example of a successful nation-state where morality and power join together. This doesn’t mean power is transferred into morality – which is impossible. Rather, morality is given form and force through American military might. This is the one thing that Europe consistently fails to understand today.

A glaring example of this failure is provided by Patten himself. He attempts to bolster his argument regarding the need for international courts by referring to a complaint registered in the Declaration of Independence against King George III who protected his troops “from punishment for any Murders which they should commit on the Inhabitants of these States.” To Patten this is evidence of early Americans’ desire for universal legal standards. That he completely misses the point can only be attributed to his European blindness regarding the nation-state. The complaint was made by subjects of the British crown regarding British troops. But most significantly, the Americans, in order to defend themselves, did not wait around for the British to massacre them, leaving the survivors to begin action with a court set up in The Hague. The American response was to take up arms, fight British troops (these early Americans weren’t terrorists killing civilians) and establish – surprise, surprise – a nation. That’s the whole point of the Declaration of Independence and Patten’s example contradicts his intention.

Indeed, one has to wonder if Mr. Patten can even read. If we look at the Declaration of Independence itself, the line to which Patten refers occurs as part of a list of grievances against George III that include:

He (King George III) has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
The intent being:

For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences.


This hardly sounds like a rousing appeal for an international and unaccountable court that makes no allowance for trial by jury.


This brings us back to the American concern that its own soldiers and leaders might be charged and even tried. The International Criminal Court carries with it an inherent bias against nation-states and military action. Patten claims that the court is “complementary” to national courts, but that simply is not possible. Unlike national courts, the ICC is not established under the auspices of a political framework. In other words, its rulings are not limited by laws debated and voted on by elected representatives as part of the political life of a nation. It’s very format and its procedures are contrary to those of a national court. While it operates on the basis of a treaty, national courts operate on the basis of laws reached through the deliberation of legislators who, in the US at least, can be changed. (This goes a long way to answering Patten’s point that the US has backed out of treaties it has signed but not ratified: in the US, Senators, not just the President, must ratify treaties, and voters can remove both Senators and Presidents – what a novel idea.)

Necessarily, the ICC will try to interfere with and impede national sovereignty: it will be inherently hostile to the very principle of the nation-state. Those nations that try to resist will be the most likely candidates for action by the court. Paradoxically enough, considering the US’s position in the world, it will have the might to resist any such attempts – smaller nations will not. Welcome to the latest form of European imperialism.

Chris Patten is certainly not reflexively anti-American nor the most vocal enemy of the nation-state in Europe, but his commitment to a misguided and incorrect view regarding power and morality shows through in his arguments. Fortunately, the US has a certain natural immunity to these ideas. Perhaps just as fortunately, Patten’s views are their own worst enemy since no self-respecting nation with real moral and military commitments can take them seriously. Let’s hope there are still some self-respecting nations left in Europe.

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