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June 29, 2020

On the Road to Armageddon

Reuel S. Amdur

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On June 18, President Donald Trump issued an executive order authorizing sanctions against International Criminal Court staff investigating possible war crimes committed by U.S. forces and CIA agents in Afghanistan. The court is also investigating the Afghan government and the Taliban in the same regard. Sanctions apply as well to families of the staff and could both include being barred from the U.S. and sanctions of an economic nature.

This American action is in line with Trump’s proclamation of “America First!”  It is an iteration of American exceptionalism in terms of international responsibility.  These sanctions should be seen in a much larger context.  To put the matter into that context, we need to digress, with reference to an analysis by the 17th Century philosopher Thomas Hobbes.

Hobbes is most famous for his description of the life of man in the state of nature, that is, living before or outside government: “the life of man, solitary, poor, nasty, brutish, and short.”  It is, he contended, the war of all against all.  He acknowledged that in reality this condition may not have actually existed for any number of people, but Hobbes identified the field of international relations as such a state of nature, with a war of all against all.

“. . . in all times, kings, and persons of sovereign authority, because of their independency, are in continual jealousies, and the state and posture of gladiators; having weapons pointing and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms; and continual spies upon their neighbors; which is a posture of war. . . .

“Where there is no common power, there is no law, where no law, no injustice.  Force, and fraud, are in war the two cardinal virtues.”  Hobbes pointed to the difference between individuals and governments.  People are subject to governmental control, while governments are not subject to any, except possibly to some limited degree.

Institutions such as the International Court of Justice and the International Criminal Court are efforts to establish some degree of subjection of states to control of their behavior.  The United States has continually thumbed its nose at the effort to subject it to international control.  Let’s turn back to 1986.

At that time, the International Court of justice was adjudicating the case of Nicaragua v. the United States of America.  Nicaragua had brought the case, charging among other things that the United States mined its waters and assisted the contras in waging civil war and in engaging in atrocities.  The U.S. had adhered to the jurisdiction of the court with certain provisos, but the court held that it had jurisdictions even after accepting those provisos.  The United States then simply withdrew its adherence to the court and refused to participate further in the trial process. 

The court proceeded without American participation and found the U.S. guilty of a variety of illegal acts and ordered it to make reparations. Stephen Schwebel, an American who was one of the panel of judges, dissented, at times as the sole dissenter, on most of the accounts in the decision, but even he agreed with the illegality of mining Nicaragua’s waters, insofar as it impacted their use by ships of other nations. He also found that the U.S. committed an illegal act by publishing and distributing to the contras a book encouraging the violation of humanitarian law. Of course, the U.S. simply ignored the decision, and when it was brought to the U.N. Security Council the U.S. vetoed it.

The U.S. was and is the world’s most powerful nation.  Nevertheless, its might has been diminished because she was defeated by barefoot forces in Viet Nam and because it has been outmaneuvered by the Russians in Syria.  Regardless, it is, to use Trump’s assertion, still Number One.  When the United States refused its legal responsibilities as spelled out by the International Court of Justice, it told the world that it had no one to rely upon in any conflict with the U.S. and perhaps in conflicts with any other country.  The authority of the court was undermined. 

America’s response to the decision of the International Court of Justice constitutes what is arguably the most serious undermining of international law since World War II.  As international law Professor Anthony D’Amato of Northwestern University put it, echoing Hobbes, “There would be talk of a return to the law of the jungle.” 

So here we are back in the jungle, but with atomic weapons among the instruments of war pointing at “to whom it may concern.”   Where does that leave the world?  

There have been indecisive on-and-off negotiations between the U.S. and U.S.S.R./Russia on limitation of nuclear weaponry, but reductions where they have occurred have been desultory and illusory.  Such weapons deteriorate over time, and weapons destroyed have often been those no longer usable, while new additions have been those of recent enhancements.  Trump in fact brags about these newest developments.

At the same time, with the genie out of the bottle, more and more countries are getting into the game—France, China, Israel, India, Pakistan.  North Korea and Iran are now on the edge.  With all this nuclear weaponry floating around, it seems unavoidable that someone will use it.  We all saw what happened when an accidental release of nuclear radiation occurred at Chernobyl, with international fallout.

This picture brings us back to the role of the United States in international law.  It has put the world in real danger, in a world in which the war of all against all may well mean the end of all.

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