Welcome to the Age of Selective Law

Lawyers and political commentators have been writing for years about what they call the erosion of international law, usually implying that at some earlier point this law actually worked. In reality, it never truly did.

The US strike on Venezuela confirmed the obvious: international law has been displaced by the “law of the strong.” This was noted, for example, by Serbian President Aleksandar Vucic after a meeting of his National Security Council. Serbia, once the most influential republic of the former Yugoslavia, knows very well what it is talking about.

Five hundred years ago, Niccolo Machiavelli, the founder of modern political science, wrote that people judge rulers by results, especially those who cannot be called before any court, and therefore rulers must strive above all to preserve power and secure victory.

In the Renaissance, the idea that political leaders would never find themselves in the dock seemed self-evident and was reinforced by religious assumptions. Today the idea looks less obvious. Special institutions have even been created to prosecute heads of state. And those who remember the history of the twentieth century will recall the Nuremberg Tribunal as a rare moment when justice seemed to triumph.

But let us look at the numbers. Take the International Criminal Court, established in 2002 and supposedly tasked with prosecuting political leaders involved in genocide, ethnic cleansing or persecution of parts of their own population.

In practice, while spending around 200 million dollars a year, the ICC has managed to produce only eleven convictions in its entire existence. Even more revealing is that every one of those convictions has been connected in one way or another with events in Africa. Not surprisingly, a number of African states now describe the ICC as a tool of neocolonialism and a mechanism for selectively pursuing African politicians and military leaders.

The problem, however, is not racism or colonial nostalgia. The problem is structural. Any bureaucratic institution will try to show at least some result with minimal effort. And it is obviously easier to bring an African warlord to the courtroom than, say, a US president or an Israeli prime minister.

This is the source of my skepticism about modern international legal institutions. Global politics is anarchic in the literal sense of the term. There is no “government above governments,” regardless of what conspiracy enthusiasts may claim. From this it follows that international law and international institutions can exist only as reflections of temporary understandings among the most powerful geopolitical players.

International law is also designed with built-in contradictions. One can recall the simultaneous recognition of the right of nations to self-determination and the principle of territorial integrity of existing states. These contradictions are not accidents. They simply create room for negotiations when sensitive issues arise.

In other words, international law mostly codifies a political consensus among major powers. The history of the Nuremberg Tribunal is instructive here. It took place and succeeded only because it embodied the collective political will of the victorious states.

Today the international system is being reassembled, and one of the most visible effects of that process is the glaring inefficiency of international legal institutions.

Yet law is one of the foundations of human civilization. In an ideal world, international law ought to function and function effectively. In the real world, it should not be abandoned, but one must look at it soberly and recognize that law operates only when a particular country or coalition has both the political will and the resources to enforce it.

Returning to Nuremberg, it is worth recalling that the United States and Britain seriously considered the option of extrajudicial executions of the Nazi leadership. It was the Soviet government that insisted on a formal tribunal, warning that otherwise people would simply say that Roosevelt, Churchill and Stalin had taken revenge on their political enemies.

The lesson is straightforward. International law works when there is political will and capacity. In all other circumstances, it turns into theater. In our own era, the transformation into theater began long ago: Yugoslavia, Iraq, Libya, and on through to Venezuela. And it is obvious that Venezuela will not be the last stop.