Some Unpopular Thoughts on International Justice

There’s only victors’ justice. Everything else is hot air.

On March 17, an arrest warrant was issued for Russian President Vladimir Putin for his allegedly overseeing the deportation of thousands of Ukrainian children to Russia. This set me off on several deep dives into the history of international criminal law and the International Criminal Court (ICC). Regular readers might guess I’m not a big fan of this field. Those that know me well will know that my distaste is tied to the legal fallout of the Yugoslav Wars.

I won’t dwell on any of that now—hopefully stay tuned for more on that soon. Instead, let me retell a historical anecdote I found pregnant. Fans of Wisdom of Crowds will recognize many of the themes we discuss on the pod present in it.

Several texts I’ve read have traced the earliest antecedent of modern international criminal law to 1474, and the trial of one Peter von Hagenbach. Hagenbach, a henchman of Charles the Bold of Burgundy (aka Charles the Terrible to those that liked him less), was dispatched by his master to govern the restive fortified city of Breisach on the upper Rhine. An overzealous Machiavellian avant la lettre, and without the sense of wicked proportion that Old Nick would come to counsel, Hagenbach gleefully took to violent repression against the city’s inhabitants, as well as of neighboring towns and villages.

A coalition comprising Austria, France, Bern and the towns and knights of the Upper Rhine sprung up to defeat the power-mad Charles. Before killing the master at the Battle of Nancy in 1477, the allies brought down his minion. The Archduke of Austria, under whose leadership Hagenbach was captured, called for an ad hoc tribunal to be set up. 28 judges representing the allied countries and principalities presided over the case, led by an Austrian magistrate.

Though the case predates the birth of the modern state at Westphalia, it also wasn’t merely an episode of princely score-settling that defined the Holy Roman Empire until its final collapse. The trial was innovative due to the broad coalition that presided over it. The world had not seen anything quite like it before.

And given the lack of practical sovereignty that the court enjoyed, the judges reached for a higher authority. As one account put it, “the defendant was charged with murder, rape, perjury and other malefacta, including orders to his non-German mercenaries to kill the men in the houses where they were quartered so that the women and children would be completely at their mercy.” The plaintiff in the case, also a hand-picked representative of the Archduke, stated that Hagenbach had “trampled under foot the laws of God and man.” Hagenbach admitted to all the charges, but lamely attempted to defend himself by claiming he was just following Charles’ orders. He unsurprisingly lost his case and was swiftly beheaded.

That the almighty was invoked should surprise no one. In earlier times, when states were far less capable of enforcing their claims over their inhabitants, divine law was regularly used as justification of sovereignty. As the state matured and grew more powerful, law increasingly became its prerogative. And as the democratic age dawned, and people took upon themselves the privilege of governing themselves, the link between justice and divine law became all the more attenuated.

By Max Weber’s time, we came to define the state as that bureaucratic unit that held the monopoly of violent enforcement of its written laws. By the end of the 20th century and unto today, we relegate “the just” and “the good” as innate, universal aspirations that are common to all mankind—that emanate from within us. We have to assume that justice exists simply because we are all human, and we all have a feeling for it—even if we can’t all fully come to consensus on what it is in any particular case.

But this deeply-held modern intuition reliably breaks down at the limit: the anarchic international sphere. In the Hagenbach case, we see it as clearly as anywhere else. God’s law being invoked at the time within states wouldn’t necessarily raise an eyebrow, as most of the codified laws of the time at least paid lip service to the almighty. But beyond the remit of the state, it was an absolute necessity for the magistrates to invoke God, as there was no other written law to appeal to.

Critically, this divine legitimation is nothing more than cover for victors’ justice. Hagenbach’s trial was no different from the tribunals that followed Versailles, or those at Nuremberg, or in Tokyo. By mid-century, of course, there was more written “law” to appeal to—various conventions and treaties that states had signed on to, conventions and treaties that international legal experts have argued continue to bind any states that happen to have been born well after they were signed.

But how do they bind? The public choice theory answer is, thus far, the most convincing to me: they bind only up to a point. But let's leave that theory aside and deal in practical terms.

For believers, justice will at least eventually be done. Their universal faith in justice is inextricably tied to the idea of a universal community of mankind, under the sovereignty of an all-powerful and just deity. But in practice, throughout human history, this idea of a universal community has always remained out of reach.

Optimists thought that the tribunals for Yugoslavia and Rwanda represented a meaningful step towards such a community being born. After all, impartial judges did work in lengthy proceedings that sought to bring malefactors to account. But look a little closer, and that comforting picture falls apart. Those courts were only able to seem objective because those being tried and those suing for restitution were both comparatively powerless before the larger nations that took it upon themselves to administer “justice”. Rwanda and Yugoslavia did not represent the dawn of a more assertive international community. Instead, they represented peripheral concerns to the powerful, who could afford to be disinterested.

Without that kind of consensus of the powerful, there is no meaningful international justice. Because justice being done on earth demands that there exist a power strong enough to enforce its writ—or even its particular interpretation of divine writ. Without that capacity to enforce, it’s all just pretty aspirational talk.

The blood-drenched magnates in Hagenbach’s time I suspect felt all this in their bones. Because they likely believed in God, there was little contradiction for them to invoke His writ in justifying their victors’ justice. Today, we have all this backwards. We hope for enlightenment to give birth to a universal community, even as we increasingly believe that violence must somehow be come to be outlawed. It’s a recipe for disaster.

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