By John Scales Avery*
The history of the Federal Constitution of the United States is an interesting one. It was preceded by the Articles of Confederation, which were written by the Second Continental Congress between 1776 and 1777, but it soon became clear that Confederation was too weak a form of union for a collection of states.
George Mason, one of the drafters of the Federal Constitution, believed that “such a government was necessary as could directly operate on individuals, and would punish those only whose guilt required it’”, while another drafter, James Madison, wrote that the more he reflected on the use of force, the more he doubted “the practicality, the justice and the efficacy of it when applied to people collectively, and not individually.”
Finally, Alexander Hamilton, in his Federalist Papers, discussed the Articles of Confederation with the following words:
“To coerce the states is one of the maddest projects that were ever devised… Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself, a government that can exist only by the sword? Every such war must involve the innocent with the guilty. The single consideration should be enough to dispose every peaceable citizen against such government… What is the cure for this great evil? Nothing, but to enable the… laws to operate on individuals, in the same manner as those of states do.”
In other words, the essential difference between a confederation and a federation, both of them unions of states, is that a federation has the power to make and to enforce laws that act on individuals, rather than attempting to coerce states (in Hamilton’s words, “one of the maddest projects that was ever devised”). The fact that a confederation of states was found to be far too weak a form of union is especially interesting because our present United Nations is a confederation. We are at present attempting to coerce states with sanctions that are “applied to people collectively and not individually.” The International Criminal Court, which we will discuss below, is a development of enormous importance, because it acts on individuals, rather than attempting to coerce states.
Establishment of the International Criminal Court
In 1998, in Rome, representatives of 120 countries signed a statute establishing an International Criminal Court (ICC), with jurisdiction over the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
Four years were to pass before the necessary ratifications were gathered, but by Thursday, April 11, 2002, 66 nations had ratified the Rome agreement, 6 more than the 60 needed to make the court permanent. It would be impossible to overstate the importance of the ICC. At last, international law acting on individuals has become a reality! The only effective and just way that international laws can act is to make individuals responsible and punishable, since (in the words of Alexander Hamilton) “To coerce states is one of the maddest projects that was ever devised.”
At present, the ICC functions very imperfectly because of the bitter opposition of several powerful countries; notably, the United States. U.S. President George W. Bush signed into law the American Service members Protection Act of 2002, which is intended to intimidate countries that ratify the treaty for the ICC. The new law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court, which is located in The Hague. This provision, dubbed the “Hague invasion clause,” has caused a strong reaction from U.S. allies around the world, particularly in the Netherlands.
Trump’s Attacks on the ICC
In a 15 Jun 2020 article entitled “Trump Authorizes Sanctions against the International Criminal Court”, Nahal Toosi and Natasha Bertrand wrote:
“The efforts come amid Trump administration anger over the ICC’s efforts to look into alleged war crimes by U.S. troops in Afghanistan.
“President Donald Trump today moved to further punish officials of the International Criminal Court, authorizing economic sanctions against them as well as the expansion of visa restrictions on the officials and their families. The president also declared a national emergency with respect to the “threat” he says the ICC poses, a move that lays legal groundwork to impose future sanctions.”
The International Criminal Court responded with this statement:
“The International Criminal Court… expresses profound regret at the announcement of further threats and coercive actions, including financial measures, against the Court and its officials, made earlier today by the Government of the United States.
“The ICC stands firmly by its staff and officials and remains unwavering in its commitment to discharging, independently and impartially, the mandate bestowed upon it by the Rome Statute and the States that are party to it.
“These are the latest in a series of unprecedented attacks on the ICC, an independent international judicial institution, as well as on the Rome Statute system of international criminal justice, which reflects the commitment and cooperation of the ICC’s 123 States Parties, representing all regions of the world.”
The ICC and UN Charter Reform
The Second World War was even more disastrous than the First. Estimates of the total number of people who died as a result of the war range between 50 million and 80 million. With the unspeakable suffering caused by the war fresh in their minds, representatives of the victorious allied countries assembled in San Francisco to draft the charter of a global organization which they hoped would end the institution of war once and for all.
The Preamble to the United Nations Charter starts with the words: “We , the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind; and to unite our strength to maintain international peace and security; and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest; and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims.”
Article 2 of the UN Charter requires that,
“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”
This requirement is somewhat qualified by Article 51, which says that,
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Thus, in general, war is illegal under the UN Charter. Self-defense against an armed attack is permitted, but only for a limited time, until the Security Council has had time to act. The United Nations Charter does not permit the threat or use of force in preemptive wars, or to produce regime changes, or for so-called “democratization”, or for the domination of regions that are rich in oil.
Clearly, the United Nations Charter aims at abolishing the institution of war once and for all; but the present Charter has proved to be much too weak to accomplish this purpose, since it is a confederation of the member states rather than a federation. This does not mean that that our present United Nations is a failure. Far from it! The UN has achieved almost universal membership, which the League of Nations failed to do. The Preamble to the Charter speaks of “the promotion of the economic and social advancement of all peoples’”, and UN agencies, such as the World Health Organization, the Food and Agricultural Organization and UNESCO, have worked very effectively to improve the lives of people throughout the world. Furthermore, the UN has served as a meeting place for diplomats from all countries, and many potentially serious conflicts have been resolved by informal conversations behind the scenes at the UN. Finally, although often unenforceable, resolutions of the UN General Assembly and declarations by the Secretary General have great normative value.
I believe that the elimination of the institution of war can only be achieved by reforming and strengthening the United Nations, and converting it into a federation. As a first step in this direction, the International Criminal Court has enormous importance.
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*John Scales Avery, Ph.D., who was part of a group that shared the 1995 Nobel Peace Prize for their work in organizing the Pugwash Conferences on Science and World Affairs, is a member of the TRANSCEND Network and Associate Professor Emeritus at the H.C. Ørsted Institute, University of Copenhagen, Denmark. He is chairman of both the Danish National Pugwash Group and the Danish Peace Academy and received his training in theoretical physics and theoretical chemistry at M.I.T., the University of Chicago and the University of London. He is the author of numerous books and articles both on scientific topics and on broader social questions. His most recent books are Information Theory and Evolution and Civilization’s Crisis in the 21st Century (pdf).