The Rights of Man as Vanquished Foe

Victory in Justice

Siddhant Vyas

The major theme of this paper is that of the phenomenon of ‘victor’s justice’ within international criminal law. It will be argued that the creation of legislation, the propagation of normative values and most importantly the ‘on-the-ground’ implementation of criminal justice is germinated by this phenomenon.

It is a structured approach towards hegemony - the result of contextualization of ‘justice’ by (legal) regimes as a dominion of manifest destiny, if you will, under which the Enemy1 is to be brought under.

Simply, one can say that the construction of actors, institutions and normative concepts that constitute the ‘space of international relations’ is not a single tangible entity. Rather it is an idea, an aura if you will- of authority and justice; in its modern avatar best known as ‘democracy and freedom’. The rhetoric of the victor is the question of true justice.

This paper shall be divided into four pillars or parts: Rupture, Nuremberg and Heroes of the Fatherland, Conscientious Objectors and Hegemony followed by a brief conclusion. Each of the pillars provides a particular angle to the argument of legal imperialism as practiced by network of international criminal justice and the resounding opposition thereto.

Rupture is a [tribute to as well as] chapter based upon French international criminal lawyer Jacques Verges and his impact upon international law. His most famous contribution in this sphere, aside from controversial clients is the ‘rupture defence’. In essence he questions the pedestal upon which Western powers place themselves as judges of ‘mortals’.

Nuremberg and Heroes of the Fatherland is about the International Military Tribunal at Nuremberg that tried and convicted multiple leaders of

1 Carl Schmitt, Concept of the Political, pp. 27, University of Chicago Press [2007]

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the Third Reich and Wehrmacht of crimes against humanity including genocide and war crimes (amongst others). The chapter talks about the significance of Nuremberg both as a stand-alone affair in the history of Nazi Germany as well as the formative stages of international criminal law as we know it today. The latter part of it, Heroes of the Fatherland refers to military formations within the Third Reich that had their reputations soiled as a result of their convictions of war crimes at the Tribunal [most specifically SS Panzer Division Das Reich]. This is contrasted with elite and celebrated American formations who committed crimes of the same scale, if not even more outrageous.

‘Conscientious Objectors’ is a theoretical summarization based upon the writings and beliefs of various scholars and actors within the realm of international law. The real ‘meat’ of the arguments that are submitted throughout the paper are located within this structure. As is fairly obvious from the title, these arguments and scholars oppose the regime of international criminal law in its present incarnation.

The final constructive is entitled Hegemony. This is a plotting of the course of international law and the ideological motivations behind it [that masquerade as politics]. Finally of course, there is the conclusion.

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I

RUPTURE

You have no right to judge me. You’re occupiers. I’m a patriot2.

These are the immortal words of Jacques Verges, international criminal lawyer extraordinaire. A man dedicated to principles of the Maquis with whom he fought in the bocages of France to rid the Fatherland of the hated Nazi: all forms of despotic imperialism are to be resisted by those who appreciate and live for freedom and equality3. These are also the principles he adheres to [although many would stand testament as to how this man has none] in justification of his actions4.

The enigmatic figure that is Verges was pieced together by film-maker Barbet Schroeder and unveiled as ‘L’ Avocat de la Terreur’- a film that explores the career of this influential man with a special emphasis on the insights, musings and observations of those who knew and worked with him .

As Attorney Beharami takes note of in the portion on the Klaus Barbie trial, the Government of France wished to see Barbie as a model for World War II, the Holocaust and in general as the ‘poster-boy trial’ of the denazification of Europe with the perfect and most weighted trial ever staged5.

There was one element not factored into account- Jacques Verges and the Rupture defence. The last thing the French government wanted to have brought up [with all the cameras bearing down on them] were the atrocities committed in Algeria, sub-Saharan Africa- slavery, colonialism, etc. And that is exactly what Me. Verges did. What he attempted to contextualize was not Barbie or his crimes, but the French government 2 Jacques Verges in , L’ Avocat de la Terreur [La Sofica Uni Etoile 3]3 ibid4 ibid5 It is revealed in the film that the Government actually built the courthouse to- in Verges words- leave it up to ‘them’ to improvise on that set, their play.

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and their crimes. In a seeming paradox of logic, Verges completely changes the narrative equation of the trial by arguing from the perspective of the intense hypocrisy and dearth of ‘humanitarian’ principles the victors of war uphold in their so-called pursuit of justice6. He brings to light the ironic branding of individuals as models of ‘Enemy behaviour’ by those who are guilty of similar crimes, yet by some divine grace have had their crimes go unpunished due to their status as victors of war7. As is said often, history is written by the victor and to the victor goes the spoils so this should not come across as terribly shocking or unprecedented8.

In the objective realm of the law and in beseeching the ever-lusted after ‘justice’ does the victor prosecute and bring to light the crimes of his vanquished foe. It is of little consequence what the victor did, the means to his ends now that he is supreme. The law of nations has made that abominably clear with the institution of the seminal Nuremberg Military Tribunals, 1945 [NMT] and subsequent future tribunals. The trials have caused particular outrage in circles of academics and professionals such as Carl Schmitt, Danilo Zolo and indeed Verges as they have been seen as imperialist designs with the facade of objectivity, equity and justice9.

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6 Ibid; throughout the film, insight is given on Verges own thoughts on the trials he is a part of. This enables us to draw certain conclusions as to the political justice he demands.7 ibid8 "To the victor belong the spoils. In a war or other contest, the winner gets the booty. The proverb originated in the United States and was first used in 1832 by Senator William Learned Marcy (1786-1857) of New York. From "Random House Dictionary of Popular Proverbs and Sayings" by Gregory Y. Titelman, Random House. See URL: http://www.phrases.org.uk/bulletin_board/32/messages/793.html9 Victor’s Justice, D. Zolo, Verso[1ed 2009]; Nomos of the Earth, C. Schmitt

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II

NUREMBERG 10 & HEROES OF THE FATHERLAND

Nuremberg as an objective concept was an effective means to aid post-war ‘reconstruction’ efforts11. Nonetheless, to achieve the objective goals it set out for itself, such a concept must be in its practicality objective. That is to say that the Tribunals ought to not have a particular side accused of certain crimes by another who has committed equally heinous if not worse crimes in similar contexts; yet by virtue of victory in military circumstances is entitled to the moral high ground and as such becomes an authority in this regard.

The Western Allies and the Soviet Union jointly partitioned Germany and judged its wartime leaders12. The institution of history’s first ever court for crimes committed during war and the first ever concrete network13 of international law. The plan for the two actions was drawn up well before the war14 was won and as such most if not all cases were a foregone conclusion with some notable exceptions15.

10 Nuremberg is used in a post-war context as a term to refer to the Nuremberg Military Tribunals as a whole that formed the basis of future international criminal tribunals based on actions [crimes] committed by military and paramilitary forces. 11 The Politics of Retribution in Europe: World War II and Its Aftermath edited by István Deák, Jan T. Gross, Tony Judt, [1ed 2000]12 Wettig, Gerhard (2008). Stalin and the Cold War in Europe. Rowman & Littlefield. pp. 96–100. London Charter of the International Military Tribunal13 Jean Baudrillard, The System of Objects, 1968 ,Verso :creates the idea of ‘network’: similar in common parlance meaning but extended and philosophized to included compartmentalization of human thoughts and interactions.14 British War Cabinet documents, released on 2 January 2006, showed that as early as December 1944, the Cabinet had discussed their policy for the punishment of the leading Nazis if captured.15 Under the London Charter, there was stated to be no defence to war crimes which the majority of Nazi officials were indicted under.

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The trial and conviction of some of Nazi Germany’s most high ranking officials ranging from Reichsmarschall Hermann Göring to the Minster for Production and Armaments and Architect of the Third Reich Albert Speer and Großadmiral Karl Dönitz- were as the chief planners and executors of the murderous Reich16. These men took the legal criminal responsibility for the destruction of Europe, North Africa and Asia as well as the Holocaust of some 15 million people. Although the extent of the Nazis crimes can and never will be justified in a liberal, democratic world they can be contextualized through the principles of legal objectivity. That is to say, yes they did terrible things but as a policy that was their own national strategy and tried according to fair principles. As quoted in the Bible, upon request for his patronage for the stoning of a prostitute, Jesus said let he who is free of sin throw the first rock17. In the exact same way was the Nazi question approached from a political and legal angle. Unfortunately there was no Jesus, but we do have a saving grace: Devil’s advocate, Verges.

Nuremberg was part of a storied present of Nazi Germany where the race and nation were glorified in awesome spectacle18. One of the most proud and glorious institutions of German [nee Prussian] nationalism is/was the Army. In Nazi Germany, Waffen-Schutzstaffel [Fighting-SS] divisions became (over a period of time of course) almost comparable in the way that were held in esteem by at least the (Gross)Deutscher Reich and those with National Socialist leanings. Indeed, even the Wehrmacht Heer (German Army) was forced, however begrudgingly, to accept their abilities as an elite front line force.

Thus, in equal measure were their legendary fighting abilities as well as ‘criminal’ indulgences. In particular the elite 2nd SS Panzer Division Das Reich was of great notoriety for their perpetration of the massacre of 642 16 About.com, 20th Century History:http://history1900s.about.com/library/holocaust/aa101899.htm [last visited 4/27/2012]17 Gospel of John, 7:53-8:11 [Pericope de Adultera]18 Leni Refenstahl, ‘Triumph of the Will’, 1934

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civilians at Oradour-Sur-Glane, France in 1945 as a part of reprisals against the Maquis19. Although carried out by fringe units of the division, the entire command staff was indicted and charged with having committed war crimes20. They have subsequently been condemned as ‘criminal organizations21’ along with many if not all organizations of the day – indeed every ‘indigenous’ German structure was dismantled in the first days of the Occupation. At the same time however, 2nd SS Panzer Division Das Reich was honoured with 69 Knight's Crosses, 151 German Crosses in Gold and 29 Honour Roll Clasp recipients. It also boasted three Swords and 10 Oak Leaves to the Knight's Cross holders. Cumulatively, more high award-winners served in its ranks than any other division in the Waffen-SS22.

Das Reich’s actions can be contrasted and compared with that of another elite formation, but swearing an American allegiance: the 101st Airborne [Air Assault] Division. Over the course of their service in Iraq through Operation Iraqi Freedom and Operation Enduring Freedom in Afghanistan, the highly decorated unit distinguished themselves by indulging in some of the more ‘Nazi pastimes’ that they battled against in WWII: war crimes. In a number of instances of rape, murder and humiliation soldiers of the

19 Oradour-sur-Glane 10th June 1944: http://www.oradour.info/ [last visited 4/27/2012]20 It is always interesting to note the sudden change in reasoning and belief of the powers that be with the sudden shift away from total domination in war using all means necessary to a humanitarian approach to warfare championed by the ever peaceful United States and Western Allies.21 Nizkor, The Accused Organisations:SS:http://www.nizkor.org/hweb/imt/tgmwc/judgment/j-accused-organisations-04-02.html [last visited 4/27/201222 2nd Panzer Division Das Reich History [See URL: http://www.axishistory.com/axis-nations/germany-a-austria/waffen-ss/119-germany-waffen-ss/germany-waffen-ss-divisions/1250-2-ss-panzer-division-das-reich]

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101st have participated in numerous war crimes23242526 yet no soldier as of yet is held accountable to an international court of equitable and justiciable standards2728. The soldiers have however received court-martials and discharges from the military. They are victorious troops, pushed to the limit on the battlefield and are therefore pardoned. At least that’s what the logic seems to be.

Iraq and Afghanistan have proved to be but yet another example of the attitudes of American armed forces in their treatment of civilian populations29. The apex of their crimes was reached in Viet Nam during the Viet Nam War. Special Forces units such as the infamous ‘Tiger Force30

´ a part of the 101st who were created to “out guerrilla the guerrillas”31 [and did succeed for a while but paid in blood for their victories]. To label this group of men murderous maniacs is to call Hannibal Lecter a mild head case. Tiger Force was accused and proved of massacring whole dozens of women, children as well as the old and infirm32. Women were raped, babies beheaded, bodies mutilated and body parts kept as symbols of victory [if not as an intimidation tactic]. Indeed the claim of race as a factor in dehumanization of the Enemy is as strong, authoritative and legitimate as with the liquidation of the so-called ‘untermensch’.

23 Jim Frederick, Black Hearts [Kindle]24 Nick Turse, The War Crimes in Vietnam You’ve Never Heard Of, [URL: http://hnn.us/articles/1802.html] [last visited 4/27/2012]25 BBC World News, ’U.S. ex-soldier found guilty for rape’ URL: http://news.bbc.co.uk/2/hi/americas/8039257.stm [last visited 4/27/2012]26 Raffi Khatchadourian, The Kill Company, URL: http://www.newyorker.com/reporting/2009/07/06/090706fa_fact_khatchadourian [last visited 4/27/2012]27 U.S. v. Steven D. Green, http://news.findlaw.com/cnn/docs/iraq/usgreen63006cmp5.html [last visited 4/27/2012]28 This of course would mean Iraqi and Afghani judges presiding and no American officials allowed to be present save in the defendant’s corner as war criminals.29 See URL: http://crooksandliars.com/susie-madrak/der-spiegel-publishes-photos-us-soldi30 Sallah and Weiss, Tiger Force, 22-23. [See URL: http://www.pulitzer.org/archives/6817]31 Sallah and Weiss, Tiger Force, 13-14, 23, 224.32 IBID

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These bastard sons of the SS roamed the earth as free men just as they do now; impunity a battlefield honour that bestowed upon them for fighting Evil.

The United States, especial in its place amongst nations is also special in its place as an oblivious superpower. Oblivious not only to the rest of the world and its situations, but also to the regimes that it helped create and provide legitimacy to. The various coups and assassinations that have been orchestrated by the Central Intelligence Agency (C.I.A) especially in South America (with far-right autocracies and banana republic’s the norm) stands testament to this.

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III

CONSCIENTOUS OBJECTORS

War is neither the aim nor the purpose nor even the very content of politics. But as an ever present possibility, it is the leading presupposition which determines in a characteristic way human action and thinking and

thereby creates a specifically political behaviour33.

Verges is not alone in his condemnation of the Western criminal prosecutions in international law as an imperial dogma. Carl Schmitt and Danilo Zolo too have provided their fair share of objection and flak [though not of the same level of public drama]. However, it is within this construction of Verges that Judith Shklar’s differentiation of ‘politics’ and ‘ideology’ can be understood clearly. After this, the nature and ends of international law become significantly clearly and better defined not as a random course of events, but as a deliberate and systemic march.

In Legalism: Law, Morals and Political Trials, Shklar defines politics and ideology as two similar but completely different ideas. They however are so confusingly used in modern language that one fails to grasp the reality of what it going on. Once the difference is understood, things become a 33 Carl Schmitt, Concept of the Political, pp. 33 [University of Chicago Press, 2007]

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lot clearer; not just in international law but in the way every day political interactions are gauged, understood and interpreted. It’s a vital definition.

The term ideology refers simply to political preferences however complex or direct they may be [or not]34. More often than not it is a requirement in creating a sense of direction. It is a preference arising out of social experiences that shapes the political reality of the ‘clan’. Therefore it is the ideological, the biased political inclination that spells the agenda for the community.

Carl Schmitt’s critique of humanitarianism is straightforward: either humanitarianism is toothless and apolitical, in which case ruthless political actors will destroy the humanitarians; or else humanitarianism is a fighting faith, in which case it has succumbed to the political but made matters worse, because wars on behalf of humanity are the most inhuman wars of all. Liberal humanitarianism is either too weak or too savage. Of course people will continue to invoke the ideals of “humanity.” But in Schmitt’s view, anyone who does so operates in bad faith. As he puts it in the most memorable line in this very memorable book, “whoever invokes humanity wants to cheat35.”

Not that there is anything wrong with cheating—that’s politics: That wars are waged in the name of humanity . . . has an especially intensive political meaning. When a state fights its political enemy in the name of humanity, it is not a war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its military opponent36.

Humanitarianism is, in Schmitt’s view, extraordinarily dangerous. Fighting on behalf of “humanity” makes your enemy “an outlaw of humanity” and allows you to do the most terrible things to him. A war to end all war—”the absolute last war of humanity”—is “necessarily unusually intense 34 Judith Shklar, Legalism: Law, Morals and Political Trials, pp. 4 [Harvard University Press, 1986]35 Carl Schmitt, Concept of the Political, pp. 54 [University of Chicago Press, 2007]36 Ibid

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and inhuman because . . . it simultaneously degrades the enemy into . . . a monster that must not only be defeated but also utterly destroyed37.” And the word “humanity” is not the only polemical, political term masquerading as a lofty moral concept. “There are always concrete human groupings which fight other concrete human groupings in the name of justice, humanity, order, or peace. When being reproached for immorality and cynicism, the spectator of political phenomena can always recognize in such reproaches a political weapon used in actual combat38.

However, Schmitt views politics as power; the specific and self-evident distinguishing characteristic of the realm of politics, analogous to the distinctions of friend/good and enemy/evil. All contexts are perfectly united in war. The friend and enemy combine to create struggle with power the libido dominandi39.

It is this dangerous and tricky-to-tread ‘humanitarian’ just-cause upon which most if not all of international criminal legislation has been based upon. A need for a coercive and normative element to aid and abet the implementation of a social theory of international states based on humanitarian principles. It is not only the end which here is quantifiable as questionable but the means as well.

It can be questioned, what are the relations governing all these interactions? The ideas of facts and norms, might and right are the eminent dispositions that seem to be controlling the psyche of the actors involved in these situations. It would seem that in a post-imperialist timeline, the Western powers are merely exacerbating the plight of their enemies as an extension of their colonial/imperialist designs from where the ‘three C’s’ of Western imperialism can be derived:

- Right of Conquest [1492 – 20th century]: this period was the era of exploration and getting the ‘foot in the door’. As with the 15th

37 Ibid, Pp. 3638 Ibid, Pp. 6739

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century ‘papal bulls40’ issued to Spain and Portugal, so too the rest of the Western world was blessed with a right to colonize and humanize the savages. This is the original crime of aggression.

- Standard of Civilization [mid-19th century]: this period refers to the ‘adolescence of imperialism’. The age when indigenous cultures were at a crossroads of bowing to the afflictions of the imperial masters and submitting themselves to their ideas of politics and life. This phase is used to assess different facts.

- Issues of Compliance [mid-20th century onwards]: This final phase [we are currently experiencing it] is the exposition of Western liberal political hegemony upon their ‘foes’; the proverbial victor’s justice. These issues of compliance are clearly demonstrated when Henry Kissinger in regard to Chile’s election of Allende said, “I don't see why we need to stand by and watch a country go communist due to the irresponsibility of its people. The issues are much too important for the Chilean voters to be left to decide for themselves.”41

Does any actor citing humanitarian responsibilities and duties as his calling, truly adhere to objectivity and selflessness in his pursuit of justice? The answer as will be readily provided by realist theory of international relations- no; as there can and will be no actor who is ready to put the needs of others before himself in an arena where there is no superior being, no greater sovereign than themselves42. It is then, in this abyss of judicial objectivity and leadership that a moral crisis must be made the forefront as a Crusade against an enemy who is neither moral

40 The ‘inter caetera’ bull of May 4th, 1493 by Pope Alexander VI that divided the New World between Spain and Portugal. It called for Indigenous Peoples to be subjugated so the Christian Empire and its doctrines would be propagated. http://www.nativevillage.org/Editorials/Columbus%20Day%20European%20Invasion.Papal%20Bull.htm [last visited 4/27/2012]41 Chile: The Other September 11th by Ariel Dorfman, Salvador Allende et al.

Edited by Pilar Aguilera and Ricardo Fredes, Ocean Press42 Stanford Encyclopaedia of Philisophy, Political Realism, http://plato.stanford.edu/entries/realism-intl-relations/ [last visited 4/27/2012]

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nor has any vestige of justice within him [both as a personal characteristic and objective polarisation of subjective perception].

Martii Koskenniemi alludes to this concept of the victor’s foregone conclusions as to the aspersions of moral fortitude and justiciability of their foes’ ways in The Gentle Civilizer of Nations43. He gives a clear picture of the narrative of the drawing up of these international laws though from the perspective of a single actor, Hersch Lauterpacht: a British lawyer who exemplified the liberal notion of international justice as being in line with certain theological ideas as well as Western (Victorian really) morality.

Lauterpacht harkened to the mid-nineteenth century, hoping to resuscitate its liberal rationalism and its ideal rule of law, its certainty about the sense and direction of history, Proust’s bon ange de la certitude.

Law is how it is interpreted, Lauterpacht’s modernity lies in his constant stress on the primacy of interpretation over substance, process over rules, in a way that leads him into an institutional pragmatism that is ours too. The question then raised is that of power; who is vested with the authority of interpretation? Thus the problem of self-judging obligations arises.44

Zolo further pursues ideas similar to the above in his assessment of a post-NATO45 [North Atlantic Treaty Organisation] -Yugoslavia and the impact of the ICTY46 upon the vast and varied polity and ethnic make-up of

43 M. Koskenniemi ,The Gentle Civilizer of Nations: The Rise and Fall of International Law, Pp. 388-89, Cambridge University Press44 http://ejil.org/pdfs/8/2/1428.pdf45 Danilo Zolo, Invoking Humanity: war, law and global order, pp. 150-54, Continuum International Publishing46 He however refers more to the acts of war as in the immediate sphere of influence and the events following after, almost appearing in a peripheral narrative. To many on the outside, myself included this is how it comes across: a very delayed and separate process from the conflict and its origins that have not been understood or attempted to be explained, rationalized or contextualized save in that capacity that incriminates and subordinates

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this troubled region. Giving a desolate account of how economics and finance within the storm of LPG47 have played more of a role than morality in the NATO invasion. As a primary source of inspiration, commerce has become more than ever a concealed dagger, sheathed in this cloak of the moral humane and in the judgment of those accused brings new light into the real nature of humanitarianism and what is really means to be a part of international criminal law.48

At the heart of Zolo's analysis lies the tension between the sovereignty of nations and the universality of human rights. He argues that the USA-led NATO alliance used the camouflage of the latter to ride roughshod over the former. The USA uses NATO for its own hegemonic purposes. Its allies do little to restrain it when they do not actively support it. The UN strikes a largely supine pose. Respected thinkers such as Jurgen Habermas provide intellectual comfort. The Hague Tribunal is a puppet of NATO. The UC,K (Kosovan Liberation Army) is little better than a bunch of brigands.

 The NATO “cure” for these Balkan problems is shown to be of dubious benefit to those on whom it was imposed. Thousands of refugees have been created, ethnic cleansing has not stopped (although roles have been reversed), the militants have gained the upper hand in Kosovan politics, and new regional instabilities have been created. Worst of all, perhaps, many of those whose rights were meant to be defended by the war were instead killed by it. Zolo pointedly contrasts NATO's relative indifference to the deaths of the innocent (virtually guaranteed by fighting the war from the air) with its concern to accord due process of law to those it regarded as guilty. However, even the justice meted out by the Hague Tribunal is compromised by its undue closeness to the USA and granting of virtual immunity to NATO: impartial it isn't.49

47 Liberalization, Privatization and Globalization 48 D. Zolo, Invoking Humanity, Continuum International Publishing49 ibid

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Justice Pal of the Tokyo Trials was probably the most outspoken critic of the post-war tribunals. After declaring all the Japanese indicted to be innocent he set about reducing the credibility of the trials to victor’s justice and decrying the entire operation as one of propaganda and an extension of physical war50. Pal believed that the Tokyo Trial was incapable of passing a just sentence. He considered the trial to be unjust and unreasonable trial, contributing nothing to lasting peace. According to his view, the trial was the judgment of the vanquished by the victors; such proceedings, even if clothed in the garb of law, resulted in nothing but the satisfaction of the desire for vengeance. In his lone dissent, he refers to the trial as a "sham employment of legal process for the satisfaction of a thirst for revenge." 51

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IV

HEGEMONY

The final outcome of the above political manoeuvrings is hegemony. What is hegemony? What is the end game of this venture?

Hegemony is an indirect form of imperial dominance in which the hegemon (leader state) rules sub-ordinate states by the implied means of power rather than direct military force52. Although it may not be necessarily be a ‘State’ [weighed with the consequent baggage of such definition as cultural whole], the hegemon as it appears throughout history is a typified and typical imperial power with the strength, determination and Will of an Übermensch53 in its respective field that

50 Onishi, Norimitsu, "Decades After War Trials, Japan Still Honours a Dissenting Judge":http://www.nytimes.com/2007/08/31/world/asia/31memo.html [last visited 4/27/2012]51 Full texts of Dissentient judgment of Justice Pal International Military Tribunal for the Far East, http://www.sdh-fact.com/CL02_1/65_S4.pdf [last visited 4/27/2012]52 Ross Hassig, Mexico and the Spanish Conquest, pp. 23-24, [1994]53 Frederich Nietzsche, Thus Spoke Zarathustra, 1883

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makes it a force to be reckoned with and indeed feared as an adversary and in the traditional authoritarian stereotype.

In 19th century historical, political and social philosophes, the depiction of hegemony extended to describe the predominance of one nation’s sovereign will over others54. By an extension thereof hegemonism came to denote the ‘Great Power politik55’ for the establishment of Hegemony, that then leads to a more direct and insidious concept: Imperialism. The difference between the two stages of external coercion of sovereign will is that former is indirect and serves as a veil of power. The latter is the direct imposition of the sovereign will of the Oppressor, now completely [in days of greater clarity] unmasked.

In the early days of 20th century political science, Antonio Gramsci developed the theory of cultural domination56 using an analysis of economic class structure to include social class. Hence the theoretical idea of cultural hegemony critiqued the social normative factors the establish structures with which the ruling class establishes and exerts cultural dominance to impose their values and beliefs. Thereby the status quo [in all manners- social, political and economic] is justified as natural, inevitable and objectively fair. This position lies diametrically opposite to the system being an artificial construct that caters to only the ruling class.

Taking this principle to its logical extension, one can similarly observe a similar if not identical framework of subversion of sovereign will in international relations. Projected upon a State and not within it, the tangible interests of foreign powers become the subverted reality that is constantly and consistently reinforced. This is the telescopic effect of 54 Alan Bullock and Stephen Trombley, eds., The New Fontana Dictionary of Modern Thought, pp. 387–388 ,[Third Edition (1999] 55 One can understand this period to be circa the late 19th to early 20th centuries. Although not a generally defined or commonly used historical term in parlance it nevertheless alludes to the rise in nationalism and imperialism that lead increased stakes the fratricidal nature of European theatres of war and realpolitik.56 Marxists: Antonio Gramsci, [See URL: http://www.marxists.org/archive/gramsci/index.htm [last visited 4/27/2012]

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hegemony, a twofold integrated process that shapes domestic issues which translates to international matters.

However, the flow of thought envisaged in this paper, it would be conceptually more convenient and compatible to switch the cause and effect roles. That is to say international politics affects and causes certain reactionary changes to domestic structure57.

Who is the hegemon? As mentioned in the introduction the call signs of this power is ‘freedom and democracy’. Using modern abilities of communication one can almost be convinced that these ideas are alive unto themselves; sentient. However, that is not so and it is man who proposes and propagates political principles. The United States of America, the Western Allies, the Global North is as a conglomeration of collective interests seemingly intertwined since the launch of the century of American cultural, economic and political domination, generally held the ‘good guy’ of the Cold War and general post-Second World War global politiksphere.

The transmission of culture is vital to the hegemonic interests of the power. For example, with West Germany allied to the West and East Germany to the Soviets, a psychological war was inevitable. One that the West was able to convincingly win through the consistent image of a prosperous and contented people contrasted starkly with the gray discontent of the East.

Culture and the interpretations thereof is the most important phenomenon in international politics. The most striking change as prophesised by Schmitt is the fact that war has been replaced with ‘neutral’ trade and commerce as the dominant ‘urge’. Is this the case however? It can be argued that it is not. The culture of war has changed drastically. The most 57 The International is also very much affected by the Municipal and therefore one cannot always generalize to say that a particular hegemonic pattern is formed. For example, in Yugoslavia internal events lead to international reactions that led to further internal reactions. Beginning with a single ‘revolutionary’ action and culminating in a series of reactions that at some point settles to allow the process to resume once more.

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obvious change can be seen through the evolution of combat strategies and the role of militaries.

We can identify some key phases in the transition of war [and the destiny of international politics and therefore law]:

Phase I: Retaining the ‘big battlefield’ aesthetics of mass infantry waves of the 19th century Napoleonic Wars, up till the Great War [1914-1918], war was won or lost by the hardy rifleman. Territorial aggrandizement was the ultimate goal and mechanization was in its infancy.

Phase II: The Inter-War years [1919-1938] saw new battle technology developments including the all-metal body aircraft and the advancement of the formidable tank58. New strategies developed that retained the old aesthetics of large formations of infantry coupled with the new mechanizations59. War was still conceptualized in the same way as during the Great War, albeit with some refinements.

Phase III: The Second World War [1939-1945] was a shot in the arm for warfare as the Nazi war machine blitzkrieg-ed its way to Festung Europa60. Thus, the stage was set for a monolithic and titanic struggle for survival between the great powers of the world. This would however be the last such titanic war fought on such a scale.

Total war61 had come, peaked as an ideology [whole nations committed to nothing but final victory] and dissipated within a relatively short period of time. This was the bloodiest and most brutal type of warfare ever.

58 Coox, p. 579, 590, 66359 An Experimental Mechanised Force For the 21st Century? Boyd, S.F. 1999 British Army Review, 121. 1999(Apr), pp17-22 / Guderian, Heinz ]. Panzer Leader(2001) [1952 (Da Capo Press Reissue edition ed)] 60 Used more as a propaganda term to signify the Atlantik Wall as well as the imperious control over mainland Europe by the Reich.61  Edward Gunn. "The Moral Dilemma of Atomic Warfare", Aegis: The Otterbein College Humanities Journal, Spring 2006,  p. 67

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Phase IV: The Cold War [1945- 1991] saw the creation of the ‘disequilibrium’ wars where disproportionally matched foes did battle. The Viet Nam War is one such example. This continued into the twenty first century but finding itself located within the urban setting. War had now entered an entirely new era; one where precision and intelligence took precedence over numbers and brute force; gorilla became guerrilla warfare [pardon the pun]. War was no longer viable as a galvanizing force for nations. No, the People were sick and tired of the politicians sacrificing their sons for the sake of petty political disputes. The value of an individual’s life became more precious. War was not something to be indulged in as a past time, but something to be undertaken as a solemn duty. Thus keeping war legal and justified within the international legal framework. The victories are two-fold:

1. The moral high ground is still occupied.2. Aggressive expansion can still be undertaken. Now, without

suspicion.

What is a more honourable and solemn cause than that of humanity, égalité, rule of law, freedom and democracy?

The United States with the precision of a serial killer has identified and stalked its targets through the immense cultural heavy weight status it enjoys. It is an undeniable fact of everyday life. The deep and pervasive control of the hypnotic bright lights of American democracy and demagogy over the masses of consuming populaces is but evident. In this manner, similar to military reconnaissance missions, initial gauges can be made as to the action to be taken in the form of concerted political action to further the ends of imperialism. This is nothing new, save for flag and language: the basic formula for expansion and empire-building has remained intact since the early days of man. It is apparent enough from a reading of history to note that though man-kind has inhabited the Earth for thousands of years, it has not yet evolved so as to find new ways to coerce and rule without adhering to some basic principles of empire building.

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One must always soften the Enemy with overtures. To enter into Enemy territory one must first attempt to be-friend them. For example: through trade and good will, or as Hitler did; the Molotov-Ribbentrop Pact of 1940.

One must always find a commonality with the Enemy. Keeping with Nazi Germany; they used the common enemy of the West to establish a base of rapport with the Soviet Union.

One must ideally find a compatible and believable connivance with which to affect your Will upon the other and to therefore enter into a position of political manoeuvring that can effecting out-flank the Enemy and put them in a position of weakness.

In order to remain ‘legitimate’ and politically correct especially in the modern era of multilateralism where acts of conquest cannot be used with purely military force such as Operation Barbarossa but with a strategic innovation of a convenient excuse such as the famous threat to world peace as wrought by Saddam Hussein as an excuse to invade and launch Operation Iraqi Freedom by the United States62. This has become the pre-eminent form of justification for waging wars of aggression and/or territorial aggrandizement. Mere fluff however it remains in truth. The hegemon expands its Empire.

From this position of power, one can strike with means so desired as to bring about the existential capitulation of the Enemy and to then subjugate them as pleased.

Upon the removal of the undesirable Enemy [opposing sovereign] it is but a choice selection before the Great Power to do as it sees fit in regard to the governance and development of hegemonic designs. Examples are, when the U.S. led Coalition defeated Saddam Hussein, they established an official occupation with complete legitimate ‘re-building government’ replete with Iraqi sovereigns63. This amounts to nothing more than Vichy

62 Center for American Progress :"In Their Own Words: Iraq's 'Imminent' Threat" ,americanprogress.org [last visited 4/27/2012]

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France from 1940-44 under the Nazis; a mere puppet state64. On the other hand, as in the case of India, there can be no illusion of freedom: the oppressor, the hegemon is sovereign. This is of course the difference between the definitions of imperialism and colonialism. The British in India established their Empire in India through colonial establishments. They then constructed a new paradigm of political consciousness and reality of which they were the masters and commanders. This construction is still place with some structural assessments coming and going but nothing so radical as to alter the socio-political consciousness to a new and profound existentialism.

To contextualize these actions within a moral framework would be to discount any objective considerations, which is why so often Nietzsche’s concepts are turned to. Ideas such as the Will to Power [Wille zur Macht65] constitute a definite element of realpolitik that in itself gives justification to he who so driven by his self-belief in ultimate conquest of his enemies [tangible and ethereal, philosophical] that he finds a justification unto himself and beyond the realms of any moral conceptualization. That being said, it is of no consequence what philosophical considerations one may have when the practice of war is waged with intent to govern and bleed from its sovereign combatants all that can be drawn to better serve the hegemon.

A.C. Grayling in his book, The Mystery of Things66, refers to Brueghel whose “genius” lies in the contextualizing of great epoch making 63  Citing United Nations Security Council Resolution 1546 and United Nations Security Council Resolution 1483 (2003), and the laws of war, the CPA vested itself with executive, legislative, and judicial authority over the Iraqi government from the period of the CPA's inception on April 21, 2003, until its dissolution on June 28, 2004. This occupation government then gave way to a transitional national governing body that was replaced with a permanent government established through elections.64 "The Vichy Regime (July 1940 – August 1944)". The American-Israeli Cooperative Enterprise. 65 Frederich Nietzche, Thus Spoke Zarathustra, part 1, "1001 Goals" (1883); part 2, “Self-Overcoming” (1883)66 A.C. Grayling, The Mystery of Things, 20-21 [1ed 2004]

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moments amidst the great flood of everyday life67. How the realization in the minds of ordinary citizens is missed. History is very easy to write therefore. And it is in the realization that that is what international criminal law rests on: a founding myth. Every great civilization needs one; it is what binds a nation together and gives impetus for nationalist and [evidently] imperialist desires. It gives us meaning to life.

As Napoleon and Hitler have proven, the basis of international political relations and indeed legal relations is a historical manipulation. The victors of each violent outburst are by moral calculations the dictators of future conduct and interactions. In winning the War Against Fascism, the Allies won their way to sculpting a polity drenched in democratic glory finding a guiding light in the United Nations. This of course completely absolved those powers operating the everyday political controls of any possible wrong-doing. ‘Legitimate’ nuclear arsenals and development, veto powers, etc. etc. all reveal the true nature of this structure.

There are many ways to express this one bare reality; the current structure fails at realizing maximum human potential and possibility. It is limiting and inhibiting us from achieving a greater level of sophisticated interaction and ‘free-empire’ building if you will.

War has never ceased to be the ultimate tool of coercion and normative imposition of Will. In a very simple and brilliant way, it has been historically almost sterilized to make it as non-violent and brutal to the public when the idea is thrown to them to mull over and bitch about. That is to say of course that ‘they’ would want people to be as frenzied for war as in 1914 in London, Paris, Berlin or Vienna; yet, reminded that war is no longer a political game. No, instead war has become a method of saving the world and doing good deeds to/for others, less fortunate than you through invasions and imposition of what ‘we’ think they should do upon ‘them’.

67 ibid

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The drama of war has lessened considerably. It’s far less glorious. The ends of war have changed little though.

V

In conclusion, it can be drawn to see that the framing and drafting of international criminal legislation is the moral basis from which Western powers draw legitimacy as moral keepers of the peace in the world. From the ashes of the Second World War where it was drawn, the basic rights of the Western power to be in absolute control of the values and standards of international criminal law to the basic right of man as located within a conflict zone68. The Second World War gave the Western Allied a much 68 For example: Universal Declaration of Human Rights [http://www.un.org/en/documents/udhr/]

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needed moral imperative to champion causes that can be manipulated to their advantage and make a situation as complicit as it can with their methods of hegemony and imperialism. Natural law is assumed as the basis of the legal and cultural domination of the European trans-world. There is an inherent presumption of general agreement in this direction. The initial, formative stages of a social contract in international politics; international law is already in place as the Empire of European Morality.

As has been laid out above, the tenets of the jurisdiction of international law serve no purpose other than contextualizing the actions of war within a moral framework that which is applied in a single direction upon the vanquished of conflicts [Germans, Serbs, etc.] but cannot travel upstream to judge those who judge. This is of course a natural and inevitable outcome, as one side will be victorious, subjecting the other to its will.

It is an extension, a living breathing example of Carl Schmitt’s idea that only through a ritualistic dehumanization of the enemy and consequent baying for his destruction do the ‘friend’ and its allies unite and triumph against the ‘enemy69’. Nuremberg and Saddam Hussein’s trial were both hyper-real manifestations of the ideology that sustained the respective wars. They were not created to manifest justice. They were created to cater to certain ideological principles that make the trial but a theatrical ritualization of justice70.

Where and when shall it be written, the rights of the vanquished foe- for it is in victory that justice is created and justice is served.

La Fin

69 Carl Schmitt, Concept of the Political, University of Chicago Press [2007]70 Danilo Zolo, Victor’s Justice , pp 166 Verso [2009]

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