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Comment by soldthat | Hacker News Reader

There’s a fundamental flaw in the concept of “international justice”.

On a nation level the power of a court to prosecute individuals is supported by a policing force that is capable of resorting to violence on a local level that is acceptable for the greater peace.

On an international level, enforcing justice would ultimately require going to war, with mass casualties and likely numerous incidents of potential breaches of the law itself.

In the example of Israel vs Hamas, the ICC warrant included the leaders of Hamas - but the ICC had zero chance of actually arresting them, they were killed by Israel though. So half of the defendants carried out the justice sought by the ICC on the other half.

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There's no such flaw in most cases brought to the ICC

The ICC is an international court but it administers trials (mostly) local to the members' jurisdiction so this point is moot. A warrant from the ICC doesn't ask the member states to go to war and hunt the target, it asks them to arrest them if the target is within their jurisdiction

The fact that the ICC warrant was unlikely to lead to Hamas' leaders arrest in the short term is not particularly meaningful

The "mostly" qualifier is because IIRC there are some provisions for truly extraterritorial prosecutions in the Rome treaty but I don't know that they've ever been actually used

“Justice” without enforcement is meaningless.

They have a warrant out for Putin, has that made any impact on the war in Ukraine?

> has that made any impact on the war in Ukraine

The objective of the ICC is not to stop wars

The objective of the ICC is to provide a framework to enable prosecuting and punishing the people ordering particularly egregious acts in a way that is more consistent with liberal rule of law principles than post-hoc tribunals like after WW2 and that is more accessible to fragile / new countries due to having the legal infrastructure set up and at least partially legitimized by it being an international body

The fact that Putin (for example) might at some point get extradited / captured, prosecuted and jailed for whatever crimes he gets found guilty of is a moral good in and of itself

If this being done at the ICC rather than in an Ukrainian or Russian (in an hypothetical regime after Putin's) helps others accept the verdict as more based on fact than politics then that's why the ICC exists as an entity

If this makes someone down the line think twice about ordering war crimes then that's an added benefit but it's not the point

Putin & the Israeli warrants are a bit for show since it is very unlikely to result in an arrest (although it does serve to isolate both, which i suppose is a punishment)

However don't let that take away from the other work the ICC has done. They have thrown people in jail.

They are actually an attempt at weaponizing the court, conveniently only to one side in these conflicts.

For the palestine situation, hamas leadership has generally fared poorly (no tears from me, they started this war after all). However you can't issue a warrant for a dead person.

There aren't two sides in genocide.

It should be noted that the ICC has not as of yet alleged that anyone has comitted genocide in palestine. All the (public) accusations thus far have been for lesser crimes. There is a big difference between what randos on social media are alleging and what the ICC prosecutor is alleging.

Furthermore, everyone has the right to be pressumed innocent until proven guilty. That includes people accused of heinous international crimes like genocide or crimes against humanity.

(To date, the only person the ICC has ever accused of genocide is Omar al-Bashir from Sudan)

The severity of an accusation does not imply accuracy.

There are two sides in this conflict. Israel denies these allegations.

Some on the other side are openly calling for the genocide of Israel - while claiming that Israel is doing it.

If for example Putin was overthrown and had to flee Russia, and happens to fly over an ICC signatory, he could rightfully be arrested and brought to justice. What is the alternative? CIA assassinations and kangaroo courts?

He could be arrested and brought to justice regardless, the ICC provides literally zero value-add here. Sovereign countries will do what they want regardless of the ICC's rambling, and they never needed the ICC to justify their actions to begin with.

The national policing forces don't report to the courts. Instead, there are promises between the two. The argument that international courts cannot work because they don't have their own enforcement is weak. But you are right it would be equivalent to war, or "special military operations" such as Bin Ladin, if a ruling party is convicted.

This only applies if the individuals are a) protected by their country of residence and b) never leave it.

Neither of those are certain and even for people that a) applies to, b) can be a big hassle.

Just ask Netanyahu.

If the country itself has a justice system that can prosecute the individual, the ICC has no jurisdiction.

In the case of Israel the ICC used a loophole to work around this, since the Israeli courts are actually able to prosecute Netanyahu (and are currently doing so on other matters).

Whether Israeli courts are able and willing to prosecute Israeli war crimes is... up for debate.

Regardless, the international law is that they are supposed to be given a chance to do so, which they weren’t.

Israel was given notice of an investigation being opened as was required when the investigation was first opened many years ago.

So far, Israel has not provided any sort of proof that they have initiated a serious independent criminal investigation into the alleged misconduct. If they did, i suspect the warrant would go away.

Find me another case of “justice” where the prosecution started before the crimes being prosecuted were allegedly committed.

The prosecution hasn't even started yet. The prosecution doesn't start until the alleged perpretators are either captured or turn themselves in (neither of which is likely to happen). Neither an investigation nor a warrant is the same thing as a trial. No evidence has been publicly presented yet, nobody has been found guilty.

Almost no other justice systems require notice that a mere investigation has been opened. So to answer your question, basically all of them.

All investigations start before the crimes they will eventually find are committed?

I would say notifications of investigations are almost never given after the crime is committed, is vaccously true because literally nobody other than the ICC does the notice thing.

In almost every other system, investigations are kept secret. The complementary thing is pretty exclusive to the ICC.

I would also say that this is a matter of politics not justice, since such investigation notices are not addressed to the accused and in general it is expected that the accused is not told that they are the subject of an investigation. As such even if the notice was handled incorrectly, it wouldn't impinge on any of the accused rights and hence not be an issue of "justice"

You expect the Israeli courts to have started an investigation on crimes that had not yet been committed.

No, but at this point the alleged crimes were allegedly comitted (or started to be comitted. The ICC prosecutor would presumably argue that some of the alleged crimes are ongoing or at least were up until the ceasefire) years ago. At best, that argument might have worked when the warrants were first announced, but its been years now. There has been more then enough time to start an investigation. If they were serious about it, they can still start one tomorrow.

The charges made are for crimes allegedly committed after the “investigation” was started.

This indicates that the prosecutor was on a witch-hunt.

Perhaps the Israeli courts, who are independent of the Netanyahu government, have not initiated proceedings because they don’t believe there’s a valid case to be made.

It's been over a year now, with no prosecution having started on the Isreali side.

Don't you think that counts as a chance that wasn't taken?

How long should they wait, do you think, so that they are given a fair chance?

Israel did not and doesn't appear to be planning to prosecute Netanyahu for crimes against humanity, just for corruption.

> So half of the defendants carried out the justice sought by the ICC on the other half.

...without trial. And assuming guilty and sentenced to death.

I think this comment shows how far removed is the modern person living in a sheltered, matcha-sipping western environment from actual human historical reality. Do you seriously suggest that during an active war one side would bring the other to trial rather than just destroy them?

Have you heard about Nuremberg trials?

Those were after Germany's defeat, and those put on trial were no longer active combatants.

I'm pretty sure no military in history has ever delayed taking out an active threat in order to conduct legal proceedings. They don't need to, because enemy combatants don't have to be guilty of any crimes to be valid targets under IHL.

I am saying that "half of the defendants" DID NOT carry out the justice sought by the ICC on the other half.

They did something else (an act of war) that should not be conflated with justice.

I agree. Having lived with a civil war and with non-western roots I find the Western attitude to things like this to be hopelessly naive. It is the product of a golden age following the collapse of communism and the subsequent unrealistic "end of history" optimism.

So in the case of Sri Lanka, was the LLRC set up and subsequently criticised as a mechanism to lend legitimacy to the way in which government forces conducted operations against LTTE? If so, would its mere existence not indicate some level of societal buy-in to the idea that actions should take part according to some judicial form of 'justice'?

The idea to enquire into whether actions were justified in the context of war. Very different from a criminal trial before actions are taken.

You're missing the point, "justice sought by the ICC" implies that the ICC just wanted to execute them, which is obviously not true.

The winning side destroying the losing has historically been the exception, not the rule. So why not?

Huh? You have that backwards. Since the dawn of human civilization, when two societies went to war the winner usually annihilated the loser: steal anything of value, smash the artifacts, execute the men, and take the women and children as slaves. Thousands of cultures were utterly erased this way. It's only recently that warfare has become a bit more "civilized".

Indeed, conflating execution without trial with ‘justice’ is utterly bizarre.

There are no trials in combat.

I was quite clearly responding to the GP’s assertion that some sort of ‘justice’ was carried out by one party on the other, which obviously isn’t remotely the case. You can save your cliched one liners.

Is there justice in war?

These answers are assuming that the individuals killed were also those responsible. With Israel's stranglehold on media access to Gaza (perhaps better: open hostility), we will likely never know who was killed and what were the charges against them.

Responsible for what? In war, enemies combatants aren't slain as punishment for crimes, but simply because they're enemy combatants. Likewise prisoners of war aren't (typically) detained on suspicion of crimes, they're detained simply for being enemy combatants.

Trial by which court?

This is standard rules of war. Soldiers don’t have to convene a court before shooting at enemy combatants.

> Trial by which court?

Well, the ICC ?

OP states that "one the defendants carried out the justice sought by the ICC". That's incorrect. One of the defendants went farther than any sentence the ICC would have decided.

As you say, this is an act of war (killing ennemies), not an act of justice (trial and prosecution) .

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