On the Competition for Recognition Part VIII International Law and the American Liberal Left  

Like every week lately, this is a momentous one. The coffin of George Herbert Walker Bush, the 41st president of the U.S., lies in state in the Capitol Rotunda. Bush symbolized a time when the Republican Party presumably was a stand in for virtue in politics over and above interests. Leadership was defined in terms of duty, honour and service to one’s country to enhance decency, prudence, moderation and pragmatism.

At the same time, special counsel, Robert S. Mueller III, offered a sentencing recommended on Donald Trump’s former advisor on foreign policy during his campaign and his first national security adviser for only 24 days, Michael Flynn. Mueller, though Flynn admitted his guilt in lying to the FBI, recommended that he not receive any prison time in return for his enormous cooperation with the Russia probe. According to the sentencing memo, Flynn had provided substantial assistance in his 19 interviews and offered firsthand information about the context and content of the interactions between Trump’s transition team and Russian government officials. Though heavily redacted, the court document more clearly than anything heretofore pointed to the very likely collusion between the Trump campaign and the Russians. We await the adumbrated next two shoes to be clarified and drop.

Flynn’s long military and public service record was both lauded as distinct among those charged as well as exemplary, at the same time as it was held up as a set of values Flynn had betrayed when he provided false information to government officials about his interchanges with Russian Ambassador Sergey Kislyak. Flynn’s record “should have made him particularly aware of the harm caused by providing false information to the government.”

Hopefully, this was another nail in the coffin of personal interests displacing the rule of law at the highest level of government.

As another piece of important news this week with respect to the first of the three positions mentioned above, international political negotiations, Donald Trump no sooner praised the exceptional results of his meeting with Chinese leader Xi Jinping in Buenos Aires to provide a 90-day breathing period and pause in raising tariffs on Chinese goods to allow the U.S, and China to renegotiate their trade relations, than he arrived back in Washington to tweet that he was Mr. Tariff Man, insisting that countries pay for the privilege of raiding America’s wealth. One day he celebrated his own negotiations. Two days later, he dissed those same discussions. The stock market, that had leaped ahead following the ostensible agreement in Argentina, just as rapidly and steeply plunged after Trump’s fickle behaviour and the contradictory readings of the Chinese (polite generalities) versus the American official press release (ostensibly specific reductions in Chinese tariffs, particularly on the import of automobiles). The four c’s of international political negotiations – compromise, consistency, coherence and correspondence with reality – all had been shredded and trashed immediately after victory had been announced.

In addition to virtue, the rule of law, politics in its highest form, there is only one other source to combat the assaults on decency and respect for your fellow humans by self-interested behaviour in accordance with presupposed law of the jungle, survival of the most self-interested and wily who will rob, steal, cheat and even murder to survive rather than sacrifice in the name of virtue, in the name of the rule of law or the governing order of prudence and political compromise that is the essence of politics. This immorality is the theme of a wonderful series we have been watching on Netflix, called Ozark, though the main protagonist, Marty Byrde played by James Bateman, a financial advisor, who seems at first just to be a nebbish and victim of his wife’s infidelities and his partner’s criminal activities, turns out to be a survivor in a world governed by immorality and lawlessness while he, surprisingly, retains a shred of decency and morality like the black stripe down the back of a skunk.

The fourth source of opposition is faith which thus far has been only introduced tangentially in the first year of the Ozark series. These competing forces for “good” – the importance of virtue, the rule of law, the necessity of political prudential compromise and perhaps faith – are all at work against the background of the U.N. conference on climate change that began in Poland this week. For accompanying the virtually unanimous reports of climate scientists of the dire future that awaits future generations on this earth and the failures of governments generally to meet even minimum targets they set for themselves let alone the much higher goals required to avoid an apocalypse, is the tale of the ignoramuses and so-called sceptics who pooh-pooh the idea of man-made destruction of their own planet. Against this background of hopelessness and helplessness, against the background of exhibitions of seeming long-lost virtues, against a background of weak persistence of determination, discipline, dedication and devotion to follow the rule of law domestically let alone internationally, we are reminded of a fourth source of strength in the battle against the forces of destruction and distraction currently sitting in our backdrop. It is the miracle of hope.

I was reminded of that when I watched a very short video of one of my younger sons yesterday helping his three-year old to light a candle for the Chanukah menorah. I do not know what moved me more to tears: my grandson exclaiming, “Now can I light the candle all by myself?” or my own supposedly no-longer religious son reciting the blessing in perfect Hebrew for lighting the candle; or, third, the sound of my wife with her beautiful voice singing, “Burn little candle, burn, burn, burn,” to my grandson. All are signs, even when unacknowledged, of a very different source of opposition to selfishness, lawlessness and ruthlessness – namely hope and a trust in miracles delivered from above which is purportedly the essence of Hanukkah.

The current bulletin of Chabad relays a story written by Simcha Bunim Unsdorfer called “Chanukah 1944 in Buchenwald,” excerpted from his volume, The Yellow Star. It is a tale of a small but brave group of Jews in the Nazi murder slave labour sub-camp of Niederorschel who connived to smuggle oil into their bunkhouse, obtain a match and create a wick to light the first candle of Hanukkah and even escape a Nazi guard and his vicious dog entering the bunkhouse as they were lighting the candle. Literally, a miracle from heaven saved them.

In this case, what matters is not whether the story actually happened, for various versions pop up in other settings, such as from prisoners of conscience camps in Siberia. As recorded by Asharon Baltazar, read, for example, the story of how a man of faith, Reb Mordechai Chanzin, a dissident who spent 21 years in gulag prisons for his “counter-revolutionary” activities to preserve the flickering flame of Judaism in the Soviet Union. He also evidently lit a menorah in the gulag with purloined oil, margarine in his case. What counts is the message that even in the most vile of situations, humans can be found who are willing to sacrifice their lives for the virtues of decency, respect and trust in one’s fellow human beings, and, in the end, hope for divine intervention in a world where everything seems stacked against the odds of human decency surviving.

Unsdorfer in his tale set in Buchenwald describes how the inmates in that bunkhouse had divided into various sub-groups. There were those who belonged to no group yet were consigned to the class of men who fought recklessly and ruthlessly to save their own skins, robbing, stealing and betraying in order to obtain extra food and better working conditions. Their actions were governed by the Darwinian natural law of survival of the fittest – that is, of the most unscrupulous and self-serving – in a context of omniscient terror.

Standing in opposition to these evil men were three tables or groups of men who shared three different approaches to life. There was the table of so-called intellectuals, really a group of professionals – doctors, lawyers, dentists, architects, and businessmen – who ate together and conducted themselves in accordance with rules and norms of fairness, who measured out the portions of food to ensure equality of benefits among them all. There was a group of “scientists” or sceptics, usually communists, at the “free table” where the non-believers sat who believed that both the intellectuals and the men of faith were naïve and that only by assigning power to an advanced guard dedicated to serving all could humans be saved from the strife and horror resulting from self-interest.

The table of faith and hope, at which Unsdorfer himself ate, was made up of Jews who managed, in spite of prohibitions, to pray to their God above. It is they who conspired to “cheat” and collect the oil “illegally” in contradiction to the rules and light the first candle for Hanukkah. It was they who found hope and strength in God and prayer to Him and not in man-made rules and laws and principles of egalitarian justice, nor in the forces of world history and certainly not in rapacious self-interest. They saw themselves as suffering for the sake of God who listened to their pleas.

They had their own authoritative leader, Benzi, who tolerated no arguments at his table and distributed the rations according to no known principles except that if anyone complained, they received the smallest proportion. Their risk and sense of self-sacrifice to attempt to light a Hanukkah candle was a homage paid to the past, to their ancestors throughout the ages who had kept their faith alive and continued to inspire them with hope, faith, and courage to survive the grimmest of circumstances.

All of this is but a prolegomena to writing a few words about a documentary we saw last evening at the Hot Docs cinema on Bloor St., called Prosecuting Evil: The Extraordinary World of Ben Firencz. Firencz was one of a number of exceptional individuals who grew up in the Great Depression and was the youngest prosecuting attorney at 27 years old who conducted the largest war crimes prosecution in history at Nuremberg, the trial of the men of the Einsatzgruppen, Schutzstaffel members of the SS, paramilitary death squads responsible for mass killings by shooting Jews, Gypsies and dissidents and, for a time, gassing them in closed trailers. The film is a paean to both Firencz and the emergence of international criminal law out of the ashes and atrocities of the WWII.

In the beginning of this documentary, we listen to the rhetoric of Robert H. Jackson in his opening statement at the first Nuremberg Trial of 21 major Nazi war criminals by an international military tribunal (Ben was a legal investigator for that trial) for killing 11 million people in WWII. It was seen as the greatest trial in human history. The opening statement of Ben Firencz was only summarized by himself, for it was not filmed, the cameras having only started after his opening statement. In both opening statements, the issue was not simply trying war criminals before an international court of criminal justice in which the facts are put forth as well as international norms of criminal responsibility, but also a justification for the creation of international criminal law and, in the end, the creation of an international criminal court that has, since the turn of this century, been established in The Hague. The development of international criminal justice and eventually of an International Criminal Court (ICC) was a dream realized for ethical and legal globalists.

Before the Nuremberg trials, there had never existed a system of international courts and the relevant investigative and prosecuting expertise to hold individuals to account for war crimes and crimes against humanity. The whole sphere of international human rights was being both invented and constituted in the nineteen-forties. Before then there had only been “victor’s justice.” The process which took a century to evolve began at the very end of the nineteenth century with the Hague Conventions of 1899 and 1907 to apply ethical norms to the conduct of war. However, as the Nuremberg judges opined in 1946, “The Hague Convention nowhere designates such practices (methods of waging war) as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.”

The International Criminal Court was ratified by the minimum of sixty nations required, but excluding the U.S. Bill Clinton had signed the ratification at the last minute on his last day in office, inspired, according to the film, by an op-ed co-authored by Ben Firencz and Robert McNamara. Ben had quipped to McNamara that the latter had to recognize that if the international criminal law had been operational at the time of the Vietnam War, McNamara might have been one of the first to have been charged.

As it turned out, George W. Bush Jr. when he was elected refused to implement any U.S. involvement in the development of the ICC under the conviction of American exceptionalism, that America already followed those international norms and was unwilling to delegate its responsibilities to an international tribunal. Ironically, and tragically, Bush, and his sidekick Chaney, authorized the unlawful use of torture against captured alleged terrorists.

Now rhetoric can refer to how language that is neither honest nor reasonable is used to influence people by a man such as Donald Trump. Or, as in the film we saw last evening, it can refer to the opposite, the use of language to achieve a laudable purpose, in the case of the film, the establishment of a system of international criminal justice. The cinematic bio of Ben Firencz is a case in point, an exercise in film narrative or rhetoric to celebrate the life of a founder of the system of international criminal justice and the eventual development of an international criminal court, the ICC.

Rhetoric in both meanings, uses words, phrases and composition, “the artifact,” to persuade, to convey a message. We commentators opine on what the message is and evaluate it.  In the film, Ben Firencz openly comments on Jackson’s opening of his indictment, his use of heightened speech of enormous power to persuade his contemporaries and future historians of the importance of norms of international justice. In the case of an individual trial, the rhetorical foreword offers the framework for the criminal indictment rather than a historical framework proffered in an historic trial as, for example, in Plato’s narrative of the trial of Socrates.

The principles established at Nuremberg were based on justice according to international law and not vengeance. Evidence was offered to support the original contention, in the Firencz case, the enormous systematic collection of data and documentary records of the Nazi killing machine. Given the plethora of documentary evidence, there was no need to call witnesses.

If the prefatory speech at these trials set both the introduction to the justification of the use of international criminal trials in international affairs as well as a summary of the argument, methodology and conclusions warranted by the evidence to be presented, those arguments, as echoed in the rhetoric and narrative of the film itself, require a critique, for the very definition and nature of laudable discourse is that it be subject itself to examination and criticism. In the case of a bio-op of a moral hero told in romantic terms, that is difficult, for there is a propensity to regard the criticism as smearing the white patina of the hero of the film and the cause for which he stands.

Yet this counter communication and rhetorical critique is inherently required of laudable rhetoric and its convictions about reason and justice. That critique itself reveals new knowledge and offers an angular perspective on what has emerged as holy, in this case the elevation of rules and laws above faith, above supposed laws of history, above popular will which would probably dictate revenge and did result in capital punishment by hanging in spite of Ben Firensz’s extreme disquiet at the killing of what he called otherwise decent men who engaged in war and criminal activity, not out of any inner propensity, but because of the political forces extant at the time. In Ben’s eyes, these men could have gone either way. After all, according to his very dry wit, he himself was faced with the choice of becoming a criminal or becoming a lawyer when he was a high school student. He did not like the idea of being a criminal so he chose the alternative, law, about which he claimed to be entirely ignorant. And to think, I as a young boy, had always believed (falsely) that lawyers were crooks.

Ben was and remains even in his late nineties, a terrific rhetorician, a great story teller full of quips and short jokes. Was his narrative about international justice and the need for an international court valid in the context of the subsequent development of lawfare and the use of international courts to pursue political goals by other means? On what ethical foundations can we build a liberal international order?

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