Not a Pleasant Fiction
An answer from Westminster to the claim that international law has never worked
The Charge
This year’s London Conference on International Law is meeting in Westminster, a short walk from Church House, where in the summer of 1945 representatives of four Allied powers negotiated the instrument that would put the leaders of the Third Reich on trial. It was a strange setting, then, in which to hear one of the recurring questions of the week: whether international law has any real effect at all, and whether it ever has.
The question has been given fresh currency by Mark Carney. Speaking at Davos in January, the Canadian Prime Minister described a rupture in the world order and said that the story of the rules-based international order had been “partially false”. The strongest, he observed, exempted themselves when it suited them, trade rules were enforced asymmetrically, and international law was applied with a rigour that depended on who stood accused and who had been wronged. His prescription was that middle powers should stop invoking that order as though it still worked as advertised.
It was a candid speech, and much of the diagnosis is right. The conclusion many have drawn from it is not. In room after room this week, the speech has been treated as licence to say that international law is ornamental: a vocabulary the powerful adopt when it is useful and discard when it is not. I disagree. I disagree as a matter of history, and I disagree as someone who has spent some twenty-five years watching it work, slowly, imperfectly and often too late, in courtrooms from The Hague to Sarajevo.
It was highlighted in one of the first panel sessions on international law and with a divided view on the current state of the global rule of law order amongst the hugely impressive speakers.
What Was Decided Here
On 8 August 1945 the United Kingdom, the United States, France and the Soviet Union signed the London Agreement and annexed to it the Charter of the International Military Tribunal. Nineteen further states later adhered to it. The Charter was a short document. Its consequences were not.
It did three things that had never been done before. First, it defined crimes for which individuals, and not merely states, would answer: crimes against peace, war crimes and crimes against humanity. Second, by Article 7, it removed the shield of office. Heads of state and senior officials could no longer rely on their position to escape responsibility. Third, by Article 8, it removed the shield of obedience. Acting on the orders of a government or a superior was no defence, although it might be considered in mitigation.
Before London, the prevailing assumption was that what a state did to its own people was its own affair, and that those who ran the state were beyond the reach of any court but their own. After London, that assumption was gone. It has never fully returned; however hard some have tried to revive it.
A few months later, in January 1946, the first session of the United Nations General Assembly opened at Methodist Central Hall, again in Westminster. By December of that year the Assembly had unanimously affirmed the principles recognised in the Charter and the judgment of the Tribunal. Within eighteen months, and within a mile of where this week’s conference is sitting, the architecture of post-war accountability had been drafted, applied and endorsed.
The Long Tail
The fair objection is that Nuremberg was followed by nearly half a century of silence. The Cold War froze the project. Mass atrocities in Cambodia, Bangladesh, Guatemala and elsewhere went unanswered in any international forum. If international law has effect, where was it?
The answer is that the principles did not disappear. They waited. When the Security Council established the International Criminal Tribunal for the former Yugoslavia in 1993, and the tribunal for Rwanda the following year, it did not invent a body of law. It reached for the one drafted in London. When Slobodan Milošević was indicted in 1999 while still a sitting head of state, Article 7 was at work. When the House of Lords held, in the same year and in the same Westminster, that Augusto Pinochet could not shelter behind the immunity of a former head of state for acts of torture, the same principle was at work again. When Charles Taylor was convicted by the Special Court for Sierra Leone, when Hissène Habré was convicted in Dakar, and when Rodrigo Duterte was surrendered to The Hague in March 2025, the line ran back to the summer of 1945.
Much of my own career has been spent in the Balkans, in the long aftermath of the ICTY. I have seen the work of the War Crimes Chamber of the State Court of Bosnia and Herzegovina, a national institution trying its own cases under principles first written down in London. That work was not perfect. It was real. Victims gave evidence, perpetrators were convicted, and a historical record was built that no amount of denial has been able to erase.
International law rarely works quickly. It works cumulatively. Its effect is measured not in a news cycle but over a generation. To judge it by whether it stops a war this afternoon is to apply a test that domestic criminal law would also fail. No one argues that the law of murder is ineffective because murders continue.
Selectivity is an Argument for More Law, Not Less
The heart of the Davos critique is selectivity, and here the critique has real force. Nuremberg was selective. No Allied conduct was examined. Soviet judges sat in judgment on a war of aggression in a year when their own state had, only six years earlier, partitioned Poland. The Soviet prosecution sought to lay the Katyn massacre at the feet of the defendants, and the Tribunal, to its credit, declined to make that finding. Victors’ justice is not a slur invented by critics. It is a description that contains a good deal of truth.
The pattern has repeated since. For two decades the International Criminal Court was accused, not without reason, of being a court for Africa. Permanent members of the Security Council have used the veto to keep their allies, and themselves, beyond reach.
But selectivity is an argument about enforcement, not about law. The answer to uneven application is even application. The prohibition of torture does not become less binding because some torturers escape. The answer to Nuremberg’s blind spots was not to abandon Nuremberg. It was to build a permanent court, founded on treaty, whose jurisdiction did not depend on who had won. That is precisely what the Rome Statute set out to do.
This is where the Davos argument goes wrong, or at least where it is too often taken. To say that the order was partially false is to concede that it was partially true. The task is to enlarge the part that is true. Middle powers are better placed than anyone to do that, because they need the law more than the strong do. A world in which sovereignty rests only on the capacity to resist pressure is a world arranged for the benefit of whoever can apply the most of it.
You Do Not Sanction a Fiction
The clearest evidence that international law has effect is the energy now being spent to dismantle it. The United States has sanctioned the President of the International Criminal Court and members of its staff and is reported to be preparing measures against the Court itself, measures that would reach its banking, its information systems and its ability to pay those who investigate the gravest crimes known to law. Last month, at the General Assembly, President Trump called on every State Party to withdraw from the Rome Statute. A number of states have already moved to do so.
No government builds a sanctions regime against something that has no effect. No one campaigns for mass withdrawal from a treaty that binds nobody. The scale of the assault is the measure of how seriously the Court’s reach is taken by those who have reason to fear it.
And the Court continues to sit. On 23 September it convicted Mahamat Said Abdel Kani, a former Seleka commander, of crimes against humanity committed in the Central African Republic. Reparations proceedings continue in other cases. Judgments are being written by judges who are themselves under sanction.
The delegates who gathered at Church House in 1945 were not naive. They had just lived through the collapse of every assumption about restraint between states. They knew the instrument they were drafting would be applied by victors to the vanquished. They drafted it anyway, because they understood that a principle once written down, and once applied, can be reclaimed by others later.
Eighty years on, sitting a short walk from where they worked, it is worth recalling that international law has never been a description of how the powerful behave. It is a standard against which their behaviour can be measured, and for which, eventually, some of them have been made to answer. That is not a pleasant fiction. It is the most practical thing the twentieth century left us.
Comments