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The New "Legal Normal" Creates Dangerous Precedents

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Public hearing at the ICJ.
Public hearing at the ICJ.
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Under the radar, largely undetected due to the distractions of Covid-19 shenanigans, a new and hitherto sparsely employed obstructionist device, based on abuse of legal technicality, has been activated in order to render moot every reasonable expectation that, in appearance or reality, justice might be done. In at least two high profile cases, the position has been taken by Western-controlled judicial organs that adjudication on the merits can effectively be thwarted merely by finding technical fault with the construction of the case. Of the many strategies practiced by tyrants to undermine the rule of law, this one will go down as one of the more ingenious. To call it "brilliant" would be excessive, as it might erroneously imply a measure of moral endorsement.

Recently, on December 9, we saw the brazen use of this strategy when the Prosecutor of the International Criminal Court, Fatou Bensouda, a Gambian lawyer, was successfully coerced into dropping her intention to call British troops to account for war crimes they are alleged to have committed in Iraq. The ICC preliminary investigation had been completed and the office of the prosecutor had reached the conclusion that there was sufficient evidence to proceed with the case. Ms. Bensouda was by then under brutal pressure by leading Western powers, who in regard to liability for war crimes in both Iraq and Afghanistan have a common interest, and who also happen to be vocal advocates of the "rule of law," to drop the inquiry. The US punitively cancelled her entry visa and withdrew from financing her court. Her office and she personally found themselves increasingly vilified in the media for daring to break with established ICC tradition, which is to confine indictments to African actors while those from the West are exempted, although the court has undisputed legal authority to prosecute the latter as well.

It is hard to tell whether frustrated shopping trips in New York due to the visa cancellation may have influenced Ms. Bensouda's decision, but she capitulated. In her surrender statement she nevertheless defiantly confirmed that despite closing the case, the preliminary report had found ""that there is a reasonable basis to believe that members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence." However, she went on to ingeniously rationalize her decision, since the UK legal system was capable and willing to pursue the miscreants there was no need for ICC to interpose itself. If the UK legal picture is so idyllic, why did she even bother to investigate, one might ask?

Doubts emerged immediately about the disposition of the British legal system to pursue the sort of war crimes cases that ICC had just dropped. Mathew Cannock, Head of Amnesty International's Centre for International Justice argued that "the Prosecutor's decision to conclude the examination provides a road-map for obstructionism. It rewards bad faith and delays brought about by the failure of the UK military and authorities to conduct independent and impartial investigations into allegations in the immediate aftermath of the conflict in Iraq." Cannock's scepticism seems amply justified in light of British Parliament's plans to pass into law the 'Overseas Operations Bill', the chief purpose of which seems to be to erect even more barriers to the domestic prosecution of British military personnel for war crimes committed overseas.

The position into which the ICC Office of the Prosecutor was pressured mirrors a similarly preposterous decision made twenty years ago by ICTY Chief Prosecutor Carla del Ponte not to open an inquiry into NATO's illegal bombing of Yugoslavia because - as she airily alleged at the time - NATO was perfectly capable of investigating itself and disciplining wrongdoers.

The nefarious effect of this legalistic shenanigan is to undercut the very notion of the rule of law by blocking an issue from ever being presented in court for adjudication.

The ICC precedent, in the best Anglo-Saxon legal tradition, was soon picked up and applied elsewhere. Based on a similarly inspired legal technicality, the US Supreme Court declined to hear the case brought by Texas and eighteen other states claiming that massive voting irregularities (and here) vitiated the November 3 presidential election. Along with that, another particularly brazen piece of legal chicanery was also put in operation. Responding to the request to expedite action on the Pennsylvania voting irregularities appeal, the Supreme Court conveniently set the "expedited" hearing date for January 22, 2021, two days after the inauguration. By then, in the absence of a timely judicial response to widespread fraud allegations in key state Pennsylvania, the matter will have become practically moot, or fait accompli if one prefers.

The new strategy to undercut the rule of law evidently is to prevent the legal adjudication of the disputed issue. The Supreme Court's rationale for denying the Texas lawsuit is preposterous, bordering on comical. Texas (and eighteen other states) cannot lack standing to challenge what they believe and were ready to prove was a fraudulent presidential election because unless the subject matter of their complaint is judicially reviewed and legally remedied they would have to deal over the next four years with an unlawfully invested federal chief executive. A man of integrity, attorney Lin Wood, has asserted that flight logs show Chief Justice John Roberts' presence on blackmailer Jeffrey Epstein's pleasure island on at least two occasions, in 2010 and 2011. Curiously, Roberts' voting patterns before and after these alleged visits seem to corroborate the suspicion of a post island "liberal" ideological epiphany. It may very well be a case of corruption intertwined with legal obstructionism. Since the investigation of these significant personal allegations is not being pursued, we probably will never be the wiser as to the facts, just as allegations of election fraud will never be aired and adjudicated in open court if the potentially compromised Chief Justice Roberts' 7 to 2 majority have their way.

As the astute political analyst Thierry Meyssan has starkly put it "either the outgoing president's appeals are judged in law and he is obviously right, or they are judged in politics and proving him right will provoke civil war. But the conflict is already too far advanced. Judging him politically in defiance of the law will also provoke civil war."

All of which goes to show the short-sightedness of law-subverting strategies, even when initially they appear to be successful. The bullying of Ms. Mansouda in the long run will not benefit in the slightest the two moribund empires determined to use the prerogatives of exceptionalism to hide the shame of their crimes. The outrage generated by these brazen acts of injustice will mobilize the aggrieved throughout the world and strengthen their resolve to ultimately bring the rogue states and their uniformed minions to heel. The visible, in-your-face obliteration of the electoral process, one of the most important pillars upon which consent for the American system of government has rested, will have similarly incalculable consequences.

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Stephen Karganovic is the president of the Srebrenica Historical Project.  He also writes for Strategic Culture Foundation.

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