Sovereignty, Power, Crime and Accountability

If no one is above the law in a democracy, how many crimes must a leader commit, before we consider prosecuting them? We would need the laws to do it first.

In the midst of the Ukraine War, there’s lots of talk about conflict between “great powers”. The statement drips with ancient feudal baggage. Speaking in this way immediately provides cover for the leader of the aggressor state. By widening the scope of discussion to the complexity of a state, we miss targeting the reality of a single, responsible autocrat. Allow me to restate; the leaders of two prosperous countries, play at deadly geopolitical conflict. That conflict would never be initiated by their respective citizens on a sunny day while their children were at school. Oh, and it’s likely that at least one of those leaders doesn’t even have a legitimate democratic mandate to govern.

States have been studied, since the ancient city of Uruk appeared 5500 years ago. Since then, our definition of a state and the relationship of citizens to their leaders has evolved. The Greeks got tired of the cruelty of the Tyrants 2400 years ago, and used the collective power of early democracy to create a new state to topple them. During the last 500 years we’ve progressed further, from being ruled by the ‘divine right of kings’, through a slow rise in the voice of the people and stronger democratic power, to the current refinement of ‘rational-legal authority’; that a leader must have passed through a legitimate legal selection process and then also have won a mandate from a majority citizens in a fair election.

Unfortunately, although we live in a law based society today, we still offer literal and legal deference to leaders, who have no legitimate authority, when judged against the modern ‘rational-legal’ standards. This raises important questions. Why do we still allow leaders to take power by force or deception? Why do we then start talking to them as though they have legitimate authority? If we did want to act against them, we often do not have the legal tools at hand to do it? The human, economic and environmental costs are simply too high for one bad actor to be so protected merely by outdated notions of state, power and sovereignty.

We need to consider the concepts of state, power, authority and mandate separately and build a complete set of laws that accurately refer to these distinctions. In today’s context, a state is a location with defined boundaries, an empty vessel. The people are those who identify with that location and agree to live within and under the jurisdiction of the state. Using the rational-legal context they express their will as directives to the government of the state. The government serves the people, responds to their will, and draws legitimacy from the mandate of regular, fair elections. Authoritarian leaders use these mechanisms to get to power and then start ruling as though the divine right of kings gave them all the state’s resources to play with.

When it comes to leadership crimes, how far is too far? The International Criminal Court now says war crimes and crimes against humanity are a step too far. In the last 20 years, they’ve been increasingly successful prosecuting those crimes. Today it seams possible that Vladimir Putin could face prosecution for war crimes in the Ukraine, but where is the line best drawn? Putin annexing Crimea? A coup in Myanmar? Victor Orban gerrymandering an election? Donald Trump conspiring to overturn an election? Boris Johnson being cavalier about national Covid laws?

I would suggest the line starts at a cavalier attitude toward the rule of law, all other offences flow through this gateway. If you’re still uncertain, many citizens were prosecuted for flouting the same Covid lockdown law as Boris Johnson. So the law does not apply to everyone, and his offence of repeated disregard, is the very brink of the slippery slope. How many lives would have been saved if we simply defended the regularity and fairness of elections in Russia?

So how do we take action if there’s no effective mechanism in place? The fact there was any doubt or delay or even uncertainty, as to the penalty for the investigation and prosecution of Boris Johnson, demonstrates the layers of bias, deference and unmitigated power, that must be corrected. It is absolutely unacceptable that we are this far into the 21rst century and we still don’t have an effective mechanism for removing leaders for clear violations of the rational-legal framework, but the community standard is changing. Today, at least 50% of US citizens now realize the law cannot rely on the goodness of people, when dealing with someone like Trump.

So given how far we’ve come in 5000 years, and how much we value the rule of law and the recognition of rights, why don’t we have a list of leadership crimes and mechanisms to remove the leadership criminals? The gaps in our leadership framework make the cost of doing bad things far too low to prevent bad leaders from damaging democracy. If we truly wish to protect peace and good order, would-be autocrats need to be faced with a much higher personal cost, to stop them from abusing our state resources, disrupting our lives and leaving us to pay the price. The last 20 years have also given us plenty of examples of how fast they can move to consolidate their illegitimate power; Myanmar, Russia, Afghanistan, Syria, Tunisia, Sudan, Ethiopia. Whatever enforcement mechanism we put in place must operate in a timely fashion to avoid interruptions in good government.

We must start with definitions of common criminal-leadership behaviours, acceptable to the International Criminal Court, that can trigger a trans-national mechanism to convict, sanction or remove leaders who;

• launch offensive war without rational-legal authority
• disobey or damage the rational-legal framework
• commit crimes against humanity
• ignore human rights

Investigation should be triggered by formal referral to the International Criminal Court and enforcement should not recognize any local immunity the leader has granted themselves.

How many of the military conflicts and famines of the last 30 years could have been averted if the law truly applied to everyone? Yes there would have been some stressful days of transition to a better system, but I believe the lives of all the victimized citizens would have carried on with far less upset, less wasted treasure, less forced migration and far less death. Surely all this is sufficient reason to write a few specific mentions that our laws apply to everyone? It’s well past time for us to advance society again and move past the age of autocrats and archaic deference.

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