Sovereignty, Power, Crime and Accountability

Updated January 2025

If no one is above the law in a democracy, how many and what sort of crimes must a leader commit, before we consider prosecuting them? We would need the offences to be define in regulation first.

In the midst of the Ukraine War, there's been 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 using labels of states instead of people, we miss targeting the reality of a single, responsible autocrat. Allow me to restate; the leaders of two prosperous countries, are playing at deadly geopolitical conflict. That conflict would never be initiated by the citizens of the respective states on a sunny day while their children were at school. It’s also likely that at least one of those leaders doesn’t even have a legitimate democratic mandate to govern.

The definition of state power been studied, since the emergence of the first powerful cities over 5000 years ago. Since then, we've refined our definition of a state and the relationship of citizens to their leaders. The Greeks got tired of the cruelty of the autocratic 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 primacy of 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 not pursued a legitimate path to 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 also start talking to them as though they have legitimate authority? Even if we did want to act against them, we often do not have the regulations on the books to do it? The human, economic and environmental costs of leaders with no mandate, are simply too high for them to be so protected merely by outdated traditions of state, power and sovereignty.

We need to consider the concepts and definitions 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 merely a place 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 place. Using the rational-legal context they express their will as directives to the government of the place. 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 over the last 20 years? In 2025 we stand on the side, with half a set of regulations, and watch as Trump first comes to power with disinformation, and then immediately begins dismantling fundamental democratic institutions and threatening neighbour states. (see our Public Trust discussion paper here. 15 minute read)

So how do we take action if there’s no effective mechanism in place? The fact there was any doubt or delay in the investigation and prosecution of Boris Johnson, demonstrates the layers of bias, deference and unmitigated power. From a regulatory standpoint, the traditions of decorum and the definitions of the offences need to be codified. This problem was further highlighted by the inability of US justice to prosecute Trump in a timely manner. It is absolutely unacceptable that we are this far into the 21rst century and we still don’t have definitions of offences and clear regulations for removing leaders for obvious and repeated violations of the rational-legal framework. At least half of US voters now realize they cannot simply 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 most powerful offenders? The gaps in our leadership framework make the cost of crimes against democracy far too low to prevent autocratic leaders from attacking their citizens or their neighbouring states. 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, Rwanda. Whatever enforcement mechanism we put in place must operate in a timely fashion, with the full force of international cooperation, to avoid interruptions in good government and the massive global cost of inaction.

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

If we really believe in these principles, statute should trigger investigation by the International Criminal Court and enforcement should not recognize any local immunity the leader has granted themselves. Even very narrowly defined regulations could have removed the ten worst leaders from power, long before they did so much damage.

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 the lives of all the victimized citizens must surely 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 the time for us to advance society again and move past the age of autocrats and archaic feudal deference. People have a right to self-determination and the principle of good governance requires that it be delivered.

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