The law of war--and the international judiciary which is supposed to enforce it--is an extremely flawed implementation of a judicial rulebook which is better implemented within the borders of some of the democracies on this planet.
Any international scheme, to be worthy of our respect, must be founded on the same principles as our own jurisprudence: equality before the law, and due process of law. The international law of war has neither. The distance that a given complaint will go depends entirely on the identity of the complaining party and the accused. There are still large populations on the planet who can be killed without an international body taking an effective interest. While in the United States, we boast we are a government of laws, not men, on the international scene it is easy to imagine the U.S. committing war crimes but very hard to imagine us being convicted of one.
Any scheme of laws is effective only if it applies to everyone in society regardless of wealth, stature or race. The perception in parts of the U.S. that murder should not be prosecuted if the accused was white and the victim black, for example, was untenable to just people. The oppressed themselves cannot be expected to live in docility under such a system; hence the expression "no justice, no peace." The international law of war represents just such a ragged, political, unbalanced scheme. No-one within the borders of a democratic state should reasonably think himself exempt from the law of murder; yet the state itself, while sometimes calling, stridently but hypocritically, for the prosecution of others under war crime laws, is resolutely unwilling to submit itself, or its nationals, to these same laws no matter what.
For these reasons, war crime prosecutions are rare and lack integrity when they occur. Procedural and substantive justice are inextricably intertwined; while the imprisonment or even execution of a war criminal may seem substantively fair-- certainly many people felt that Eichmann deserved hanging-- in most cases, a process is entirely lacking for bringing such people to justice.
While a world government, as always, is a controversial topic (there are people in the U.S. who are becoming murderous around the issue of a "New World Order") it is hard to see how we can ever have an effective law of war--or hope to end war--without at least a world federation stronger than the U.N. It would have to be based on a constitution that included the rights of equality before the law and due process, and have strong, independent judicial institutions, immune from politics, to enforce its laws. Note that there are many other problems that are pressing at a global level--such as population, global warming, deforestation and the ozone layer-- that are only being ineptly addressed by national governments, if at all.
Last September, I devoted an issue of The Ethical Spectacle to the Prisoner's Dilemma, the game theory parable which involves analyzing the relative costs and benefits of cooperation and betrayal. The lesson of the Prisoner's Dilemma is that betrayal usually has more short-term benefit, but that if the players are to encounter each other repeatedly in what is called an "iterated game", typically they will learn to cooperate on every move for mutual long-term rewards. In that issue, I unwisely wrote that "government enforces cooperation", and a reader named Muni Savyon rightly took me to task, drawing a parallel between "enforced cooperation" and rape. Nevertheless, though my choice of wording was poor, I think I had the right idea: government is the human solution to the Prisoner's Dilemma, a way that we have collectively found of bonding ourselves together in a cooperative structure.
However, it is also clear that problems exist on different planes-- local, national, global--and that there is no agreement on the level at which any particular problem should be solved. American politics just now involves an attempt by the right wing in Congress to mandate that problems perceived for the past six decades as national--particularly social welfare--are best solved at the local level. At the same time, the world appears to be experiencing a historical moment in which larger entities, like the Soviet Union, some of its former client states, and possibly Canada, are breaking down into smaller ones. Liberal thinkers, who typically desire to encourage diversity and self-determination, should at the same time be puzzled by the implications of a potential Balkanization of the world.
At the same time as there is a tendency to create smaller political units, or at least to delegate more responsibility to existing ones, the world is experiencing severe problems that demand global solutions. Population is doubling every few years and the Malthusian brick wall--when population exceeds supply--may occur in our lifetimes. Residents of Chile--who live under the ozone hole--are suffering an epidemic of skin cancer while use of CFC's in Northern countries continues to eat away at the ozone. Deforestation, species loss, depletion of fishing stocks and other environmental ills multiply despite the slow-moving international organizations and conferences created to address them. Over-arching all of these is the perpetual threat of war, first apparently ameliorated by the dissolution of the Soviet Union and then increased by the resulting multiplication of states holding nuclear weapons and fissionable materials.
I have frequently quoted the environmentalists' slogan here that we must "think globally, act locally." However, the subtext of these stirring words is really, "Do not despair. You may not be able to influence global affairs, but you can still diminish the amount of CFC's in the atmosphere by using fewer yourself." However, no matter how many of us are diligently doing so, there is likely to be a larger number of players in our global prisoner's dilemma who are betraying us (while we play the cooperation card) quite simply because there are immediate benefits, and no immediate consequences. Environmental groups continue to work for international treaties with teeth because they themselves know that only global solutions can address global problems.
In this context, an international law of war crimes may seem insignificant compared to the need for an international environmental law, cooperation in solving population problems, and promoting nuclear safety and disarmament in the face of "rogue" states. However, the law of war is just one more problem that cannot be solved without better understanding (and machinery) at the global level. Our technology, of war, of medicine, of manufacture, of agricultural production--has made us so powerful that we are now a global species. Five thousand years ago, a carelessly thrown spear might end a life, but today it can end our world. It is hard to imagine humans existing five hundred years from now without some kind of government at the planetary level.