I think one of the worst precedents ever set was that of the Nuremberg trials. Up to that point, there had not really been a concept of "international law". There had been an abortive attempt in the creation of the League of Nations, but its impotence meant that no one took the idea of "international law" seriously. And prior to that, almost all relations between nations were regulated by treaty alone, made between two or more nations, no one spoke of international law except when speaking of enforcement of such treaties. There was no serious international law, independent of mutual agreements, until Nuremberg.

So, some may ask, what is so bad about international law?

The problem, as I see it, is twofold. First, it is unevenly enforced. Second, there is no agreement about who shall set these laws.

I think the first difficulty is best described in my essay on the Geneva Conventions. These laws were originally seen as treaties between signatories, but are now becoming more and more often seen as binding on nations even when fighting non-signatories. In other words, when the US fights al Qaida insurgents, the international courts believe that the US is still bound by the rules of war.

The problem is that this creates very unfair situations. The US, for example, must treat its prisoners under the rules established, but its enemies do not. Not only are these enemies not a state, and thus not subject to the conventions, but their leaders are also in hiding and out of reach even if the courts decided to prosecute them. Along with these terrorists, there are also rogue nations, which simply refuse to acknowledge these rules, and refuse UN inspection, apparently with impunity*. So, the idea of international law ends up favoring terrorists and rogue nations while hampering the activities of legitimate nations who choose to subject themselves to various international courts.

The other problem is the question of who sets international laws. As endless UN rulings have shown, certain blocks will always act in their own interest. Just as the Arab and Muslim nations have voted consistently against Israel in the UN, or various dictatorships have worked to manipulate "human rights" committees so as to avoid criticism, the idea of "international law" can be manipulated by various blocks of nations to serve their own interests.

This second objection points out an even bigger problem. If the US is subject to international law, and international law is established by "a consensus of the international community", then we are surrendering decisions about our government to the Seychelles, Fiji, Cameroon, Ecuador and Chad. I do not think many Americans would agree to such a surrender of our sovereignty. The whole concept of international law, when taken to its logical conclusion, results in US voters having only a minimal control over their government, as the decisions of international tribunals would have much greater influence than those of the congress.

So, what is the answer?

I am not convinced we even need an answer. Obviously, international law must go. We cannot hamstring ourselves in fighting terrorists, rogue nations, and others who do not care for international law. We must have freedom to act. In addition, we cannot surrender our sovereignty to a collection of dictators, socialist bureaucracies, and religious fanatics who decide what is international law. We must restore control of our nation to the citizens of that nation.

If we need agreements with other nations, we should return to treaties with those nations. The concept of international law, separate from explicit treaties, needs to go.**

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* It is possible that the UN could impose sanctions on nations which refused to abide by the rules of war, but I have seem this very rarely if ever. And as the Oil For Food scandal and the endless toothless sanctions against Iraq proved, the threat of UN sanctions are meaningless unless the nation willingly accepts the punishment. All of which leads to the absurd situation, where the most civilized nations are sanctioned, while the most barbarous continue their barbarities without consequence.

** Some will argue that modern international law is based on treaties, as most is founded on our membership in the UN. This is technically true, but I don't think any of the signatories believed they were granting to the UN the sweeping authority it has claimed in the years since its founding. But, to avoid any such claims, I would recommend leaving the UN as a good first step.

Note on my spell checker: As those who read my posts regularly know, I have had an ongoing series of complaints against my spell checker. It is now annoying me by standardizing on a single spelling for followers of Mohammad. (Also, note that it won't allow me to spell his name "Mohammed", apparently the PC spelling is the one with the A, meaning thousands of people have a "misspelled" name.) My spell checker dislikes  "Moslem" -- a perfectly correct transliteration -- and only allows the transliteration "Muslim".  This seems a bizarre rule, rejecting a perfectly acceptable and modern spelling (along with the archaic "Musselmen", "Mahometan",  and others -- it does accept "Mohammedan" for some unknown reason), and calling it a "misspelling" seem a bit extreme. But I am used to having a very opinionated spell checker which also fails to recognize a number of actual words. Seems to characterize the free software crowd very well --arrogant, opinionated, and often wrong.