Little Bill Daggett: I don’t deserve this… to die like this. I was building a house.
Bill Munny: Deserve’s got nothin’ to do with it.
Little Bill Daggett: I’ll see you in hell, William Munny.
Bill Munny: Yeah.
Unforgiven (1992)[/otw_shortcode_quote]
It is what it is. Don’t shoot the messenger.
Bending another state or institution (such as the International Criminal Court (ICC)) to the will of a more powerful sanctioning state may be distasteful, distressing, disadvantageous (depending on the side of the cause for the sanctions one is aligned with) but the harsh reality is that the use of sanctions is a sovereign prerogative. The sooner this reality is accepted and embraced, the sooner the sanctioned state or institution, along with their cast of supporting states, international and regional organizations, civil society, concerned global citizens can accept the need to explore realizable off-ramps or condition themselves to endure the consequences of the sanctions.
Why it is what it is
Reality is harsh. Powerful and well-positioned states resort to sanctions when it suits their interests. Imposing them may leave a might makes right stench in the nostrils, but it is what it is. Getting emotional, crying foul, engaging in hyperbolic condemnations, calling out the hypocritical and inconsistent use of sanctions against foes for conduct and causes that the sanctioning state engages in or tolerates and even supports when friends and allies do likewise, is not a strategy. It is a reaction.
Don’t get me wrong. Pointing out contradictions, inconsistencies, or political insensitivities in imposing sanctions has its place. Calling into question and reacting to injudicious sanctions is essential. Indeed, it is important to protest unwarranted, heavy-handed and retaliatory sanctions imposed for supposedly impugned conduct simply because it is not to the liking of the sanctioning state. Then again, there is reality. It is within this reality that a solution to sanctions must be sought.
Taking a firm stance on principle is vainglorious and a fool’s errand when the power balance is asymmetrical and the sanctioning state is impervious to persuasion, diplomacy, reasoning. When you are not on top of the power-curve, it is not a matter of agreeing or disagreeing with the motives for the sanctions, but rather of accepting those motives for what they are, realizing that sanctions are part of geopolitics – realpolitik in its rawest, shrewdest, and uninhibited form. States are entitled to use sanctions when their interests – domestic, economic, international, national security – are involved.
Sanctions are praised when they serve an approved cause and condemned when they serve a cause deemed unfair, unwise, unethical, unfortunate, unacceptable. Sanctioning Russia for waging war against Ukraine, or Iran for funding and sanctioning terrorism, or Cuba because of its political system (and the political clout of the large Cuban-American community), or China’s retaliatory sanctions against any state that dares meet with the Tibetan Dali Lama, are but few examples.
States use sanctions as a tool to cajole, to coerce, to cripple other states into supporting or abandoning actions and decisions which are just as much as that state’s sovereign prerogative to pursue. Should morality play a role in whether sanctions should be imposed? Perhaps. Then again, morality is a malleable commodity, like beauty is in the eyes of the beholder.
I don’t agree with the US sanctions against the ICC. The sanctions effectively interfere with – and have a coercive effect on – the administration of justice of this judicial institution to which 125 states (the number fluctuates as new states are joining and some states dropping out) have established. But should this trump (no pun intended) US national security interests in the Middle East, its alliance with Israel, its own military affairs? No. As misguided as Trump’s sanctions may seem to some, others see them as an appropriate response in defending US interests.
As I noted in previous a post (here), the ICC does not represent the most powerful and most populated states. How international is the ICC without these states and without it being established by the UN Security Council is subject to debate. As is whether the ICC can impose its jurisdiction (that agreed to by the State Parties to the ICC) on non-ICC member states. Again, these are issues subject to debate with no clear and definitive answer. Because of the way the ICC was founded and the manner in which it has operated and the perceived threat it imposes on sovereign states that do not accept the ICC’s jurisdiction, the current US/Trump Administration is of the opinion that what the ICC is doing against Israel, one of its staunchest allies, is infringing on its national security interest, and by extension, its sovereignty. We can moralize and disagree all we want. Reality remains unchanged – it is what it is.
This brings me to the recent sanctions against four ICC Judges.
The current US administration is expressing the same concerns raised by the previous one. Namely, hands off Israel, the Israeli Prime Minister and other cabinet ministers, and US soldiers and officials for alleged crimes committed in Afghanistan. The only difference is that the previous administration used soft power in trying to persuade the ICC Prosecutor to stand down, to let the Israeli and US legal systems and courts handle any alleged claims of war crimes and crimes against humanity.
While not arguing the non-recognition of the ICC as a legitimate court to lord over the US and its allies, National Security Advisor Jake Sullivan and Secretary of State Antony Blinken of the US/Biden Administration were making the same arguments we now hear by or on behalf of Trump. Not one for subtlety or nuance, Trump merely upped the ante by first imposing sanctions on Prosecutor Khan and then taking it up another notch by sanctioning four Judges who dared exercise their judicial independence and who followed their oath and convictions by deciding on the law and facts as they saw fit. They did what they needed to do, and what was expected of them to do as independent, conscientious, and impartial judges. Now Trump is doing what he thinks he should and can do, and, considering his campaign rhetoric to the body politic that elected him, what is expected of him.
To borrow a line from the Godfather, It’s not personal, It’s just business. Not entirely true. Though framed as business (or in this instance geopolitics), the consequences are deeply personal for those targeted. The point I am making should be obvious. This US administration is prepared to do what it needs to do to get the outcome it wants. It believes that US national security and sovereignty are at stake. Hence, it is within its purview to act in a manner that best eliminates the threat the ICC is perceived to pose to US interests. It’s that simple. Soft power, diplomacy, fell short of producing the desired outcome. Hard power remains. Considering the coercive nature of sanctions, it is rightly considered a hard power tool. Trump will not relent until the ICC cries uncle; until it capitulates and reverses course to Trump’s satisfaction.
The maxim Let justice be done though the heavens fall (Fīat iūstitia ruat cælum), is the proverbial double edge sword in this instance. As the ICC sees it (thus far), for justice to be done Netanyahu and Gallant must be arrested and brought to the court to account. For Trump, justice can only be done if the ICC abandons its Quixotesque quest to arrest and prosecute the head of state of a close friend and ally (the ICC is not considered a “real” court, but more of a windmill masquerading as a court), and if the ICC ceases interfering with the national security interests and sovereignty of the US.
Eventually, the ICC will relent, throw in the towel before the sound of the bell of the end of the first round – even before the US lands a stinging jab, let alone hard punch. To be brutally blunt, unless the ICC wishes to crumble under the weight of its presumed self-importance and misguided belief that other states and organizations, the European Union, the United Nations, will reverse the impact of the sanctions on its day-to-day operations, it has no choice but to give in to the US / Trump’s demands. Them are the facts. Or as former US President John Adams put it: Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.
It is a mistake to think of the imposition of US sanctions on the ICC, the Prosecutor and Judges as Trump’s personal and petty vendetta. Even if he had not won the election, the US Congress would have, assuredly, imposed severe sanctions on the ICC. Perhaps they would have been imposed sooner. Sanctioning the ICC over Israel and the Netanyahu and Galant arrest warrants is not a Republican Party issue. It cuts across the political aisle. Numerous members of the Democratic Party in Congress favor sanctions as a means of getting the ICC to cease and desist in going after (unfairly as they see it) Netanyahu, Galant and potentially others.
So, even if US courts grant temporary relief by issuing injunctions on the sanctions, eventually, the sanctions will be upheld – one way or another. The US executive branch (President) has wide latitude in exercising the authority vested to it by the Constitution in matters of foreign policy and national security affairs. In this instance, it also appears that the legislative branch, on a bipartisan basis, is poised to pass legislation authorizing the imposition of sanctions against the ICC. This gets us back to reality: facing things as they are and not as we may wish them to be or how we may think they ought to be.
Dealing with what it is that it is
The ICC is in a precarious position – but one that remains salvageable. A course correction is not just advisable but perhaps essential. As the captain of its ship, it can navigate through the hazardous straits of geopolitics with an appreciation of its limitations and the powerful crosscurrents it must smartly negotiate, or it can throw caution to the wind and recklessly plot a course for the impervious protruding rocks that upon contact will make a sieve of the ship resulting in a spectacular sinking.
How or why it finds itself in the position it is in, while relevant to recalibrating how it functions in the future, is secondary to addressing the overarching issue before it: is there a win-win solution? The ICC cannot abandon its core values, nor be seen to be obsequiously cowering and kowtowing to the US, while also not mendaciously obfuscating in justifying a volte-face.
I suppose the easiest way to make the sanctions go away is simply to find that Palestine never met the qualifications to be admitted as a state party, that since its admission, however tenuous its qualifications in meeting the Montevideo Convention criteria for statehood existed at that time have long ceased, or that its admission was in violation of the Oslo Accords. It could also find that it has no jurisdiction over Netanyahu as head of state – as some State Parties have acknowledged or suggested (here).
I am not convinced that the Chambers can invoke the in interest of justice justification for sidelining the arrest warrants (not their prerogative as I’ve argued in the past (here and here). However, the acting Prosecutor perhaps could invoke the in the interest of justice justification as a means of withdrawing the arrest warrants for an indefinite period. Justifiably, the acting Prosecutor could give Israel the opportunity to investigate and if necessary, charge and prosecute mid and high level political officials and military officers (and down the line). With the war still ongoing, a degree of deference and delay to such investigations and prosecutions would be understandable. It may be impossible to reverse the course entirely, but a pragmatic recalibration could bring the Court back to a pre-warrant status quo ante.
The acting Prosecutor could also put the arrest warrants on ice, having determined that they were issued precipitously and prematurely. Seasoned and prudent prosecutors don’t start at the top of the command chain. Generally, they start somewhere in the middle, usually on an isolated incident where the in situ commanding officer was directly involved in receiving orders from which strategic and tactical decisions were made in executing those orders. It is not as glamourous as going straight at the highest pollical official, but this is the traditional, classical pyramid method of building cases and achieving convictions. With prosecutorial discretion being as ductile as it is amorphous, the Office of the Prosecutor spinmeisters should have no difficulty in elegantly proclaiming an eloquent justification for revisiting, reevaluating and recalibrating its previous decision to issue the arrest warrants.
Shooting the messenger won’t change reality as it is
I would typically conclude here. But since some may find my take to be siding with the sanctions or giving aid and comfort to those who support the sanctions (Netanyahu was effusive with his gratitude to Trump), or that I am anti-ICC or Pro-Trump, let me be clear.
I am neither siding nor cheering for either side in this post. Nor am I debating the propriety of US sanctions on the ICC, and in particular the four targeted judges whom I hold in high esteem for their integrity, professionalism, and courage. I’m simply offering a realist’s take, grounded in international affairs and the principles of realpolitik initially framed by one of the most influential political theorist of all times, Niccolò Machiavelli, the conceptualizer and thus father of realpolitik, and further refined and perfected through practice by Otto von Bismarck.
One need not be an astute student of human nature and power politics and stagecraft, to understand the dynamics in play when there is an imbalance in power, an asymmetry between states (or institutions such as the ICC) in conflict. I applaud all efforts in raising the moral dimension of the sanctions. Yet, as a realist, I do not do so in the absence of appreciating the utilitarian perspective of the sanctions in promoting and supporting US national security interests as the Trump Administration perceives them to be. One need not agree with Trump’s perspective, but to ignore it is to miss the forest for the trees.
Getting to yes-yes requires understanding the needs and motives of the other side. It is not about liking them but of acknowledging them. It is not about truth but the perception of what the other side thinks or believes to the truth to be. And in this instance, as I keep reiterating, this and the previous US administrations considered that Khan had overreached in seeking the arrest warrants, which, in turn, has put US geopolitical and national security interests at risk. Thus, to dismiss these perceived truths, however faulty one may find them, is to fail to understand the lengths to which Trump, with the bipartisan blessings of the legislative branch, will go to protect US interests – the ICC’s existence be damned.
Rather than moralizing, trying to fix blame, or engaging in public relations campaigns, or waxing poetic with vain proclamations on the relevance of the ICC and of all of its past and projected achievements or absurdly attempting to appeal to the better angels of Trump’s nature (assuming there is such a thing), time and energy is better spent trying to find a viable solution that allows the ICC to carry on its mission of international criminal justice. It is what it is.
I don’t presume to know what course of action the ICC should pursue. I offered a potential off-ramp in my post (here) urging Prosecutor Khan to stand down while the sexual assault allegations against him are being investigated, suggesting that an outsider be appointed as interim might be willing to have another look at the Netanyahu and Gallant arrest warrants to see whether an elegant solution may be in the offing. My suggestions remain relevant.
Parting thought
Realpolitik aside, the sanctions imposed by the US raises serious concerns for the future of international criminal justice, at least in so far as the ICC is concerned. Beyond this immediate crisis, the sanctions raise foundational questions about the viability and integrity of international criminal justice. Dare we ask:
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- Whether international criminal law is viable if it only applies to the powerless?
- Can we preserve the integrity of justice when justice itself is subject to power?
- Is the ICC’s legitimacy crisis sharpened by perceptions of it targeting leaders from weaker states while being unable to hold powerful ones accountable?
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Time will tell.
Post Script: I have always been intrigued by the fact that the word sanction is a contranym or a Janus word, because it can mean both permission and penalty, depending on context. My first recollection of thinking about the word was in the mid-70’s, when I saw The Eiger Sanction, directed by and starring Clint Eastwood, adapted from the book of the same name by the mysteriously named Trevanian, the pen name of Dr. Rod Whittaker.
About Author
Michael, your thoughtful analysis of all things ICL is almost always completely on the money. Which is why your uncommon missing of the mark in much of this post is so startling.
The contemptible expansion of US sanctions to now include ICC judges is a truly shocking attack on the independence of the judiciary. It should be met with swift, vehement and unambiguous condemnation from all who care about the need for an impartial and courageous judiciary, whether those judges be international or domestic. None of the condemnatory reactions I have read since last week can fairly be described as hyperbolic, much less emotional. The only hyperbole has come from the US Department of State in its ludicrous description of the ICC’s “politicization and abuse of power.”
There is no upside to the ICC capitulating to the US’s bully-boy tactics, as you argue is both inevitable and, by reason of realpolitik considerations, advisable.
The ICC already has a legitimacy problem. For many years, many States – notably those from the Global South – have accused the ICC of double standards. The OTP, it was said, cheerfully went after the low-hanging fruit of officials from poorer and less powerful countries while carefully ignoring the criminality of leaders from richer (read, more important) States.
Appeasement – for that is exactly what it would be – of the US by taking any of the off-ramps proposed in the post would aggravate the ICC’s legitimacy challenges. It would undo at a stroke all the work undertaken over the last several years that demonstrates that the Court is not merely a tool of Western (neo-colonialist) interests. Appeasement would permit opponents of the Court to assert, with good reason, that they were right all along. That the ICC does indeed operate on a “one rule for us, another rule for you” basis. That, faced with their complaints, the ICC won’t hold to account nationals from the States with the loudest voices and deepest pockets for reasons of grubby political expediency.
Far from allowing “the ICC to carry on its mission” by rewarding claims of American exceptionalism (exemptionalism?), appeasement would be the surest way of bringing about the beginning of the end of the international criminal justice project.
The ICC cannot afford to throw its hands up and resignedly say, “It is what it is.”
The length and pomp of this post can’t hide the sheer absence of moral fortitude and the abundance of convenience on the author’s side. Of course he’d propose that the only way to “protect” the ICC from Trump’s gratuitous sanctions is to deprive victims of genocide from justice. Of course he’d forget the efforts made by the UNSC and the EU Council over the years to guarantee that sanctions comply with basic human rights guarantees. The exact same guarantees, mind you, he’d heatedly mention in the courtroom on behalf of literal génocidaires to portray himself as the sole guardian of due process of law. Well, the Emperor has no clothes, Michael. You’re just another pretentious prick who’s always more comfortable punching downward. Just like all your clients. Pathetic.