Having already clarified my original post — Sanctions as Stimulative Measures: A Sovereign Prerogative Untethered from Moral Discernment — and followed it with Deserve’s Got Nothing to Do with It: A Response to Critiques of My Views on U.S. Sanctions and the ICC, I had not intended to revisit the matter. These were rare indulgences, prompted by private messages from colleagues whose intellect I respect. But Mr. James Radcliffe, apparently of the University of New South Wales, has now contributed a comment so drenched in bile and devoid of reasoned argument that, regrettably, another response is necessary.
For the record, here is Mr. Radcliffe’s contribution — unaltered, and as revealing as it is incoherent:
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.
I’ll refrain from addressing the adolescent tone — it speaks loudly enough for itself. In another century, I might have been tempted to issue a gentleman’s challenge to a duel; today, I’ll settle for the pen.
Mr. Radcliffe’s broadside is not an argument. It’s a tantrum masquerading as a critique. His approach — saturated with moral exhibitionism, yet strangely allergic to legal reasoning — demonstrates not only a poor grasp of the post he claims to critique, but a more profound discomfort with the foundational principles of legal process.
Let me restate what I assumed was already clear: I do not support the majority of U.S. President Trump’s policies, foreign or domestic. But my argument was not an endorsement of Trump, nor an apologia for sanctions. It was — and remains — a sober analysis of the ICC’s structural vulnerabilities, the reality of international power asymmetries, and the tactical space within which the Court must operate to survive. If that analysis offends Mr. Radcliffe’s sensibilities, he is free to disagree — but he is not free to misrepresent my position to better perform his outrage.
On the ICC: I have praised it where praise is due, and criticized it where criticism is warranted. That is what serious observers do. Mr. Radcliffe may prefer blind allegiance to institutional virtue, but I decline to conflate complexity with betrayal.
His remarks about defence counsel — and by extension, my work — betray a fundamental hostility to one of the most basic tenets of international criminal justice: the right of every accused person, no matter how heinous the charge, to competent, zealous legal representation. I do not represent causes; I represent clients. I do not “punch down.” I uphold the rights of individuals in a system that only functions if those rights are universally guaranteed, even for those Mr. Radcliffe finds morally abhorrent. That is not moral weakness. That is the rule of law in action.
And as for his casual reference to the “efforts” of the UN Security Council and the EU to ensure human rights–compliant sanctions, one wonders which parallel universe he occupies. The UNSC’s record on ICC cooperation is not merely poor; it is structurally absent. That is not a matter of opinion, but of documented fact. If Mr. Radcliffe intends to continue opining publicly on these matters, I would recommend a modest acquaintance with the relevant history.
Disagreement is valuable. It clarifies ideas, tests assumptions, and refines strategies. That is why every one of my posts ends with an invitation to comment. Pro, con or neutral, I treasure them all. I only ask civilized, respectful debate. However, disagreement grounded in ignorance and launched with venom is something else entirely. It serves neither justice nor intellect. Mr. Radcliffe’s comment may have been meant to wound. It still only ends up revealing his discomfort with complexity, his aversion to legal nuance, and his deep confusion about the profession he presumes to critique.
If that makes me a “pretentious prick”, so be it. I’ll wear the label — along with my robe and my bar card — while defending due process against both the abuses of power and the seductions of righteous fury.
With that addressed, and in a spirit of charitable clarity toward Mr. Radcliffe, I offer below a straightforward distillation of the core arguments from my previous two posts. The format has been reworked for ease of comprehension — for Mr. Radcliffe and for any others who may have shared his confusion. I have also retitled the piece in a manner that may prove more accessible, or at least less likely to be misconstrued.
Strategic Survival: The ICC, U.S. Sanctions, & the Lawful Limits of Sovereignty
I. Introduction: A Legal Crisis in Geopolitical Crossfire
The International Criminal Court (ICC) now faces its gravest political challenge of its existence. The issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and U.S. personnel connected to the Afghanistan investigation has provoked fierce backlash. Most notably, the United States has imposed targeted sanctions not only on ICC Prosecutor Karim Khan, but also on four sitting ICC judges—an unprecedented intrusion into judicial independence.
The legal merits of the arrest warrants are debatable. But more urgent is the strategic question facing the Court: can it survive this confrontation while preserving its mission? This commentary argues that a legally grounded, strategically sound recalibration is both possible and necessary. It will explore the ICC’s statutory tools—including jurisdictional review, prosecutorial discretion, and prosecutorial sequencing—as potential off-ramps to avoid institutional isolation.
The following analysis first outlines the legal tools available to the ICC. It then reframes those tools through a realist lens—one more attuned to survival than symbolism.
II. Sovereignty and the Sanctions Paradigm
Sanctions are not per se unlawful under international law. They are a standard tool of statecraft—used multilaterally by the U.N. Security Council and unilaterally by powerful states. The United States defends its sanctions on the ICC by claiming that the Court is exceeding its jurisdiction, asserting legal authority over non-party nationals without consent.
For the U.S., the ICC’s actions are not just unlawful—they are threatening. Prosecuting Israeli and American officials risks impairing military cooperation, intelligence sharing, and regional stability. These are not abstract concerns; they form the bedrock of U.S. national security policy.
For its part, the ICC operates under the Rome Statute, which authorizes jurisdiction over crimes committed on the territory of a State Party (Article 12). Since Palestine acceded to the Rome Statute, the Prosecutor has asserted jurisdiction over alleged crimes committed on its claimed territory. But both the U.S. and Israel contest this—legally and politically.
III. Jurisdictional Levers: Revisiting the Palestine Question
A key pressure point is the Court’s 2021 decision affirming Palestine’s status as a State Party under the Rome Statute. Pre-Trial Chamber I accepted Palestine’s accession and U.N. General Assembly recognition as sufficient for jurisdiction. But this decision remains contested. Critics argue that Palestine does not meet the classical Montevideo criteria for statehood—defined territory, effective government, and capacity to engage in foreign relations.
This ambiguity creates a legitimate opening for procedural reconsideration. The Office of the Prosecutor (OTP) could reframe the scope of the investigation or seek clarification from a newly constituted Pre-Trial Chamber. This would not reverse prior rulings outright, but would signal that jurisdictional issues remain open to legal review.
Such a move provides legal breathing room. By slowing the pace of highly sensitive prosecutions, the Court creates diplomatic space while retaining its statutory authority.
IV. Prosecutorial Discretion and the Interests of Justice
The Rome Statute grants the Prosecutor wide latitude under Article 53 to decline or defer action when it is not “in the interests of justice.” This clause allows the Prosecutor to consider factors like victim preferences, gravity, and—crucially—the feasibility of proceeding.
Sidebar: What Does Article 53 Actually Allow?
Article 53 of the Rome Statute empowers the Prosecutor to decline investigation or prosecution if:
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- There is insufficient basis in law or fact;
- Prosecution would not serve the “interests of justice”; or
- Other compelling reasons, such as peace negotiations or unavailability of suspects, justify delay.
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Past uses include former Prosecutor Fatou Bensouda’s hesitance on pursuing U.S. officials in the Afghanistan probe, and delays in Kenya’s political violence cases.
The “interests of justice” test is not judicially dictated in every instance. The Prosecutor retains operational discretion. In the present moment, that means the option to defer or sequence arrests, particularly when enforcement is politically unviable or institutionally dangerous.
Strategic delay is not abdication—it is statutory prudence. By focusing initial efforts elsewhere, the Prosecutor preserves the Court’s credibility while reducing confrontation with powerful states.
V. Sequencing and Strategy: Mid-Level First, Leadership Later
A well-worn prosecutorial path in international criminal law is to begin with mid-level or field-level actors. This “bottom-up” approach allows prosecutors to:
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- Build evidentiary foundations;
- Minimize political backlash;
- Signal respect for state complementarity;
- Buy time for high-level indictments when the political environment permits.
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This was the strategy at both the ICTY and ICTR, where initial indictments targeted lower-ranking figures before expanding to political and military leaders. It also allows national jurisdictions—like Israel’s own military legal system—an opportunity to investigate and act, thus reinforcing the principle of complementarity.
In the present context, such sequencing could defuse immediate tensions while demonstrating institutional integrity.
VI. Realism and the Limits of Sovereignty
Israel and the United States argue that the ICC violates their sovereignty. But sovereignty, under international law, does not shield states from accountability for grave crimes. The ICC was created precisely to pierce sovereign impunity when domestic systems fail.
Yet, the ICC must also grapple with reality: sovereignty is more than a legal doctrine. It is a geopolitical tool wielded by powerful states to assert prerogatives and shield allies.
The ICC’s challenge, therefore, is not to reject sovereignty—but to work within its lawful limits. Jurisdiction must be robust but not reckless. Prosecutions must be ambitious but feasible. The goal is to uphold justice without inviting institutional annihilation.
VII. Realist Lens: What the ICC Must Now Weigh
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- Power in Sovereign Hands
Sanctions are coercive tools, not legal arguments. They serve interests, not ideals. The U.S. has deployed them against adversaries and allies alike—from Iran to China to the ICC. The message is clear: defy strategic interests, and pay the price.
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- Idealism Meets Impotence
Condemnation of sanctions, while morally warranted, lacks coercive force. The ICC cannot impose counter-sanctions, freeze U.S. assets, or leverage economic tools. Unless it adapts, it risks being sidelined.
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- Not Just Trump’s War
Though Trump initiated the ICC sanctions regime, the Biden administration has adopted a similar posture. Congress—on both sides of the aisle—has drafted legislation to expand sanctions. This is not a partisan spat; it is entrenched policy.
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- Sanctioning Judges: An Existential Signal
Targeting independent judges crosses a red line. It undermines the rule of law and judicial independence. But protest alone is insufficient. The ICC must respond not just with outrage—but with resilience and recalibration.
VIII. Triad Strategy: A Lawful Off-Ramp
| Strategy | Description | Benefit |
| Revisit Palestine Jurisdiction | Trigger procedural review of Palestine’s statehood under Montevideo criteria or Oslo framework | Creates legal pause, de-escalates tensions |
| Invoke Article 53 | Use “interests of justice” to delay or sequence top-level warrants | Preserves legal integrity, buys time |
| Mid-Level First | Focus initial prosecutions on operational-level actors | Builds case strength, avoids immediate backlash |
Together, these measures create a principled offramp. They do not abandon the Court’s mission—they preserve it.
IX. Anticipating the Criticisms
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- “This is appeasement.” Not if the Court retains jurisdiction and resumes high-level prosecutions later. It’s tactical delay, not surrender.
- “It rewards U.S. bullying.” Perhaps—but the Court lacks counter-coercive tools. Better to survive and adapt than collapse in moral defiance.
- “Victims deserve justice now.” They do—but justice denied today is not justice denied forever. Accountability can be sequenced without being abandoned.
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X. A Roadmap to Realpolitik-Informed Justice
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- High-Level Diplomacy – Publicly signal review processes and phased prosecutorial plans.
- Institutional Resolve – Assert independence while recognizing political constraints.
- Incremental Accountability – Begin with discrete, evidentiary-strong cases against mid-level actors.
- Engage States Constructively – Show that ICC action is lawful, not ideological; measured, not reactionary.
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XI. Conclusion: Strategy Over Sanctimony
The ICC’s mission—to end impunity for the gravest international crimes—remains vital. But moral clarity is no substitute for institutional viability. Outrage, however justified, cannot shield the Court from geopolitical reprisal.
The strategic use of jurisdictional review, prosecutorial discretion, and sequencing offers a legal path through the current storm. These tools are not evasions; they are instruments of endurance.
International law and international relations are intertwined. If justice is to be done, the Court must first survive. And to survive, it must wield its own legal instruments—not to retreat, but to recalibrate. That is not capitulation. It is strategic survival in service of justice.
Finally, to Mr. Radcliffe, to paraphrase the saying misattributed to Voltaire: I disapprove of what you say [and how you say it], but I will defend to the death your right to say it. Which is why your comment was approved for publication and will live on in this blog.
And, as always, to all those who take the time to read my posts:
I mean it.
About Author
Things haven’t changed! As always, your pen is mightier than the sword! Harking back to our Kodiak days!
The argument that prosecuting mid-level “offenders” will reduce the backlash I do not think is correct. The issue is command, and who has it — and a state does not share that command lightly.
The power to declare an act unlawful is the power to declare an order requiring that act unlawful. The body that can make such a ruling can therefore determine the scope of command. In prosecuting lower level actors for acts required of them by their chain of command is to necessarily determine such orders unlawful (or manifestly so if War Crimes under the Rome Statute at issue, which is not a defense available when crimes against humanity — which seem to have become an “in the alternative” charging method — is charged). That effectively inserts that body above the chain of command, with the power to define its reach.
But the chain of command is not just some legalistic concept; it is the control of a state’s security forces, and those security forces are not just some agency but the essence of its sovereignty because they are the foundation of the state’s security (and the coercive power that, in the Weberian sense, makes a state a state).
This is also true of domestic courts. But those courts are part of the state whose sovereignty is founded in the control over those security forces, and such courts are also checked by the other powers that make up that state. None of that is true for international courts or courts exercising foreign (relative to the state at issue) even if universal jurisdiction.
Nor is it merely a question of the rule of law limiting the scope of command. Because that begs the question of whose law (and who gets to say what the law is). The indeterminacy of all law is magnified in the constructive ambiguity of all treaties, including the Statute, which, while more precise than its predecessors, still has significant indeterminacies that really do matter (quick, the definition of civilian is?!). Resolving such indeterminacies always rests on an interpretative framework that is, as even Dworkin acknowledged, based on unfalsifiable premises that others are not, as a matter of reason, compelled to share. It is, in short, not “the law”; it is the court’s (perhaps best) understanding of law, an understanding that someone else — including other states — need not accept.
The power to declare an order unlawful is, as a consequence, the power to decide how a state can use its security forces. And that is power to determine the risks those forces — and the state they defend — must assume, which because all risks will eventually be realized, what price they must pay. That is true regardless of where those forces operate. One can think that the price demanded by the ICC’s (or any other court’s) understanding of the law is a just and fair one, but that cannot be determined “objectively,” and one does not have to believe — yes, in good faith — that.
To be sure, there is a history of the soldiers being prosecuted for war crimes, but that’s generally the victor doing the prosecuting. And yes, there is a universal jurisdiction scheme under the Grave Breach regime, but I find it hard to believe appealing to that scheme will be any more effective at forestalling backlash from a state that genuinely rejects the construction of the law that made such prosecution possible.
Fundamentally no state allows the un-consented interference with its chain of command if it can prevent it, for doing so weakens its control over the instrument that is the guarantee of survival. And while it may make sense for some states to cede that sovereignty through consent (perhaps because they are not really giving up all that much relative to the influence they may get over the use of more powerful states’ security forces — or perhaps because they do not believe that they will really need those forces to survive), that is not true for all states.
Just my opinion, which does not reflect any one else’s, or any organization’s opinion or view. I enjoy reading your work.