Wow did I get an earful after my post on sanctions against the ICC! And in many cases it came from those I hold in the highest esteem. As expected, most of the criticism directed at my post was steeped more in emotion than in cold, fact-based logic or a sober assessment of geopolitical reality. That’s not a criticism in itself — emotion has its place, especially when discussing justice and law. But emotion, however righteous, cannot override structural power dynamics.
I genuinely commend those who, in Churchillian fashion, continue to defend the ICC, international criminal justice, judicial independence, and the integrity of the Prosecutor. I agree with those values. I said so in my previous post — if read without the haze of moral indignation and with a modicum of intellectual generosity. Perhaps I wasn’t explicit enough. Perhaps I was too restrained in my use of adjectives and adverbs. Perhaps I didn’t indulge in enough rhetorical fire to pass the purity test of those whose compass points only to the ideal. Perhaps. But I think not.
Where I may have misjudged was in assuming readers would appreciate a basic, uncomfortable truth: the ICC, in its current predicament, will not be rescued. Not because states don’t care, but because those who might care lack the leverage to do anything meaningful about it. No cavalry is coming — not the EU, not the UN, not any regional coalition of the willing. Not out of apathy, but out of sheer incapacity.
This is not about what should happen. It’s about what can happen.
And here, I suspect, lies the real fault-line between my position and that of many critics. It’s not about values — we likely agree on those. It’s about whether international criminal law exists in a moral vacuum, insulated from power, or whether, like every other international institution, it is bound — sometimes shackled — by the brute realities of geopolitics. I believe the latter. That’s not cynicism. It’s realism.
The United States, like it or not, has both the means and the political will to punish institutions it sees as threatening its sovereign interests. It has done so repeatedly — and not just against the ICC. Sanctions, travel bans, asset freezes — these are the tools of modern imperial leverage. And while we may recoil at their use against international judges and prosecutors, outrage does not equate to deterrence.
Which brings me back to the central point: the ICC needs an offramp. Not because it’s wrong. Not because it’s weak. And certainly not because it lacks legitimacy. But because it cannot win a game where the rules are written by others, and the referees wear red, white, and blue.
The idealists among us might say the ICC should stand tall, endure the blows, and rely on moral capital. I respect that stance — it’s noble. But the pragmatist in me sees a more complicated chessboard, where survival may require strategy, not just principle.
So, with sincere respect to those who critiqued my earlier post: I hear you. Truly. And I suspect we’re not as far apart as you think. We may disagree not on what should be done, but on what can be done — in the real, compromised, power-dominated world the ICC inhabits.
But for those still disappointed in my apparent accommodation of realpolitik, allow me to be more explicit with a laundry list of points I thought were already implied:
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- I deplore the issuance of sanctions against the ICC.
- I deplore sanctions against any judge for carrying out their judicial functions.
- I deplore the selectivity in targeting only four judges. The criteria seem arbitrary, even hypocritical — but that’s beside the point. No ICC judge should be sanctioned.
- The rationale offered — that the judges pose a national security threat — is patently absurd.
- The Trump Administration has shown itself virtually amoral when it comes to the rule of law.
- There is bipartisan U.S. support — including from the Biden administration — for Israel, and for sanctioning the ICC over arrest warrants for Netanyahu and Gallant.
- There are legitimate strategic reasons for the U.S. to support Israel’s current leadership — particularly in relation to the Iran nuclear threat.
- ICC State Parties, individually or collectively, cannot fill the gap left by U.S. hostility.
- Even the ICC’s staunchest supporters will hesitate to antagonize Trump or the Republican base. Rhetoric aside, national security and economic self-interest will prevail.
- Secondary sanctions — including against states or blocs like the EU — are not a fantasy.
- When power is asymmetrical, the weaker party must compromise. That’s the law of statecraft since time immemorial.
- Yes, condemnation and protest are essential. But like the drowning man flailing for help, crying out won’t save him unless he also learns to swim.
- Compromise need not be capitulation; elegant solutions avail themselves once emotions are calmed and cooler heads prevail.
- An offramp may look like capitulation or appeasement — but what’s the alternative?
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I could go on. But the point, I hope, is clear: I do not like the sanctions. I do not endorse capitulation. I do not oppose the idea of the UK, France, Germany or others defying the U.S. and standing with the ICC in the name of legal principle. I just don’t see it happening. Not against this U.S. administration. Not with Trump. Not when I see the tenacity with which he pursues his fixations.
And forgive me if I don’t see a white knight on the horizon coming to the ICC’s rescue.
I suspect many critics will remain unmoved. So be it. All I can say is: read history and study statecraft. Every great power — past, present, and future — uses its power to the fullest when it comes to perceived national interest. You don’t have to agree with their claims or their conceptions of interest. But it is foolish to minimize them, or worse, try to drown them out with moral outrage alone.
Yes, condemnation and protest are essential. But like the drowning man flailing for help, crying out won’t save him unless he also attempts to swim.
The tragic irony of international criminal justice in a system of sovereigns is this: Deserve’s got nothin’ to do with it.
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Well written, sadly, that’s how it is.