post on sanctions against the ICC<\/a>!\u00a0 And in many cases it came from those I hold in the highest esteem.\u00a0 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\u2019s not a criticism in itself \u2014 emotion has its place, especially when discussing justice and law. But emotion, however righteous, cannot override structural power dynamics.<\/p>\nI 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 \u2014 if read without the haze of moral indignation and with a modicum of intellectual generosity. Perhaps I wasn\u2019t explicit enough. Perhaps I was too restrained in my use of adjectives and adverbs. Perhaps I didn\u2019t indulge in enough rhetorical fire to pass the purity test of those whose compass points only to the ideal. Perhaps. But I think not.<\/p>\n
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\u2019t care, but because those who might care lack the leverage to do anything meaningful about it. No cavalry is coming \u2014 not the EU, not the UN, not any regional coalition of the willing. Not out of apathy, but out of sheer incapacity.<\/p>\n
This is not about what should<\/em> happen. It\u2019s about what can<\/em> happen.<\/p>\nAnd here, I suspect, lies the real fault-line between my position and that of many critics. It\u2019s not about values \u2014 we likely agree on those. It\u2019s about whether international criminal law exists in a moral vacuum, insulated from power, or whether, like every other international institution, it is bound \u2014 sometimes shackled \u2014 by the brute realities of geopolitics. I believe the latter. That\u2019s not cynicism. It\u2019s realism.<\/p>\n
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 \u2014 and not just against the ICC. Sanctions, travel bans, asset freezes \u2014 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.<\/p>\n
Which brings me back to the central point: the ICC needs an offramp. Not because it\u2019s wrong. Not because it\u2019s 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.<\/p>\n
The idealists among us might say the ICC should stand tall, endure the blows, and rely on moral capital. I respect that stance \u2014 it\u2019s noble. But the pragmatist in me sees a more complicated chessboard, where survival may require strategy, not just principle.<\/p>\n
So, with sincere respect to those who critiqued my earlier post: I hear you. Truly. And I suspect we\u2019re not as far apart as you think. We may disagree not on what should<\/em> be done, but on what can<\/em> be done \u2014 in the real, compromised, power-dominated world the ICC inhabits.<\/p>\nBut 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:<\/p>\n
\n- \n
\n- \n
\n- I deplore the issuance of sanctions against the ICC.<\/li>\n
- I deplore sanctions against any judge for carrying out their judicial functions.<\/li>\n
- I deplore the selectivity in targeting only four judges. The criteria seem arbitrary, even hypocritical \u2014 but that\u2019s beside the point. No ICC judge should be sanctioned.<\/li>\n
- The rationale offered \u2014 that the judges pose a national security threat \u2014 is patently absurd.<\/li>\n
- The Trump Administration has shown itself virtually amoral when it comes to the rule of law.<\/li>\n
- There is bipartisan U.S. support \u2014 including from the Biden administration \u2014 for Israel, and for sanctioning the ICC over arrest warrants for Netanyahu and Gallant.<\/li>\n
- There are legitimate strategic reasons for the U.S. to support Israel\u2019s current leadership \u2014 particularly in relation to the Iran nuclear threat.<\/li>\n
- ICC State Parties, individually or collectively, cannot fill the gap left by U.S. hostility.<\/li>\n
- Even the ICC\u2019s staunchest supporters will hesitate to antagonize Trump or the Republican base. Rhetoric aside, national security and economic self-interest will prevail.<\/li>\n
- Secondary sanctions \u2014 including against states or blocs like the EU \u2014 are not a fantasy.<\/li>\n
- When power is asymmetrical, the weaker party must compromise. That\u2019s the law of statecraft since time immemorial.<\/li>\n
- Yes, condemnation and protest are essential. But like the drowning man flailing for help, crying out won\u2019t save him unless he also learns to swim.<\/li>\n
- Compromise need not be capitulation; elegant solutions avail themselves once emotions are calmed and cooler heads prevail.<\/li>\n
- An offramp may look like capitulation or appeasement \u2014 but what\u2019s the alternative?<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n
I could go on. But the point, I hope, is clear: I do not like<\/em> the sanctions. I do not endorse<\/em> 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\u2019t see it happening. Not against this U.S. administration. Not with Trump. Not when I see the tenacity with which he pursues his fixations.<\/p>\nAnd forgive me if I don\u2019t see a white knight on the horizon coming to the ICC\u2019s rescue.<\/p>\n
I suspect many critics will remain unmoved. So be it. All I can say is: read history and study statecraft. Every great power \u2014 past, present, and future \u2014 uses its power to the fullest when it comes to perceived national interest. You don\u2019t 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.<\/p>\n
Yes, condemnation and protest are essential. But like the drowning man flailing for help, crying out won\u2019t save him unless he also attempts to swim.<\/p>\n
The tragic irony of international criminal justice in a system of sovereigns is this: Deserve\u2019s got nothin\u2019 to do with it.<\/strong><\/p>\n
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