On: US unveils sanctions on ICC in move court condemns as 'assault on rule of law'

10th October

The strongest power on earth has announced penalties against the one tribunal that might, in principle, call it to account. The stated grievance matters little - which investigation, which warrant, which ally. The structure matters entirely. A state that cannot be indicted has resolved, by fiat, that no court shall pretend otherwise, and has dressed the resolution in the language of law.

I have read this architecture before. When the Congress of Vienna assembled a concert of powers, it too spoke of order and civilisation, and it too built nothing that could bind itself. The tribunal without jurisdiction over the strong was never a court; it was a façade with the courtroom carved into the stone. The ICC was founded to correct that defect, and its founders, being statesmen, left the keystone out - no enforcement of their own, dependence on the goodwill of the very powers it might judge. A building that relies on its neighbours’ forbearance for its foundations will be the first ruin on the street.

Note the response of the signatories: they “strongly disagree.” Strongly. The word is doing the work that treaties were meant to do. Disagreement is the diplomacy of the unthreatened; Britain disagrees because the sanctions do not yet touch her. Were the writ to run against London, the disagreement would acquire a different vocabulary. Every state’s devotion to international law is measurable precisely at the point where the law arrives at its own door.

Who answers for the answerers? The question has been asked since judges first wore ermine, and it has almost never been answered honestly. The great innovation of our age is to stop pretending the question exists.

The court survives on paper. The sanction survives in fact. Between paper and fact, power chooses fact, every time.