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

10 October 2026

A power has punished the judges who might judge it. The court calls this an assault on law; the punished power calls the court itself lawless. Let us not rush to adjudicate between them, for they are not answering the same question, and the confusion between their questions is the whole disease.

The sovereign asks: who may constrain my conduct toward my own soldiers and citizens? The tribunal asks: what standard binds all who have consented to it? The first question belongs to political necessity; the second to a law that stands above any single will. The sovereign answers with sanctions because sanctions are the only instrument a sovereign possesses. The tribunal answers with statutes because statutes are the only instrument a court possesses. Each speaks within its own jurisdiction. The scandal is not that they disagree - disagreement between jurisdictions is the ordinary condition of law - but that each pretends the other’s answer was addressed to its own question.

And yet I will not pretend the harmony here is easy, as some of my colleagues in the law schools would have it. There is a real wound. A court that cannot try the powerful is like a physician permitted to treat only the healthy; the instrument exists in name and fails in its purpose. The states that “strongly disagree” - their disagreement costs them nothing, which is why it is so cheap and so loud. Consent without cost is rhetoric, not obligation.

What does the original text of the law actually require? Not that every nation submit to every tribunal, but that no nation claim for itself the right to be the sole author of what counts as justice done in its name. The sovereign may refuse the court’s jurisdiction. The sovereign may not redefine the court out of existence while claiming to defend the law it refuses. That is the distinction the commentators have buried under their praise of sovereignty, and it is the one worth recovering.