The Ledger That Kings Must Sign

What the United States now proposes to starve is not merely a court in The Hague but an inherited arrangement, purchased at terrible cost across the last century, by which a general in his tent was made to suspect that someone, somewhere, was keeping a ledger of what he did. That suspicion was not born in 1998 when the Rome Statute was signed, nor even at Nuremberg, where American prosecutors, more than any others, insisted that the defeated be tried rather than shot. It is older and more fragile than either. Before Washington tears down this fence by sanctioning the International Criminal Court, restricting its resources and its capacity to investigate and prosecute war crimes, it ought to ask what the fence has been holding in.

The grievance deserves its full weight, because it is not frivolous. The United States never ratified the Statute, and a court that claims jurisdiction over the nationals of a state that never consented to it raises a question of legitimacy that no appeal to universal conscience can wave away. A prosecutor answerable to no electorate, choosing among the world’s atrocities which to pursue and which to pass over, wields a discretion that would alarm any student of English liberty, who learned long ago that power without a check upon it is not justice but merely a different master. I have myself watched a tribunal grow vain of its own righteousness. These are serious objections, and the men who press them are not all cynics.

But observe the remedy they have chosen. An objection to jurisdiction would be answered by diplomacy, by treaty, by the patient work of narrowing what the court may touch. Sanctions answer nothing; they do not correct the court’s reasoning but simply cut off its supply. And they fall not upon some abstraction called “the Court” but upon persons: the investigator whose bank, fearful of American penalties, quietly closes her account; the contractor who will no longer maintain the evidence servers; the translator who decides that a career in The Hague is now a liability to his family. No judgment of the court is overturned. Its memory is simply allowed to rot.

I spent the better part of a decade prosecuting Warren Hastings, and I learned there what such institutions are actually for. Hastings was acquitted. By the measure of formal purpose, the whole enterprise failed. Yet every servant of the Company who came after him governed in Bengal knowing that a governor-general had been made to stand in Westminster Hall and hear his conduct described aloud before the nation. The verdict was the least important thing the trial produced. Its latent function was to establish that distance from home did not dissolve accountability, that a man could not do in Calcutta what he dared not do in Kent. The ICC has convicted few, and its critics make much of the meagre tally, as though a lighthouse should be judged by the number of ships it has personally rescued.

What the court quietly maintains is precisely this: the expectation that testimony will be gathered, that a widow’s account of what happened in her village will be written down, sealed, and kept somewhere it cannot be burned. Starve the clerks and you do not abolish war crimes; you abolish the record of them. And the record is the only inheritance the victims of such crimes are ever likely to receive.

Then consider what the mechanism sets in motion, which is always more important than what its authors intend. Washington has now demonstrated that a sufficiently powerful state may defund, by financial instrument, a tribunal whose attention it resents. Every other power with a banking system and a grievance has been handed the precedent, with the American seal upon it. The nation that built Nuremberg, and made the world believe that victors could submit to procedure, has taught the next generation of strongmen that procedure is a thing one sanctions out of existence. The reformers believe they are disciplining one court. They are amending the law of nations for everyone who comes after, and they have not consulted the dead who wrote it, nor the unborn who must live under it.

Somewhere in The Hague this autumn, an archivist is deciding which boxes of witness statements can be preserved on a shrinking budget and which must wait. That is what this policy looks like when it arrives: not a verdict, not a reform, but a woman with a box in her arms, looking for a shelf that is no longer there.