US Imposes Sanctions on International Criminal Court
SANCTION, n. A word that means both to authorise and to punish. Governments keep both meanings in the same drawer so that, when they reach in, they need not look at which one they have taken.
The United States has imposed sanctions on the International Criminal Court. The instrument was built for warlords, cartel treasurers and men who keep their fortunes in other people’s countries. Here it has been turned on the tribunal that prosecutes such men, and nobody involved has thought it necessary to build a new instrument for the purpose. A court and a cartel now share a remedy. Washington regards this as a policy. The court’s accountants regard it as a weather event.
The best argument for the measure deserves a fair statement, because it is a better argument than the measure. The United States never ratified the treaty that created the court. A sovereign that has not consented to a jurisdiction may reasonably object when that jurisdiction reaches toward its citizens or its friends. The court’s critics add that its docket has long fallen heavily on the weak and lightly on the strong, so its claim to universal justice has been more universal in the brochure than in the dock. All of this can be argued, and some of it is true.
But a jurisdictional objection is a legal question, and a sanction answers it with a bank. Had Washington wished to contest the court’s reach, it had the usual equipment: briefs, diplomatic protest, appeals to the states that fund the tribunal, the patient dreariness of procedure. It chose instead a tool whose operative mechanism is not argument but abstention. A sanction does not tell the court it is wrong. It tells everyone else that associating with the court has become expensive.
This is where the measure turns from blunt to clever, though no one need have been clever for it to work. The tribunal does not run on law alone. It runs on payroll transfers, software licences, cloud storage, correspondent banks, insurers and airline bookings for witnesses. Most of these services pass, somewhere along the chain, through an institution that fears the United States Treasury more than it admires international justice. No official has to order a bank to abandon the court. The bank has a compliance department, and the department has one question: what does it cost us to say yes? When the answer is “possibly everything,” the answer to the court is no. Washington needs no conspiracy. It needs only that thousands of risk officers act in their own interest, which they can be relied upon to do.
COMPLIANCE, n. The process by which a private firm carries out a foreign policy it was never asked to endorse, and would deny holding if asked.
Set the two columns side by side and let them speak.
On the left, the stated purpose: to protect American persons and allies from an illegitimate assertion of authority. On the right, the observed outcome: a court whose resources shrink across its whole docket, including investigations that have nothing to do with Americans or their allies, and whose ability to investigate and prosecute alleged war crimes is impaired in general rather than in particular.
On the left, a measure aimed at a handful of cases. On the right, a measure that cannot tell one case from another, because a frozen payment does not read the file it was meant to fund.
On the left, the defence of national sovereignty. On the right, a demonstration that the court’s independence was always on loan from the financial plumbing of the country it was now investigating.
That last line is the essay. The sanction does more than hinder the court. It shows how little ground the court ever stood on.
What disappears from the coverage is the person at the far end of the chain. The story is told as a quarrel between two institutions, the United States in one corner and the International Criminal Court in the other, as though a war crime were a dispute between governments over a fence. The parties with the most at stake appear in neither corner. One is the witness who agreed, at real risk, to testify about what was done to her village. Another is the investigator who needs a plane ticket to reach her. A third is the interpreter whose salary must clear before he will spend another month listening to such testimony. None of them is sanctioned. All of them are affected. The law records them as beneficiaries of justice. The ledger records them as a line item that failed to process.
Read through the official definitions, the story is a dispute over jurisdiction. Read through the operational ones, it is something plainer. The world’s largest economy has found that it can suspend a court without amending a statute, winning an argument, or firing a single judge, simply by making the court a customer nobody wishes to keep.
Somewhere a bank clerk, who has never heard of the Rome Statute and never will, sees a payment flagged amber on her screen. She routes it to compliance, which declines it, and she goes to lunch.