US Imposes Sanctions on International Criminal Court

The Compliment of the Cudgel

Nobody sanctions a court that does not matter. The surest proof that a tribunal has teeth is that a great power has gone to the trouble of buying a muzzle.

For years the conventional wisdom held that the International Criminal Court was an ornament, a handsome building in The Hague where expensive lawyers took a long time to convict very few people. Washington agreed with this view and was never a party to the Rome Statute, which created the Court. A country that thinks a club is ridiculous simply declines the invitation and goes on with its evening. It does not freeze the club’s accounts, bar its officers from travel, and warn every bank on earth that serving its members may be ruinous. That is not how one treats a joke. That is how one treats a rival.

The United States has therefore done what two decades of the Court’s own press releases could not do: it has made the Court a power. Sanctions are the instrument a sovereign uses against other sovereigns, against regimes, cartels, and the occasional oligarch with an unwise yacht. To aim that instrument at a tribunal is to grant the tribunal the one thing it always lacked, which is recognition as a force in the world. A state may deny a court’s jurisdiction or fear it. It cannot plausibly do both.

The strongest case for the sanctions deserves its full hearing, because it is not a foolish one. The American position is that a nation which never consented to a court cannot be bound by it; that accountability belongs to a democracy’s own courts, its own inspectors general, its own free press; and that an international prosecutor answerable to no electorate is a standing temptation to politics in the robes of law. This is the language of sovereignty, and sovereignty is a respectable thing. It is so respectable that it is generally the last thing anyone examines.

So let us examine it. The Court was built, quite deliberately, as a court of last resort. Under the doctrine its lawyers call complementarity, it may act only where a state is unwilling or unable to investigate a crime itself. A nation whose own courts are working has, by design, nothing to fear from The Hague except the mild embarrassment of being checked. The sanctions therefore rest on an argument that undoes itself at the first touch. Either American justice is diligent, in which case the Court must defer and the sanctions are unnecessary, or it is not, in which case the sanctions are protecting precisely the failure the Court exists to remedy. Washington is defending the sincerity of its institutions by behaving as though it does not believe in them.

Sincerity is always most passionate where it has thought least carefully.

What the sanctions actually restrict is not a verdict, still less a sentence; the Court has no police and has never arrested anyone without a government’s help. They restrict money and movement, the dull machinery of investigation. Consider an analyst in The Hague, sorting through the testimony of a woman from a village that no longer exists, who discovers one morning that the software licence has lapsed because the vendor’s lawyers grew nervous, that the flight to interview a second witness cannot be booked, that her own salary arrives through a correspondent bank now rather frightened of her. No one in Washington has touched her file. They have merely made the file very expensive to open. This is the modern method of suppressing evidence: one no longer burns the papers, one simply makes the filing cabinet unaffordable.

And here the paradox completes itself, rather unkindly. The people most harmed by a starved tribunal are not the powerful, who can always outlast a prosecutor, but the witnesses to war crimes committed by governments the United States itself condemns. A sanctions regime aimed at the Court is a gift distributed with perfect impartiality to every warlord on earth. They did not ask for it. They will accept it with the graciousness of men who know the value of a delay.

There is an old consolation that the only thing worse than being prosecuted is not being worth prosecuting. The Court may now permit itself a newer one. It spent its first quarter-century wondering whether anyone powerful took it seriously, and it has received its answer in the form of a frozen account.

Somewhere in The Hague, a printer is out of toner, and that is the most eloquent judgment the Court has been allowed to deliver all year.