US imposes sanctions on International Criminal Court amid sovereignty concerns
Sanctioning the Judges: Sovereignty, Consent, and the ICC
When a state moves to “end” a court that claims power over its citizens, the true question is not whose power is larger, but which power rests on rightful consent and known law rather than on arbitrary will.
The spectacle is stark. A government announces sweeping sanctions on an international court; the measures are designed not merely to protest, but, in the words reported, to “collapse its ability to operate financially” and even to “end the ICC” if it does not end its “threats.” The court, in turn, calls this “an assault on the rule of law” and vows not to be “deterred.” The same day, a former judge of that institution receives a great peace prize for advancing international law, and dedicates it to “survivors of international crime.” Thus the world is offered a moral drama of sovereign state against global tribunal, each claiming to defend justice.
When I wrote in the Second Treatise that political power is a right to make laws with penalties only for the public good, I meant to bind rulers and judges alike under one rule: that no authority is legitimate unless free and equal persons could reasonably consent to it for the preservation of their lives, liberties, and estates. In a state of nature, all men are under the law of nature, which is reason, and no one has authority over another without his consent. An international court, which would try men of many nations, must therefore show, first, that those nations have truly consented, and secondly, that its proceedings better secure their rights than the condition they leave.
The United States, as it is reported, refuses that court’s authority over its citizens, brands it a “rogue” institution, and now draws on its executive power to forbid its own people and companies from financial dealings with the tribunal, so as to hasten its ruin. This I take to be an act of what I called prerogative: power used by the executive outside ordinary rule, on a plea of necessity and public good. The stated end here is to “defend US sovereignty” and to prevent its people from being prosecuted by a body to which, it says, they have not consented. Whether that plea is just turns on consent and on danger.
First, as to the court. If it claims power to prosecute persons of a nation that never granted, by its own legislative, such jurisdiction, it must show some other ground of rightful authority than compact. Perhaps it says that certain crimes are so grievous that all mankind must answer to one bar, whether they agreed or no. But this would make the court a kind of universal monarch in judicial robes, set above peoples who never chose it. In my understanding, even the worst crimes do not create a new earthly sovereign; they justify punishment, but only by judges whose power can itself be justified to the guilty as well as to the innocent.
Secondly, as to sanctions. A people may surely defend itself against usurpation; if an institution without their consent attempts to seize power over their lives and liberties, they do not sin against the law of nature by refusing obedience. Yet there is danger when an executive arm takes upon itself to “dismantle” a court of law by mere prohibition of all intercourse, and when an officer declares, as is reported, that either the court will end, or it will be ended by that state. Power to protect one’s own citizens is one thing; power to destroy the very possibility of an impartial judge for others is quite another.
In the Second Treatise I allowed prerogative only so long as it is plainly for the public good and remains revocable by the people. If sanctions narrowly framed served to keep a foreign institution from wrongfully laying hands on those who never consented to it, and if those measures were subject to correction by the ordinary legislative, they might be justified as a shield. But if they are cast so wide as to starve the court of all means to hear any cause, for any nation, they look less like a shield and more like a sword drawn against the rule of law itself. Then the state makes itself judge in its own case, and everyone else’s too.
I must therefore say this. The court’s claim to universal reach without universal compact is, in my principles, ill-founded; men are not born under such a jurisdiction. A state that refuses it on those grounds acts within its right. Yet a state that uses concentrated executive power to “collapse” a judicial body, instead of answering it by argument and treaty, treads near the line where prerogative becomes arbitrary power. Between an ambitious court and an overreaching executive, the world must keep fast hold of one measure: that all power, whether wearing the gown or the sword, is held on trust, and when it ceases to protect the innocent, it ceases to be rightful power at all.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — The state of nature as analytic baseline: perfect freedom and equality under the law of nature, so that government must be shown to improve on that baseline for everyone who leaves it.
- Second Treatise of Government — Prerogative as revocable emergency discretion — legitimate exactly as long as the public visibly benefits and no longer.