Why a Republic Strangles the Court That Threatens Its Soldiers

The scene is almost theatrical. In one hour, a former judge of the International Criminal Court is crowned with a Nobel Peace Prize for her service to international law; in the next, the US government moves to collapse the very court she served, sanctioning not just officials but the institution itself. The ICC calls it an “assault on the rule of law” and vows not to be deterred. The US secretary of state replies that he is defending American sovereignty and that either the court will end its threats, or the US will end the court. When words reach that pitch, you are no longer in a seminar on justice. You are in a struggle for jurisdiction.

I begin not from sermons but from the effectual truth, as I did in The Prince. A ruler’s first charge is to maintain the state. When a foreign tribunal asserts the right to prosecute that ruler’s soldiers and officials, the threat is existential, even if dressed in the language of universal justice. If those soldiers fear being seized abroad, the state’s freedom of action shrinks. Therefore, a prudent ruler will not ask whether it is beautiful to submit to this new court, but whether submission endangers the republic’s security and reputation. Once the answer is yes, harsh measures cease to be a vice; they become necessity.

The ICC is not an army; it is a new power center built from paper and prestige. It claims jurisdiction over persons; it depends, however, on the cooperation of states for arrests, money, and access. In my day I warned against mercenaries and auxiliaries, because power borrowed must be repaid when least convenient, and often against the borrower’s interest, as W.K. Marriott faithfully renders in his translation of The Prince. This court is an unarmed prophet living entirely on borrowed power. The US, which never ratified its authority, now cuts off transactions with it and threatens to end it outright. That is not caprice; it is the refusal to let someone else’s auxiliaries sit in judgment on your own arms.

Some will answer that this undermines the “rule of law.” Here one must distinguish. Law that cannot be enforced by its own strength is advice, not rule. In a free commonwealth one can slowly educate the people and the great into new orders; abroad, among unequal powers, law without arms is exposed. The US has true arms: financial system, access to its market, and the fear its displeasure inspires. The ICC has statements of principle and the goodwill of those who like to be seen supporting them. Between a prince with his own army and a preacher leaning on borrowed guards, I have written which of the two generally prevails when interests collide.

Yet the court shows a kind of virtù within its narrow means. It declares it will not be “deterred,” it invokes history as its judge, it wraps itself in the fresh luster of a Nobel Prize linked to one of its former judges. This is good use of appearances. In politics, most men judge more by what they see than by what they touch. But the US also understands appearances. By branding the ICC a “rogue” institution and framing sanctions as a defense of sovereignty, it tells its own people: we protect you from foreign meddling. At the same time it warns other states: any organ that aspires to sit above us in judgment will pay a ruinous price. Fear, as I once noted, rests on the prince’s control; love rests on others, who are inconstant.

Fortune, in this quarrel, smiles on neither side especially. The coincidence of sanctions with the Nobel ceremony is her kind of joke: she exalts and humbles the same cause in a single day. But, as I wrote in The Prince—again in Marriott’s rendering—fortune is like a “raging river,” which overwhelms only where men have built no dykes. The US, long suspicious of the court, has quietly built dykes: it stayed outside the treaty, shielded its citizens by law, and now weaponizes its financial strength. The court trusted in the river’s kindness. When the waters turn, the side with dykes and barriers, not the side with declarations, keeps its feet.

Would I prefer that free states submit their arms to a common republican tribunal? My Discourses on Livy show clearly that I prize good laws with good arms above naked force, and that I rate a people’s judgment above the pride of princes, as Ninian Hill Thomson translates. But to found such a tribunal among jealous powers, one must either begin from a single overwhelming victor or build very slowly on a balance of interests. The ICC has neither. It offers new modes and orders without its own arms, and without having first persuaded the greatest republics that their safety is increased, not diminished, by obeying it. In such a case, the middle course—half-sovereign, half-subject—is the surest road to ruin.

So I read this clash simply. A great republic sees a tribunal reaching for a power that touches its soldiers and dignitaries; it calculates the danger, counts its instruments, and decides to act decisively rather than wait to be bound by precedent. The court, holding ideals but lacking force, stands its ground in words and hopes fortune, and other states, will rescue it. This is not an assault on law in the abstract; it is a brutal reminder that law without a shield serves at the pleasure of those who have one. Where there are no arms of your own, your justice is a guest, not a master.