Something More Powerful Must Replace The International Criminal Court

Edited by Sam Thielman

YES, I KNOW. The United States has not ratified the Rome Statute, the foundational text acceding a signatory to the International Criminal Court. Neither has Iran. The United Nations General Assembly is not automatically a theater of ICC jurisdiction.

But, just saying, Donald Trump again threatening to "annihilate" Iran—"to drive them into hell with no chance of survival," said the president of the United States during his remarks to the United Nations General Assembly on Tuesday morning—is the sort of threat for which the Rome Statute's Article 25 (3)(e) was written. 

The relevant text reads: "In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person … In respect of the crime of genocide, directly and publicly incites others to commit genocide." In this case, that would be the U.S. commander in chief, as here threatened, ordering the U.S. military to make his words real. 

Again: Yes, "within the jurisdiction" is likely an insurmountable obstacle; I do not actually subscribe to the idea that you can ICC your way out of Trump; the ICC is designed to be a rigged game "for Africa and thugs like Putin," in the quote ICC Chief Prosecutor Karim Khan attributed to Lindsey Graham; the institutions of the Rules-Based International Order are not meant to constrain Americans. If the ICC couldn't stop the U.S.-Israeli genocide of Gaza, it is not going to stop Donald Trump from making obscene, cavalier threats of indiscriminate destruction. 

The point here is that the mechanism to impose ultimate sanctions against officials making speeches like Trump's doesn't work; but that only makes the need for a more powerful mechanism more urgent. We should probably start conceiving of one.

Trump, far from a deviation from American history, represents every corrosive, violent, officially licensed impulse in American history from the White Lion to the Trail of Tears to Manzanar to—you get the idea. Because Ronald Reagan refused to trade away the never-developed Strategic Defense Initiative when Mikhail Gorbachev at Reykjavik proposed to eliminate all U.S. and Soviet nuclear weapons by the mid-1990s, Trump, like every American president since Truman, possesses the ability to make good on his threat. (I read Odd Arne Westad's The Cold War: A World History over the weekend. That's on pages 540-1.) To borrow something John McCain once said about torture, rejecting this is about demonstrating you still possess a basic humanity, even if the other person does not. 

It would be incredible if Iran decided to ratify the ICC and then pursued a case of genocidal incitement against the United States, even if I'm mostly just making a dark joke here. We can't accept a world in which a president deliberately makes repeated civilizational threats he has the means to carry out. The ICC is plainly insufficient and comes pre-assaulted in American politics. And yet there has to be some kind of consequence for this. 

That is the reason Article 25(3)(e) exists, and that is what concerns me, not its particular applicability. I am not a lawyer. I am a journalist who writes jeremiads. We should sound more like Jeremiah when the iniquitous and powerful are talking about extermination; and probably especially when it concerns the descendants of the conquerors of the Babylonians. [See footnote.—Sam*]

I'm not talking about looking at a still-ideational rule book and saying what Trump said violates some still-ideational and obscure rule. I'm talking about building the world that comes after whatever emerges from the disgrace of the present. The way we get there involves imposing consequences sufficient to deter this happening again.