Members of the International Criminal Court Need To Relearn The Lesson of Marbury v. Madison

Jefferson likely would have ignored any command from Chief Justice Marshall, and Marbury did not issue such a command.

Another semester, another section of constitutional law. This week I taught Marbury v. Madison for the umpteenth time. Beyond teaching the mechanics of the Original Jurisdiction clause and the Judiciary Act of 1789, I always try to convey to my students why Marshall wrote the opinion backwards: Why decide the merits question about the commission before the jurisdictional question? The answer, as all know, was that Marshall was trying to establish the principle of judicial review for federal legislation. (And no, he did not create judicial review; read Hamilton in Federalist No. 78.)

Yet, lurking in the background was a fear. If Marshall had in fact ordered Secretary of State James Madison, an appointee of President Thomas Jefferson, to deliver Marbury's commission, it is likely the order would have been disregarded. It is not a certainty, but there was definitely that risk. If so, Marshall recognized what would happen if his court issued an order that was ignored: the court, as an institution, would be diminished.

At this point in class, I always ask students why do people follow court orders. The usual answer is that if you ignore the court, you will go to jail. That's fine, but it is the executive branch that will actually arrest a person and incarcerate them. Judges do not get off their benches and place handcuffs on a person. As Hamilton explained in Federalist No. 78, courts have neither force nor will, only judgment. Courts depend on the executive branch to enforce their judgments.

I then ask why does the executive branch enforce a court's judgments. The usual answer is that without that sort of enforcement, there would be anarchy and chaos in society. Maybe that's right. But at bottom, the answer is that the executive branch enforces the court's judgments because the executive branch thinks the court plays a valid role in society, even if any particular decision might be right or wrong.

I then ask whether the President should enforce a blatantly unconstitutional ruling (you can think of what that would be). At that point, students get a bit queasy. Some judicial supremacists (even if they do not know the term yet) say that court judgments should be enforced no matter what. Other departmentalists (even if they do not know the term yet) say that the President can decide for himself whether the order is constitutional, and enforce accordingly. Most students are in the middle, and don't quite know what to think, at least during the first week of class.

This class helped me bring into context the International Criminal Court (ICC). This judicial body sits in the Hague. (I wrote about its jurisdiction here.) The ICC has asserted the power to issue arrest warrants for war criminals, including heads of state. The ICC has no actual power to command people to the Hague. Rather, signatories to the Rome Convention have a legal obligation to arrest anyone in their jurisdiction that is subject to an ICC warrant. So are member states actually enforcing these arrest warrants? No. Consider three examples.

Example #1. Russian President Vladimir Putin is subject to an arrest warrant. Yet he was welcomed with a state visit to Mongolia, a signatory to the Rome Convention. The ICC Pre-Trial Chamber (whatever that is) found that Mongolia failed to cooperate with the arrest warrant. But so what? Will there be any actual consequences? Putin has also visited China, and President Trump has announced that he will visit with Putin. The ICC's ruling are less than parchment barriers.

Example #2. The ICC issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu. Netanyahu was invited to Poland for the 80th anniversary of the liberation of the Auschwitz Concentration Camp. Poland is a signatory to the Rome Convention, but signaled that it would not arrest Netanyahu. Can you imagine the Poles putting handcuffs on the Israeli prime minister at the site of an actual genocide? Maybe they could have loaded him on a railcar--there are still tracks at the camp--through Germany onto the Netherlands? And what will the consequences of Poland's refusal to enforce the warrant be? Absolutely nothing. Other European nations like France and Italy said Netanyahu could visit, citing the fact that he is a current head of state and has diplomatic immunity. Legalistic distinctions without a difference. What is going on here? These nations have determined that their own diplomatic interests with Israel dwarf whatever manufactured claims of genocide have been brought forward.

Example #3. The ICC issued an arrest warrant for Osama Elmasry Njeem, a Libyan charged with war crimes. The Italian police actually arrested Njeem, but the government did not transport him to the Hague. Rather, two days later Italy escorted Njeem back to Libya. The Prime Minister of Italy cited "procedural" reasons for returning him. But there may be another reason. Italy needs Libya's cooperation to handle the migrant situation. Returning Njeem likely helped Italy's diplomatic relations with Libya. By contrast, sending Njeem to the Hague would have harmed those relations. Which did Italy choose? Which option would any sane country choose? The arrest warrant was disregarded.

The ICC is John Marshall's worst nightmare: a court that issues orders that are routinely flouted. This is not really a court. It is a body of progressive human rights lawyers who wear powdered wigs and robes. They are cosplaying as judges, but have no actual sovereign authority of their own. It's as if the Harvard Law Review editorial board ordered that certain scholars should be arrested for writing the wrong type of scholarship. (Maybe these are the sorts of "consequences" Seth Barrett Tillman worried about.)

The ICC is emblematic of my general view about international law. International law is designed to allow smaller, weaker countries to exert power over larger, stronger countries. In the normal course of things, larger, stronger counters can use their diplomatic or military clout to achieve their ends. Smaller, weaker countries do not have either diplomatic or military clout, so they have to dress up their demands in the fancy garb of "international human rights law" and other such abstract legalisms. But at bottom, any "court" decision must be backed up by political will. And absent that political will, ICC opinions are little more than window dressing for human rights lawyers without any actual mandate.

Every action has an equal and opposite reaction. In 2002, Congress enacted the American Service-Members' Protection Act, known informally as The Hague Invasion Act. The law gives the president the power to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court." This is effectively a declaration of war against the Hague if any American servicemember is detained.

In 2020, the ICC began an investigation of American troops in Afghanistan, and Congress imposed sanctions on the Chief Prosecutor and her aide. This month, the House voted to impose sanctions on the entire ICC, and the Senate likely will agree. The ICC is already preparing for the crushing financial consequences. Microsoft, for example, would likely have to stop working with the ICC.

The members of this court need to relearn the lesson from Marbury. If you issue orders that will be ignored, you will no longer be a court.