On March 17, 2023, the International Criminal Court (ICC) issued an arrest warrant against Russian President Vladimir Putin. The ICC accused Putin of participating in the unlawful deportation of Ukrainian children to Russia.
The ICC, however, has put itself between a rock and a hard place. It acted without prudence nor caution—principles of international law—and exposed itself to the risk of crumbling into irrelevance if the world ignores its call.
Before issuing an arrest warrant against Putin, the ICC should have looked through historical cases such as Marbury vs. Madison, which set a sound precedent for the US Supreme Court (SCOTUS). Instead, the ICC risks showing international law to be a myth.
The ICC decision leaves a question hanging: who will conduct Putin’s arrest and under whose authority? The ICC was reckless by issuing an arrest warrant, in the midst of a war, against the president of a state that has vast nuclear arms.
The ICC is disregarding a simple fact: there are two major affairs in the international political system (IPS)—(1) war and peace and (2) everything else. In war and peace, international law does not exist. There is no justice.
Justice should occur among equal parties and not between strong and weak actors, as is the case in the international arena. Regarding this, Thucydides claimed, “The strong do what they can, and the weak suffer what they must.” The ICC has not considered this and asserts that 123 countries are signatories of the ICC’s Rome Statute. However, China, Russia, and the United States are not, so ICC provisions do not apply to them.
The most powerful country leads the IPS, whose main characteristic and difference from national political systems is anarchy. There is no global government, global law, or legitimate entity that can impose its rules over the others. The strongest country sets the order.
Since World War II ended, the strongest country has been the United States. In this context, the United States can persuade other countries to apply its preferred rules, even if it does not apply them at home.
According to the New York Times, the Pentagon has blocked the US government in its attempt to gather evidence against Putin. The Pentagon fears this might set up a precedent that allows the ICC to judge US politicians and military officers in the future. Hence, the ICC made a fool’s errand.
The Importance of Marbury versus Madison
To figure out the magnitude of the ICC’s mistake, it is important to examine a historical example of how a court should build its legitimacy and power through time. These are lessons the ICC—founded in 2002—has failed to understand.
SCOTUS is a good example. In the early years of the United States, at the end of the 18th century, the US Constitution did not explicitly delineate SCOTUS authorities. Was SCOTUS another branch of the state similar to the executive or legislative? Could it order other state branches to act? What would have happened if SCOTUS had issued an order and no one had paid attention? All these questions are now applicable to the ICC.
SCOTUS used the Marbury vs. Madison case to show its role in US governance. It did not incur any of the risks the ICC is incurring with Putin’s arrest warrant. SCOTUS applied the principles of prudence and caution and did not invoke any power it did not have.
During the weeks before President Thomas Jefferson took office, in March 1801, Congress created new courts. Outgoing President John Adams, a member of the Federalist Party and an advocate for a powerful central government, packed the new courts with Federalists. Adams’s intention was to maintain control over the judiciary and hinder Jefferson’s mandate. The Adams administration came to an end, and the Federalist William Marbury was not appointed as time ran out, even though the decree was already signed.
When he took office, Jefferson knew there were no Republican judges in the federal justice system and that the Federalist Party was trying to obstruct his mandate by controlling the courts. Jefferson ordered James Madison, his secretary of state, to suspend the last four pending appointments. Without the physical document, Marbury was not able to take office. Under his rights granted by the Judiciary Act of 1789, Marbury filed a lawsuit before SCOTUS. He asked for a court order to fulfill Adams’s last four appointments.
The Creation of the Judicial Review Power
Marbury vs. Madison had a massive impact in the development of US justice. The United States is now attempting to export its norms to the rest of the world. The case established the creation of the judicial review power, which allows SCOTUS to annul laws that contradict the Constitution. This power is nowhere in the Constitution, but it grew over time as a result of the prudence and caution that has characterized SCOTUS magistrates.
John Marshall, then SCOTUS chief justice, quickly acknowledged the trouble the court would face: the US president might ignore any SCOTUS resolution if he wanted to. Marshall also expected that not issuing a judicial resolution could be interpreted as pressure from the president to SCOTUS.
Marshall’s resolution is still famous in the US judiciary due to its wisdom and political caution. SCOTUS admitted that Marbury was right and that his rights were disregarded. However, SCOTUS decided it did not have the authority to grant Marbury a legal remedy because provisions of the Judiciary Act of 1789, which granted the SCOTUS the right to decide, contradicted the Constitution.
Marshall gave up the power that the law granted to SCOTUS and provided the US president the victory he was seeking. At the same time, SCOTUS introduced the important power that it enjoys until now: judicial review, which positions the SCOTUS as the final referee to legitimize laws passed by Congress and signed by the executive.
The ICC’s Path to Irrelevance
By issuing an arrest warrant against Putin, the ICC has disregarded all the historical insights and lessons it should be aware of. As with seemingly every international organization, the ICC has ended up believing it enjoys more power than it really has.
The ICC arrogated powers to itself that it does not have by issuing the arrest warrant. Many countries, including those that have not signed the ICC’s Rome Statute, are still debating whether the ICC should even have the power to issue arrest warrants against presidents. The ICC arrest warrant will be ignored by Putin, and no one will dare to enforce its resolution. Not even the United States, which is Putin’s rival and the only country capable of capturing him, wants the ICC to enjoy these powers.
The ICC, due to its own actions and intents, will become irrelevant due to its lack of prudence and caution. The setback to the world’s liberal order will be noticeable from now on.
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