Who controls norm-setting power?

International justice and political power:

On October 9, the United States crossed a new threshold in its confrontation with the International Criminal Court by imposing sanctions on the institution itself. Washington has long contested the ICC’s jurisdiction over nationals from countries that have not ratified the Rome Statute and rejects certain mandates aimed at Israeli officials. The Court, for its part, states that these sanctions seek to hinder its operation and to intimidate those who work with it.

At first glance, the case seems to oppose the right to use force. The ICC would embody the rule of the United States’ power. But this reading is too simple.

The ICC exercises what can be called a normative power. It has neither an army nor police, nor a central bank. It even depends on states to arrest the people it seeks. Yet, it possesses a real power: to legally qualify facts, open investigations, issue arrest warrants and, above all, produce a form of international legitimacy or illegitimacy. A judicial decision can modify the image of a leader, complicate their movements, and influence diplomatic relationships.

This normative power is based on law. But that does not mean that it is automatically neutral, indisputable, or protected from any subjectivity. Law is not a mechanism. It must be interpreted. The prosecutor must decide which situations to prioritize. The judges must determine whether the conditions of jurisdiction and admissibility are met. They must assess the seriousness of the facts, the reality of national procedures and the solidity of the evidence presented to them. The Rome Statute governs these decisions, but it does not eliminate the part of judgment. human that they contain.

This is where the real geopolitical question begins.

An institution can be legally independent while making decisions that will be perceived as selective, unbalanced, or politically oriented. This perception alone does not prove that a decision is partisan. But it cannot not simply be dismissed on the grounds that the decision comes from an international court.

The ICC has already been confronted with this problem. For years, it was criticized for the very important place occupied by African issues. Today, its  decisions concerning the war in Ukraine, Gaza, or other conflicts are the subject of very different debates depending on the states concerned. Some see it as proof that no one should be above the law. Others are accusing the Court of applying its principles selectively or to cross the limits of one’s competence.

Here, an essential distinction must be kept: contesting a decision is not enough to demonstrate political instrumentalization. Such an accusation must be substantiated. But the opposite is also true: invoking the independence of justice must not make any criticism illegitimate.

Independence does not mean infallibility.

This is probably the most important point. A normative power is not credible. that if it  herself accepts very strong requirements: consistency between the files, transparency of the criteria, precise legal reasoning, possibility of appeal and ability to explain why some situations are pursued and others not. Otherwise, a risk arises: the standard itself can be perceived as an instrument of power.

And that is precisely what the ICC’s adversaries are using today. Washington affirms that the Court is exceeding its mandate. Israel denounces certain decisions such as politically motivated. The ICC replies that it applies the Rome Statute and that its jurisdiction lies in particular on the territory of the States Parties. These positions are legally and politically opposed, but above all they reveal a battle for legitimacy.

This is where American material power comes in.

The United States can act on banks, insurers, and providers technology and companies working with the Court. They can therefore transform a legal disagreement into an economic constraint. The ICC can produce a norm; Washington can weigh on the instruments necessary for its operation.

But again, it would be too simple to conclude that material power American corrects any defects in the normative power. Sanctions pose their own problem. If each great power can weaken a jurisdiction as soon as it challenges a decision, the very idea of international justice becomes extremely fragile. A court dependent on the permanent consent of The most powerful states can no longer really investigate them or their allies.

So we are facing two symmetrical dangers.

The first would be an international judiciary convinced that its independence dispensing with the need to respond to criticisms regarding consistency, the selection of files or the interpretation of law. The second would be a system in which the most powerful states can neutralize materially an institution as soon as its decisions become politically embarrassing.

Between the two, a balance must be sought.

International justice must remain independent of political power. But its normative authority must be based on transparent, auditable and sufficiently coherent to limit the accusations of selection or of instrumentalization. Conversely, states must be able to legally challenge the decisions of a court without using their financial power to prevent this court to work.

The real question is therefore no longer simply this: can law withstand power? ?

It is becoming much more demanding: who controls those who interpret the law, and who controls the states when they use their power to escape this right?

This may be where the future of international justice is at stake. Its strength will not depend on not only of its independence. It will also depend on its ability to convince that it applies the same principles with the same rigor, regardless of the States, the leaders or conflicts concerned.

Because normative power is really strong only when it is perceived as legitimate. And material power is truly sustainable only when it accepts it  also has limits.