The Special Beast

The world should check us

Two summers ago, at the inaugural Liberalism for the 21st Century conference in Washington, I had a brief exchange with Charlie Sykes. I floated a use for the International Criminal Court: an instrument to overcome mass pardons, a court that could act where a corrupted domestic process refused to. Sykes quipped that it would never happen, that Americans would never countenance a foreign court trying its officials. He said it the way you say something settled. I came up in a conservative household, and I have been a political animal my whole life, and I knew the reflex on contact. I had been hearing it since my twenties, in the blogging discourse of the early Bush years. America is a special beast. It does not answer to foreign courts.

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The special-beast doctrine is not old. It is younger than the weblog era where I first met it. In 1945 the United States did more than countenance a foreign court — it built one, sat a judge at Nuremberg, then ran twelve further trials of its own: 199 defendants, officials, generals, doctors, industrialists. In 1996 the Senate passed the War Crimes Act by unanimous consent, writing the grave breaches of the Geneva Conventions — treaties the Senate had ratified — into federal criminal law. The Torture Convention, ratified in 1994, obliges us to prosecute or extradite. The principle that officials answer for their crimes beyond their own borders is not foreign to the American tradition. America drafted it, ratified it, codified it. Everything but the court. What the country exempted itself from was never the law — only jurisdiction over itself.

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The mechanism I described to Sykes is, on paper, the court’s own. Article 17 of the Rome Statute makes a case admissible when the state is unwilling genuinely to prosecute, and it defines unwillingness: proceedings “for the purpose of shielding the person concerned from criminal responsibility” do not count. A mass pardon of one’s own officials is the statute’s picture of it. The wall is jurisdiction — Article 12 reaches the nationals of parties, and we are not one. The exemption was the point, sealed 92 to 7.

Since then, the exemption has operated in the open. In May 2024, twelve Republican senators wrote to the prosecutor: “Target Israel and we will target you.” In February 2025, Trump sanctioned the court by executive order, naming Prosecutor Karim Khan in the annex. In August, Marco Rubio extended the sanctions to two judges and two deputy prosecutors — one of them sanctioned for authorizing the court’s investigation of American personnel in Afghanistan, which is to say, sanctioned for doing the checking. And on January 3 of this year came Operation Absolute Resolve: 150 aircraft over Caracas, an operation run out of Pete Hegseth’s Pentagon, and Nicolás Maduro flown out of his own country to face an American courtroom — the largest intervention in the region since Panama, where in 1989 we invaded to put a head of state on trial in Miami. The United States does not decline jurisdiction. It asserts jurisdiction everywhere and accepts it nowhere — a one-way valve wearing sovereignty as its costume.

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So — two years late — no, Charlie. The world should check us, because we are not checking ourselves. The question was never whether Americans would countenance a foreign court; Americans countenanced the first one, because we built it and the defendants were German. The question is whether a nation that sent 150 aircraft to Caracas to jail a foreign president can keep explaining why The Hague may not so much as question Hegseth. The generation that will answer did not grow up inside the taboo. It watched the exemption operate, and it is already delivering verdicts ahead of schedule. The special beast, it turns out, is mortal.

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