Court and spark The often-sensible Bill Altreuter of Outside Counsel sums up what seems to me the core of many people’s alarm over the US’s withdrawal from the International Criminal Court treaty:

The decision to pull away, and the mindset that says that the loss of sovereignties is bad is, I think, a mindset that says that because institutions are fallible, we should shun institutions. To the extent conflicts can be resolved without recourse to institutions, they should be, but any court is better than war, or warlike actions.

Is “any court” really “better than war, or warlike actions”? Hardly. Throughout history, courts have often been instruments of precisely the kinds of tyrannies against which war is justifiable. Whether or not the decision to withdraw from this court is correct, the question turns on the specifics, not on hypothetical virtues automatically accruing to any institution that calls itself a “court.” And talking about “mindsets”, rather than engaging those specifics, serves primarily to impute bad faith to those who disagree.

I’m all for building institutions. I’m not even convinced that the International Criminal Court is a bad one. But I don’t think a broad appeal to a supposed general virtue of “institutions” amounts to a compelling argument. And I’m certainly no longer inclined to give a pass to anything that paints itself light blue and calls itself “international.” We don’t have anything like broadly agreed-upon “international” standards of what constitutes evidence or proof, much less proportionate justice. Despite the many flaws of our system (not forgetting the death penalty and our disgracefully uneven application of it), I think many aspects of our system are simply better than “justice” as practiced in much of the world. (In other words, I think some things are better than other things— and it’s a source of continued wonder to me that this should now be widely regarded as an illiberal position, rather than a core principle of liberalism.)

If an international criminal jurisprudence is being developed, we should participate, so that our experience with institutions that value due process and transparency becomes incorporated into the new institution.

That’s a better argument, but it only goes so far. I’d like to think that our participation would lead to a general betterment, but what seems more likely is that we’d wind up quietly splitting critical moral differences with the governments of such high-minded places as Syria and Burma. [11:35 AM]