Judicial Independence and the Myth of the Benevolent State
The recent U.S. sanctions against two International Criminal Court (ICC) judges—Gocha Lordkipanidze of Georgia and Erdenebalsuren Damdin of Mongolia—offer a revealing case study in the contradictions that underpin much of the discourse on human rights and the rule of law. Ostensibly imposed to defend Israel’s sovereignty, the sanctions in practice constitute a direct assault on judicial independence, revealing a deeper truth: that the modern state, especially its executive arm, cannot be presumed to be a neutral or benevolent guardian of human rights.
The U.S. State Department, through Secretary of State Marco Rubio, justified the sanctions by accusing the judges of advancing ICC investigations into Israeli nationals—actions the U.S. deems “illegitimate” because they lack Israel’s consent. However, this framing presumes that a state’s approval is a prerequisite for accountability—a notion that directly contradicts the foundational purpose of international criminal law. The ICC exists precisely because states cannot always be trusted to police themselves. When atrocities are committed not by rogue individuals but by state institutions—through military operations, occupation policies, or systemic discrimination—the executive branch is rarely the solution; it is often the source.
This episode underscores a long-overlooked reality in human rights discourse: human rights abuses are, at their core, state crimes. They are not incidental deviations from governance but structured expressions of state power. Whether through excessive force, forced displacement, or denial of basic rights, violations are frequently codified in policy, implemented by security forces, and defended through legalistic obfuscation. In such contexts, viewing the executive branch as a promoter or protector of human rights is analytically flawed—and practically dangerous.
The U.S. response to the ICC’s work illustrates this paradox with alarming clarity. On one hand, Washington positions itself as a global advocate for judicial independence and the rule of law. On the other, it punishes judges simply for performing duties that might implicate a close ally. The Netherlands, the ICC’s host country, rightly condemned the move as political interference—but even its protest reflects the lingering assumption that Western states are inherently aligned with justice, rather than with the strategic preservation of alliances.
For human rights advocates, this moment calls not for louder condemnation, but for deeper reorientation. The reflexive appeal to state institutions—particularly foreign ministries and executive agencies—as allies in the pursuit of justice must be reconsidered. To treat the state as both judge and party, as both enforcer and violator, is to invite perpetual disappointment. It is akin to deputizing a serial offender as the lead investigator in their own case.
True accountability requires institutional mechanisms that operate outside and against state control when necessary. The ICC, despite its flaws and limitations, was designed for exactly this purpose. Its judges are not political actors; they are interpreters of legal mandates conferred by 125 states. When powerful nations respond to their rulings not with legal argument but with sanctions and intimidation, they reveal not the court’s weakness, but their own discomfort with being subject to the same standards they impose on others.
The path forward for human rights work lies not in appealing to the goodwill of executives, but in fortifying independent institutions—judicial, investigative, and civic—that can function even in the face of state resistance. Recognizing that human rights violations are fundamentally acts of state power, rather than aberrations from it, is not cynicism. It is the necessary precondition for building systems of accountability that do not depend on the mercy of those in power.