For eighty years the powerful broke Nuremberg’s rules and lied about it. The lie was useful. This week America chose candour instead. In November 1945, Robert Jackson told the judges at Nuremberg that to pass the defendants a poisoned chalice was to put it to America’s own lips as well. On 9 October 2026, Marco Rubio declared that President Trump will never allow the International Criminal Court to prosecute Americans.
Two American sentences, eighty-one years apart. Read together, they mark the end of an arrangement the world mistook for a principle. The easy reading is that international law is under attack. Washington sanctioned the ICC as an institution, roughly nine hundred people, hours after Navi Pillay, a former judge of that same court, learned she had won the Nobel Peace Prize while standing in Courtroom 600, where Göring once sat in the dock.
The juxtaposition writes its own headline. It is also the less interesting story. The harder story is that Nuremberg was born carrying two promises, and they finally separated. The first promise is that at the London conference in July 1945, when the Soviet delegation proposed that aggressive war count as a crime only when the Axis waged it, Jackson refused. If certain acts are crimes, he said, they are crimes whether America commits them or Germany does.
The second promise was never made in public, though its logic sits in the charter itself. Article Six gave the tribunal jurisdiction over the major war criminals of the European Axis and nobody else. The Soviets lost the argument about what a crime is and won the argument about who could be tried. The definition was universal. The dock was reserved for the defeated. Jackson was candid about why. Asked whether a government could be tried for Iraq, and each time they denied it.
Every denial conceded that the rule existed and applied to them. The weak learned to use that concession as a lever. persecuting its own citizens, he said ordinarily it could not, citing “regrettable circumstances” at home where minorities were unfairly treated. This was the America of lynchings, of Black veterans returning from Europe to segregated buses. So crimes against humanity were tethered to the war, and Germany’s prewar persecution of its Jews was never judged on its own terms.
Britain and France had empires. Moscow had the gulags. Katyn was charged to Germany and silently dropped from the judgment, and the Soviets admitted it only in 1990. Dresden never came up. Admirers of Nuremberg should concede this plainly. The critics were right about the founding. The real question is whether that inequality betrayed the project or paid for it. Churchill had wanted the Nazi leadership shot without ceremony.
What the Allies built instead gave defendants counsel, tested evidence and acquitted three men. Jackson called it a tribute that Power paid to Reason. That word, tribute, explains everything that followed. La Rochefoucauld observed that hypocrisy is the tribute vice pays to virtue. For eighty years the great powers paid it. They broke Nuremberg’s rules in Algeria, Vietnam, Chechnya and Consider how the law of genocide actually grew. Raphael Lemkin coined the word in 1944. Nuremberg’s judges left it out of their judgment.
When Black American activists carried a petition called We Charge Genocide to the UN in 1951, the State Department seized the passport of the man who presented it, and Lemkin himself opposed it in public. The word was born, refused, then guarded at the gate by its own father. Its first conviction came from an unlikely room. At the Rwanda tribunal in 1997, the indictment against Jean-Paul Akayesu, mayor of Taba, said nothing about rape.
Then witnesses described what had been done to them and to their children, and the one woman on the bench, Navi Pillay, asked the questions the indictment had never asked. The charges were amended. In 1998 Akayesu became the first person convicted of genocide by an international court, and the judgment held that rape committed with intent to destroy a group could itself be genocide. A woman raised under apartheid took a promise written by others literally, and the law moved.
That same tribunal kept the second promise too. It never indicted anyone from the victorious side of Rwanda’s war, and when Carla del Ponte moved towards them, she lost the Rwanda post in 2003. This is the honest history of international criminal law. The powerful write a promise they do not intend to keep, about people they do not intend to include. Then someone from outside the room takes it at its word.
So why the escalation now, when American hostility to the ICC is decades old? Because the court began keeping the first promise. A warrant for Vladimir Putin in 2023. A warrant for Benjamin Netanyahu in 2024. Rodrigo Duterte in custody at The Hague in 2025. For the first time the law reached past the defeated towards those who still held power, or were shielded by those who did. That brought the second promise to collect.
Washington now wants the Israeli warrants withdrawn, the Afghanistan inquiry formally buried and the Rome Statute amended so it can never touch nationals of non-member states. A court built to judge the world now needs an American licence to pay its own staff’s pensions. The American case deserves its full weight. The United States never joined, and it has always rejected the Statute’s reach over non-members’ nationals for crimes committed on member territory. The court spent its early years prosecuting almost only Africans, and Burkina Faso, Mali and Niger are leaving on exactly that charge.
The ICC is condemned for reaching too far and for reaching too little at once, which shows how thin the ground beneath it has become. But one crime already works the way Washington wants all of them to work. Nuremberg called aggressive war the supreme international crime. The ICC can try it today, yet nationals of non-member states stay beyond its reach for aggression unless the Security Council refers the case, where the permanent five hold a veto. The definition binds everyone while the courtroom stays closed to the powerful who stayed outside.
It is Article Six, eighty years on. When Germany and four other states proposed closing that gap last year, Britain, Canada and Japan resisted, and the decision slid to 2029. The allies who this week pledged “unwavering support” for the court are the ones keeping its most important door shut. What has changed is the register. For eighty years, the accused powerful said they had not broken the rule. This week Washington said the rule was never theirs. Jackson took the exemption and still paid the tribute. Rubio takes the exemption and declines to pay.
Two days before the sanctions, standing on the Pnyx in Athens, he lamented that the West had grown ashamed of its greatness. Shame was the only currency that ever bought compliance from the powerful. A denial can be pulled on. A refusal offers nothing to grip. India should read this week with some discomfort. In 1948 Justice Radha binod Pal wrote a dissent of over a thousand pages at the Tokyo tribunal, calling it victors’ justice. His acquittals were wrong, and Japanese nationalists later embraced them, yet his dissent put Hiroshima on the record of a war crimes court when no tribunal would try it. At Rome in 1998, India took Pal’s road.
Its objections were sound, chiefly the Security Council’s power to switch the court on and off and the refusal to criminalise nuclear weapons. Staying outside still produced the very shield Washington now demands. The court cannot reach Indian soil without a Council referral. A different flag, the same exemption. New Delhi quotes Pal and celebrates Pillay while living by the logic of the state it criticises. On 16 October, eighty years will have passed since ten Nazi leaders were hanged in the Nuremberg prison gymnasium. Hans Frank went to the gallows because four armies held the rope.
Today the law has no rope. It has warrants, commission reports, transcripts, and a son like Niklas Frank willing to name his father’s crimes in a public hall. The archive is replacing the gallows. That may be collapse. It may also be a return to 1944, when Lemkin and Lauterpacht had no army and no court, only words that later became law. The ICC’s members meet in December. If the law only ever reaches those who have already lost power, Pal was right, and the gymnasium at Nuremberg was an execution with a transcript. If it can reach someone who still holds power, Nuremberg becomes, eighty years late, what it always claimed to be.
*Darshim Saxena is a film and cultural writer and the founder-host of The Second Seat, a long-form conversation platform. The views are personal.