The International Criminal Court’s prosecutor’s office requested arrest warrants last Monday for the Finance Minister and National Security Minister of Israel. The Finance Minister, Bezalel Smotrich, confirmed the request publicly on Tuesday, calling it “a declaration of war.” The National Security Minister, Itamar Ben-Gvir, is reportedly named in the same request. A diplomatic source indicated three additional warrants target Minister Orit Strock and two senior IDF officials.
This follows the ICC’s November 2024 warrants against Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, also for alleged war crimes and crimes against humanity related to the conduct of the war in Gaza.
These are institutional acts. They are the acts of an international court doing its institutional work — assembling evidence, evaluating it, and seeking warrants — against the sitting senior officials of an allied state. The court is acting against politically inconvenient targets. The court is doing what international courts are constituted to do.
It is also far from the only institution doing this kind of work.
In June 2025, the United Kingdom, Canada, Australia, New Zealand, and Norway jointly imposed sanctions on Ben-Gvir and Smotrich — coordinated travel bans, asset freezes. Five Western democracies acting in concert against the sitting cabinet ministers of an allied state. Individual EU member states, including Slovenia, Spain, the Netherlands, and Belgium, have moved unilaterally to ban both ministers from their territories.
The European Union, as a bloc, tried to impose sanctions through its formal machinery but failed. Germany, Italy, the Czech Republic, Austria, and Hungary blocked the required qualified majority. The EU instead agreed to sanction a handful of unnamed settlers. This is what most commentary calls “the EU’s failure to act.”
It is also a fundamentally American misreading of how working institutional systems behave.
Working institutional systems do not require a single venue to function. They require multiple venues to be available, so that when one venue is captured or blocked, others can act. The EU’s failure to sanction Ben-Gvir and Smotrich is precisely matched by the success of the UK and four allies in imposing the same sanctions outside the EU framework. It is matched by individual EU member states moving unilaterally within the bloc. It is matched entirely by the ICC acting through a third institutional venue. Five countries acted multilaterally. Several states acted unilaterally. An international court acted institutionally. The net result is sustained legal and diplomatic pressure on two cabinet ministers of an allied state, originating from at least eight distinct institutional sources.
That is what working institutions look like.
The United States, in the same window, has imposed no sanctions on the same individuals. The State Department has not issued travel bans. The Justice Department has not investigated. The reason is political — the US-Israel relationship is the load-bearing element of American Middle East policy and has been for half a century. But political infeasibility is not the same as institutional incapacity. American institutions retain the legal authority to take such actions. They have chosen not to.
That last sentence also describes the Europeans until recently. Then they chose differently. The Americans have not.
There is a habit, in American political commentary, of treating institutional functioning as a baseline condition — something that either exists or does not, the way water is wet. This habit was reasonable when the assumption held. It does not hold anymore. Institutional functioning is a variable. It varies across countries. It varies across time within the same country. It varies because the institutions in question are made of people, and those people choose every day whether to enforce the formal rules against politically inconvenient targets. When the people choose to enforce, the institutions function. When the people stop choosing to enforce, the institutions become decorative.
European institutions are currently in the enforcement phase. American institutions are currently not.
Look at the evidence. Pick a category.
Constitutional courts. The Italian Constitutional Court issued Sentenza 63/2026 earlier this year, ruling on the limits of legislative authority over citizenship by descent. The ruling was unwelcome to the current Italian government, which had passed restrictive legislation that the court partially struck down. The court ruled anyway. The German Federal Constitutional Court ruled in November 2023 that the federal government’s reallocation of pandemic-emergency funds to climate spending violated the constitutional debt brake, forcing a comprehensive restructuring of the federal budget. The Court continues to act as a binding constraint on federal authority — it received over four thousand six hundred new cases last year, ninety-six percent of them constitutional complaints brought by individuals challenging government action. The European Court of Human Rights continues to issue binding decisions against major European states, including Hungary, Poland, and Turkey — and the decisions, with rare exceptions, are complied with.
The United States Supreme Court, in the same window, cleared Alabama’s elimination of a Black-majority congressional district. It has progressively expanded executive authority on immigration enforcement. It has not, in a structurally meaningful sense, bound the executive in years.
This is not because the formal architecture differs. The American Constitution and the various European constitutions both establish judicial review. Both establish executive accountability. Both establish the rule of law. The architecture is roughly equivalent. The difference is in the people inside the architecture, and the choices they make on contested questions.
Regulatory enforcement. The European Union has spent the past two years aggressively enforcing the Digital Markets Act and Digital Services Act against the largest American technology companies — Apple, Google, Meta, Amazon, Microsoft. The fines have been substantial. The behavioral remedies have been significant. The companies have complied, with grumbling.
The same companies operate in the United States without equivalent constraint. The Department of Justice’s Antitrust Division has, in the past four months, undergone a structural collapse. The Live Nation–Ticketmaster case, which the previous administration had brought as a structural separation challenge, was settled in March 2026 on terms short of breakup. The settlement was negotiated without the trial team’s input. The acting director of civil antitrust litigation, David Dahlquist, resigned along with three other senior litigators in April. In the HPE–Juniper merger challenge, the political leadership of the Department reportedly overruled the Antitrust Division’s career staff opposition to a settlement — the settlement document was unusually not signed by the Antitrust Division. The head of the Antitrust Division was subsequently fired. Merger investigations dropped to near-record lows in 2025 and have not recovered.
Regulatory enforcement is being carried out in Brussels and progressively undone in Washington.
Foreign policy. The EU has imposed sanctions on Russian officials, Belarusian officials, Iranian officials, Venezuelan officials, Israeli settlers, and Burmese military officials over the past three years. The sanctions are coordinated, multilateral, and sustained. The US has rolled back sanctions on Russian officials, Venezuelan officials, and others. It has imposed new sanctions primarily against countries with which the President has personal grievances. The sanctions instrument exists in both jurisdictions. One uses it as a tool of foreign policy. The other uses it as a tool of presidential mood.
Press freedom. Europe is far from a paradise on this front — Hungary’s media environment is degraded, Italy’s RAI has political entanglement, and the UK’s libel law remains terrible. But the trajectory matters. The Italian government has not abolished its national broadcaster. The German government has not jailed journalists. The French government has not threatened critical news organizations with retaliatory tax audits. Each of these has occurred or been threatened in the United States in the past twelve months. The directional vector is opposite.
I could keep going, and the piece would become a list. The structural point is the same across all categories. The institutions still function in Europe, with imperfection, with political friction, with the same human tendencies toward capture that exist everywhere. They function imperfectly because they are still being used. They are still in use because the people inside them have not yet decided to stop. In the United States, the same institutions exist with the same formal authorities, and the people inside them are increasingly choosing not to use them against politically aligned targets.
This is a category difference in how the systems operate, and it is the difference that turns institutional vitality into a variable.
A counter-argument deserves naming. Europe is not a paradise. Europe has its own structural problems. The German economy has been contracting for two consecutive years. France is in a sustained fiscal crisis, with public debt above 110% of GDP. The Italian banking sector remains fragile. The energy crisis triggered by the Russian invasion of Ukraine accelerated deindustrialization in Germany and parts of Eastern Europe. Migration politics have produced rising far-right vote shares in nearly every member state, with Alternative für Deutschland polling at or above twenty percent in Germany, the Rassemblement National in France well above the Socialists, and Fratelli d’Italia governing in Rome. The EU’s economic competitiveness gap relative to the United States and China is substantial and growing. None of this is hidden.
The point is not that Europe is functioning well in absolute terms. The point is that institutional vitality is a function that European institutions are still performing, even when political incentives push the other way, whereas American institutions increasingly are not. The contrast lies more in the direction of the trajectory than in the level.
There is a third dimension to this worth surfacing. Institutional vitality is not just a question about politics — it is a question about jurisdictional risk for anyone whose life is exposed to the institutions of a given country. The American who pays American federal taxes and is subject to American regulatory enforcement operates in a different institutional environment than the European who pays European national taxes and is subject to European regulatory enforcement. Both pay taxes. Both are subject to laws. The difference is in what happens when the politically powerful violate those laws.
In Europe, the institutions still occasionally act against politically aligned violators. In the United States, increasingly, they do not.
This is the kind of variable that did not exist for most of human history, because most of that history lacked functioning impersonal institutions at all. The notion that a state’s legal apparatus would constrain the state’s most powerful actors is a recent invention. It has never been universal. It has been a regional phenomenon, concentrated in the post-Enlightenment Atlantic political tradition, and even within that tradition, it has been more aspirational than operational. The post-1945 Western order made it a stronger reality than ever before in human history. That reality is now coming apart. Not in Europe yet, though Europe has its own pressures. In the United States, more quickly than most American commentary has noticed.
When the variable changes, the answer to the question “what country do I live in” changes. The answer is no longer just geographic. It is institutional. The country that maintains constraints on its powerful actors is meaningfully different from the country that does not, even if both are called democracies, even if both are called developed, even if both occupy adjacent positions in the rankings produced by Freedom House or the Economist Intelligence Unit. The rankings are lagging indicators of an underlying institutional process. The process matters more than the ranking.
For most of the post-1945 era, the assumption held that all OECD countries occupied roughly equivalent institutional positions. The assumption was always a simplification, but it was a useful simplification because the differences were marginal. The differences are no longer marginal. They are now structural. And the assumption that has been useful for two generations of capital allocation, family planning, professional decision-making, and personal exposure management is no longer accurate.
This is the wider point worth saying directly. Institutional vitality is now a sovereign variable. Some countries maintain it. Others do not. The question of which country you live in now includes whether its institutions still bind the powerful within it. That question, five years ago, was an academic abstraction in nearly every OECD context. It is no longer abstract anywhere.
The International Criminal Court asked judges to issue arrest warrants for two members of the Israeli cabinet on Monday. American institutions did not. In a different week, the contrast will be different. The structural fact will be the same.
What working institutions look like is what they look like in Europe right now — imperfect, politically constrained, internally divided, occasionally embarrassing themselves, and yet still capable of binding the powerful when they choose to. The choice has not yet defaulted to no.
In the United States, the choice has increasingly defaulted to no.
That is the difference. It is the difference that turns one country into another country without changing the map.
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All that said, we still watch individuals in Israel do whatever they want with virtually no restrictions, none. Even those wanted for criminal charges or supposedly under sanctions continue as usual.
On the other hand, look at people sanctioned by the U.S. government, like Francesca Albanese: reportedly cut off from financial services, unable to access even basic banking or credit cards, and relying on the support of others. She can barely get a platform in American media, while Netanyahu continues appearing on major U.S. networks without any obstacle.
That double standard is impossible to ignore.
speechless
devastated