JUSTICE - No. 65

4 No. 65 JUSTICE ntroduction The International Criminal Court (ICC) came into being on July 1, 2002, after 60 states became parties to the 1998 Rome Statute that had established the Court. To date, 123 states from all parts of the world have ratified the treaty. 1 None of the largest states with the largest standing armed forces — China, India, Russia, or the United States — is a party to the treaty. While the ICC is not universal in its membership, in some circumstances it may decide to exercise jurisdiction even with respect to citizens of non-state parties. In this respect, it differs from inter-state judicial bodies such as the International Court of Justice that derive jurisdiction from consent. Therein lies the drama for Israel, the United States, and other states, a subject addressed in the second section of this article. The first part of this article briefly recalls some history, including the evolution of the idea that perpetrators of heinous violations of the laws of war, the prohibition on genocide, and the international law prohibition on aggression should be held accountable as a matter of criminal law. The second part addresses the all-important question of jurisdiction. The third part presents some reflections on the ICC and minimum world public order. First, some history. I. Justice and Politics/Politics and Justice Holding individuals legally accountable for war crimes, genocide, and aggression has always been a political issue. It also contains important moral elements, matters of law and legal procedure, and questions of how to obtain justice for victims. In March 1815, three months before the Battle of Waterloo and a month after Napoleon’s escape from Elba, the allies (principally, Britain, Russia, Prussia, and Austria) that had defeated Napoleon, formally determined that he was an“Enemy and Disturber of the tranquility of the world.” 2 This determination was political and strategic, not the result of any judicial process. The allies wanted to make it impossible for any state to support or contemplate compromise with Napoleon. This action was a milestone on the road to holding states and individuals accountable for violations. The decision to outlaw Napoleon contained a message implicit in every indictment of an international wrong- or evil-doer: “no deals, please.” The prosecution of war crimes is central to the ICC’s raison d’être . One of the most important steps in the development of the written law of armed conflict and The International Criminal Court Revisited I Nicholas Rostow* * I would like to thank Bernadette Gomez andTazio Heller, members of the class of 2021, University of Miami School of Law, and Maria Bernal, class of 2020, New York University, for their assistance in the preparation of this article for publication. 1. ICC,“The States Parties to the Rome Statute,”ICC, available at https://asp.icc-cpi.int/en_menus/asp/states%20parties/ Pages/the%20states%20parties%20to%20the%20rome%20 statute.aspx.This website of the Assembly of States Parties is somewhat misleading. It has a category of signers that have yet to ratify the Statute. That group includes the United States, which on May 6, 2002 advised the UN Secretary General, the official depository, that it did not intend to become a party to the Rome Statute and therefore did not consider itself under any legal obligation with respect to the Statute; Richard Boucher,“International Criminal Court: Letter to UN Secretary General Kofi Annan,”U.S. D EPARTMENT OF S TATE (May 6, 2002), available at https://2001-2009.state.gov/r/pa/prs/ps/2002/9968.htm. The letter meant that the U.S. did not consider itself bound by Article 6 of the Vienna Convention on the Law of Treaties: “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when (a) It has signed the treaty… until it shall have made its intention clear not to become a party to the treaty”;Vienna Convention on the Law of Treaties (with annex), May 23, 1969, U.N.T.S., vol. 1155, available at https://treaties.un . org/doc/Publication/UNTS/Volume%201155/volume- 1155-I-18232-English.pdf. The U.S. is not a party to the Vienna Convention because its definition of a treaty does not comport with the language of the U.S. Constitution, but it regards “many of the provisions” as accurate statements of the customary international law of treaties and therefore is binding;“Vienna Convention on the Law of Treaties,” U.S. D EPARTMENT OF S TATE , available at https://2009-2017.state.gov/s/l/treaty/faqs/70139. htm#:~:text=Is%20the%20United%20States%20a,and%20 consent%20to%20the%20treaty