JUSTICE - No. 65

8 No. 65 JUSTICE foreseeable, except to say that they will be serious and severe. If the ICC takes up the question of whether or not aggression has occurred, it will be looking at high- level government decisions, not simply troops engaged in combat (although getting to the bottom of what exactly happens in battle is no easy task). It also will be making a determination of where Israel’s boundaries lie, something even the International Court of Justice failed to do in its advisory opinion on the Israeli security ’wall’. ” 24 The United States has been involved in armed conflict since the terrorist attacks of September 11, 2001. Israel has been involved in armed conflict or threatened conflict since its recognition as an independent state in 1948 and admission to the United Nations in 1949. For countries such as the United State and Israel, which have judicial systems that have jurisdiction over the kind of crimes for which the ICC also has jurisdiction, there ought not to be issues before the ICC. 25 This conclusion flows from the fact that the United States and Israel have long, robust records of investigating and prosecuting members of their armed forces accused of war crimes and their political leadership accused of wrongdoing. 26 That the ICC Prosecutor and Pre-trial Chamber favor ICC jurisdiction over national jurisdiction (notwithstanding the Rome Statute provision that the ICC should be a complement to, not a replacement of, competent national processes), is the best evidence, if any were needed, that decisions by courts with respect to jurisdiction, inescapably involve more than purely technical questions. The United States is certainly powerful enough to protect its own soldiers and officials from ICC prosecution, and indeed has already warned of severe consequences for those individuals pursuing such prosecution. 27 Israel is in another posture altogether. III. The ICC and Minimum World Public Order Courts are governmental institutions. There is no world government. As a result, a permanent international criminal court puts the proverbial cart before the horse. The world is organized into states that have joined to form international organizations to which they have delegated power for certain purposes. The structure reflects centuries of historical experience. The reason for this conclusion is not difficult to ascertain. Unlike Nuremberg, or the trials conducted with respect to genocide in Tokyo, Rwanda and Yugoslavia, and other ad hoc international criminal courts or domestic courts assisted by the United Nations, the ICC does not just look backward. It therefore inevitably plays a role in the give and take of politics. To indict a soldier for war crimes or a political decision-maker for aggression, not to mention genocide, is to damage irreparably an individual’s character – even if the individual is later acquitted. 28 Even more important, judicial process introduces rigidity into a politically fluid the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9), available at https://www.icj-cij.org/ files/case-related/131/131-20040709-ADV-01-00-EN.pdf. The Rome Statute, as amended to allow jurisdiction over aggression, provides in part: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Supra note 14, Rome Statute, Art. 15 bis , para. 5. The ICC ought not to be able to try Israel for aggression. The language suggests the provision is no real barrier to exercising jurisdiction because“aggression”involves actions on or against foreign territory. Art. 15 bis , paras. 6-9, deny the UN Security Council exclusive jurisdiction with respect to determinations that aggression has taken place. 25. Israeli courts have heard cases brought with respect to most of the issues raised by Israel’s position in the West Bank. While it is doubtful that the ICC would recognize that fact and defer on the basis of its complementary role, it is worth noting that it should do so. On the entire question, including summaries of Israeli judicial decisions, see Yoram Dinstein,T HE I NTERNATIONAL L AWOF B ELLIGERENT O CCUPATION (Cambridge: Cambridge University Press, 2nd ed. 2019), esp. pp. 257-67. 26. E.g. Dave Philipps, “Navy SEAL Chief Accused of War Crimes if Found Not Guilty of Murder,”N.Y. T IMES , July 2, 2019, available at https://www.nytimes.com/2019/07/02/ us/navy-seal-trial-verdict.html; Isabel Kershner,“Israeli Government Watchdog Investigates Military’s Conduct in Gaza War,”N.Y.T IMES , Jan. 20, 2015, available at https:// www.nytimes.com/2015/01/21/world/middleeast/israel- hamas-gaza-strip-war-investigation.html 27. Lara Jakes & Michael Crowley, “U.S. to Penalize War Crimes Investigators Looking into American Troops,” N.Y.T IMES , June 11, 2020, available at https://www.nytimes . com/2020/06/11/us/politics/international-criminal-court- troops-trump.html. At the 2020 Annual Meeting of the American Society of International Law, a panelist opined that the ICC should take jurisdiction because the U.S. had not prosecuted persons for torturing alleged terrorists involved in the attacks of September 11, 2001. 28. U.S. Secretary of Labor (1981-1985) Raymond Donovan was indicted in the mid-1980s for fraud and larceny. He and other defendants were acquitted. Donovan said: