JUSTICE - No. 65

9 Fall 2020 “Which office do I go to to get my reputation back?” Selwyn Raab, “Donovan Cleared of Fraud Charges by Jury in Bronx,”N.Y. T IMES , May 26, 1987, A1. 29. S/PV.5052, Oct. 6, 2004, p. 3. 30. Theodore Roosevelt, “Fourth Annual Message to Congress,”T HE A MERICAN P RESIDENCY P ROJECT (Dec. 6, 1904), available at https://www.presidency.ucsb.edu/ documents/fourth-annual-message-15 31. See e.g. Kofi Annan’s statement, supra note 29. 32. UN Charter, June 26, 1945, 1 UNTS XVI, Art. 2, para. 7: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under ChapterVII [‘Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’].” situation. Options are foreclosed. Feeling boxed in, individuals may believe they have nothing to lose by continuing to engage in criminal behavior or by taking a stand that leads to general ruin. Even if, for example, compromise with Muammar al-Gaddafi or Omar al-Bashir were possible, ICC indictment removed this possibility, just as the U.S. indictment in 1988 of de facto leader of the Panamanian government, General Noriega, made it impossible to negotiate his departure from power. In 2004, UN Secretary General Kofi Annan made the point at a Security Council discussion on justice, the rule of law, and the role of the United Nations. He noted the absolute requirement to take local political conditions into account. One size, so to speak, does not fit all situations. 29 He might have quoted Theodore Roosevelt, to measure how far the world has come in a century: [I]n international law we have not advanced by any means as far as we have advanced in municipal law. There is as yet no judicial way of enforcing a right in international law. When one nation wrongs another or wrongs many others, there is no tribunal before which the wrongdoer can be brought. Either it is necessary supinely to acquiesce in the wrong, and thus put a premium upon brutality and aggression, or else it is necessary for the aggrieved nation valiantly to stand up for its rights. 30 Roosevelt’s insight in 1904 did not leave room for a court to stand in place of an aggrieved nation. So far, the ICC has not proved capable of doing so. The most powerful members of the international community have not indicated a willingness to let it do so. Conclusion In the nearly twenty years of its existence, the ICC has not persuaded the world’s most powerful states to join the Rome Statute. Their position has little to do with their view of accountability or ending cultures of “impunity,”a favorite term in UN circles. 31 Their concern has to do with the inescapable political character of decisions about jurisdiction and desire to protect themselves from unwanted intrusions into their national affairs. For much the same reason, they are reluctant to submit disputes to the International Court of Justice. In this connection, it is worth recalling Article 2, paragraph 7, of the UN Charter, which specifically prohibits UN intervention in the internal affairs of other states except in order to discharge its responsibilities with respect to maintaining or restoring international peace. 32 Few issues are more central to a state’s domestic affairs than the administration of justice. It is not an accident that the authors of the Rome Statute wanted to distance the ICC from the United Nations, its organs, and its limitations. They succeeded when they created a non-UN body. We must anticipate that the ICC will decide to exercise jurisdiction over actions by Israel and the United States as requested by the Palestinians and the Afghan government, respectively. It is unlikely that Americans will suffer as a result. It is entirely likely, however, that Israel, already subject to constant questioning of its legitimacy as a state, will face even greater difficulty than it does presently to reach peace with the Palestinian Authority. The ICC cannot contribute to the achievement of that goal. It should consider that fact when deciding what to do. After all, even the International Court of Justice could not assist Israel-Palestinian peace negotiations, although at least one judge thought its advisory opinion on the legal consequences of Israel’s security wall would do so. n Nicholas Ro st ow is a Senior Research Scholar, Yale Law School. Among other U.S. government positions held, he served as Legal Adviser to the U.S. National Security Council, 1987-93, and General Counsel and Senior Policy Adviser to the U.S. Permanent Representative to the United Nations, 2001-05.