Lecture 7 (Reading part)

International Court of Justice (ICJ)

When countries have legal disagreements regarding their obligations to one
another, the International Court of Justice (ICJ) can issue binding judgments. As an
international judicial body, the ICJ hears cases involving legal complaints between
governments. Its jurisdiction is carefully defined to respect state sovereignty,
leading to ongoing debates about the relationship between state sovereignty and
international law. The ICJ’s design reflects this complexity; for example, it cannot
use past decisions as precedents and can only hear cases if both parties agree to
them. All UN member states automatically become ICJ members, as stipulated in
Article 93(1) of the UN Charter.

The Court provides two important functions in world politics:

1. Its decisions constitute formal and explicit legal judgments regarding who
is right and wrong in a given dispute.
2. These decisions enter into the political discourse of states and may have
substantial influence beyond their legal terms.

“The rule of law is a complicated and interesting device when those whom the rules are
meant to bind are also those who created the rules and who decide how to interpret and
to enforce them.”

The ICJ judges are expected to reflect “the main forms of civilization and the
principal legal systems of the world” (Art. 9). This requirement ensures a diverse
representation, including judges from common law, civil law, and Soviet or
post-Soviet legal systems. The distribution is designed to include five judges from
Western countries, three from Africa (with at least one being Francophone), two
from Eastern Europe, three from Asia, and two from Latin America and the
Caribbean.

Three elements are necessary for a dispute to come within the jurisdiction of the
ICJ:
1. An international legal dispute…
2. …Between states that…
3. …Consent to the jurisdiction of the Court to that case.

Military disputes, economic disputes, and political questions are not within the
purview of the Court, and the Court often works hard to show that it is avoiding
taking a position on any issue that comes before it that might be rightly called a
“political” rather than a legal matter.
When the court encounters a case that satisfies the three aforementioned
requirements, the ICJ has the legal authority to make final and binding
interpretations of international law and therefore to issue decisions that are
dispositive on states. Under the UN Charter, states commit in advance that they will
accept the decisions of the Court

States can consent to a case before the International Court of Justice (ICJ) in three
main ways:

1. Explicit Consent: Both parties refer a specific dispute to the ICJ, formally
consenting to the case, often through a letter from their foreign ministries.

2. Treaty-Based Consent: When a treaty includes a clause requiring disputes over

its interpretation to be resolved by the ICJ, signing the treaty implies consent to the
Court's jurisdiction for future disputes related to that treaty.

3. Optional Clause Declarations: States make a general declaration accepting the

Court's jurisdiction for future disputes with other states that have made similar
declarations. As of November 2019, 74 states had made such declarations, which
are typically reciprocal.

The ICJ also issues advisory opinions at the request of the UN General Assembly or
Security Council on any legal question. Although these opinions are not legally
binding, they carry significant legal and political weight as the Court’s
authoritative interpretation of international law.

Despite lacking enforcement power, the ICJ often sees compliance from losing
states. Without coercive tools, states may comply with judgments despite having
the option to maintain their status quo policies. Why is that? (External pressure,
wanting to “save” face)

The formal enforcement powers of the International Court of Justice (ICJ) are
defined in Article 94(2) of the UN Charter, which addresses what happens if a
country refuses to comply with a decision. Though invoked only once in the Court's
history, this article is significant both legally and politically. It allows the winning
party to appeal to the UN Security Council, which can then make recommendations
or decide on measures to enforce the Court's judgement if necessary.
Not important but a fun story.
The Article 94(2) procedure has been used only once. This was in the aftermath of
the 1986 case by Nicaragua against the United States. Nicaragua won the
judgement against the United States on the grounds that American support for the
anti government Contra militia amounted to illegal aggression against Nicaragua,
in contravention of both customary international law and a specific US–Nicaragua
treaty of friendship. The United States boycotted the substantive portion of the
case after it failed to convince the justices that the Court lacked jurisdiction. The
United States did, however, get some of its arguments in defence in front of the
judges in the form of memos and papers delivered from the US State Department to
the Court. The Court ordered that the United States cease the aggressive behaviour
that was at issue in the case and it left for a future decision the reparations for
damages sought by Nicaragua. Having lost the case, the United States was legally
obligated to comply with the decision. The UN Charter requires that all UN
members comply with ICJ decisions of which they are a part (Art. 94(1) of the UN
Charter). When the United States failed to do so to the satisfaction of Nicaragua,
Nicaragua invoked Article 94(2) and requested that the Security Council take action
to force the United States to concede. A draft resolution was circulated in the
Council which called for "full and immediate compliance with the judgement of the
ICJ.” The United States used its veto in the Council to defeat it. Nicaragua went on
to the UN General Assembly, using Article 10 of the Charter, and succeeded in
getting the Assembly to pass a series of resolutions that urged the United States to
fulfil its obligations.

See the book for two cases of the ICJ

International Criminal Court (ICC)
The Nuremberg Tribunals after World War II institutionalised the notion that an
individual could face criminal prosecution under international law for acts
committed while in government. It prosecutes individuals for war crimes,
genocide, and crimes against humanity when there is no domestic legal system
capable of doing so. Among its member states the ICC has the authority to
investigate and prosecute individuals for these “international”crimes and to
imprison those convicted.

ICC two separate functions:

1. Ensures that states standardize their domestic laws on war crimes,
genocide, and crimes against humanity, and by so doing it helps spread the
idea that these crimes will not go unpunished, at least among countries that
are ICC members.
2. Provides the institutional framework and the legal authority to prosecute
these crimes in those cases where a state fails in its obligations to do so
itself. The former is a piece of legal homogenization, spreading a set of
common legal standards around the world, and is therefore one aspect of the
broad process of globalisation.

There are 122 countries that have signed and ratified the ICC Statute, making them
the members of the ICC. Within their territory, and over their citizens, the
authority of the ICC is decisive for both individuals and governments. The ICC’s
authority over individuals and their behaviour contrasts sharply with the
International Court of Justice.

The controversies around the ICC are the stuff of high-politics. Who gets
prosecuted and who doesn’t? Who is exempt and who decides? Why have all
defendants so far been men from Africa?

The Rome Statute outlines the powers of the Court, mainly focusing on how the
Court handles individuals accused of crimes. It defines the crimes under the
Court’s jurisdiction, the rights of the accused, and the procedures for trials. The
primary obligation for member states is to fully cooperate with the Court in
investigating and prosecuting crimes (Art. 86). This includes arresting suspects,
gathering evidence, and providing prison space, as the Court lacks its own
enforcement resources. (More on this later)

The Statute’s key innovation is its ability to directly apply international law to
individuals, bypassing national governments as the sole link between citizens and
international law. It establishes that individuals, not just states, bear
responsibilities to the international community for crimes listed in the Statute.
For the ICC to have jurisdiction, three conditions must be met:
1. The individual must be suspected of committing one of the crimes listed in
Article 5, such as war crimes, genocide, or crimes against humanity.
2. There must be a link to an ICC state, meaning the crime occurred in a
member state or the accused is a citizen of one.
3. The national courts must have failed to genuinely investigate or prosecute
the case

The crimes under the ICC's jurisdiction are outlined in Articles 5 to 8 of the Rome
Statute and further explained in a document called "The Elements of Crimes."
This document, approved by the ICC Assembly, helps interpret the crimes listed in
the Statute (Art. 9). Most crimes, except aggression, are based on established
international agreements like the Genocide Convention, the Convention Against
Torture, and the Geneva Conventions. As a result, these crimes were largely
uncontroversial during negotiations for the Rome Statute.

Unimportant but interesting:

The crime of aggression is unique. Although listed in Article 5(1) as under the ICC’s
jurisdiction, Article 5(2) delayed this jurisdiction while member states debated its
definition. This process took over a decade and led to amendments in the 2010s. By
2018, aggression was defined as the use of armed force by a State against another
State's sovereignty, territorial integrity, or political independence, or in any way
inconsistent with the UN Charter.

(Aggression aside, the three central crimes of the Court are genocide, war crimes,
and crimes against humanity. )

Article 17 places a limit on the ICC's jurisdiction, stating that a case cannot proceed
if it has been investigated or prosecuted by a state with jurisdiction. This
establishes the ICC as secondary to national courts, meaning it has no authority if
domestic courts are properly handling the case. The ICC can step in if domestic
courts are unwilling or unable to genuinely investigate or prosecute, ensuring that
justice is not obstructed by sham proceedings. This is a principle called
“complementarity”. Problem: ICC gets to decide when it needs to step in, left open to
interpretation.

In the book there’s a pretty long section here that basically explains why some countries
like the DRC or Sierra Leone would join the ICC despite there being Human Rights
violations here. I cba to summarise this so just read it if it’s interesting to you because it
isn’t to me. The entire chapter about compliance is basically about the U.S. being too
powerful to be subjugated to the ICC.
At the ICC, "enforcement" can refer to several things.
1. It involves states’ obligations to cooperate with the Court, suggesting
possible action against non-compliant members.
2. As an enforcer of international criminal law, the Court's ability to punish
individuals it convicts is key.
3. Enforcement can be examined in practice: How has the Court handled real
cases of international crimes? After 20 years, notable cases highlight both
the Court’s enforcement power and its limitations.
a. The case of Omar al-Bashir, former president of Sudan who remains
at large despite being indicted by the Court back in 2009, is a useful
illustration of the twists and turns of ICC enforcement in theory and
practice.

There are no provisions in the Statute to deal with members who fail in these
obligations, and it seems that any such failure would therefore fall under the
general international laws on treaty obligations rather than as a matter internal to
the ICC or the Rome Statute. The only enforcement sanction against states parties
described in the Statute itself is for failing to pay one’s share of the Court’s
expenses, under Articles 115, 117, and 112(8). The last of these says that a country
may lose its right to vote in the Assembly of States Parties as punishment for being
in arrears on its dues. Beyond this, the failure to perform as mandated by the
Statute is not the subject of any formal enforcement procedure or sanction.

The ICC lacks its own means to apprehend suspects, relying entirely on member
states, as required by Part 9 of the Statute, and ideally on the voluntary cooperation
of nonmembers. Past experiences with the tribunals for Yugoslavia and Rwanda
have shown that local politics often complicate the surrender of suspects, with
some being protected by governments and others willingly handed over, raising
concerns about fairness. The ICC and these tribunals operate on a judicial model,
not a military or policing one, depending on external assistance to carry out
investigations and enforce indictments.

While the ICC relies on local governments to help apprehend suspects, it expects
them not to interfere in the cases themselves. Under Article 17, the Court holds the
authority to decide whether a local investigation or prosecution is "genuine." This
grants the ICC significant power and requires member states to cede some
sovereignty. The principle of "complementarity" in Article 17 gives the Court the
final say over domestic court actions, introducing a new hierarchy in international
politics, where the ICC can overrule national legal systems.

See book for an ICC case