The roles and limits of international courts

Friday morning the US Institute of Peace hosted a discussion about the role of the International Court of Justice (ICJ) and the International Criminal Court (ICC). Featured panelists were Prosecutor Fatou Bensouda (ICC), Judge Joan Donoghue (ICJ), Judge Xue Hanqin (ICJ), and Judge Julia Sebutinde (ICJ).  Abiodun Williams (President of the Hague Institute for Global Justice) moderated.

Judge Donoghue emphasized that it is important to distinguish the ICJ from the ICC. The ICJ, also known as “the World Court,” has been part of the UN apparatus since WWII. Its role is to decide contentious cases between two states.  The court also considers whether a state has met its obligations under international law. Neither function involves making a decision about whether an individual is accountable for a specific act. The ICJ is composed of 15 judges from the major legal systems around the world. Three of the 15 judges are women. The ICJ does not automatically have jurisdiction; states must first consent. Two recent cases brought to the ICJ were the whaling dispute between Australia and Japan as well as the maritime boundary dispute between Chile and Peru.

Prosecutor Bensouda agreed that it was important to distinguish between the two courts. While the ICJ deals with disputes submitted by states, the ICC deals with individual criminal responsibility. This includes war crimes, crimes against humanity, and genocide. The ICC can only intervene in territories of state parties or over citizens of state parties that committed a crime.

Established in 2002, the ICC is not an organ of the UN. It is a treaty-based institution. Currently 122 states have signed and ratified the Rome Statue. The ICC can exercise jurisdiction when a state requests ICC intervention or the UN Security Council refers a situation to the ICC for investigation and prosecution. An ICC prosecutor can intervene if a state party is not already prosecuting and investigating. However, the primary responsibility falls on the state.

Judge Xue explained the jurisdictional issues both courts face. There are three ways for the ICJ to have jurisdiction. Article 36 of its statute makes it compulsory for states to accept ICJ jurisdiction.  International agreements may also provide for jurisdiction.  The third way is through agreement by two states. If states do not accept going to court, it weakens the role of the ICJ.

Bensouda added that the ICC has limitations. It operates in a political environment. There are many priorities for states.  A judicial mandate is not always a top priority. The effectiveness of the ICC depends on cooperation with states. It is only through this cooperation that the ICC can function as a judicial institution.

Another limitation is a double standard. For states that are party to the Rome Statute, the ICC can intervene on behalf of victims. Non-member states are not able to subject to this intervention unless the UN Security Council refers to or accepts the ICC’s jurisdiction. For full judicial effectiveness, all countries should be parties to the Rome Statute.

Judge Sebutinde noted how both courts depend on states and the international community to enforce judgments. When states are hesitant to implement a ruling of the courts, it is easy to turn on the institutions and accuse them of ineffectiveness. But the international community should turn on itself and wonder why the institutions they created are not fully functioning.

Bensouda said that the ICC can play a preventive role. Knowledge of the existence of the institution and its application of the law can act as a deterrent and stop would-be violators from committing crimes. This has been demonstrated in empirical academic work.

Williams brought up the issues of Syria and Crimea. Neither the ICC nor the ICJ is playing a role in either matter. Does this suggest that these courts have nothing to contribute when stakes are especially high and the international community divided?

Sebutinde replied that before looking to the courts it is necessary to look at the international community and the UN Security Council. The judges as individuals may be interested in these issues. But unless a case is presented, they can only be spectators. The ICJ can only settle disputes where states allow.

Judges Donoghue and Xue agreed that it can leave a feeling of frustration when one looks at disputes and wonders why they are not in an international court. Sometimes an affected state decides that the best way to make progress is not to come to court for resolution, but to pursue other avenues.

Bensouda concluded by saying that in her opinion the ICC should intervene in Syria. But it can only intervene on territories of state parties. Neither Syria nor Ukraine are state parties. Therefore, the ICC cannot intervene. It is a matter of jurisdictional limitations.