Clarifying a Judicial Web: ICJ, ICC, Civil Society (Peoples Tribunals)

EDITORIAL, 27 May 2024

#850 | Richard Falk – TRANSCEND Media Service

A curious sideshow during the seven months of savage genocidal violence against the entrapped Palestinian population of an estimated 2.3 million has been the attention given to international law and the international procedures available for its interpretation and enforcement.

To begin with, many concerned persons wonder about why we need both the International Court of Justice (ICJ) and the International Criminal Court (ICC). Beyond that, for many not exposed to a sophisticated exposure to the process of how international law is judicially implemented, the distinction between these two tribunals, both located in The Hague, is far from transparent.

This is a simplified introduction to the ICJ and ICC, both indispensable tools of a functionally effective and equitable international legal order, but only to the extent that such institutions operate free from geopolitical manipulation. The record to date is mixed.

The Hague-based International Court of Justice.  (Photo: ICJ website)

International Court of Justice

All states that are members of the UN are automatically parties to the legal instrument framing the activity of the ICJ. The relationship between the UN and the ICJ is set forth in Chapter XIV of the Charter, Articles 92-96. This instrument is referred to as a ‘statute’ that sets forth in technical detail the role, procedure, and scope of concerns of the ICJ.

The main function of ICJ is to decide legal disputes between sovereign states as an integral aspect of the UN Charter’s encouragement of ‘the pacific settlement of disputes’ conceived as a principal instrument of war prevention (UN Charter, Articles 2(3), 33-38).

Israel recently contended that there was no legal dispute with South Africa about the interpretation of the Genocide Convention, but the ICJ disagreed by a near unanimous vote of its seventeen judges. The ICJ ruled that a legal dispute between South Africa and Israel existed as to the application of the International Convention on the Prevention and Punishment of Genocide. Article IX authorizes any party to the Convention to bring a legal dispute to the ICJ for resolution by the tribunal.

The ICJ has no jurisdiction with respect to individuals, its legal authority to adjudicate being limited to states, and lacks the authority to act with respect to political disputes, raising a troublesome questions as to the distinction between law and politics. The issue of ‘state crime’ is ambiguous, that is, whether the idea of accountability is restricted to the actions of those who act on behalf of the state, making the state itself not indictable.

The ICJ as an institution within the UN orbit has no enforcement capabilities of its own.

Its legal judgments are mere declarations of law unless the losing State party voluntarily complies or the Security Council possesses the political will to enforce an ICJ decision that is not complied with by the losing party. This means that the Security Council must have support from its membership, including the affirmative vote or abstention of all five of its Permanent Members that possess a right of veto. The General Assembly possesses the authority to recommend compliance with decisions of the ICJ or other measures designed to overcome non-compliance.

The ICJ has certain distinctive features several of which are worth briefly mentioning:

• There are fifteen judges elected for nine years terms, no two of which can come from the same country, and each is expected to have strong credentials as a jurist. In the event that a party to a legal action at the ICJ is from a country not represented by one of the fifteen elected judges then it is entitled to appoint an ad hoc judge for this case. As neither Israel nor South Africa were so represented, each exercised its right to select an ad hoc judge, and the panel of judges in the genocide case numbered seventeen.
• Over the course of its history the ICJ has earned a reputation of judicial independence and professionalism but has been criticized for excessive formalism and cumbersome procedures, which explain the lengthy intervals of years between the date of submission and that of judgment. The ICJ has never before been so directly engaged with an ongoing high profile legal dispute, and so far, has received widespread praise for its measured and legally well-reasoned treatment of South Africa’s effort to obtain a ruling that will legally repudiate and put an end to Israel’s response to the Hamas attack of October 7 by concluding that Israel is indeed guilty of perpetrating the crime of genocide, and has already been ordered by the ICJ to take measures in light of the humanitarian emergency imperiling Palestinian lives in numerous ways;
• The judges are elected by the members of the General Assembly and Security Council, but a negative vote by one of the P5 is a normal vote, and doesn’t count as a veto;
• In response to formal requests from the distinct organs and specialized agencies that make up the UN System, including its specialized agencies, the ICJ also has a parallel authority and duty to render what are called ‘Advisory Opinions’ in response to formal requests. As the language implies, the legal findings of advisory opinions are not treated as binding, and there is no expectation that where the issues are controversial, the rulings will change behavior of the government(s) whose policies and practices are found to be illegal by the ICJ in this advisory role. This way of diminishing the authority of advisory opinions is one example of how the UN balanced sovereign rights of its members against the overriding authority of international law;
• States have an option of signing up for compulsory jurisdiction, which means that if its adversary is mutually so bound, it can invoke a legal obligation to resolve an international legal dispute by submitting it to the ICJ. In some instances, as in the Genocide Convention, the duty to have legal disputes adjudicated if a party to the treaty so requests is written into the treaty itself;
• The ICJ has rendered some unpopular and dubious decisions in the course of its history, as in the so-called Southwest Africa Cases back in 1966 whereby it upheld by a close vote South Africa’s legal right to govern its mandatory authority in Southwest Africa (now Namibia) by relying on the same kind of apartheid regime it applied to its own domestic racial divide;
• The contributions of the ICJ to the development of international law through its well-analyzed and researched opinions, including dissents and separate opinions, has been at least as important as its assigned priority of resolving international legal disputes.

International Criminal Court

The ICC is still quite a young institution that did not come into existence until 2002, or 57 years after the UN was established. It came about as a project that gained political traction by creating a collaborative coalition of governments from the Global South and a large number of civil society actors, or NGOs.

To become a member of the ICC it is necessary to become a party to the Rome Statute that provides the technical framework for the operations of the tribunal. Unlike the ICJ, the ICC operates without any formal relationship to the UN.

Such a procedure requires states to submit the Rome Statute as an international treaty to diverse national constitutional procedures that involve typically signature by a representative of the executive branch of government followed by legislative approval, sometimes by a super-majority.

As of 2023, 124 countries have become ICC members, including all of the European states that have supported Israel’s claim to act in defense of its security, but to a lesser degree than the US.

Unlike the ICJ, the ICC has only jurisdiction over individuals who are physically subject to its authority. Members of the ICC are obligated to cooperate with its formal orders, including the arrest of individuals accused of international crimes after a lengthy investigation of the evidence of criminality has been obtained and evaluated.

A weakness of the ICC is that the most important geopolitical actors, the US, China, and Russia chose not to join for pragmatic and ideological reasons, challenging the basic notion that international criminal law took precedence over national sovereignty and its legal institutions.

A controversial aspect of the Rome Statute is its grant of authority to the ICC to prosecute properly accused individuals who allegedly committed crimes on the territory of member states but were themselves nationals of non-member states. The Global West, especially the US and Israel have made this issue into a challenge to the effectiveness and legitimacy of ICC operations.

After the Russian attack on Ukraine in 2022 the US and European members pushed hard for the arrest of Putin and others, while in the context of Israel’s genocide, these governments have denounced the Senior Prosecutor for recommending the issuance of arrest warrants for top Israeli leaders. At this point, there is no finality as the recommendation awaits action by a panel of three ICC judges who must decide to approve or reject. In any event, there is no prospect of implementing ICC action against Israel as only member states are obliged to give effect to the arrest warrants should they be issued.

Nevertheless, even at this preliminary stage, these recommendations pertaining to arrest warrants have some adverse implications for the individuals and the country of their affiliation. The indicted individuals might hesitate before traveling to countries, such as the UK and France, which are ICC members, and obligated to carry out arrests, especially if they have adopted universal jurisdiction principles as part of their law. It bears on how the political actors are perceived in civil society, tilting the scales of legitimacy. This could have reputational implications for both the countries involved and for the reputation of the ICC.

It should be observed that in the past, the ICC has been criticized for its focus on the alleged criminal wrongdoing of political leaders in countries of the Global South, especially those from Sub Saharan Africa. When the ICC earlier attempted to investigate evidence of crimes by Israel in Occupied Palestine and those of the US in Afghanistan there was a furious backlash in Washington including the formal adoption of sanctions against ICC officials, including the ICC. The failure to move forward, despite the abundant evidence, created an impression that the ICC was a weak institution not capable of professionalism or of fulfilling the expectations contained in the Rome Statute. Again, there have been calls for ‘sanctions’ against the Prosecutor and other officials of the ICC should the recommended issuance of the arrest warrants take place.

The future of the ICC, and indeed the struggle to extend criminal accountability to the strongest political actors, will be seriously affected by the outcome in Gaza, and by whether the ICC addresses current geopolitical pressures in ways that improve its reputation for political independence.

Ever since the Nuremberg and Tokyo war crimes trials international criminal law has been seriously compromised in war/peace contexts by its inability to treat equals equally.

The damning fact remains that these World War II prosecutions only addressed the crimes of the losers while according impunity to the winners.

Such a double standard has tainted all efforts since 1945 to strengthen generally legal accountability for international crimes. It raises the question as to whether ‘the primacy of geopolitics’ within the UN and elsewhere in the ordering global security is subject to challenge.

The planned summit scheduled for Sep 22-23 on the future of the UN [Summit for the Future: Multilateral Solutions for a Better Tomorrow] should cast light on this fundamental question, but may well avoid the topic as sensitive and as a source of friction.

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Prof. Richard Falk is a member of the TRANSCEND Network, Albert G. Milbank Professor Emeritus of International Law at Princeton University, Chair of Global Law, Faculty of Law, at Queen Mary University London, Research Associate the Orfalea Center of Global Studies at the University of California, Santa Barbara, and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly served as director the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine. His book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Power Shift (2016); Revisiting the Vietnam War (2017); On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament (2019); and On Public Imagination: A Political & Ethical Imperative, ed. with Victor Faessel & Michael Curtin (2019). He is the author or coauthor of other books, including Religion and Humane Global Governance (2001), Explorations at the Edge of Time (1993), Revolutionaries and Functionaries (1988), The Promise of World Order (1988), Indefensible Weapons (with Robert Jay Lifton, 1983), A Study of Future Worlds (1975), and This Endangered Planet (1972). His memoir, Public Intellectual: The Life of a Citizen Pilgrim was published in March 2021 and received an award from Global Policy Institute at Loyala Marymount University as ‘the best book of 2021.’ He has been nominated frequently for the Nobel Peace Prize since 2009.

This article originally appeared on Transcend Media Service (TMS) on 27 May 2024.

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