Richard Falk
And TFF Associate and dear friend since 1986.
June 5, 2024
An intriguing 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 to international procedures available for its interpretation and enforcement. To begin with, many concerned persons wonder about why there are two distinct tribunals: the International Court of Justice (ICJ) and the International Criminal Court (ICC). Beyond this, for many never exposed to a sophisticated explanation of the process by which international law is judicially implemented the distinction between these two tribunals, both located in The Hague, is far from transparent. This short essay is a simplified introduction to the ICJ and ICC, both indispensable judicial resources of a functionally effective and equitable international legal order. Their positive contributions to law and justice are diminished to the extent that such institutions are subject to geopolitical manipulation.[1] To acquire legitimacy and respect such institutions must operate in an atmosphere of judicial independence. The record to date is mixed and difficult to assess.
At the same time, the pronouncements of these institutions can have major symbolic influence even if their rulings are ignored or violatied. The experience of the ICJ in relation to Israel’s defiance of its Interim Orders in the case of South Africa v. Israel is suggestive, adding a further element of legitimacy to civil society activism in opposition to Israel’s continuation of the Gaza genocide.
ICJ
All states that are members of the UN are automatically parties to the legal instrument framing the activity of the ICJ known as the ‘ICJ Statute.’ The relationship between the UN and the ICJ is set forth in Chapter XIV of the Charter, Articles 92-96. This Statute frames 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). The underlying justification for the ICJ is to provide members of the UN with a politically independent and professionally distinguished panel of judges with strong credentials in international law to pronounce upon its relevance and development to the resolution of disputes brought before it. Such a judicial mechanism offers states an alternative to war and political stalemate. This judicial remedy is only available if both sides agree to resolve an international dispute by recourse to the ICJ and the Court decides that the dispute is of a legal character rather than being a political or moral dispute.
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 submit a complaint relating to a legal dispute to the ICJ for resolution. The ICJ has no jurisdiction with respect to individuals or criminality, its legal authority to adjudicate being limited to states. It also lacks authority to act with respect to political disputes. This sometimes raises troublesome questions as to the distinction between law and politics.
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 being 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 but has no coercive authority of its own by which to implement ICJ decisions. Yet, as mentioned, civil society activism if mobilized can impose punitive responses to high profile instances of non-compliance, as here
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 experiential credentials as a jurist. If 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 this right to select an ad hoc judge, and thus 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, centering on the lengthy intervals of years between the date of submission and that of judgment. The ICJ has never before been so deeply 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. Israel has already been ordered by the ICJ to take provisional measures in light of the humanitarian emergency imperiling Palestinian lives in numerous ways, while awaiting the decision on the merits of the allegation of genocide that will not be forthcoming for several years or long after the probable end of violence in Gaza;
– the judges are elected by the members of the General Assembly and Security Council, but a negative vote by one of the P5 is treated as 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 in its Statute ‘Advisory Opinions.’ These are issued in response to formal requests, but only from organs and specialized agencies of the UN. As the language implies, the legal findings of advisory opinions are not 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 incidentally found to be unlawful by the ICJ in this advisory role, although remembering that the ICJ does not directly use an advisory opinion to assess the legality of the behavior of sovereign states. Nevertheless, the legal assessments of the judges rendering Advisory Opinions may exert a considerable educational and political influence in relation to the future development of international law. Diminishing the authority of advisory opinions is one example of how the UN balances sovereign rights of its members against the supposedly overriding authority of international law;
– states have an option of signing up for compulsory jurisdiction, which means that if an adversary state 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 formally 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 the outcome was upheld by a close vote. It upheld South Africa’s legal right to govern as the mandatory authority in South West Africa (now Namibia) by relying on the same kind of apartheid regime it applied to its own domestic racial divide.[2] Again, the secondary effects of an ICJ decision can be significant even if contrary to its legal reasoning. The anger among government of the Global South at the UN resulting from an ICJ decision that favored apartheid South Africa, led the General Assembly abruptly to terminate South Africa’s mandate, facilitating the achievement of sovereign statehood for South West Africa;
– 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. It has been given very few opportunities during its almost 80 years of existence to render judgment on legal disputes between geopolitical rivals.
ICC
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 projectthat gained political traction by creating a collaborative coalition of governments from the Global South and many civil society actors, or NGOs. To become a member of the ICC it is necessary to become a party to the Rome Statute, a stand-alone international treaty, 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 requiring 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 in current circumstances 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 same governments were outraged when the Senior Prosecutor of the ICC recommended 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 arrest warrant against Israel as only member states are obliged to give effect to such warrants should they be issued.
Nevertheless, even at this preliminary stage, these recommendations pertaining to arrest warrants has some adverse implications for the individuals targeted 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 incorporated universal jurisdiction legislation as part of their law. It is 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, causing, as here, an angry Israeli backlash against all forms of internationalism.
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 reaction 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 consistent professionalism or of fulfilling the expectations contained in the Rome Statute. Again, in relation to the Gaza genocide there have been calls for ‘sanctions’ against the Prosecutor and other officials of the ICC should the recommended issuance of the arrest warrants or other actions against Israelis 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 responds to current geopolitical pressures in ways that improve its reputation for judicial independence. Ever since the Nuremberg and Tokyo war crimes trials international criminal law has been seriously compromised in war/peace contexts by its failures to treat equals equally. The damning fact remains that these World War II prosecutions only addressed the crimes of the losers while excluding from consideration the crimes of 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 managing global security is subject to challenge. The planned summit scheduled for September 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 not touch a topic that is so sensitive and bound to give rise to inter-governmental friction.
Peoples’ Tribunals
Ever since the Russell Tribunal of 1966-67 organized as a project of civil society activism in the middle of the Vietnam War, the ad hoc organization of such tribunals have created a non-state mode of instituting a judicial approach in situations where controversial international conflicts were not being addressed in a manner that calmed public concerns. Such tribunals can alter public discourse by media impacts and through documentation of allegations, as articulated by individuals with reputations as public intellectuals and persons of conscience. Unlike the ICJ or ICC, the emphasis is put upon morality and politics.
It is also possible for civil society representatives to file briefs or make suggestions to the ICJ and ICC in a variety of ways. A particularly interesting initiative has been taken by the Geneva International Peace Research Institute submitting a long scholarly, prudently phrased statement to the ICC Prosecutor advancing an argument for why a formal investigation should be undertaken of the complicity crimes relating to the Gaza Genocide allegedly committed by Ursula von der Leyen in her role as President of the European Commission.
This interplay between civil society activism and the working of the formal statist procedures deserves further investigation and commentary.
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