International Justice: Are courts helpful?

Posted on September 05, 2013

The settlement of disputes between states by judicial means is of relatively recent origin while the punishment of political and military leaders for committing international crimes is very recent. For centuries states took the view that disputes were to be settled by war and that the most brutal acts of state leaders were to be viewed as justifiable acts of state.  Strangely, change came at the very end of the nineteenth century when European powers were arming themselves for war. At this time a peace movement developed, alongside the armaments race, which culminated in the First Hague Peace Conference of 1899. This lead to the establishment of the Permanent Court of Arbitration – PCA - in The Hague. It was decided to build a grand building to accommodate this grand idea. Funding for this dream came from Andrew Carnegie the Scots/American philanthropist, who had made a fortune in the steel industry in the USA. Strictly the PCA is no more a Court than it is permanent. It  is simply an institution which provides machinery for the facilitation of arbitration to settle international disputes. The foundation stone for the building to accommodate the PCA – known as the Peace Palace – was laid at the Second Hague Peace Conference in 1907. The building was completed on 28 August 1913. The following year the war to end all wars broke out.


After the Great War a real international court was established – the Permanent Court of International Justice – PCIJ- and it was accommodated in the Peace Palace together with the PCA. In 1945 the PCIJ was replaced by the present International Court of Justice – ICJ - which retains it headquarters in the Peace Palace – with the PCA.


The ICJ is far from perfect. Its competence is limited to disputes between states. It has no competence to hear disputes between individuals and states. Nor does it have competence to hear disputes between international organizations or between international organizations and states. It may, however, give an advisory, non-binding opinion at the request of certain international organizations, notably the United Nations.


To aggravate matters, the ICJ does not have compulsory jurisdiction over disputes between all states. All 193 member states of the United Nations may use the court to settle disputes. But only if both the plaintiff state and the defendant state consent to the Court’s jurisdiction. This consent may be given in a treaty in respect of a particular dispute. Or it may be given in advance by agreeing to accept the court’s jurisdiction on a compulsory basis in respect of any dispute with any other state that also accepts the court’s compulsory jurisdiction. Today only 70 states have made such declarations accepting compulsory jurisdiction of the ICJ. Of the permanent five member states of the Security Council only the UK has accepted the Court’s compulsory jurisdiction.


The ICJ is not a criminal court. After World War II it was necessary to establish ad hoc courts to try the principal Nazi and Japanese war leaders at Nuremberg and Tokyo. Attempts to establish a permanent international criminal court were thwarted by the Cold War. Only after the Cold War ended was possible to establish further international criminal courts. First, the ad hoc tribunals for the Former Yugoslavia and Rwanda; and, second, the International Criminal Court – the ICC, established in 2002.


Like the ICJ the ICC is far from perfect. It has jurisdiction only over crimes committed within the territory of a state party or by the nationals of a state party. Today 122 states are party to the Rome Statute of the ICC but this does not include major powers – USA, China, Russia -  medium-ranking powers such as India, Turkey, Indonesia –  or   Iran, Israel, Iraq, Pakistan and North Korea. Consequently many international crimes and criminals fall outside the jurisdiction of the ICC.


The sad truth is that international justice, in the sense of fair legal process administered by courts, will not come about until all states accept the compulsory jurisdiction of the ICJ and all states become parties to the Rome Statute.


 Does this mean that the existing mechanisms for the judicial settlement of disputes and the criminal prosecution of international criminals have had little or no impact on the attainment of international justice and the advancement of international peace? Or that the extension of the number of states willing to submit to international justice is too slow to be meaningful? That is, that courts have not been helpful in the advancement of international justice.


First, a few remarks about the ICC. This court has only been  in existence for eleven years and it is too early to pass judgment on it. To date, however, it does not have a good record. Only one conviction of an internationally unknown Congolese warlord (Lubanga) and the acquittal of another Congolese warlord (Chui). In large measure this is the fault of the previous prosecutor, Luis Moreno Ocampo, and his successor Fatou Bensouda.


One of the reasons advanced by the USA for not becoming a party to the Rome Statute is that the Statute confers too much discretion on the Prosecutor. The USA feared that the Prosecutor might use his/her discretion to prosecute US soldiers/political leaders for crimes committed in Iraq and Afghanistan or Israeli soldiers/politicians for crimes committed in Palestine. But the US need not have feared this. The Prosecutors – Ocampo and after him Bensouda – have both been sensitive to Washington’s wishes; wishes that are made clear to the Prosecutor and the Assembly of States Parties(ASP) (the governing body of the ICC).


The strange exercise of prosecutorial discretion   is evidenced by the decision to prosecute only Africans. This has understandably infuriated the African Union (AU) which has in response decided to create its own international criminal court.


The ICJ does not have an unblemished history but there is general agreement that it has performed well in recent years and is rightly seen as the senior and most respected international court.


The history of the ICJ is inextricably linked with South Africa.  During the 1950s the ICJ gave three advisory opinions that found that the Mandate for South West Africa continued after the demise of the League of Nations and that South Africa was obliged to account to the United Nations, as successor to the League, for its administration of the territory. In the 1960s an attempt was made to convert these advisory opinions into binding decisions by getting Ethiopia and Liberia to bring a case against South Africa in which the ICJ was asked to find that the Mandate continued,  and that the policy of apartheid as applied in South West Africa violated the mandate.

In 1962 the ICJ ruled that it was competent to hear the case but in 1966 it reversed this decision when it found by the casting vote of the president, Sir Percy Spender, which the applicant states had failed to prove that they had the necessary interest in the dispute. This decision was hailed as racist, Eurocentric and reactionary and resulted in developing nations refusing to bring disputes before the Court. In 1971 the ICJ to some extent rehabilitated itself when it gave an advisory opinion holding that apartheid did indeed violate the mandate and that the General Assembly of the United Nations was competent to revoke the mandate.


It was only after the ICJ decision in 1986 holding that the US had unlawfully given support to guerrilla bands operating against the government of Nicaragua that the developing world accepted the ICJ as a tribunal that could help to resolve international disputes.


Since 1986 the ICJ has truly been an  international court engaged in the pursuit of international justice. Today it is busier than ever before and most disputes over the past 25 years have concerned developing countries in Latin America, Africa and Asia. Sadly it is used less by western European states than in the past and has lost the confidence of the USA. On the other hand both China and Russia have recently appeared before the Court.


It is widely believed that the ICJ chose to rule on a legal technicality in the Namibia dispute in 1966 rather than make a finding in a highly charged political case. Recently the ICJ has, however, addressed highly contentious political disputes with legal implications. It has ruled on many border disputes in Latin America, Asia and Africa, including the dangerous dispute between Nigeria and Cameroons over the Bokassi peninsula and the boundary dispute between Libya and Chad. These wise decisions have undoubtedly advanced both international peace and justice. The ICJ has confronted the issue of genocide in Bosnia and ruled on the illegality of Uganda’s forcible occupation of the DRC. It has considered Russia’s occupation of Georgian territory. It has found that the US practice of trying and executing foreign nationals with no access to consular assistance is illegal. At present it is hearing a dispute between Australia/New Zealand and Japan over the killing of whales in the South Pacific.


The ICJ has used its advisory powers to clarify the law and to guide the UN in its decision-making. In 2004 it gave an Opinion on the legality of the Wall Israel is presently constructing on Palestinian territory, holding that both the construction of the Wall and of settlements  is illegal. In 2010 it gave an Opinion on the legality of Kosovo’s unilateral declaration of independence from Serbia.


The increased activity of the ICJ , together with the new willingness of states to refer disputes to arbitration, suggests that the international community is today more prepared to have disputes settled by judicial means than in the past;  that the Rule of Law is more relevant in international relations than previously. This is undoubtedly correct. The ICJ has been helpful in promoting the Rule of Law.


There are, however, two obstacles in the way of the Rule of Law and the settlement of disputes by judicial means.


The first concerns the increased unwillingness of the world’s super power, the USA, once a firm adherent to the Rule of Law, to accept recourse to the judicial resolution of disputes. It withdrew its acceptance of the compulsory jurisdiction of the ICJ in 1986; it has withdrawn from the dispute settlement machinery of the consular convention which allowed states to bring disputes before the ICJ to protect their nationals in the USA; it refuses to accept the Opinion of the ICJ on the Wall in Palestine and bullies its European allies into doing likewise; and it refuses to become a party to the Rome Statute.


The second, obstacle concerns the failure of states to commit themselves in advance to the jurisdiction of the ICJ by accepting the compulsory jurisdiction of the ICJ. Today only 70 States accept the Court’s compulsory jurisdiction. This figure has remained more or less static over the years. Four of the permanent members of the Security Council – USA, France, Russia and China – do not accept the court’s compulsory jurisdiction. Moreover, important states such as South Africa do not either.


Where does South Africa stand in respect of international justice?


South Africa has from the start played an active role in the creation and workings of the ICC.  It has twice nominated candidates to the ICC – one, Navi Pillay, successfully. It has served on the bureau of the Assembly of States Parties (ASP). It is rightly seen as a leading member of the Court.


Unfortunately the same cannot be said about the ICJ, despite the important role that the Court has played in South Africa’s history. Today South Africa refuses to accept the compulsory jurisdiction of the Court. Initially South Africa accepted the Court’s compulsory jurisdiction but in 1967 it was withdrawn by the apartheid regime when it feared that it might be brought before the ICJ over its racial policies. There is no reason why South Africa should today refuse to accept the compulsory jurisdiction of the ICJ. Its failure to do so sends out a message that it is not committed to the Rule of Law. Moreover it  puts it out of step with Africa. Of the 70 acceptances of the Court’s compulsory jurisdiction, 21 are African. South Africa has encouraged African states to become parties to the ICC Statute but it is, so it seems, totally unconcerned about the jurisdiction of the ICJ. 


South Africa appeared before the ICJ in the advisory proceedings on the Wall in Palestine but refrained from committing itself on Kosovo’s secession. It failed to appear before the Court when some 43 other states, widely seen as the states most committed to the Rule of Law, presented argument before the court. Its absence was noted.


The South African government has  refused to support a candidate for the ICJ who was nominated by South Africa’s National Group, the nominating body authorized by the Statute of the ICJ. Moreover, South Africa makes no attempt to keep its National Group up to date. In terms of  the Statute of the ICJ states are required to establish a National Group of four distinguished lawyers that is empowered to nominate candidates for the ICJ after consulting the legal profession and law schools. Wisely the government chose to appoint the head of the Constitutional Court as chairman of the National Group. First, Arthur Chaskalson was appointed. And when he retired Pius Langa was appointed. But when Pius Langa retired the government did nothing to reconstitute the national Group. With the result that when a seat for an African judge became available in 2012 the National Group could do nothing because the chair of the Group was in dispute. Was it still Pius Langa? Was it Lex Mpati of the SCA? Or was it Chief Justice Sandile Ngcobo? No one knew so nothing was done. The chair of the National Group has still not been resolved. According to the records kept by the Permanent Court of Arbitration the late Pius Langa is still the chair! Sadly, the ICJ does not seem to feature high on the agenda of DIRCO.


To return to question of whether Courts are helpful to the cause of international justice and the advancement of peace.


The ICC is a very necessary institution for the achievement of international justice and the eradication of impunity. However, it is difficult to say that to date it has made much progress. International crimes are committed with impunity in many parts of the world – Syria, Iraq, Lebanon, Israel, Sri Lanka, Zimbabwe etc. The creation of the ICC has certainly not ended international crime. Suggestions that the very existence of the ICC acts as a deterrent are impossible to substantiate. Indeed it seems that the possibility that national courts may exercise universal jurisdiction has served as more of a deterrent. This is illustrated by the curbs that have been placed on the travel of Israeli military officers and politicians.


The ICJ, on the other hand, has done much to encourage the settlement of disputes between states. There is certainly a greater willingness on the part of states to refer disputes to the ICJ than ever before. The ICJ is today a truly universal court that is used by states from all regions. In large measure this may be attributed to the decisions of the Court. States feel secure that they will get a fair hearing and that justice will be done by the ICJ.


What should South Africa do? I suggest it should play a more active role in the Assembly of States Parties of the ICC – such as by insisting that the relationship between ICC and AU be fully and openly debated in the ASP. As far as the ICJ is concerned, South Africa should make a declaration accepting the compulsory jurisdiction of the ICJ. And it should properly constitute its National Group and encourage it to play an active role in the appointment of judges to the ICJ.


Great strides have been made since 1913 in the promotion of international justice. The Peace Palace in The Hague is central to this endeavour. Much has been done but much more remains to be done. Andrew Carnegie can rightly believe that his money was well spent.


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