International Courts Flashcards
sources of law for international courts
different sources, go through in order
- international conventions (rules recognized by states)
- customary law (practice: how the courts/states have solved disputes earlier)
- national legal system (general principles of law recognized by civilized nations)
- judicial scholarship (consensus about a certain topic)
universal jurisdiction
idea that some crimes are so serious that every country has automatic jurisdiction over them
ICJ as actor and as tool
actor: states see it as an actor -> enables it to be an actor
tool: ICJ’s judgements can be used by states to reinforce their own positions and to undermine positions of others
ICJ originis
Permanent Court of International Justice (PCIJ) in the League of Nations
established in 1945 in the UN
articles 92-96
based on the statute of the ICJ
structure ICJ
15 judges assigned for 9 year terms
- assigned by majority vote UNGA and UNSC (no veto)
- regional groups UN
2 possible ad hoc judges (if one of the parties in the dispute doesn’t have a judge of their nationality in the court)
The Registry = secretariat
secretariat ICJ
The Registry
- responsible for diplomatic events and outreaches
- supports the court
ICJ mandate
- contentious cases
- advisory proceedings
is there an opportunity for appeal in the ICJ
no
ICJ contentious cases
international legal dispute between states who consent to jurisdiction of the ICJ in that specific case
- only states may be parties
- disputes can only be about interpretation and violation of law/treaties/obligations
advisory proceedings ICJ
provides advisory opinions on interpretation of legal subsets
not legally binding
ICJ precedent
the ICJ creates no precedent
ICJ decisions only have effects on involved countries
preliminary objections ICJ
objection that the ICJ has no jurisdiction in the case
ways of recognizing ICJ jurisdiction
- ad hoc acceptance over a specific dispute
- treaty based: treaty clause mentions that disputes about the treaty shall be answered by the ICJ
(!UN Charter makes states members of the ICJ, doesn’t imply acceptance of jurisdiction) - optional clause declarations: general acceptance of the jurisdiction of the ICJ jurisdiction in all potential disputes with other states
*often come with exceptions or conditions (e.g. only reciprocal: automatic jurisprudence only over cases where the other country also has optional clause declaration)
US Conally Amendment
1946
optional clause declaration US
accepts compulsory jurisdiction, but not jurisdiction of any matter essentially within the domestic sovereignty of the US, as is determined by the US
US invoked its optional clause declaration in 1986
provisional measure
demands made by a court ahead of deciding the case, with the goal to stop the parties from making the situation worse as the case proceeds
not explicitly said that these are legally binding, but in practice, they are seen as binding
aren’t complied often
ICJ enforcement
winning party can ask the UNSC to consider the matter if the losing party fails to comply to the judgement of the ICJ
(art. 94(2))
UNSC has no obligation to give the case serious consideration
political priorities of the UNSC play big role in decisions
ICJ relies on
- losing party recognizing that self-motivated compliance is in the long-term interest (e.g. political implications)
- other states and institutions finding ways to pressure the state into complying
ICJ Iran v. USA (2018)
Nuclear Sanctions Case
Iran complain: US violated 1955 Treaty of Amity, Economic, Relations, and Consular Rights by composing certain sanctions related to Iran’s nuclear development
provisional measures: ruled unanimously that the US should remove any impediments related to humanitarian needs, including food and medicine
ICJ rejected 6 preliminary objections raised by the US
ICJ case The Gambia v. Myanmar (2019)
Gambia accused Myanmar of breaking the genocide convention
affected Gambia because it also ratified the genocide convention
July 2022: rejection of Myanmar’s 4 preliminary objections + application by the Gambia for provisional measures is admissible
case still in progress (preliminary objections stage)
- preliminary objections aren’t complied by, up to the UNSC to step up
multiple other initiatives are also seeking to prosecute/issue the situation
ICJ Ukraine v. Russia
currently ongoing (submission stage)
proces takes extra time: many countries want to be involved in the case e.g. with claims and evidence
Provisional measures that Russia immediately suspend the military operations in the territory of Ukraine
The case: invocation of genocide as a pretext for the use of armed force by the Russian Federation against Ukraine
(two-fold argument: abuse of the Genocide Convention by Russia + act of genocide in Ukraine territory)
there are other initiatives of prosecuting Russia
- ICC investigation
- Discussion of a special tribunal
- case before the European Court of Human Rights
ICJ advisory opinion expenses of the UN
20 July 1962
Uniting for Peace Resolution -> Congo mission
France and SU refused to pay budget, it said the UNGA acted outside of its mandate
UNGA requested an advisory opinion
ICJ found that the UNGA financing of the Congo mission was legal, still the UN created a separate budget for peacekeeping missions
ICJ Yerodia / Belgium v. Congo
2000
Belgium used a law of universal jurisdiction to issue an arrest warrant for Congo’s foreign minister Abdoulaye Yerodia Ndombasi (accused of encouraging genocide in Congo)
Congo complained:
- illegal usurpation of domestic authority by declaring universal jurisdiction (this was dropped)
- Belgium was ignoring rules of sovereign immunity
Decision: Belgium had violated the Rights of Congo by not respecting the traditional rule that gives foreign ministers immunity from criminal jurisdiction while traveling the world
ICJ whaling case / Australia v. Japan
2014
Australia argued that Japan wasn’t living up to it’s obligations to the International Convention on the Regulation of Whaling (ICRW)
ICRW started for quotas on whaling for commercial purposes -> shifted to anti-whaling
- Japan and some other states didn’t agree -> weren’t bound by the changes
Japan adopted the changes in 1988 due to US pressure + continued wailing under a government-sponsored research institute
ICJ decision: Japan’s whaling wasn’t genuine science as intended by the ICRW
Japan continued whaling with higher scientific standards -> left the ICRW to avoid further conflict
in what way is the ICC an institutional novelty?
it connects international law and individuals
rather than countries
in what ways is the ICC complementary to domestic courts rather than it supersedes them?
- court ensures that states standardize their domestic laws on war crimes, genocide and crimes against humanity
- ICC provides an institutional framework and legal authority to prosecute these crimes in those cases where the states fails in the obligation to do so itself
high politics ICC
ICC has power to punish and (necessarily) select cases
it has unprecedented powers in the international system
mandate touches hugely consequential political forces, often gets credit or blame beyond its control
reasons for joining the ICC
- general desire to work together against heinous crimes
- ICC is a useful tool in struggles against domestic opponents
(atrocities are relatively cheap instrument for producing a large political impact -> used by enemies of the state) - believe of status and prestige gain
- more specific signals in mind when joining
ICC preliminary examination
the prosecutor is gaining resources on an alleged crime, is not yet a full investigation (3 at the moment)
What is the difference between a warrant and a summon?
the prosecutor requests a warrant (public or confidential) if the suspect is not likely to turn themselves in
the prosecutor requests a summon if the individual is able and willing to turn themselve in
ICC detention center
The Hague
not a prison facility: once someone is convicted they seek a permanent prison (convict has a say, but judge decides)
meets the highest standards
shared the facility with the Yugoslavian tribunal when that was still operating
future of the ICC
3 aspects/goals
- cooperation (relies on states)
- universality (some big states aren’t part of the ICC, this creates difficulties)
- demands for more justice (in some cases it has no jurisdiction and can’t operate)
ICC and Ukraine
ICC has gotten jurisdiction from Ukraine for a certain amount of time -> ICC can investigate crimes of Russia in Ukraine
Art. 12 (3)
ICC structure
office of the prosecutor
prosecutor: lead investigation and prosecutions, are the lead diplomat and public face of the ICC
court of 18 judges elected for 9 years
- from different regions in the world, legal systems and gender
the role of defense in the ICC
ICC ensures fair proceedings in which the suspect can pick their own lawyer + get financial compensation if they can’t afford one
role of victims in the ICC
victims are represented and can participate in proceedings
restorative justice:
- can be awarded reparations as an outcome of the Court’s ruling (donations important: prosecuted often don’t have enough money)
- can receive assistance of the Trust Fund for Victims
the role of witnesses in the ICC
+ types of witnesses
can be called to testify by the prosecution or the defense
- expert witnesses
- victims
- insider witnesses
can be protected for their testimony (done by the registry)
foundation/origins ICC
end of WW2: allied powers decided to prosecute those responsible for crimes during WW2
until the end of the cold war no incentive to set up a permanent international court
- ad hoc tribunals separate from the ICC: Yugoslavia + Rwanda
Rome Statute (1988), entry into force in 2002 after 60 ratifications
how many state parties in the ICC
123
difference ad hoc tribunals Yugoslavia, Rwanda and the ICC
ICC is complementary to the national legal system
ad hoc tribunals are superior to the national legal system
how does a case get to the ICC?
3
- state party referral
- UNSC referral (twice: Darfur, Libya)
- independent investigatory power of the ICC Prosecutor’s Office (can start cases proprio motu (on own initiative))
ICC jurisdiction
6
- persons suspected of: war crimes, crimes against humanity, crimes of aggression and crimes of genocide (sexual crimes also been added: evident in the 90s)
- connection between the suspect or the crime and an ICC state party
- courts of the domestic jurisdiction must have failed to genuinely investigate and prosecute the matter (if warranted)
- alleged crimes have to be committed after 1 july 2002 (ratification Rome Statute)
- alleged crimes have to have a certain gravity, scale and character
- investigation has to serve interests of justice, it has to be in favor of the victims
Rome Statute
5
treaty base of the ICC
- result of compromises
main conflict in negotiating: US wanted the ICC to be subordinate to the UNSC -> UNSC can defer cases to the ICC + UNSC can delay cases + UNSC has power over the ICC’s budget
- part 9 consists out of obligations on governments
- describes rights of defendants + denies e.g. defense of following orders of superiors (only counts if the order is not manifestly unlawful and the person didn’t know the order acted unlawful)
'’The Elements of Crimes’’
- document that explains the list of crimes that the ICC has jurisdiction over
- based on other international agreements
- crime of aggression was controversial: could potentially impede UNSC authority over international peace and security + concept is contested
definition crime of aggression
use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the UN Charter
has to have certain character, gravity and scale (K.J. Heller)
leadership requirement:
- customary law: person has to shape or influence the policy of the state
- Rome Statute: person in a position to effectively exercise control or direct the political or military action of a state
! ICC can’t convict people from states that aren’t state parties
crimes the ICC has jurisdiction over
- crimes of Agression
- crimes of Genocide
- Crimes against humanity
- war crimes
ICC compliance
- enters into internal deliberations of state parties: in their actions they think about possible ICC cases/application/jurisdiction and want to prevent it
- action groups promise in advance to monitor behavior with the hope of reporting evidence to the ICC
- compliance and noncompliance through giving means and making arrests
US’ mixed relation with the ICC
- constructed an alternate legal structure to prevent US citizens to be brought to the ICC: was legally seen as null as it contradicted obligations under the Rome Statute
- Obama administration offered support and assistance in a variety of cases
- Trump administration had/did small harassments: e.g. not letting staff into the US
- ICC prosecutor has been investigating possible war crimes of the US in Afghanistan (which is a state party) between May 2003 and December 2014
ICC enforcement
no provisions in the Rome Statute to deal with members who fail their obligations to cooperate
seems that non-cooperation falls under general international laws on treaty obligations -> can be referred to the ICJ
if members fail to pay their share of the ICC’s expenses, the ICC has the power to revoke that states’ right to vote in the Assembly of State Parties
ICC is in itself an instrument of enforcement of international criminal law (puts a state in a weird position: has to remove themselves from their citizens, but at the same time assist the ICC in their prosecution)
ICC is dependent on member states for investigating, policing and enforcing it’s decisions
(surrender of suspects to the tribunal is always complicated by local politics
ICC Case Study: Al-Bashir indictment
- anti-ICC Bush administration encouraged the UNSC to press for the case in the ICC
Omar-Al-Bashir = president of Sudan 1989-2019
- accused of systemic campaigns of murder, rape and displacement against the population in Darfur
- incarcerated by the new regime after a military coup in 2019
Sudan isn’t a member of the ICC, it got to the ICC through the UNSC
Al-Bashir charged with crimes against humanity and war crimes
arrest warrant hasn’t had success
debate about the place/function/effect of the ICC in world politics
It may be the case that indicted leaders will strive ever harder to remain in power by whatever means they have if they expect to be charged once they leave office
strict distinction between the responsibilities of the SC and the ICC isn’t possible
raises questions if the goal of the ICC is:
a. to pursue suspects under international law
b. to minimize immediate humanitarian laws
Article P. Pillai
'’a tale of two cases at the international court of justice’’
intervening states are also part of the legal binding that is necessary for a case to be brought to the ICJ
in the ICJ cases, there is the question of intervening states: the political and symbolic significance of intervention needs to be weighted in relation to the legal significance, including its impact on the timeline of the legal proceeding
talks about gambia v. myanmar and ukraine v. russia
accountability matrix
Pillai
there are multiple legal initiatives at different fora
encompasses multiple legal initiatives, and the implication of these other initiatives must be factored into legal strategies
options for prosecuting Russian Aggression against Ukraine: a critical analysis
K.J. Heller
Russia’s justification for invading Ukraine
- individual self-defence (no factual basis)
- collective self-defence on the Donetsk People’s Republic (DPR) and the Lugansk People’s Republic (no basis: only states have a right of self-defense)
- right of unilateral human intervention: had to use force to stop Ukraine’s ongoing genocide of ethnic Russians
How can Russian leaders be prosecuted for the crime of aggression?
K.J. Heller
4
- ICC (with amendment of the Rome Statute)
- Ad hoc international tribunal
- hybrid tribunal based in the Ukrainian judicial system and supported by the Council of Europe
- National prosecutions conducted by Ukraine itself or by third states that have universal jurisdiction over aggression
Belarus crime of aggression?
Belarus allowed Russia to launch airplanes from Belarussian airports and to use Belarussian territory to send solders and fire missiles into Ukraine.
Customary law: no evidence that Belarus itself used armed force against Ukraine
Rome statute: character and gravity to be a crime of aggression, but it is doubtful that the scale is big enough
Most legitimate options for prosecuting Russia
- special tribunal created by agreement between Ukraine and the UN with the GA endorsement
- hybrid tribunal based in Ukraine and supported by the Council of Europe
What is the best way to prosecute Russia if no institution/construction can set aside personal immunity?
only lesser leaders can be prosecuted
HUCA supported by the CoE would be the best option
possible prosecution of Russia by the ICC
benefits
problems + solutions
- extending the investigation to include aggression would offer economy of scale
- no need to create a new court (saves time)
- symbolic: ICC would mean avoiding appearance of selective justice
problems:
- states that aren’t state parties of the ICC are excluded from the crime of aggression
- Russia and Ukraine haven’t ratified the Rome Statute
solutions:
- removing the provision in the Rome Statute that excludes non state parties
- allowing the UNGA to make referrals to the ICC under the uniting for peace resolution
solutions are unlikely: require 7/8 majority
possible prosecution of Russia by a special tribunal created by a group of states
concerns of immunity and selectivity
Personal immunity: a treaty establishing an international tribunal can’t remove immunities that international law grants to officials of states that aren’t party to the treaty
Selectivity:
- would be problematic if the same states that made a Russia-specific tribunal necessary by neutering the crime of aggression now took a leading role in creating and operating that tribunal
- would be problematic if the special tribunal would include the US and UK (as they were most responsible for the invasion of Iraq, which could (should?) have been brought to such a tribunal)
immunity
if a court’s jurisdiction doesn’t exceed state jurisdiction, then the court can’t set aside personal immunity
if the international court’s enabling statute is binding on the government in question, the court can prosecute him/her
a treaty establishing an international tribunal can’t remove immunities that international law grants to officials of states that aren’t party to the treaty
*court created by the UNSC could set aside personal immunity
functional immunity (official acts of government officials)
- doesn’t count for international crimes
- international and national courts are increasingly unwilling to recognize functional immunity
possible prosecution of Russia by a special tribunal through agreement between the UN and Ukraine
will be viewed as selective justice:
UNGA has a resolution that calls for the creation of an ad hoc international criminal tribunal
- resolution to actually establish such a tribunal is unlikely: requires acceptance and recognition by a very large and representative majority of states
= unlikely: AU rejects idea that personal immunity can be set aside + significant number of states in Middle East and Southeast Asia don’t see Russian’s invasion of Ukraine as an act of aggression
unlikely that it will be able to set aside personal immunity
possible prosecution of Russia by a hybrid tribunal based on Ukraine’s judicial system and supported by the Council of Europe
requires
advantages
problem
HUCA = High Ukrainian Chamber for Aggression
requires Ukraine to enter into agreement with the CoE + would be financed by CoE
would be a response to large-scale human rights violations committed on the territory of one of its members
advantages:
1. no need for a new tribunal
2. expertise of CoE member states
3. minimize perception of inter-conflict selectivity
4. minimize the problem of unclean hands (most of the states connected to the invasion of Iraq + responsible for limiting the ICC’s jurisdiction over aggression aren’t in the CoE)
problem = art. 125 of the Ukrainian Constitution bans establishment of extraordinary and special courts
- there is one in existence right now
+ personal immunity: endorsement by the UNGA necessary to claim the right to set aside personal immunity
hybrid tribunal =
court of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred
proposals for domestic prosecution
probably not succesfull, at least because of personal immunity
