HR: ICC+ICJ

aims of the ICC

• provide accountability for serious crimes where national governments are unable or unwilling to do so

• Deter future atrocities, by holding perpetrators accountable

• Provide a platform for victims to seek justice

• promote and develop international law

structural strengths of the ICC

• permanent institution, providing consistent and ongoing mechanism for addressing international crimes

• unlike the ICJ, the chief prosecutor in initiate cases

  -makes the ICC more proactive

• broad jurisdiction Over serious international crimes, including genocide, crimes against humanity, and war crimes

• Only intervenes when national courts are unwilling or unable to prosecute serious crimes, respecting nation states sovereignty (REALISTS)

• Independent from political influences

• Broad global acceptance, 123 Members enhancing its dismay and global reach

• Establishes legal precedence, contributing to the development of international law providing clarification and consistency (Liberal rules based approach)

example of ICC successes

• by 2021, the ICC had secured 8 convictions

  • Thomas Dyilo: Congolese warlord sentenced to 14 years for human rights abuse, including recruiting child soldiers.

• also investigates cases currently

  • 2020: form of president of Sudan, Omar Al Bashir facing investigations for crimes against humanity and genocide

  • 2020: Human rights violations by allied forces in Afghanistan

  • 2019: IDF behaviour in the West Bank and Gaza Strip

  • 2024: warrants for Israeli prime minister and defence minister as well as Hamas commanders

Structural weaknesses and criticisms of ICC

• lack of cohesive enforcement power

  -Relies on member states to arrest and transfer defendants as it does not have its own police force

  -dependency leads to non-compliance seen in the case of former Sydney president Omar Al Bashi, who invaded a warrant for years
  - R: N-S sovereignty remains priority → no higher power

• Low conviction rates relative to number of cases handled. Partly due to the complexity of international crimes and extensive evidence required.

• perceived bias, Focus on African countries with former president of Kenya Uhuru Kenyatta stating it was a “tool For declining imperialist powers”

  • Since establishment the ICC has only convicted Africans, and the African union has urged his members not to cooperate with the court

• The ICC can only prosecute crimes committed by nationals of member states or on the territory of member states limiting its ability to address crimes in non-member countries.

• powerful countries such as the United States and Russia and China (P5) have not ratified the Rome statute and do not accept the authority of the ICC

  • US signs treaties with clauses stating citizens won’t be turned over to the court
    - limits impact and effectivness

Aims/ Purpose of ICJ

• enforce rule of law in internation disputes
  - create more peaceful and stable world

• settle legal disputes submitted by states

• Represent main legal systems of the world

Structural strengths of ICJ

• Diverse representation
  - 15 judges elected from different regions
  - enhanced legitimacy, with more likeihood to be respected
  - recognition of global impartiality

• Judicial independence
  - 9 year terms and security on tenure
  - won’t be dismissed based on judgments

• Universal jurisdiction
  - hear cases from and UN member
  - broad and inclusive

• Binding judgments

• Principle judiciary organ → Role in peace and security
  - resolve disputes between states
  -reduce tension
  - Provides peaceful, legal route
  - immidiate military action not necessary

Liberal perspective on ICJ:

• Vital way of ensuring rules based approach

• Locke: “no law, no freedom”

Examplesof ICJ success:

• 1992: settled border dispute between El Salvador and Hondoras

• 2002: Nigeria and Cameroon dispute over oil rich penisula

• 2009: Belgium brought case demanding Senegal begin trial of former president of Chad (CagH) → won and he was put on trial

• 2019: ordered UK to give back Chagos Islands to Maldives

Why has the ICJ not been more successful?

• Realists
  - N-S seek own self interest and are power maximisers
  - Put themselves above INT law, challenging authority of the courts

• only 73/193 countries have agreed to be bound by court rullings

• Court influence undermined as
  - liberal principles conflict with realist state egoism
  - court cannot initate cases and can only try cases that are presented to it
  - states choose whether or not to be bound to rullings by optional clause
  - UNSC supposed to enforce rullings, but P5 members can veto
  - only effective way of ensuring compliance would be coersive action (basically impossible)

Examples of ICJ limited effectivness:

• 1984: USA withdrew from compulsory jurisdiction after being found guilty of trying to illegally overthrow Nicaraguan Gov

• 2018: Iran brought case stating the re-imposition of Trump’s sanctions was illegal
  - Trump ignored the judgment to lift restrictions

• 2020: ordered Myanmar to take any means to stop genocide against Rohynga Muslims
  - Leader stated it was an internal conflict