18.6: International Legal Institutions

The focus, thus far, has been on the drafting of international rules that regulate the behaviour of states aimed at empowering and protecting the human condition. The formulation of international norms and treaties reflects a growing consensus in the international community that the rights of states are not unlimited and that the protection of individuals, in time of war and peace, is essential to global peace and security. While foundational, the mere drafting of agreements represents only the first stage in the attainment of a more humane and peaceful world. The necessary corollary to drafting the restrictions is their enforcement. Attention, therefore, now turns to the institutions that have been developed and utilized to ensure that the laws of war and peace are properly and effectively applied.

United Nations Security Council

Before the Second World War was concluded, the Allied powers began the process of creating the post-war international system by drafting the rules that would clarify relations among states and by establishing the institutions that would enforce them. Chief among the institutions was the Security Council of the United Nations. Empowered by the Charter, the Council operates with few legal restraints. The high threshold required for resolutions to be adopted (nine of fifteen yes votes), along with the ability of its five permanent members to veto resolutions, have created significant political obstacles to the Council’s success. Efforts by the Security Council to regulate international affairs and effectively address threats to international peace and security generally fall into one of three categories. First, the Security Council can authorize economic sanctions against countries that it determines are in violation of the UN Charter and by virtue of their actions constitute a threat to peace. These sanctions may be tailored to target specific individuals or may be comprehensively applied to an entire country. Second, the Council can authorize peacekeeping operations (PKO) made up of contributions from multiple member states. PKOs may be authorized to oversee a disputed region, deliver humanitarian aid to people in distress, observe elections or monitor human rights compliance, or physically separate warring sides. Because the concept of peacekeeping is not found in the UN Charter, the Council’s ability to authorize such operations represents an inferred, rather than explicit, power. The UN Charter empowers the Security Council to make adjustments to promote peace in Chapter VI and allows the Council to authorize war in Chapter VII. Since peacekeeping falls between those two points, it is often referred to as a “chapter six and one-half” action. ^[6] Finally, the Security Council can authorize war against violators. In 1950, when North Korea invaded its neighbour to the south, the Council authorized member states to use all force necessary to liberate South Korea. In 1990, in response to Iraq’s invasion of Kuwait, the Council again authorized an international campaign to repel Iraqi military forces and restore the sovereign integrity of Kuwait. The Council is not limited, however, to authorizing war against states that invade another state. In 2011, the Council authorized member states to use force in order to establish a no-fly zone over Libya in an effort to prevent that North African country’s military from physically suppressing its own people who were rebelling against their government.

The history of the UN Security Council can be divided into three distinct eras: Cold War, end of the Cold War, and post-Cold War. During the Cold War (1945-1989), the Security Council was increasingly ineffective in responding to global threats to peace and security due to the animosity of the era’s two principal antagonists—the United States and the Soviet Union. As the Cold War evolved, competition between the two nuclear superpowers rendered the Council virtually dysfunctional, with one or the other superpower casting a veto to prevent a resolution’s passage. From 1978 until 1987, in fact, the Security Council was unable to authorize a single peacekeeping operation due to the Cold War divide. The end of the Cold War, however, presented an opportunity for the major powers to cooperate and collectively respond to global threats to the peace. A series of successes resulted in a Nobel Peace Prize for peacekeepers, Kuwait was liberated from Iraqi occupation, and epic missions in Cambodia, Bosnia and Somalia were undertaken by the Council. From 1987, when the Cold War began to thaw, until 1993, the Security Council was both active and ambitious. Its decision to send heavily armed peacekeepers into on-going conflicts in Cambodia, Bosnia and Somalia represented its supreme confidence in mitigating international conflict and human suffering. Failures in those epic missions, along with a decline in the euphoria associated with the Cold War’s end, marked the beginning of the current era in Security Council history. Since the mid-1990s, the Security Council has been more careful in the operations that it authorizes and less willing to take on the risks of involvement in on-going conflicts.

International Court of Justice (ICJ)

The first permanent international court was created as a semi-autonomous organ of the League of Nations in 1919. The Permanent Court of International Justice (PCIJ) was seated in The Hague (Den Haag), Netherlands, and was limited in its jurisdiction to considering contentious cases brought by nation-states and issuing legal advice to international organizations. While its rulings were legally binding, the PCIJ relied upon states to appear before the Court and grant it jurisdiction. As such, the PCIJ was a reflection of international law in that it was consensual instead of mandatory. When the United Nations was established after World War II, its International Court of Justice (ICJ) replaced the PCIJ. Except for the fact that the ICJ was made a principal organ of the United Nations, it functioned exactly like its predecessor. The ICJ is highly effective when two or more states come before it requesting legal adjudication, less so when states exercise their right to reject its jurisdiction. In an effort to compel states to come before the Court, the ICJ encourages states to sign a compulsory jurisdiction clause. Those that do make a legal commitment to appear before the ICJ any time that another state files a suit against them. Less than one-third of all UN members have signed the compulsory jurisdiction clause, and many of those have attached reservations that make the clause less compulsory. Like the PCIJ, the ICJ may issue advisory opinions, which represent non-binding legal advice that may be requested by the UN General Assembly or Security Council. This legal advice can be highly influential, such as in 1951 when the Court ruled that reservations applied to treaties impact only those states which had attached them at the ratification stage. Before that ruling, reservations changed the legal meaning of treaties as they applied to all parties.

The ICJ, like its predecessor, is greatly limited in that it may only issue legal rulings on disputes arising among nation-states. The Court has no jurisdiction over non-state actors, such as terrorist organizations, corporations, quasi-states or individuals. It was not until 2002 that a permanent international court was established for the purpose of prosecuting individuals for their violations of international law. Until then, efforts to hold individuals accountable resulted in the establishment of temporary, or ad hoc, tribunals.

Tribunals

International legal tribunals serve two distinct, yet inter-related, purposes. First, they bring to justice those individuals who have violated core principles of international law. In that regard, international legal tribunals may prosecute violators of the laws of war and the laws of peace. Additionally, international legal tribunals, through their existence and success, serve as deterrents to future bad behaviour. If individuals, ranging from soldiers engaged in combat to political leaders, are convinced that their violations will be prosecuted, they will be less likely to commit such violations. As such, the second purpose of the tribunals, deterrence, logically flows from the first.

International legal tribunals take two basic forms, depending on their intended longevity and focus. They may be created for a particular purpose and for a limited amount of time. Such tribunals are ad hoc. They may also be created to serve, in a long-standing capacity, the general needs of the international community. Such tribunals are permanent. While the list of international tribunals, ad hoc and permanent, is far too lengthy to discuss here, several merit particular attention.

International efforts to hold war criminals responsible for their violations of the laws of armed conflict date, in the most meaningful sense, to the close of the First World War. After that conflict, the victors compiled a list of Germans war criminals. Rather than establishing a tribunal for prosecution, it was decided to call upon the new German government to assume responsibility for the prosecution of its own nationals. The results were dismal. Of the more than 900 Germans listed by the victors as war criminals, 888 were either acquitted of their charges or had their charges dropped. The lesson learned was that an international tribunal would be needed to effectively prosecute those alleged with the commission of war crimes. Shortly after the conclusion of the Second World War, the victorious allies established the International Military Tribunal (IMT) through the London Charter (1945). Two principal ad hoc tribunals, in Nuremberg and Tokyo, were created for the purpose of prosecuting Axis war criminals. The complaint that the IMT focused exclusively on the losing side was valid – World War II marks the historic low point in terms of respect for the laws of armed conflict – however, it did not prevent the tribunal from successfully prosecuting scores of war criminals. As ad hoc tribunals, the Nuremberg and Tokyo courts ceased to exist after their dockets were cleared of cases. It was not until after the end of the Cold War that the international community established another war crimes tribunal. In response to the conflict in the former Yugoslavia, the UN Security Council established the International Criminal Tribunal for Yugoslavia (ICTY). Seated in The Hague, Netherlands, the ICTY possessed the legal power to issue indictments and prosecute war criminals from that series of wars. The most famous indictment was issued against former Yugoslav president Slobodan Milosevic, who was accused of a wide range of violations of international law, including aggression, crimes against humanity and genocide. A long and complicated trial began in the ICTY in 2002, it concluded in 2006 when Milosevic died before the tribunal issued its ruling. The ICTY formally ceased operations in 2017 after completing all cases pending before it. A total of 161 individuals were indicted by the Court, 111 trials were completed and 90 war criminals convicted. Many cases were transferred to other courts for prosecution and 17 indicted individuals died before their cases were completed.

In 1994, the Security Council established another ad hoc tribunal. In response to the catastrophic loss of life in the African state of Rwanda, the International Criminal Tribunal for Rwanda (ICTR) was created. With its chief prosecutor in The Hague, the ICTR’s court was located in Tanzania. The ICTR discontinued operations in 2015 after bringing fifty cases to conclusion.

The two ad hoc tribunals (ICTY, ICTR) established by the Security Council at the dawn of the post-Cold War era contributed greatly to the development of international humanitarian law. Important advances include the designation of rape as a form of genocide and/or torture, the ability of prosecutors to charge individuals with crimes against humanity prior to the onset of armed conflict, and the development of a more precise code of laws of armed conflict.

There are several problems associated with the use of ad hoc tribunals to hold individuals accountable for their actions. First, ad hoc tribunals, by definition, must be created as their need arises. As such, interest in creating a war-crimes tribunal for a particular conflict or country may not be shared by other countries, creating a political obstacle to its establishment. Since recent tribunals have been established through the United Nations Security Council, legal objections have been raised over the legitimacy of the tribunals. Second, ad hoc tribunals, as their name implies, are created for a particular event or location. This means that an existing tribunal is limited in its jurisdiction to alleged crimes that occur only within its geographic and temporal scope. Injustices that occur outside of the jurisdiction of the tribunal, therefore, are not subject to its review and adjudication. For that reason, new ad hoc tribunals must be created for each circumstance resulting in the third major problem associated with ad hoc tribunals, fatigue. When states grow weary of creating one temporary tribunal after another, they are less likely to invest the time, energy, and resources required to create a new tribunal. Thus, while ad hoc tribunals may be effective in addressing localized violations of human rights and the laws of armed conflict, the only way to evenly and successfully apply international laws to the international community is through the establishment of a permanent criminal court.

International Criminal Court (ICC)

Throughout the 20^th century world leaders, international lawyers, academics and others called for the establishment of a permanent international court with the ability to prosecute individuals. It was not, however, until after the Cold War’s end that sufficient global consensus developed to turn the idea of a global criminal court into a reality. Meeting in Rome, Italy, in 1998, diplomats drafted a statute that was designed to create the world’s first permanent international criminal court. In 2002, after the sixtieth instrument of ratification was deposited, the court officially came into existence. Located in The Hague, Netherlands, the ICC has a membership of 123 countries. ^[7] Additionally, more than thirty countries have signed the ICC Statute and are in various stages of the ratification process. As such, more than 75% of countries are either Party to the ICC or have signed the court’s statute and indicated an on-going interest in being bound by the court. The most prominent non-member of the ICC is the United States, which is ironic since President George H.W. Bush was the first head of state to call for the court’s creation. President Bush’s successor, Bill Clinton, signed the Statute of the ICC, but did so at the very end of his presidency, leaving the ratification process to George W. Bush. Contending that the ICC would not fairly treat Americans, President Bush “unsigned” the International Criminal Court Statute, ensuring that the United States would not join the Court during his presidency.

Unlike the ICJ, which has jurisdiction over states, the ICC’s jurisdiction is limited to individuals. Its chief prosecutor has the authority to undertake investigations and to issue indictments against individuals whose actions constitute grave violations of international law. As it enters its sixteenth year in existence, the ICC has issued indictments of thirty-four people, all of them for alleged illegal actions taken in Africa. Included among those indicted are heads of state from Cote d’Ivoire, Kenya, Liberia, Libya and The Sudan.

While creating international laws that define the permissible behaviour of states and individuals, along with the establishment of a permanent international court, represents milestone developments in international affairs, efforts have recently been undertaken to provide the international community with even greater capacities to respond to human suffering. Reflecting an interest in endorsing the right of states to intervene on humanitarian grounds is the emerging Responsibility to Protect (R2P) principle.