The making of International

Law
José Antonio de Abreu
United Nations Framework

The main political organ is the General Assembly and its authority on most
matters (such as human rights and economic and social issues) is limited to
discussing issues and making recommendations.

The Security Council has the authority to make decisions that are binding
on all member States when it is performing its primary responsibility of
maintaining international peace and security.

The main UN judicial organ is International Court of Justice (ICJ), which has
the power to make binding decisions on questions of international law that
have been referred to it by States or give advisory opinions to the U.N.
Development and codification of international law

International Law Commission

The International Law Commission was established by the General Assembly in 1947
to promote the progressive development of international law and its codification.

The Commission is composed of 34 members who collectively represent the

world's principal legal systems, and serve as experts in their individual capacity, not
as representatives of their governments.

They address issues relevant to the regulation of relations among states, and
frequently consult with the International Committee of the Red Cross, the
International Court of Justice and UN specialized agencies, depending on the
subject. Often, the Commission also prepares drafts on aspects of international law.
Topics
Some topics are chosen by the Commission, others are referred to it by the General
Assembly.

Member Countries formally agree to be bound by its provisions

Examples include:
 International Court of Justice
The ICJ is the chief judicial organ of the United Nations. All members of the UN
are automatically parties to the Statute of the International Court of Justice.

The jurisdiction of the ICJ in “contentious disputes” between States is subject to

the principle of consent. It can obtain jurisdiction in three ways.

The ICJ also has advisory jurisdiction. The UN Security Council and the UN
General Assembly may request advisory opinions on any legal question. The UN
General may also authorize other UN organs or specialized agencies to request
advisory opinions.
International Court of Justice
The primary United Nations organ for the settlement of disputes is the
International Court of Justice. Also known as the World Court, it was
founded in 1946.

Since its founding, the Court has considered over 170 cases, issued
numerous judgments and issued advisory opinions in response to requests
by UN organizations.

Most cases have been dealt with by the full Court, but since 1981 six cases
have been referred to special chambers at the request of the parties.
International Court of Justice
In its judgments, the Court has addressed international disputes involving
economic rights, rights of passage, the non-use of force, non-interference
in the internal affairs of states, diplomatic relations, hostage-taking, the
right of asylum and nationality.

States bring such disputes before the Court in search of an impartial

solution to their differences based on law. By achieving peaceful
settlement on such questions as land frontiers, maritime boundaries and
territorial sovereignty, the Court has often helped to prevent the escalation
of disputes.
International Criminal Justice
The international community had long aspired to create a permanent international
court to try the most serious international crimes, and, in the 20th century, it
reached consensus on definitions of genocide, crimes against humanity and war
crimes.

Tribunals.-

After the Second World War, the Nuremberg and Tokyo trials addressed war crimes,
crimes against peace, and crimes against humanity committed during the Second
World War.

The ad hoc tribunals and UN-assisted tribunals have continued to contribute to

combating impunity and promoting accountability for the most serious crimes.
Nuremberg Trials
Ad Hoc Tribunals

In the 1990s, after the end of the Cold War, the International Criminal Tribunals for
the former Yugoslavia (ICTY) and for Rwanda (ICTR) were established to try crimes
committed within a specific time-frame and during a specific conflict.

This applies, as well, to three courts established by the states concerned, but with
substantial UN support: the Special Court for Sierra Leone (2002), the Extraordinary
Chambers in the Courts of Cambodia (2006) and the Special Tribunal for Lebanon
(2007).

Sometimes referred to as ‘hybrid’ courts, they are non-permanent institutions which

will cease to exist once all their cases have been heard.
Genocides in History

Yugoslavia Rwanda
Origins of the International Criminal Court
The idea of a permanent international court to prosecute crimes against
humanity was first considered at the United Nations in the context of the
adoption of the Genocide Convention of 1948.

For many years, differences of opinions forestalled further developments.

In 1992, the General Assembly directed the International Law Commission
to prepare a draft statute for such a court.

The massacres in Cambodia, the former Yugoslavia and Rwanda made

the need for it even more urgent.
International Criminal Court

The cooperation between the UN and the ICC is governed by a Negotiated

Relationship Agreement. The Security Council can initiate proceedings
before the ICC, and can refer to the ICC situations that would not
otherwise fall under the Court’s jurisdiction.

The Court has 18 judges, elected by the states parties for a term limited to
nine years, except that a judge shall remain in office to complete any trial
or appeal which has already begun. No two judges can be from the same
country.
International Criminal Court

The International Criminal Court (ICC) has jurisdiction to prosecute

individuals who commit genocide, war crimes, crimes against humanity and
crimes of agression. It will also have jurisdiction over the crime of
aggression when an agreement is reached on the definition of such a
crime.

The ICC is legally and functionally independent from the United Nations,
and is not a part of the UN system.
ICC Crimes - Genocide

The crime of genocide is characterised by the specific intent to destroy in

whole or in part a national, ethnic, racial or religious group by killing its
members or by other means: causing serious bodily or mental harm to
members of the group; deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part;
imposing measures intended to prevent births within the group; or forcibly
transferring children of the group to another group.
ICC Crimes - Crimes Against Humanity

The ICC can prosecute crimes against humanity, which are serious
violations committed as part of a large-scale attack against any civilian
population. The 15 forms of crimes against humanity listed in the Rome
Statute include offences such as murder, rape, imprisonment, enforced
disappearances, enslavement – particularly of women and children, sexual
slavery, torture, apartheid and deportation.
ICC Crimes - War Crimes

War crimes which are grave breaches of the Geneva conventions in the
context of armed conflict and include, for instance, the use of child
soldiers; the killing or torture of persons such as civilians or prisoners of
war; intentionally directing attacks against hospitals, historic monuments,
or buildings dedicated to religion, education, art, science or charitable
purposes.
ICC Crimes - Crimes of Aggression

It is the use of armed force by a State against the sovereignty, integrity or

independence of another State. The definition of this crime was adopted
through amending the Rome Statute at the first Review Conference of the
Statute in Kampala, Uganda, in 2010.

On 15 December 2017, the Assembly of States Parties adopted by

consensus a resolution on the activation of the jurisdiction of the Court
over the crime of aggression as of 17 July 2018.
Criticism against the ICC

“That was some 20 years ago. There is now a perception in many quarters that the ICC has not
fulfilled the expectations of its founders. The court’s proceedings are cumbersome and lengthy.
Many of the accused are still at large, including Omar al-Bashir, the former president of Sudan.
Some €1.5 billion has been spent, and there have been only three convictions for the core
international crimes.

There have been criticisms of the judges, the former Prosecutor and other officials, as well as
concern over particular decisions of the court. The allegation that the court is only interested in
crimes in Africa[1] is perhaps heard less frequently now than it once was (most of the African
governments concerned referred the situations in their countries to the ICC themselves), and
there has not been the mass walk-out of African states that was once predicted.”

Source: Chatham House (2019)

Activity

Choose one case of the International Criminal Court and evaluate:

- Actors involved
- Appliance of international law
- Interests involved
- Decisions taken in the subject of matter
- Evolution of the case / status

https://www.icc-cpi.int/cases
Source
Chatham House (2019). Strengthen the International Criminal Court. Link:
https://www.chathamhouse.org/expert/comment/strengthen-international-criminal-court

ICC (n.d.). How the Court Works. Link: https://www.icc-cpi.int/about/how-the-court-works

United Nations (n.d.). International Law and Justice. Link:

https://www.un.org/en/sections/issues-depth/international-law-and-justice/index.html