International Politics of the United

Nations

Dr. Pam Shearing

pamela.shearing@kcl.ac.uk
Department of Political Economy
King’s College London
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Lecture 7: The Politics of International Law – The
International Court of Justice, the International
Criminal Court and ad hoc tribunals

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The ICJ
• The judicial organ of the UN.

• The Court is based in The Hague.

• Principal objective is to apply

international law to cases brought by
states; also provides advisory opinions.

• 15 judges elected by the General

Assembly and Security Council.

• No appeals can be made to the ICJ’s

judgments.
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An Overview of the ICJ
Virtual Visit to the ICJ
https://www.youtube.com/watch?v=7IGZ3-iVRW8

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The UN Charter I

Article 92

“The International Court of Justice shall be the principal judicial

organ of the United Nations. It shall function in accordance with
the annexed Statute, which is based upon the Statute of the
Permanent Court of International Justice and forms an integral
part of the present Charter.”

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The UN Charter II

Article 93

“All Members of the United Nations are ipso facto parties to the

Statute of the International Court of Justice.
“A state which is not a Member of the United Nations may
become a party to the Statute of the International Court of Justice
on conditions to be determined in each case by the General
Assembly upon the recommendation of the Security Council.”

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The UN Charter III

Article 94

“Each Member of the United Nations undertakes to comply with

the decision of the International Court of Justice in any case to
which it is a party.
“If any party to a case fails to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party
may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to
be taken to give effect to the judgment.”
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The UN Charter IV

Article 95

“Nothing in the present Charter shall prevent Members of the

United Nations from entrusting the solution of their differences to
other tribunals by virtue of agreements already in existence or
which may be concluded in the future.”

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Selection of judges
There is an informal approach that the ICJ seats are allocated by
geographical regions. The current regional distribution is as follows:
• 4 seats for Western countries
• 3 seats for African states
• 2 seats for Eastern European states.
• 4 seats for Asian -Pacific states
• 2 seats for Latin American and the Caribbean states
Usually the P5 members occupy seats on the ICJ

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Current Membership of the ICJ
1. President Joan E. Donoghue (USA)
2. Vice-President Kirill Gevorgian (Russia)
3. Judge Peter Tomka (Slovakia)
4. Judge Ronny Abraham (France)
5. Judge Mohamed Bennouna (Morocco)
6. Judge Abdulqawi Ahmed Yusuf (Somalia)
7. Judge Xue Hanqin (China)
8. Judge Julia Sebutinde (Uganda)
9. Judge Dalveer Bhandari (India)
10. Judge Patrick Lipton Robinson (Jamaica)
11. Judge Nawaf Salam (Lebanon)
12. Judge Yuji Iwasawa (Japan)
13. Judge Georg Nolte (Germany)
14. Judge Hilary Charlesworth (Australia)
15. Judge Leonardo Nemer Caldeira Brant (Brazil)
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https://www.icj-cij.org/en/current-members
Jurisdiction
1. Contentious – express or implied consent of the parties.
2. Advisory – at the request of bodies authorised by the UN
Charter to call for advisory opinions
Article 96
“The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question.
“Other organs of the United Nations and specialized agencies, which may
at any time be so authorized by the General Assembly, may also request
advisory opinions of the Court on legal questions arising within the scope
of their activities.”

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P5 Presence on the ICJ

BBC News, ‘How UK lost International Court of Justice place to India’

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https://www.bbc.co.uk/news/uk-politics-42063664
Pending Cases
Pending cases
• Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 nautical miles from the
Nicaraguan Coast (Nicaragua v. Colombia)
• Application of the International Convention for the Suppression of
the Financing of Terrorism and of the International Convention on
the Elimination of All Forms of Racial Discrimination (Ukraine v.
The Russian Federation)
• Relocation of the United States Embassy to Jerusalem (Palestine v.
USA)
• Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (The Gambia v. Myanmar)
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• Land and Maritime Delimitation and Sovereignty over Islands
(Gabon / Equatorial Guinea)
States’ Responses to the ICJ
Nicaragua v United States (1986)
- ICJ ruled in favour of Nicaragua and awarded reparations.
- ICJ said US had breached international law:
- Violated the sovereignty of Nicaragua;
- Used force and the threat of force against Nicaragua;
- Intervened in the internal affairs of Nicaragua;
- Infringed upon the freedom of the high seas; and
- Had killed, wounded and kidnapped citizens of Nicaragua.
- US refused to participate in proceedings having contended (and had
dismissed) its argument that the ICJ did not have jurisdiction to hear the
case. Other Members did not contest the ICJ’s jurisdiction.
- US refused enforcement of the ICJ’s judgment – in so doing Nicaragua was
deprived of the means of obtaining any compensation.
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ICJ – Myanmar

Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (The Gambia v. Myanmar)
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Ad Hoc Tribunals
• 1993 UN International Criminal Tribunal for the former
Yugoslavia
• 1994 UN International Criminal Tribunal for Rwanda
• 1999 Hybrid courts in Kosovo
• 2000 Special Panels for Serious Crimes, Serious Crimes
Investigation Team and the Indonesian ad hoc Tribunal for
East Timor
• 2002 Special Court for Sierra Leone
• 2005 War Crimes Section, State Court, Bosnia and Herzegovina
• 2006 Extraordinary Chambers in the Court of Cambodia
• 2007 Special Tribunal for Lebanon

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International Criminal Tribunals

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Ad Hoc Tribunals – Are they effective?

• Costs.
• Slowness of determinations.
• Legitimacy.
• Derogation of sovereign immunity.
• Risk of unequal treatment.
• Lack of authority
• Recognition by state governments.
• Overrides national sovereignty.

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Ad Hoc Tribunals – Key Figures

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UN ICTY
Overview
An overview to the ICC
https://www.youtube.com/watch?v=Jw_cQrGwMJo

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Membership

State party

Signatory that has not ratified

State party that subsequently withdrew its membership

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Signatory that subsequently withdrew its signature

Non-state party, non-signatory

Membership
• 123 states are parties to the Rome Statute.

• 33 African states.
• 19 Asia-Pacific states.
• 18 Eastern European states.
• 28 Latin America and Caribbean states.
• 25 Western Europe and other states.

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Overview of the ICC
• Budget: €169,649,200
• 31 cases heard before the Court. 18 are still in pretrial, trial or
appeals stage.
• 38 arrest warrants issued
• 14 people remain at large.
• Charges dropped against 5 people due to their deaths.
• ICC has issued 10 convictions and 4 acquittals.
• ICC has issued 9 summonses to appear.

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The scope of the ICC’s work

1. Genocide
2. Crimes against humanity
3. War crimes
4. Crime of aggression

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Support for the ICC
• July 1998 Rome Statute adopted by 120 states; 7 members of the
UN voted against the Statute (US, China, Iraq, Israel, Libya,
Qatar and Yemen).
• July 2002 Ratified by 60 states - Rome Statute came into force.
• October 2016 Burundi voted to withdraw from the ICC.
• October 2016 South Africa announced it would withdraw from
the ICC.
• November 2016 Gambia notified plans to withdraw from the ICC. November 2016
Russia notified plans to withdraw its signature from the
ICC treaty.
• February 2017 Gambia cancelled its decision to withdraw from the ICC.
• March 2017 South Africa cancelled its decision to withdraw from the
ICC.
• October 2017 Burundi withdrew from the ICC.
• March 2019 Philippines withdrew from the ICC.
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Jurisdiction
The Court may exercise jurisdiction:
• In a situation where genocide, crimes against humanity or war
crimes were committed on or after 1 July 2002 and:
• The crimes were committed by a State Party national, or in the
territory of a State Party, or in a State that has accepted the
jurisdiction of the Court; or
• The crimes were referred to the ICC Prosecutor by the United
Nations Security Council pursuant to a resolution adopted under
chapter VII of the UN Charter.

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Complementarity
Article 17 – Rome Statute - Issues of admissibility
“1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is
inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to
prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State
genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by
the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles
of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding
the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in
article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an
intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being
conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to
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justice.
3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial
collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary
evidence and testimony or otherwise unable to carry out its proceedings.”
Comparisons of the Courts
ICJ ICC
Established June 1945 1 July 2002

Location The Hague The Hague

Jurisdiction UN Member States Individuals

Relationship with Official court of the UN UNSC may refer cases to the ICC; ICC
the UN can initiate cases without UN
involvement
Cases (i) Contentious Criminal prosecutions of individuals
(ii) Advisory
Subject matter Sovereignty, maritime disputes, Genocide, crimes against humanity,
human rights, treaty violations, war crimes, crimes of aggression
boundary disputes, and more
Precedent Prior cases provide only persuasive Prior cases provide only persuasive
authority authority
Funding UN funded Assessed contributions from
Member States; voluntary
contributions from the UN and
governments
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ICC Investigations

Official investigations

Ongoing preliminary examinations

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Closed preliminary investigation that has not resulted in an investigation being
opened
African Union and the ICC

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Is the ICC biased against African states?

Fatou Bensouda addresses perceived African bias in the ICC,

2016
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https://www.youtube.com/watch?v=Wb1Yk4JJjic
UNSC Referrals
Article 13 – Exercise of Jurisdiction

“The Court may exercise its jurisdiction with respect to a crime referred
to in article 5 in accordance with the provisions of this Statute if:
a. A situation in which one or more of such crimes appears to have
been committed is referred to the Prosecutor by a State Party in
accordance with article 14;
b. A situation in which one or more of such crimes appears to have
been committed is referred to the Prosecutor by the Security
Council acting under Chapter VII of the Charter of the United
Nations; or
c. The Prosecutor has initiated an investigation in respect of such a
crime in accordance with article 15.” 32
Case Study: Libya
26 February 2011
The UN Security Council, by virtue of Resolution 1970, referred the
situation in Libya to the International Criminal Court, stating that:

"the widespread and systematic attacks currently taking place against

the civilian population may amount to crimes against humanity.”

The UN Security Council vote was conclusive:

• 15 Members voted for the Resolution;
• 0 Members voted against the Resolution; and
• 0 Members abstained.
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Case Study: Syria
May 2014
China and Russia voted against a UNSC referral to the ICC:
• Samantha Power (US): “Because of the Russian Federation’s and China’s
vetoes, “our grandchildren” would one day ask how the Council could have
failed to bring justice to “hell on earth”.”
• Eugene-Richard Gasana (Rwanda): “Let all of us put action for humanity
above action for interests.”
• Mark Lyall Grant (UK): “support for the draft resolution from 100 non-
governmental organizations, 65 co-sponsors and 13 Council members
illustrated the international community’s strength.  It was to the Russian
Federation’s and China’s shame that they had blocked justice for the Syrian
people and the appalling human rights violations committed daily.”
• Wang Min (China): “Any action seeking referral to the International Criminal
Court should be based on the premise of respect for the judicial sovereignty of
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States and the principle of complementarity”.
Case Study: Myanmar
• ICC authorised the prosecutor to:

“proceed with an investigation for the alleged crimes within the ICC’s
jurisdiction in the situation in the People’s Republic of
Bangladesh/Republic of the Union of Myanmar”

• Three judges in the ICC’s pre-trial chamber found:

“a reasonable basis to believe widespread and/or systematic acts of
violence may have been committed that could qualify as the crimes
against humanity of deportation across the Myanmar-Bangladesh
border and persecution on grounds of ethnicity and/or religion against
the Rohingya population”
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Case Study: Myanmar

“This is a significant development, sending a positive signal to the

victims of atrocity crimes in Myanmar and elsewhere … We hope that
through our work, we can bring justice to the victims, wherever our
jurisdictional conditions are met. My investigation will seek to uncover
the truth. My office will now focus on ensuring the success of its
independent and impartial investigation.”

Fatou Bensouda, November 2019

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Russia’s invasion of Ukraine
• 24 February 2022 – Russia attacks Ukraine

• UNSC Resolution deploring Russia’s aggression – Russia vetoes the resolution

• UNGA Emergency Session – 143 members support the Resolution, 35

abstained, 5 voted against (Russia, Syria, North Korea, Belarus, Eritrea)

• Ukraine refers Russia to the ICJ on the grounds that it has violated the 1948
Genocide Convention

• ICJ ruling – 16 March 2022 – orders Russia to immediately suspend its

military operations in Ukraine

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• ICC – March 2022 – ICC opens an investigation into the situation in Ukraine
Where next for the ICC?
• Lack of universal support.

• Concerns about politically motivated prosecutions.

• Concerns about what impact the ICC has upon national sovereignty.

• Allegations of geographical political bias.

• Limited use of the UN Security Council’s power to refer cases to the

ICC.

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Conclusion
“The Court has …helped to reinforce many domestic criminal justice systems.  And its work has resonated with civil
society and citizens worldwide who have placed their hopes in the Court as a force for upholding human dignity. The
ICC was created as a court of last resort.
 
States Parties have the primary responsibility to investigate and prosecute the serious crimes of genocide, crimes
against humanity and war crimes.  The United Nations supports State Parties, at their request, to develop domestic
capacities to uphold this obligation.  But when the domestic level falls short, accountability remains an imperative.
 The ICC has become a key institution in this regard.
 
To ensure accountability around the world, it is essential to reach universal ratification of the Rome Statute.   I invite all
State parties to support any effort to achieve this goal.
(…)
           
Although we can always wish for more efficiency, we must also acknowledge that the International Criminal Court has
a challenging and complex mandate that encompasses some of the most difficult, sensitive and even contentious
issues on the international agenda.
(…) 
The adoption of the Rome Statute was a hopeful, historic moment near the end of a century marked by atrocities and
unspeakable inhumanity.
 
Yet serious violations of international law continue, and vast accountability gaps persist.
 
Our abiding challenge is to realize the full potential of the International Criminal Court to end impunity and to build a
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just and more peaceful world.”

UN Secretary General Antonio Guterres, 4 December 2017