11.3 International courts and tribunals

International courts and tribunals play a crucial role in resolving disputes between states and holding individuals accountable for international crimes. These institutions, like the International Court of Justice and International Criminal Court, derive their authority from treaties and aim to promote global justice.

The jurisdiction of international courts is limited and based on state consent. They handle various cases, from state disputes to prosecuting individuals for war crimes. Despite challenges like politicization and funding constraints, these courts continue to evolve, adapting to the changing global landscape.

Establishment of international courts

• International courts were established to provide a peaceful means of resolving disputes between states and to hold individuals accountable for international crimes
• The creation of international courts marks a significant development in the evolution of international law and the promotion of global justice

Origins and historical development

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• The idea of international courts can be traced back to the late 19th and early 20th centuries with the establishment of the Permanent Court of Arbitration (1899) and the Permanent Court of International Justice (1920)
• The horrors of World War II and the Nuremberg and Tokyo trials further highlighted the need for permanent international judicial bodies
• The establishment of the United Nations in 1945 provided a framework for the creation of modern international courts and tribunals

Legal basis and founding treaties

• International courts derive their authority and jurisdiction from international treaties and agreements between states
• The UN Charter (1945) serves as the legal foundation for the International Court of Justice (ICJ), the principal judicial organ of the United Nations
• The Rome Statute (1998) established the International Criminal Court (ICC) as a permanent court to prosecute individuals for international crimes such as genocide, war crimes, and crimes against humanity
• Specialized courts and tribunals are created through specific treaties or UN Security Council resolutions (International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda)

Jurisdiction of international courts

• Jurisdiction refers to the legal authority of international courts to hear and decide cases
• The jurisdiction of international courts is determined by their founding treaties and is generally limited in scope compared to domestic courts

Subject matter jurisdiction

• Subject matter jurisdiction defines the types of cases and legal issues that international courts can adjudicate
• The ICJ has jurisdiction over disputes between states concerning international law, treaties, and questions of state responsibility
• The ICC has jurisdiction over individuals accused of genocide, war crimes, crimes against humanity, and the crime of aggression
• Specialized courts and tribunals have jurisdiction over specific issues or conflicts (human rights, law of the sea, international investment disputes)

Personal jurisdiction over states

• International courts generally have jurisdiction only over states that have consented to their authority through ratification of founding treaties or acceptance of compulsory jurisdiction
• The ICJ's jurisdiction is based on the consent of states, either through a special agreement, a treaty clause, or a declaration accepting compulsory jurisdiction
• The ICC has jurisdiction over individuals who are nationals of states parties to the Rome Statute or who have committed crimes on the territory of states parties

Territorial and temporal scope

• The territorial scope of international courts is usually global, but their jurisdiction may be limited to specific regions or countries in some cases (European Court of Human Rights, Inter-American Court of Human Rights)
• The temporal scope of international courts is generally prospective, meaning they can only hear cases that occurred after their establishment
• However, some courts and tribunals have been given retroactive jurisdiction to address past atrocities (Extraordinary Chambers in the Courts of Cambodia, Special Court for Sierra Leone)

Types of international courts

• There are various types of international courts and tribunals with different mandates, jurisdictions, and organizational structures

International Court of Justice (ICJ)

• The ICJ is the principal judicial organ of the United Nations and is based in The Hague, Netherlands
• It adjudicates disputes between states and provides advisory opinions on legal questions referred by UN organs and specialized agencies
• The ICJ consists of 15 judges elected by the UN General Assembly and Security Council for nine-year terms

International Criminal Court (ICC)

• The ICC is a permanent court that prosecutes individuals for international crimes (genocide, war crimes, crimes against humanity, crime of aggression)
• It is based in The Hague and was established by the Rome Statute in 1998, which has been ratified by 123 states as of 2021
• The ICC complements national criminal jurisdictions and can only investigate and prosecute cases when states are unable or unwilling to do so genuinely

Specialized courts and tribunals

• Specialized courts and tribunals are created to address specific issues or conflicts and have limited subject matter and temporal jurisdiction
• Examples include:
  • International Tribunal for the Law of the Sea (ITLOS): adjudicates disputes related to the interpretation and application of the United Nations Convention on the Law of the Sea
  • International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR): prosecuted individuals for war crimes, genocide, and crimes against humanity committed during the conflicts in the former Yugoslavia and Rwanda, respectively
  • Iran-United States Claims Tribunal: resolves claims between the two countries and their nationals arising from the Iranian Revolution and the hostage crisis
• Hybrid courts combine international and domestic elements and are usually established in post-conflict situations to prosecute international crimes while building local judicial capacity (Special Court for Sierra Leone, Extraordinary Chambers in the Courts of Cambodia)

Composition of international courts

• The composition of international courts is designed to ensure impartiality, expertise, and representation of different legal systems and regions

Selection and appointment of judges

• Judges of international courts are usually elected or appointed by the states parties to the founding treaties or by the UN General Assembly and Security Council (in the case of the ICJ)
• The selection process often involves nominations by states, screening by independent committees, and voting by the relevant international bodies
• Judges serve fixed terms (usually 9-12 years) and are expected to act independently, not as representatives of their countries

Qualifications and diversity

• Judges of international courts must possess high moral character, impartiality, and recognized competence in international law or relevant fields
• The composition of international courts should reflect the main legal systems of the world and ensure equitable geographical distribution
• Efforts are made to promote gender balance and diversity in the bench, although progress has been slow in some courts

Ad hoc judges and chambers

• In some cases, states parties to a dispute before the ICJ may appoint ad hoc judges if they do not have a judge of their nationality on the bench
• Ad hoc judges participate in the decision-making process on an equal footing with the permanent judges, but only for the specific case
• Some international courts (ICC, ITLOS) have chambers or divisions that specialize in certain types of cases or legal issues to enhance efficiency and expertise

Procedure in international courts

• The procedure in international courts is governed by their founding treaties, rules of procedure, and established practices of international law

Initiation of cases

• Cases before international courts can be initiated by states parties (ICJ), the prosecutor (ICC), or through referrals by the UN Security Council or states (ICC)
• In some courts (ICJ), states must first attempt to resolve their disputes through negotiation or other peaceful means before resorting to judicial settlement
• The court's jurisdiction and admissibility of the case are usually determined in a preliminary phase before the merits of the case are heard

Written and oral proceedings

• International court proceedings generally consist of written and oral stages
• In the written stage, the parties submit memorials, counter-memorials, and other pleadings outlining their arguments and evidence
• The oral stage involves public hearings where the parties' agents and counsel present their case and answer questions from the judges
• The length and complexity of the proceedings vary depending on the nature of the case and the court's workload

Rules of evidence and burden of proof

• International courts apply rules of evidence that are adapted to the specific needs of international adjudication and the nature of the cases they hear
• The burden of proof usually lies with the party making a claim or accusation, who must prove their case on the balance of probabilities (ICJ) or beyond reasonable doubt (ICC, for criminal cases)
• The courts have the power to request the production of evidence, call witnesses, and appoint experts to assist in the fact-finding process
• The admissibility and weight of evidence are determined by the judges based on their assessment of its relevance, reliability, and probative value

Enforcement of international judgments

• The enforcement of international court judgments is a critical challenge for the effectiveness and legitimacy of the international legal system

Binding nature of decisions

• The judgments of international courts are legally binding on the parties to the case and create obligations under international law
• States are required to comply with the decisions of international courts in good faith and to take necessary measures to implement them
• Non-compliance with international court judgments may entail legal and political consequences, such as diplomatic pressure, sanctions, or further legal action

Role of UN Security Council

• The UN Security Council plays a key role in the enforcement of ICJ and ICC decisions
• Under Article 94(2) of the UN Charter, if a party fails to comply with an ICJ judgment, the other party may have recourse to the Security Council, which may decide on measures to give effect to the judgment
• The Security Council can refer situations to the ICC and request the deferral of investigations or prosecutions in the interest of international peace and security
• The Security Council can also impose sanctions or authorize the use of force to enforce international court decisions, although such actions are subject to the veto power of the five permanent members

Compliance and implementation challenges

• Despite the binding nature of international court judgments, compliance and implementation remain significant challenges
• States may lack the political will or capacity to comply with the decisions, especially when they involve sensitive issues of national sovereignty or security
• The enforcement mechanisms of international courts are often weak and rely on the cooperation and support of states and international organizations
• The lack of a centralized enforcement authority in the international legal system makes it difficult to compel states to comply with court judgments consistently and effectively

Relationship with domestic courts

• The relationship between international courts and domestic courts is complex and varies depending on the specific court and the legal system of the state concerned

Complementarity principle

• The complementarity principle is a key feature of the ICC's jurisdiction, which means that the court can only investigate and prosecute cases when national courts are unable or unwilling to do so genuinely
• The ICC is intended to complement, not replace, national criminal jurisdictions and to encourage states to fulfill their primary responsibility to prosecute international crimes
• The complementarity principle aims to strike a balance between the need for international justice and the respect for national sovereignty and legal systems

Cooperation and judicial assistance

• International courts rely on the cooperation and judicial assistance of states to carry out their functions effectively
• States parties to the founding treaties of international courts are obligated to cooperate with the courts in various ways, such as providing evidence, surrendering suspects, and enforcing sentences
• Domestic courts may also seek the assistance of international courts in obtaining evidence or interpreting international law
• The extent and modalities of cooperation between international and domestic courts are usually regulated by specific agreements or provisions in the founding treaties

Incorporation of international law

• The relationship between international courts and domestic courts also involves the incorporation of international law into national legal systems
• States have different approaches to the incorporation of international law, ranging from monist systems (where international law is directly applicable) to dualist systems (where international law must be transformed into domestic law)
• Domestic courts play a crucial role in the implementation and enforcement of international court judgments by giving effect to them in the national legal order
• The incorporation of international law and the recognition of international court judgments by domestic courts contribute to the development of a coherent and effective international legal system

Challenges facing international courts

• International courts face numerous challenges that affect their functioning, legitimacy, and impact on global governance

Politicization and state cooperation

• International courts operate in a highly politicized environment and are often subject to the political interests and pressures of states
• States may seek to influence the courts' decisions, obstruct their proceedings, or challenge their legitimacy when the courts' actions conflict with their national interests
• The lack of cooperation from states, such as the failure to arrest suspects or provide evidence, can significantly hinder the work of international courts
• The politicization of international courts can undermine their independence, impartiality, and credibility in the eyes of the international community

Funding and resource constraints

• International courts often face significant funding and resource constraints that limit their capacity to carry out their mandates effectively
• The courts rely on the contributions of states parties and voluntary donations, which can be unpredictable and insufficient to meet the courts' needs
• The lack of adequate resources can result in delays in proceedings, understaffing, and the inability to conduct thorough investigations or provide necessary support to victims and witnesses
• The financial challenges faced by international courts can also make them vulnerable to political pressure and compromise their independence

Criticisms of legitimacy and effectiveness

• International courts are often criticized for their perceived lack of legitimacy and effectiveness in addressing global challenges
• Some critics argue that international courts are biased, selective, or inconsistent in their application of international law and that they reflect the interests of powerful states or groups
• Others question the courts' ability to deliver justice and accountability in the face of political obstacles, state non-cooperation, and enforcement difficulties
• The limited jurisdiction and case load of some international courts, as well as the lengthy and complex nature of their proceedings, are also seen as factors that undermine their effectiveness and impact
• Addressing these criticisms and enhancing the legitimacy and effectiveness of international courts is an ongoing challenge that requires the engagement and support of states, civil society, and other stakeholders

Future of international courts

• The future of international courts depends on their ability to adapt to the changing global landscape and to address the challenges they face

Proposed reforms and enhancements

• Various reforms and enhancements have been proposed to strengthen the functioning and impact of international courts
• These include measures to improve the selection and diversity of judges, streamline the courts' procedures, enhance their investigative and outreach capacities, and secure more stable and adequate funding
• Proposals have also been made to expand the jurisdiction of some courts (such as the ICC's jurisdiction over the crime of aggression) or to create new specialized courts to address emerging issues (such as an international environmental court)
• The implementation of these reforms requires the political will and consensus of states, as well as the engagement of civil society and other actors in the international legal system

Expanding access and participation

• Efforts are being made to expand access to international courts and to promote the participation of a wider range of actors in their proceedings
• This includes initiatives to provide legal aid and support to victims and affected communities, to enhance the courts' outreach and communication strategies, and to facilitate the participation of non-state actors (such as NGOs) in the courts' activities
• Expanding access and participation can help to increase the courts' legitimacy, transparency, and responsiveness to the needs and expectations of the international community

Adapting to changing global landscape

• International courts must adapt to the changing global landscape and respond to new challenges and opportunities
• This includes addressing the rise of nationalism and populism, which can undermine the courts' authority and support, as well as the growing importance of non-state actors (such as corporations and armed groups) in international law
• The courts must also keep pace with technological developments, such as the use of digital evidence and the impact of social media on their proceedings and public perceptions
• Adapting to the changing global landscape requires the courts to be flexible, innovative, and proactive in their approach to international justice and to engage in continuous dialogue and partnership with a wide range of stakeholders