As most of the readers will already know, KIB is going to The Hague on the 22nd of November. Since this Dutch city is sometimes called ‘the legal capital of the world’, we will visit some of the legal institutions there. The two most famous ones (also the two on our schedule) are the International Criminal Court and the International Court of Justice. As an appetizer, it can be interesting to know how these courts work. This text will provide a quick overview of the structure of these two institutions.
The International Criminal Court (ICC) is the main institution dealing with international criminal law. Its inspiration can be found in the Nürnberg and Tokyo trials after the Second World War. Here, German and Japanese war criminals were, for the first time, condemned before an internationally organised court. This inspired the United Nations Security Council to do the same thing for Yugoslavian and Rwandan war criminals in the 1990’s. The International Criminal Tribunal for the former Yugoslavia (ICTY) is also located in The Hague. In 1998 a treaty called ‘The Rome Statute’ was signed and by now 122 states are members of the ICC. The treaty became international law in 2002 when enough countries had ratified it in their national legal systems. This already shows a particular problem with the ICC. Some important countries are not bound by its laws because they have either signed the Rome Statute, but have not ratified it (USA, Russia, Syria) or they have not even signed it (China, India).
What does the ICC concern itself about? Its jurisdiction extends to genocide, crimes against humanity, war crimes and crimes of aggression committed after 2002, when the treaty entered into force. Only individual persons are brought to the court, not states as a whole. So, for instance, when Gaddafi used his military to perform a genocide among his own people, it is Gaddafi himself who is held responsible, not the state of Lybia. There are three possible ways for a case to arrive in the ICC. Firstly, it could be that a member state files it at the ICC. For example, in 2012 the government of Mali referred the conflict in North-Mali with the islamist rebels to the ICC. Secondly, the United Nations Security Council can refer a case to the ICC. In this situation the countries involved do not need to be member of the Rome Statute, but of the Charter of the United Nations and almost all countries are members of the United Nations. This is, for example, what happened with Gadaffi. Lastly, the prosecutor in The Hague can start an investigation of his own after viewing compelling evidence from individuals, international organisations or NGO’s. This happened for the first time in 2010 for the Kenyan crisis of 2007-2008 when ethnic violence resulted from cheating in national elections. An important condition for all these situations is that the ICC only has jurisdiction when the national courts of the countries involved are unwilling or unable to bring the perpetrators to justice.
2. The International Court of Justice
In 1899 and 1907 The Hague was at the centre of international politics when the first and second Hague Peace Conferences were held there. These conventions gave rise to the construction of a Peace Palace where disputes between states would be settled peacefully. The first institution to be located there was the Permanent Court of Arbitration, which is still there today. Actually this is not a real court, but a list of names of specialists who can arbitrate between states for certain international disputes. In the times of the League of Nations this was the Permanent Court of International Justice. This was a real court that had to prevent a Second World War by placing international relations under the rule of law. As history has pointed out, it failed in its mission and was replaced by the International Court of Justice (ICJ) in 1946. It is one of the main organs of the United Nations and had been founded together with it in the Charter of the United Nations signed in San Francisco in 1946. This means that all members of the UN are ipso facto also members of the ICJ.
The ICJ deals with two main issues. Firstly, it settles disputes between states according to international law. To have jurisdiction in this area however all state parties of the dispute have to agree to be subjected to the court’s judgment. The ICJ mostly handles things like disputes concerning national borders and jurisdictions. A famous example is the Gabcikovo-Nagymaros case where Hungary and Slovakia agreed to subject their dispute to the ICJ concerning the building of a dam on the border between the two countries, in the towns of Gabcikovo (Slovakia) and Nagymaros (Hungary). The second task of the ICJ is to provide legal advice to all other UN organs. The most recent example that reached the headlines is the ‘International Court of Justice advisory opinion on Kosovo’s declaration of independence’ where the court ruled that Kosovo’s declaration of independence in 2008 conformed to the norms of international law, after the UN General Assembly asked for this advice.
So now you have a clear view of the two most important international institution of The Hague, you are prepared to join us on our trip to the legal capital of the world.