5.3.6.2 International Courts of Law

(This is a current page, from the Patterns of Power Edition 3 book contents.  An archived copy of this page is held at http://www.patternsofpower.org/edition03/5362.htm)

There is a developing framework which complies more closely with the characteristics of law, in the form of the various international courts.

  • The International Criminal Court (ICC) was set up to sentence high-profile rights violations in situations where a country’s own legal system is “unwilling or unable to act”.[1]  It provides a legal mechanism to restrain and punish political leaders who have started to oppress large sections of their own populations, particularly in cases of genocide.  It is too early to tell whether its existence will reduce the incidence of oppression in the world, but it has the advantages of operating to predefined rules (the Rome Statute) and having international support.  There have, though, been criticisms:
  • It indicted Omar Al-Bashir for genocide, crimes against humanity and war crimes in Darfur,[2] but the indictment was not enforceable at the time and was criticised on both a tactical and a strategic basis.[3] Any failure would reduce its power to deter further wrongdoing, there or elsewhere.
  • It has been argued that its operation might prevent the process of reconciliation to bring a conflict to a peaceful end.[4] This criticism can be mitigated by observing its stated principle of complementarity to a country’s own legal system as described in an article in Prospect Magazine in May 2007, entitled Dilemmas of justice.
  • The International Court of Justice (ICJ) settles disputes that have been referred to it, and it gives legal advice when asked.
  • The World Trade Organization(WTO) Dispute Settlement Body, whose procedure “does resemble a court or tribunal”, has a self-explanatory role in the enforcement of economic agreements.
  • There are other “judicial organisations” to deal with specific issues, as listed on The Hague Justice portal, including an International Tribunal for the Law of the Sea (ITLOS).

None of these courts has jurisdiction over countries which haven’t signed up to be bound by its rulings.  The Rome Statute of the ICC, for example, had 110 “States Parties” and 38 additional signatories in November 2009, but that left 47 non-signatories (including China, India and Pakistan).  America signed it but has been ambivalent about supporting it.[5]

There are also several international human rights treaties, which are legally binding upon the countries which have signed them, and which are monitored by the Office of the United Nations High Commissioner for Human Rights.  These act as a form of protection for the citizens of the countries concerned, giving access to the adjudication process of a court.

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[1] In a lecture he gave at the LSE on 8 October 2008, entitled The International Criminal Court ten years on: An appraisal, Luis Moreno-Ocampo, the Prosecutor of the ICC, outlined the circumstances in which the ICC would prosecute.  A transcript of this lecture was available in April 2018 at http://www2.lse.ac.uk/publicEvents/eventsTranscripts2008.aspx.

[2] Luis Moreno-Ocampo outlined the reasons for prosecuting Omar Al Bashir in the LSE lecture referred to above, which was available in April 2018 at http://www2.lse.ac.uk/publicEvents/eventsTranscripts2008.aspx.

[3] The decision to indict Omar Al-Bashir was on shaky legal ground: Sudan wasn’t a signatory to the ICC.  It was therefore a pragmatic political, rather than a legal, decision.  An article criticising the indictment, entitled The ICC vs.  President Al-Bashir: A Necessary Precedent?, was published by the Royal United Services Institute and was available in April 2018  at https://rusi.org/commentary/icc-vs-president-al-bashir-necessary-precedent.

[4] Richard Dowden criticised the ICC, in an article entitled ICC in the dock, which was published in Prospect magazine in May 2007.  He drew attention to the reconciliation processes that ended several African conflicts, arguing that these were understood and accepted by the populations – in contrast to an attempt to obtain “a result that means nothing to their victims”.  This article was available in April 2018 at http://www.prospectmagazine.co.uk/2007/05/iccinthedock/.

[5] An article entitled An Inconvenient Founding: America’s Principles Applied to the ICC gives an overview of the issues perceived by some Americans with regard to the ICC; it was available in April 2018 at http://www.heritage.org/research/reports/2010/02/an-inconvenient-founding-americas-principles-applied-to-the-icc.