126.96.36.199 International Courts of Law
Although the United Nations Security Council is politicised, as described above (188.8.131.52), there is a developing legal framework which complies more closely with the characteristics of law, in the form of the international courts.
The International Criminal Court (ICC) was set up under the Rome Statute, to sentence high-profile rights violations in situations where “the State is unwilling or unable genuinely to carry out the investigation or prosecution”. 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. There have, though, been criticisms:
● When Luis Moreno-Ocampo, its prosecutor, presented his case for an arrest warrant in 2010 against Sudan’s President Omar al-Bashir for genocide in Darfur “he overreached”, according to one commentator, “…The ICC has suffered recent cases in which defendants were acquitted. It cannot afford another high-profile failure”.
● Richard Dowden’s article, ICC in the dock, suggested that it might not be the best way of achieving a peaceful solution; he argued that the reconciliation processes that ended several African conflicts were understood and accepted by the populations – in contrast to an attempt to obtain “a result that means nothing to their victims”.
Phil Clark, in an article Dilemmas of justice, pointed out, though, that some of the criticisms of the ICC can be mitigated by observing its principle of complementarity to a country’s own legal system.
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, and there is also an International Tribunal for the Law of the Sea.
None of these courts has jurisdiction over countries which haven’t signed up to be bound by its rulings. The States Parties to the Rome Statute numbered 123 in August 2022, but that left 47 non-signatories (including China, India, Pakistan and Russia). America signed it initially, but failed to obtain approval in Congress; a Heritage Foundation article, An Inconvenient Founding: America’s Principles Applied to the ICC, gives an overview of the constitutional issues perceived by some Americans.
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.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/5362.htm.