Revitalising the ICJ
The writer is an officer of the Foreign Service and a law graduate of LUMS. All views expressed by the author are his own
The Ukraine-Russia conflict has once again raised the question regarding the effectiveness of the International Court of Justice (ICJ) in bringing about peaceful settlement of international disputes.
When Russia launched its ‘special military operation’, Ukraine immediately invoked ICJ’s jurisdiction under the dispute resolution clause (Article IX) of the Genocide Convention. Ukraine argued that Russia had falsely accused Kyiv of committing genocide in Luhansk and Donetsk regions and used it as a pretext to invade Ukraine. It prayed the court declare that the Russian military operation was based on a false accusation of genocide and was, therefore, violative of the Genocide Convention.
When the ICJ called for hearing the dispute, Russia chose to not participate in the proceedings. Instead, it submitted a letter arguing that Russia had never invoked the Genocide Convention as a legal basis for its military operation. It asserted that the subject-matter of the case pertained to the legality of the use of force and right to self-defence under Article 51 of the UN Charter, which was beyond the ambit of the Genocide Convention and, therefore, outside ICJ’s jurisdiction.
In its Provisional Order, the ICJ noted that expressed reference to a convention is not integral for invoking its provisions. The court concluded that it had prima facie jurisdiction to hear the case because Russian government officials had frequently mentioned in their speeches and statements that the purpose of the military operation was to prevent and punish alleged genocide by Ukraine.
Thus, by way of Provisional Measures, the ICJ, by thirteen votes to two, indicated that Russia should suspend the military operation in Ukraine and take no steps in its furtherance. However, the judges belonging to Russia and China accepted the Russian stance that the ICJ did not have jurisdiction to hear the case because its subject-matter pertained to legality of the use of force, which is beyond the scope of the Genocide Convention. It is of no surprise that decisions of the judges more or less mirrored their country’s stance.
According to Article 94 of the UN Charter, all decisions of the ICJ are binding on states. Despite the ICJ’s clear Provisional Order to suspend the military operation, it continues unabated. Owing to the ongoing conflict, thousands of people have died, and millions have fled their homes. Besides the humanitarian crisis, the economic fallout of this conflict has yet to be reckoned with by the world. Disregarding the decisions of the ICJ, therefore, has enormous political, economic and humanitarian consequences. This crisis calls for a moment of introspection regarding the effectiveness of the international court in resolving disputes among nation-states. In order to revitalise the ICJ, the following is suggested.
Identification and recognition of challenges faced by the ICJ is the first step towards its revitalisation. For this, forums like the International Law Commission should conduct a comprehensive study with the objective of addressing contemporary issues faced by the court. Dialogue is necessary between representatives of states and academics to push for a holistic acceptance of the court’s integrity and respect for its decisions by all nation-states alike.
Article 94(2) of the UN Charter empowers the UN Security Council to decide upon measures to be taken to give effect to the judgment of the ICJ. This provision, however, is practically ineffective because of the veto power of P-5 states. To increase effectiveness of the ICJ, the P-5 states should mutually agree not to use their veto power in matters relating to enforcement of the ICJ’s decisions.
Moreover, to increase compliance, the UN General Assembly must only allow nomination of judges for the ICJ from states that show willingness to respect the decisions of the court. Thus, if any country does not accept or openly rejects a decision of the ICJ, that country should be barred from nominating its judge until the decision is complied with.
Further, as decisions of the ICJ are final and without appeal, the state which loses the case does not have any recourse if there are errors in judgment. Such a member state is more likely to be left unsatisfied, and therefore non-compliant, with the ICJ’s decision. In order to curb the chances of error in judgment and improve compliance with the court’s final decisions, an appeal mechanism should be introduced in the ICJ. This may require restructuring by amending the Statute of the ICJ and the Rules of Court.
However, it is acknowledged that most of the abovementioned recommendations require mutual agreement of P-5 states. Therefore, the path to revitalise the ICJ is both difficult and long. Just as formation of an international court to arbiter decisions between sovereign states was no less than a hallmark of diplomacy, the ICJ’s revitalisation too is daunting but a worthwhile endeavour.
Published in The Express Tribune, August 13th, 2022.
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