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What is international law?

• International law is the body of law that "regulates the activities of entities possessing international personality". (Wikipedia)
• There are two kinds of international law;
• Private – concerned with the resolution of international disputes between individuals and companies
• Public – governs relations between states, e.g. claims to territory, use of the sea, arms control and human rights
• International treaties are the principle means by which states establish legal obligations binding on each other
• There are two types of treaties;
• Bilateral – concluded between two states
• Multilateral – concluded by more than two states
• Customary international law is the second most important source of international law. It is formed by the common practice of states, which over time becomes accepted as legally binding
• The third main source of international law is United Nations Resolutions.
• Passed by the General Assembly as recommendations in the first instance, they may create international legal obligations by influencing the formation of customary international law and lead to multilateral treaties dealing with the issues raised by the resolution
• Some resolutions are considered so important that they are called Declarations – a formal instrument used when principles of great and lasting importance are being pronounced, such as the Declaration of Human Rights
• Because declarations are still really only UN resolutions they cannot be made legally binding, even though there is a strong expectation that states will abide by their provisions

Which international institutions attempt to uphold it? How successful are those institutions?

• The International Court of Justice
• The ICJ is a main organ of the UN.
• All UN members must be parties to the ICJ statute
• Non-members of the UN may become party to a statute upon recommendation of the Security Council and on conditions determined in each case by the General Assembly
• The jurisdiction of the court covers all questions that states refer to it and its decisions are binding in a dispute
• Apart from adversary proceedings, the ICJ may give an advisory opinion, requested by another UN organ or by a specialized agency on any legal question
• 200 cases have been brought before the Court in 50 years, averaging 4 per year
• ICJ has non-compulsory jurisdiction meaning that parties to a dispute (states only) must all agree to submit a case to the court
• It has no executive to enforce its decisions
• It has no police to bring a party to justice
• Most government tend to consider the recognition of the compulsory jurisdiction of the court as infringing their sovereignty.
• Many states doubt the non-partisan character of the court – governments in recently independent states view it as being dominated by Western legal thinking and too concerned with Western interests.
• “The International Court of Justice has a recognised usefulness as a centre for advice and consultation … it is indispensable” (Whittaker”
• “Denied the instruments of arrest and mandatory sentencing the UN’s legal institution functions today more as a helping centre and point of reference in an uncertain and inconsistent world” (Whitaker)
• Enforcement depends on the perceived legitimacy of the courts decisions, the voluntary compliance of states, and the “power of shame” if states fail to comply.

• The International Criminal Court
• In 1998 UN members concluded a treaty that established the ICC
• The ICC was finally established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court.
• As of October 2005 141 states have signed the ICC statute, 41 of which have yet to ratify it though
• However the USA ‘unsigned’ the treaty and is now among seven states who have registered their opposition; Libya, China, Israel, Qatar, Yemen, Iraq
• Due to objections the court does not have global jurisdiction, including most vitally China and America
• However the court is seen as important step towards solving international criminal problems.

• The International War Crimes Tribunals
• Established by the UN to complement the ICJ
• International war crimes tribunals are courts of law established to try individuals accused of war crimes and crimes against humanity.
• Despite the often heinous nature of the crimes that individuals commit during intractable conflicts, including genocide, torture, and rape, it has become common practice to offer the accused an opportunity to explain his or her actions in front of the victims and their families, as well as the media.
• Following a conflict, crimes that have exceeded the normal parameters of war behaviour must be dealt with before a society can begin the peace building process of reconciliation.
• War crimes tribunals do not offer the accused a chance for forgiveness as truth and reconciliation commissions do.
• Tribunals do, however, offer victims and their families the opportunity to confront those responsible for what happened to them, and hopefully to put the horrors of war behind them.
• A tribunal can be a forum for honoring the memory of those lost, as well as punishing those responsible.
• The war crimes tribunals of Nuremberg and Tokyo, in which legal justice was used to punish the upper echelons of the German and Japanese military following World War II, continue to be regarded as the most successful tribunals to date.
• The democratic, progressive success of both nations following these tribunals is often given as evidence of the effectiveness of war crimes tribunals in helping a society that has perpetrated war crimes to return to stable diplomatic relations and the road to peace.
• One of the arguments in support of war crimes tribunals is that they act as a deterrent to potential war criminals. In fact, this idea is one of the main arguments behind a push to construct a permanent international war crimes tribunal. Currently, tribunals have to be sponsored by an organization like the U.N. or a national government. Without a permanently-established war crimes court, military and government leaders may feel emboldened to commit crimes such as the mass murder of ethnic groups in East Timor in the 1980s and 1990s, or in Rwanda in 1994.
• War crimes tribunals offer a rare chance for the world's leaders and citizens to scrutinize both the deplorable decisions made by particular leaders, and the atrocities committed by the soldiers and agents of those leaders. Without such a forum, there would be no method for assuring that the masterminds and perpetrators of genocide and other war crimes are justly punished.
• Tribunals also give victims and their families an opportunity to regain a sense of power that may have been lost resulting from a war crime. It is empowering for victims to stand up in a court of law and identify those who wronged them.
• A war crimes tribunal can also force forgotten or hidden atrocities to be retold by survivors. In this way war criminals living free of judgment are finally forced to accept responsibility for their actions and be judged for what they have done.
• For a country attempting to make a transition from a repressive regime to a democracy, war crimes tribunals offer citizens and leaders the opportunity to put their faith in an equitable rule of law. Countries that truly wish to become modern democracies must accept the rule of democratic law and apply it to even their most powerful criminals.
• While this process takes an enormous effort of national will, nations that successfully conduct tribunals within the bounds of such laws prove they can function without reverting to the undesirable methods of repression and violence.
• Thus war crimes tribunals have the potential to help emerging democracies discover the benefits of a strong legal system while reconciling past atrocities.
• Finally, if all members of a society can agree upon what is unacceptable by trying its war criminals, then it is easier for the society to agree on what is acceptable. A successful war crimes tribunal allows the past to be laid to rest and a peaceful future forged from its results.
• Many argue that war crimes tribunals offer no deterrent to potential criminals whatsoever. People with strong convictions against a certain religious or ethnic group will likely not feel any less hatred for that group just because a possible tribunal looms in the future. Both Hitler and Pol Pot believed they would be revered by future generations for the extreme measures they took to change the makeup of their societies. These leaders were inspired by their visions of the future and it is unlikely the prospect of a war crimes tribunal would have swayed either dictator.
• In fact, another argument against tribunals is that men like Hitler and Pol Pot, the leaders of violent movements, are never judged by tribunals for what they do. A war crimes tribunal that tries only middle ranking officers, soldiers, and politicians is not as effective as one that tries the mastermind behind the crimes.
• Although the Iraq Tribunal tries the mastermind many are angry that not all his crimes will be put before the court, and see it as injustice, as only a very small amount will be ruled upon. The families of other victims see it as unjust and that crimes against them are in effect going unpunished.
• Another criticism of war crimes tribunals is that they do not alleviate the underlying causes of the conflict. In fact, tribunals can escalate conflict, especially in a multi-ethnic society. In cases of genocide, those accused of war crimes are usually all from one ethnic group. To this group, a war crimes tribunal can appear to be a trial against their ethnicity, not just an individual from their group. This is especially true when the judicial system fails to fairly represent the whole society. For example, Rwandan Hutus accused of killing Tutsis would doubt in the possibility of a fair trial if only Tutsis were running the tribunal. Other Hutus, including those not accused, would likely feel the same way. Thus the war crimes tribunal could act as a wedge driving the two groups further apart.
• They are ineffective in transforming a fractured society into one of stability and peace. Following the end of apartheid in South Africa, the Rev. Desmond Tutu argued against a war crimes tribunal, pushing instead for a truth and reconciliation commission. He believed that no reconciliation or transformation was possible if the accused were not forgiven. War crimes tribunals necessarily demonize individuals and sometimes whole groups, further separating parties, instead of building peace.
• Possibly the most powerful argument against war crimes tribunals is that they offer only the victors justice. What was most obviously missing following World War II was not Hitler at Nuremberg, but a trial for Americans, French, British, and Russian individuals who committed acts that would have been considered war crimes had the Allies lost the war. The fire bombing of Dresden and the use of atomic weapons on Hiroshima and Nagasaki are clear examples of acts for which Allied leaders would have been tried had the war ended in favour of the Germans and Japanese. While it is easy and satisfying to put the enemy in prison for what he or she has done, it does not seem entirely fair if all those who participate in a war are not held to the same standards.

Why is international law so difficult to uphold?

• No World government
• Law isn’t binding
• No international police force and no executive body capable of enforcement
• Differences in power between states
• Existing mechanisms e.g. ICJ can’t enforce rulings
• Problems over sanctions
• Countries merely pay ‘lip-service’
• All international judicial courts are less effective than national judiciary
• No systematic method of amending treaties
• Rules are created by treaties which are voluntarily subscribed to
• The law lacks universality
• Justifies the competitive pursuit of national advantage without regard to morality or justice
• Is an instrument of the powerful to oppress the weak
• Is little more than a justification of existing practices
• The ambiguity reduces law to a policy tool for propaganda purposes, and justification of actions in places like Iraq and Guantanamo Bay

Why was it so difficult to set up the ICC?

• US objections:
• The US widely acclaimed as the largest power in the world, has refused to ratify the treaty and so is not legally bound by it.
• The US fears that American soldiers and political leaders may be subject to “frivolous or politically motivated prosecutions”
• Supporters of the American position have argued that many countries in the world have an anti-American agenda, and may enjoy constantly charging Americans with ‘trumped-up’ war crime charges simply to cause embarrassment and bad publicity for the US.
• As examples such opponents of the ICC site that in the past, when the US failed to act quickly enough to prevent disaster (e.g. in Rwanda), the US is criticised for allowing genocide to occur.
• American critics of the ICC thus argue that as the US is the only superpower it will be unfairly singled out by hostile states at the expense of legitimate cases
• In August 2002 the US promised military action to prevent the trial of any US troops or nationals by the ICC
• The act also cuts military assistance to countries who fail to sign bilateral treaties with the US, which immunize US nationals from ICC prosecutions.
• In December 2004 President Bush signed amendments to the Foreign Appropriations Bill, suspending the Economic Support Fund assistance to those countries that refuse to sign Bilateral Immunity Agreements with the US.
• The funds affected support initiatives including peacekeeping, anti-terrorism measures, and democracy-building
• These BIAs undermine the obligations of states that have ratified the ICC statute.
• Furthermore opponents contend that the ICC does not have any real power to extradite war criminals from signatory states. Therefore military action may be required to force compliance, which would involve the US and thus expose US officials to spurious charges of war crimes.

• Some countries object to the court saying that there is very little legal supervision of the court’s apparatus and that the court’s verdicts may become subject to political motives
• They argue that the court’s mandate is excessively wide, meaning that the court could become a tool for barratry and pointless legal hassle.
• The People's Republic of China has expressed opposition to even the other states involved going ahead with it, claiming that the Statute is an attempt to interfere with the domestic affairs of sovereign states. It has not signed the treaty.

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Original content by joker13na.