What can international justice do to stop the war? An editorial and a question

by Maurizio Arcari and Beatrice Bonafé*

 

Let us start with a frivolous consideration: May 2024 marked QIL’s tenth anniversary. The moment is ripe for an assessment, after such a considerable amount of time, of the publication of many different views and approaches on a multitude of questions of international law. A comfortable way to celebrate the anniversary could be to provide an overview of the more than two hundred authors (gathering renowned academics, young researchers, and practitioners in international law) who contributed monthly (recently switched to bi-monthly) to our journal. This alone would per se be a reward for the rather long story of errors, omissions, failed attempts that have marked our path. But an editorial is more than a mere celebration, as it would require a stocktaking on some of the contemporary, critical, subjects that lie at the core of our matter of interest, ie international law.

Here the difficulties begin. If we look back at the very first issue of QIL in May 2014, a full Zoom-out (this classification has remained mysterious ever since) was devoted to the legal issues arising from the Russian occupation of the Crimean peninsula of Ukraine.[1] Ten years after, we are in an even worst situation, with these two countries entrapped in a prolonged, full-fledged conflict the outcome of which is hard to predict. To this, one may add the other devastating conflict that is ongoing in the Gaza strip, with Israel claiming to exercise its right to self-defense in response to Hamas’ terrorist attacks of 7 October 2023.

Obviously, war is not the only concern of international law. Unquestionable failures range from the attempts to institutionalize world trade to the efforts to produce increasingly less binding rules on environmental matters. But control of the use of force is certainly the bottom line for any decent legal order, and international law is no exception. Hence, if we look at how the UN system of collective security has so far worked in relation to the above-mentioned conflicts, disenchantment (if not despair) becomes inescapable.

Yet, something seems to have changed in respect to the 2014 Crimean crisis. On 16 March 2022, the International Court of Justice (ICJ) finally issued an order on provisional measures in the Allegations of genocide case, enjoining Russia to immediately suspend the military operations it had launched in the territory of Ukraine.[2] In the case filed by South Africa against Israel concerning the Application of the Genocide Convention in the Gaza Strip, the ICJ issued three different orders on provisional measures, eventually directing Israel to immediately halt its military offensive in the Rafah Governorate.[3] In another legal context, the Prosecutor of the International Criminal Court (ICC) issued arrest warrants against the Russian President and the Israeli Prime Minister, along with Hamas top figures, indicting them with charges for war crimes committed in the conflicts in Ukraine and in Gaza.[4]

These are only few, egregious examples of how international justice has joined the international community’s efforts to halt or contain ongoing armed conflicts. This may be a rather unexpected development, when compared to the vision that was at the basis of the creation in 1945 of the UN collective security system. As described by Lord Halifax, the British delegate in San Francisco, first should come ‘the policeman or the gendarme’ (ie, the Security Council) to stop the war, ‘and then, in order to make adjustment and settlement, justice comes into its own’.[5] Only exceptionally does the international judge have general jurisdiction over the use of force. However, litigating specific legal aspects of ongoing conflicts has become increasingly mundane.

Has the division of labour between different institutional players in matters concerning the maintenance of peace substantially evolved or changed under the influence of current events? Has the international judge a role to play in containing ongoing armed conflicts? Is the judge entitled to intervene in view of anticipating, sustaining, or even substituting the (often missing) action of political institutions?

In this regard, the dictum of the ICJ in Nicaragua to the effect that ‘[t]he Court is not being asked to bring an armed conflict to an end by nothing more than the power of words’ is certainly still meaningful.[6] However, it is equally clear that decisions of international judges do play a role – not just a political one – in enjoining the parties to a conflict to follow a certain conduct or to abstain therefrom. Shall we assume that an order of the ICJ directing the parties to cease the hostilities, if ignored by the addressees (as the case seems to be for the current conflicts in Ukraine and Gaza), is doomed to be completely irrelevant in legal terms? It has been contended that the recent ICJ’s orders on provisional measures in the case between South Africa and Israel may produce legal effects also for third States. For example, these orders may recall all the parties to the Genocide Convention to abstain from giving assistance to, or from becoming involved as accomplices in acts of genocide. Needless to remind that the international judge does not operate in a vacuum; that the World Court is expected to work in close cooperation with the other UN principal organs (see eg Article 94(2) of the UN Charter and Article 41(2) of the ICJ Statute); and more generally that litigation is only one of a variety of dispute settlement tools that the parties tend to use in combination (see eg the frequent recourse to the OSCE Moscow Mechanism in relation to the Ukrainian conflict).

Be that as it may, it can hardly be contested that, after the ICJ order of 24 May 2024, the attitude of many of western States towards the legal grounds of the Israeli armed operation in Gaza has become more cautious, to say the least. Can the decisions of international judges in cases involving massive use of force in international relations become an influential factor in orientating the ‘international public opinion’ (whatever this may mean)? The impressive string of requests for interventions filed in accordance with Articles 62 or 63 of the ICJ Statute in the two above-mentioned cases (33 interventions in the Allegations of genocide, 4 in the Application of the Genocide Convention in the Gaza Strip) reveals a growing awareness by ‘third’ States that the Court can be an adequate forum for handling the legal issues arising in connection with serious violations of fundamental international rules protecting public interests.

The ICJ is not the only international judge that has been seized of disputes relating to the mentioned armed conflicts, not to mention other uses of force. In that regard, the question can be asked especially of the role of the regional judge – such as the European Court of Human Rights having heard a variety of cases since 2014 – or of the specialized judge – one can mention among many investment tribunals.

A final aspect deserves to be mentioned. We have chosen to refer here to a broad notion of international justice. While international courts and tribunals perform different functions as they can be aimed at the determination of State responsibility, on the one hand, and individual criminal responsibility, on the other, increasingly these separate establishments would overlap and be called to ensure a certain degree of coordination.

For sure, the foregoing considerations do not cover all the issues that the relationship between justice and war entails, but they all revolve around one straightforward question: What can international justice do to stop the war?

QIL has decided to devote a special issue to this elementary question, asking to a group of renowned international scholars to choose the aspect of this complex picture that they regard as paramount and address it in a few pages.

 

 

* Of the Board of Editors.

[1] See ‘International law and the “Crimean conundrum”: Legal issues arising from the 2014 Russia/Ukraine crisis’ Zoom out I (2014) QIL-Questions of International Law 1-72 with contributions by A Tancredi, E Milano and A Lagerwall.

[2] See ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) order of 16 March 2022 [2022] ICJ Rep 211 para 86.  

[3] See ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) order of 24 May 2024 para 57, as well as the previous two orders of 26 January and 28 March 2024, all available at <www.icj-cij.org/case/192/orders>.

[4] See Statement of ICC Prosecutor Karim AA Khan KC: Applications for arrest warrants in the situation in the State of Palestine, available at <www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state>.

[5] See United Nations Conference on International Organization, Verbatim minutes of First Meeting of Commission I, doc 1006 (15 June 1945) vol 12 at 25.

[6] See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (jurisdiction and admissibility) Judgment of 26 November 1984 [1984] ICJ Rep 437 para 100.