International Courts & Tribunals: An Overview

1. International Courts & Tribunals:An Overview www.amandabreenlaw.com

2. Courts we won’t cover, including: • Dispute Settlement Body of the WTO • ICSID • European Court of Justice • European Court of Human Rights • Inter-American Court of Human Rights • Extraordinary Chambers in the Courts of Cambodia • Other criminal, human rights, and trade courts for Africa, Caribbean, South America, etc.

3. Courts in today’s discussion: Civil Courts: • International Court of Justice (World Court) • Permanent Court of Arbitration • International Tribunal for the Law of the Sea Criminal Courts: • International Tribunal for the Former Yugoslavia (ICTY) • International Tribunal for Rwanda (ICTR) • Special Court for Sierra Leone • International Criminal Court

4. Question: • Is there a “system” of international courts? • Is there a coherent body of international judicial decisions? • Should there be?

5. The Hague (Den Haag), Netherlands • Traditional center of international law • Hague Conventions of 1899 & 1907 • Early IHL (War Law) treaties - precursors to Geneva Conventions • Capital of Netherlands

6. The Hague (Den Haag), Netherlands

7. Peace Palace

8. International Court of Justice • http://www.icj-cij.org • 1945 - Established by UN Charter • Judicial organ of the United Nations • 15 judges • Settles disputes of international law between states (not individuals) • Advisory opinions

9. Sources of International Law • Statute of the International Court of Justice • Article 38 • 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: • a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; • b. international custom, as evidence of a general practice accepted as law; • c. the general principles of law recognized by civilized nations; • d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

10. Customary International Law • Definition: A general and consistent practice of states that they follow from a sense of legal obligation. • Customary law can be modified by treaty. • Two elements to establish a legally binding custom: • State Practice – How states commonly act • Opiniojuris – Whether states act this way because they feel they are legally obligated to. • Examples: Passage of foreign ships; attacks on civilians

11. Parties to the ICJ • Article 34: • Only states may be parties (no individuals or NGOs) • Article 35: • State parties to ICJ Statute (all 193 UN member states) • And others referred by UN Security Council

12. Jurisdiction of the ICJ • Article 36 – Consent of state parties (either ad hoc or through treaties) on: • a. the interpretation of a treaty; • b. any question of international law; • c. the existence of any fact which, if established, would constitute a breach of an international obligation; • the nature or extent of the reparation to be made for the breach of an international obligation. • Article 59 - No binding precedent

13. Advisory Opinions • Article 65 • The Court may give an advisory opinion on any legal question at the request of the UN Security Council or the General Assembly.

14. Notable Cases • Advisory Opinions • a. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004. • b. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996. • Consent • a. Case Concerning Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), 27 June 1986. • Provisional Measures • a. LaGrand Case (Germany v. United States), 27 June 2001.

15. Permanent Court of Arbitration • http://www.pca-cpa.org • Hague Convention of 1899 • 115 member states • Panels of arbitrators • Binding resolution of territorial, treaty & human rights abuses between states • Investment disputes under investment treaties

16. International Tribunal forthe Law of the Sea • http://www.itlos.org/ • UN Convention on the Law of the Sea • US has not ratified – recognizes & complies with it • Court opened in 1997 • Advisory opinions on UNCLOS interpretation • Resolves disputes between member states & individuals • Only 21 cases – most very minor • Many states choose arbitration or ICJ

17. A “System” of International Courts? • No single, hierarchical system • No binding precedent • Forum shopping • Little reference to decisions of other courts

18. International Criminal Courts - ICTY & ICTR • Ad hoc international criminal courts • First international criminal courts since Nuremberg and Tokyo • Created by UN Security Council resolutions • Significant expansion of International Humanitarian Law (War Law) & Criminal Law

19. ICTYInternational Criminal Tribunal for the former Yugoslavia • http://www.icty.org/ • 1993 – Established by UN Security Council • Chap. VII of UN Charter • Located in The Hague • Plans to complete all trials by 2016

21. ICTRInternational Criminal Tribunal for Rwanda • http://www.unictr.org • 1994 – Established by UN Security Council • For crimes in Rwandan genocide & neighboring states • Located in Arusha, Tanzania • Tried over 90 defendants • Completion – 2014(?)

22. SCSLSpecial Court for Sierra Leone • http://www.sc-sl.org • 2002 – Created by Security Council & Sierra Leone • Hybrid ad hoc court for crimes since 1996 • Located in Freetown & The Hague • 13 defendants - 8 convictions • Taylor appeal

23. International Criminal Court • http://www.icc-cpi.int • Created by treaty • Not a UN body • Rome Statute – went into force in 2002 • 122 state parties • Purpose - to create one forum for international criminal justice • 4 trials so far • 1 conviction; 1 acquittal

24. Jurisdiction of the ICC • Crimes committed after July 1, 2002 • Article 5 • Crimes within the jurisdiction of the Court • 1.         The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: • (a)     The crime of genocide; • (b)     Crimes against humanity; • (c)     War crimes; • (d)     The crime of aggression.* • *Not until at least 2017

25. Jurisdiction of the ICC • Who is subject to ICC jurisdiction? • Articles 12 and 13 • Exercise of jurisdiction • The Court has jurisdiction when: • The accused is a national of a State party • The alleged crime occurs on the territory of a State party • Referral by UN Security Council

26. Admissibility • Complementarity – The ICC is a court of last resort. • Article 17 • Issues of admissibility • 1.         . . . [A] case is inadmissible where: • (a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; • (b)     The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; • (c)     The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; • (d)     The case is not of sufficient gravity to justify further action by the Court.

27. Criticisms of the ICC • Creates a world criminal court that violates state sovereignty • Too Africa-focused: • Uganda • Democratic Republic of Congo • Darfur • Central African Republic • Kenya • Libya • Côte d’Ivoire • Mali • Powerless over major world players – e.g., U.S., China, Israel

28. Further Reading • American Society of International Law - http://www.asil.org • Project on International Courts and Tribunals - http://www.pict-pcti.org/ • J. Merrills, International Dispute Settlement (Cambridge University Press, 5th ed. 2011) • R. Mackenzie, C. Romano, P. Sands & Y. Shany, Manual of International Courts and Tribunals (Oxford University Press, 2nd ed., 2010)

29. Phone: 721-1760 Email: amanda@amandabreenlaw.com Website: www.amandabreenlaw.com