Jeffrey Morton and Samantha Maesel

Summary

This chapter outlines the basic principles found in modern international law that serve to empower international security regimes. Legal efforts to reduce the occurrence of war, restrict behaviour in time of war, and place limits on certain weapons of armed conflict are central to promoting human security. Further, the development of international human rights since World War II is reviewed as well as the new concept of Responsibility to Protect (R2P), which allows the international community to intervene on behalf of endangered citizens of other countries. Central to the empowerment of human security regimes are the international organizations that populate the international arena. Chief among those considered in this chapter are the United Nations Security Council, the International Court of Justice, the International Criminal Court, and temporary war crimes tribunals.

Chapter Overview

18.1 Introduction

18.2 Modern International Law

18.3 Making International Law

18.4 Laws of War

18.4.1 Jus in Bello

18.4.1.1 Discrimination

18.4.1.2 Prohibition on Unnecessary Suffering

18.4.1.3 Proportionality

18.4.1.4 Perfidy

18.4.1.5 The Martens Clause

18.4.2 Jus ad Bellum

18.4.3 Future Challenges

18.5 Laws of Peace: Human Rights

18.6 International Legal Institutions

18.6.1 United Nations Security Council

18.6.2 International Court of Justice (ICJ)

18.6.3 Tribunals

18.6.4 International Criminal Court (ICC)

18.7 The Responsibility to Protect (R2P)

18.8 Conclusion

Resources and References

Key Points

Extension Activities & Further Research

List of Terms

Suggested Reading

References

Bibliography

18.1 Introduction

A central and defining feature of international relations is the condition of anarchy, a term that means the lack of world government. Without an overarching supranational force to constrain the behaviour of states and individuals, the anarchic system is inherently conflict prone. Since reordering the international system in an effort to avoid anarchy is highly unlikely, states promote order and clarity in world politics by developing and maintaining rules of behaviour. International laws have been developed in virtually every area of international relations, ranging from trade to diplomatic immunity, air space to the law of the sea. An area of consistent concern and of utmost importance to countries is war. As a result, a significant amount of time and energy have been devoted to drafting international laws that regulate armed conflict. This chapter seeks to explain efforts by the international community to eliminate, mitigate, or reduce the destructive behaviour of states towards one another and towards their own citizens through the adoption and application of international law. Attention is divided into three main areas: the laws that regulate the use of force, human rights laws that protect individuals from repressive treatment, and the institutions that are used to enforce these standards. Contemporary developments, including the concept of Responsibility to Protect (R2P) and the International Criminal Court (ICC), are considered helpful stepping stones.

18.2 Modern International Law

The formal establishment of the modern nation-state system through the Treaties of Westphalia (1648) gave birth to modern international law. At its onset in the 17^th century, international lawyers and philosophers debated the essence of international law and its principal source. Naturalists argued that international laws should flow from natural law, which draws on sources in nature or religion and, therefore, should be based in morality.^[1] Positivists countered by arguing that international laws, as contracts among states, are so-called positive law, produced by negotiations and have a political rather than moral basis.^[2] The implications of this early jurisprudence debate were significant, in effect pitting the rights and needs of individuals (protected by nature-based laws) against the power of states (promoted by negotiated laws). Over the course of the 18^th century, the positivist philosophy of international law prevailed. As a result, the global legal order is one in which states are independent and negotiate the international rules that regulate their own behaviour. While international law may reflect morality, it is not a requirement in a positivist legal order. It should be noted, however, that since the Second World War moral principles have increasingly been the subject of binding international agreements. This is most prevalent in human rights treaties, in laws that protect refugees, and in the more recent R2P concept.

18.3 Making International Law

International laws in the positivist era are created in one of two ways — treaty law and customary law. Treaty law involves a formal process by which sovereign states negotiate written agreements that are legally binding upon all states which enter into them and the treaty process involves distinct stages. In the drafting stage, diplomats engage in debate that results in a draft document. The document is not a binding treaty until it has been ratified by a specified number of states. Ratification represents the second stage of the treaty process. Each state, based upon its domestic laws, determines whether or not to ratify the proposed treaty. After ratification, the state submits its instrument of ratification as evidence of its commitment to the principles enshrined in the document. It is not, however, until the third stage of the process, entry into force, that the document becomes a binding treaty. Entry into force occurs when a prescribed number of nation-states submit their instruments of ratification. For a bilateral treaty, an agreement between two states, entry into force occurs when both states ratify. For a universal treaty, the ratification threshold may be sixty states, 100 states, or any other number of states, depending on the treaty requirements agreed upon at the drafting stage. Treaties provide explicit restrictions on state behaviour. Since international treaties infringe upon the sovereignty and freedom of states, it is logical to assume that governments only endorse treaties that entail more benefit than cost. The challenge, therefore, for international lawyers and diplomats is to arrive at treaty language that is acceptable to the largest number of nation-states while sacrificing as little as possible of the purposes of the treaty.

Customary international law is different from treaty law in that custom emerges over time from the uniform behaviour of states. Custom, a recognized norm of behaviour, remains unwritten but may be transformed into treaty law if a formal document is negotiated and ratified. Unlike treaty law, which is consensual in that it is only applicable to those states which have expressly accepted it, customary law is considered binding on all countries, with or without their explicit endorsement. Until the 20^th century, most international law was in the form of custom. Since 1900, however, a more systematic process has tipped the scale in favour of treaty law. While treaty law and customary law are distinct in form, some treaties have been deemed to be customary international law. The Hague (1899, 1907) and Geneva Conventions (1949) are examples of treaties that are considered to be custom. As a result, Hague and Geneva laws are binding on all states, including those, which have ratified neither. Even though there are other, secondary and tertiary, sources of international law, treaty and custom represent the two primary sources of international law in the modern era.^[3]

18.4 Laws of War

The laws of armed conflict are broadly divided into two branches — restrictions placed on the right to initiate war and regulations on the conduct of war. Jus ad bellum determines when military intervention is legal, while jus in bello, outlines the legal behaviour of soldiers on the battlefield. Up until the end of World War II, most emphasis was placed on the development and refinement of jus in bello and its core restrictive principles. Due to the historic level of human and physical destruction caused by the Second World War, along with the onset of the atomic age, attention since 1945 has been principally focused on jus ad bellum restrictions on the right to go to war. The separate standing of jus in bello and jus ad bellum translates into two legal questions for every armed conflict, namely (1) Was the war entered into legally? and (2) Was the conduct of soldiers during that conflict legal? To determine that a state legally entered into a war does not absolve the state and its military from scrutiny over its conduct during the war. For a state to remain within the confines of the laws of armed conflict requires both a legal entry into war as well as the use of force within the parameters established by jus in bello principles.

18.4.1 Jus in Bello

At the onset of the modern international legal system (1648), the core principles that define jus in bello today were already in place, the product of centuries of efforts aimed at reducing the horrors of war. The main jus in bello principles established over time remain in force and are codified in specific international treaties, including the Hague Conventions (1899, 1907), Geneva Conventions (1949) and a series of issue specific treaties dating to the 19^th century. Each principle restricts conduct on the battlefield in an effort to humanize and standardized armed conflict. The Geneva Convention and its Protocols are also discussed in Chapter 5.

18.4.1.1 Discrimination

The first legal requirement placed on soldiers in the field is to differentiate, or discriminate, between lawful targets and unlawful targets. In time of war, soldiers and those who plan the conduct and oversee the behaviour of soldiers are legally required to separate targets into two categories — combatant and non-combatant. Combatants, those who actively take up arms, are legal targets. They may be killed, wounded, or taken captive at any time during the course of the war. Non-combatants, a category that includes civilians, humanitarian relief personnel, journalists, and international observers, among others, may not be targeted. While non-combatants may be detained, restricted or moved, they may not be intentionally injured or killed. The discrimination principle places an enormous burden on soldiers engaged in armed conflict, especially in urban settings. A wilful violation of the principle, however, runs counter to prevailing international law and may constitute a war crime that is punishable by a national or international court.

18.4.1.2 Prohibition on Unnecessary Suffering

International law allows for the lethal use of force against combatants. Professional soldiers are trained to capture instead of injuring, injure instead of killing, and to kill only as necessary. What soldiers are not allowed to do is inflict injury with the express intent of causing suffering that is unnecessary. The prohibition on unnecessary suffering impacts both the actions taken by soldiers as well as the weapons that are used in armed conflict. Twisting the blade of a bayonet in the leg of an incapacitated enemy combatant for no purpose other than to inflict additional pain and suffering violates the principle. Employing weapons that are designed to cause unnecessary suffering, equally, constitute violations of the laws of armed conflict. Customary international law and treaties have restricted the use of weapons whose sole or primary purpose is to cause suffering. An example of one such prohibited weapon of war is the expanding bullet, which due to its hollow head and soft jacket is designed to expand once it enters the body.

18.4.1.3 Proportionality

The principle of proportionality requires forces in the field to achieve a balance between the expected level of harm caused to civilians or civilian property and the anticipated military benefit of the proposed attack on a military asset. While it may be legal to target a combatant with a drone air-to-surface attack, those authorizing the operation must take into account the level of civilian harm that will likely be caused by the attack. This is especially the case if the individual being targeted is in the midst of a civilian population at the time of the attack. Proportionality is one of the most difficult jus in bello principles to apply to armed conflict because it requires foresight that may be difficult, if not impossible, to calculate prior to a military operation.

18.4.1.4 Perfidy

Using deceptive tactics to expose the adversary in armed conflict may constitute an illegal act of perfidy. While outsmarting the adversary is an essential element of war planning and execution, there are limits imposed upon combatants by the laws of armed conflict. False surrender, entering an enemy compound dressed as humanitarian personnel, hiding bombs in children’s toys and feigning non-combatant status, are examples of perfidy and are deemed to be illegal. The perfidy principle is also violated when soldiers intentionally use civilians as shields.

18.4.1.5 The Martens Clause

Found in the preamble of the 1899 and 1907 Hague Conventions is the Martens Clause, which states that:

Until a more complete code of the laws of war is issued…populations and belligerents remain under the protection of international law, the laws of humanity, and the requirements of the public conscience.

The Martens Clause is designed as an underlying net to legally ensnare violations of the spirit of jus in bello principles that may not be specifically outlawed by custom or treaty. The use of civilian captives for medical experimentation by the Nazis during World War II is one of many examples of an act that is prohibited by the Martens Clause.

In addition to the general restrictions placed on the conduct of soldiers in the field outlined by the jus in bello principles outlined above, states have sought to deem certain weapons of war illegal. International treaties have been drafted to eliminate, for example, anti-personnel landmines (APL), lasers that cause blinding, cluster bombs, asphyxiating gases, napalm and tumbling bullets. Efforts to ban other weapons of war have yet to reach a sufficient international consensus such that a treaty banning them could be produced and implemented. Attempts to renounce nuclear weapons as illegal have been undertaken for more than fifty years, yet due to objections from the nuclear weapons states such efforts have not produced a legal ban on either the existence or use of nuclear weapons.^[4] Depleted uranium shells, which are highly effective in destroying heavily armed vehicles such as tanks, have similarly been shielded from international condemnation by those countries that continue to employ them, despite the probable long-term dangers that the weapons pose to civilian populations.

Jus in bello, its principles and supporting legal documents, have greatly restricted conduct in the field and continue to be revised to take into account the new realities on the battlefield. Attention is now turned towards international efforts to restrict the right of states to enter into conflict, known as jus ad bellum.

18.4.2 Jus ad Bellum

The right to wage war has captivated the attention of policymakers, philosophers, moralists and lawyers for centuries. Up until the drafting of the United Nations Charter in 1945, most efforts since 1648 have resulted in only marginal restrictions on the legal ability of nation-states to enter into war. The Treaties of Westphalia (1648), for example, determined that a religious difference between states was no longer a valid reason for going to war. After the Napoleonic Campaigns concluded, the Concert of Europe (1815) dictated that territorial expansion in Europe required approval from the Concert, which was composed of the five most powerful European countries at the time. Thus, in the years leading up to the First World War nation-states possessed a nearly complete compétence de guerre, or right to wage war. This defining principle of international law at the time was referred to as the Doctrine of Intervention. Except for the few restrictions placed on nation-states in 1648 and 1815, sovereign states possessed the legal right to go to war any time that their leadership concluded it was necessary.

This broad compétence de guerre of states began to erode after World War I. The League of Nations (LON) was empowered to authorize sanctions against states, which threatened international peace and security in violation of its Covenant. The Kellogg-Briand Pact (1928), which was ratified by 65 states, restricted states to the use of force only in response to an armed attack, elevating the concept of self-defence in world politics as the sole legitimate standard for waging war. The failure of the League of Nations to prevent the Second World War, along with the destructive nature of that conflict, lead to a major revision of the laws that regulate entry into war. The United Nations Charter introduced the principle of non-intervention principle in article 2, paragraph 4, which states that:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

A revolutionary concept, non-intervention nearly eliminated the compétence de guerre of states. Only under the conditions of self-defence, collective self-defence and Security Council authorization could member states of the United Nations (UN) legally enter into war. In 2011, 193 nation-states were members of the United Nations. Since membership in the United Nations requires ratification of the UN Charter, including Article 2, paragraph 4, virtually every state in the international system is bound to the restrictions of the Charter as they relate to the legal entry into war.

Self-defence is a concept that dates to antiquity, holding that nation-states possess the legal right to enter into war in response to an armed attack. When Iraq invaded Kuwait on 2 August 1990, Kuwait possessed the legal right to defend itself. Collective self-defence extends the self-defence to other nations, giving them the legal right to come to the assistance of victim states. The United Nations Charter does not legally require third parties to intervene in response to armed aggression against a victim; however, it provides them with the legal right to do so. As such, not only did Kuwait possess the legal capacity to respond to the Iraqi invasion in 1990 with armed force, so, too, did all other states. Security Council authorization is the third legal justification for entering into war. The Security Council, a permanent organ of the United Nations, is composed of fifteen member states. Five of those members — China, France, Russia, United Kingdom, United States — are permanent (P5), while the remaining ten Council members are present for two-year appointments. In addition to a permanent presence on the Security Council, the P5 enjoy veto power over any Council resolution. At any time the Security Council decides that one nation’s invasion of another constitutes aggression, it may authorize any or all UN member states to go to war on behalf of the victim state. As such, when Iraq invaded Kuwait in 1990, automatically Kuwait possessed the legal right to militarily defend itself (self-defence) and all other UN member states enjoyed the right to come to its defence (collective self-defence). When the Security Council authorized force against Iraq to liberate Kuwait, the third (and separate) legal recourse to war was extended to states to go to war against Iraq.^[5]

The willingness of the UN Security Council to authorize war has varied greatly since the organization’s inception. Only twice has the Council explicitly authorized war in response to an armed invasion, with both instances of Chapter VII war authorization happening under unique circumstances. In 1950, the Council deliberated the Korean War without the Soviet representative present, removing the veto from the calculation. Later, when the Security Council convened to consider expanding its original war mandate to include the reunification of the Korean peninsula, the Soviet representative returned to the Council and vetoed the effort. In 1990, the Security Council addressed the Iraqi invasion of Kuwait during an historic period of cooperation between the superpowers resulting from the peaceful end of the Cold War. The result was an authorization for war and a diverse international military coalition that forced Iraq’s military from Kuwait. Despite numerous opportunities during and after the Cold War for the Security Council to take action in response to inter-state conflict, in most instances it either declined to do so or was unable to as a result of the veto. As such, Security Council authorization for war historically has been the exception rather than the rule.

The legal right of states to go to war, therefore, has been dramatically and qualitatively reduced by the revisions to jus ad bellum introduced in 1945 by the United Nations Charter. No longer may states legally attack other states except under the narrow confines outlined in the Charter. The purpose of the Charter’s restriction on the legal right of states to go to war is to reduce the indiscriminate use of force. The fact that states continue to opt for war without legal cause, including waging undeclared wars, indicates their ability to sidestep the Charter’s restraints.

18.4.3 Future Challenges

The laws that regulate international conflict are in constant need of revision and updating as the global environment changes. Technological innovations create situations that traditional international law struggles to fully address. This is the case with both jus ad bellum and jus in bello rules. For example, Article 51 of the United Nations Charter authorizes states to use force in self-defence when an armed attack occurs against the state. Cyber attacks, which can cause devastating consequences for the targeted state, do not technically qualify as an ‘armed attack.’ The first ‘cyber war’ occurred in 2008 when Russia attacked the financial infrastructure of Estonia, crippling the country’s banking and credit system.

Jus in bello principles face equally daunting challenges on the 21^st century battlefield. Robotic soldiers, and other forms of Automated Robotic Killing Machines (ARKM), attack drones that are controlled through satellite feeds, and the use of sound waves and other non-lethal defensive weapons are minimally regulated by existing treaty law. In order to maximize its role in the regulation of armed conflict, international law must quickly and consistently evolve to apply to new circumstances on and off the battlefield.

18.5 Laws of Peace: Human Rights

The building block of the international system and modern international law is the sovereign state. Traditionally, international relations and the laws that it produced dealt with the regulation of external state behaviour, or foreign policy. Beginning in the 20^th century, however, increasing attention was focused on the domestic behaviour of states. While some progress was made under the guise of the League of Nations after World War I, it was not until after the Second World War that human rights became a subject of international regulatory efforts. The result was a dramatic shift in international relations that transformed the individual from a mere object of international law to one of its subjects.

Until the emergence of international human rights, individuals enjoyed personal liberties and protections only to the extent that their governments afforded them. In some countries, citizens were granted generous civil liberties while in others citizens remained largely powerless and unprotected. The process aimed at ensuring basic liberties and conditions of human decency began with the framing of the United Nations Charter (Donnelly, 2006). The Charter’s preamble signals the organization’s commitment to establishing individual rights by affirming faith in fundamental human rights; Article 55 provides a clearer commitment to individual liberties by stating:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote…universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

The broad statements put down in the United Nations Charter started a process of specifying individual rights that were shared universally. In 1948, the Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly, recognizing the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. The UDHR’s thirty articles provide a strong basis upon which numerous human rights treaties have been drafted. Key human rights documents include the Convention on the Prevention and the Punishment of Genocide (1951), Convention to End Racial Discrimination (1965), Covenant on Civil and Political Rights (1966), Covenant on Economic, Cultural and Social Rights (1966), Convention on the Elimination of All Forms of Discrimination Against Women (1979), Convention Against Torture (1984) and the Convention on the Rights of the Child (1989). Hundreds of other treaties and documents bring the legal regime on human rights to its current form.

In order for human rights to meaningfully impact international relations, more than the drafting of treaties is required. In a perfect world, states would internalize human rights protections and police themselves to ensure that individual liberties and rights are respected. In a world of sovereign, independent nation-states, the international community must collectively ensure that states act in accordance with prevailing international human rights documents. Economic sanctions are the most commonly applied pressure placed on states that violate human rights. Rhodesia (present day Zimbabwe) was the subject of the first comprehensive sanctions policy authorized by the UN Security Council. Over the course of the post-World War II era, the Security Council has implemented sanctions regimes on other human rights violating states, including South Africa, Iraq, Liberia, the Democratic Republic of the Congo, the Ivory Coast, The Sudan, and, most recently, Libya.

18.6 International Legal Institutions

The focus, thus far, has been on the drafting of international rules that regulate the behaviour of states aimed at empowering and protecting the human condition. The formulation of international norms and treaties reflects a growing consensus in the international community that the rights of states are not unlimited and that the protection of individuals, in time of war and peace, is essential to global peace and security. While foundational, the mere drafting of agreements represents only the first stage in the attainment of a more humane and peaceful world. The necessary corollary to drafting the restrictions is their enforcement. Attention, therefore, now turns to the institutions that have been developed and utilized to ensure that the laws of war and peace are properly and effectively applied.

18.6.1 United Nations Security Council

Before the Second World War was concluded, the Allied powers began the process of creating the post-war international system by drafting the rules that would clarify relations among states and by establishing the institutions that would enforce them. Chief among the institutions was the Security Council of the United Nations. Empowered by the Charter, the Council operates with few legal restraints. The high threshold required for resolutions to be adopted (nine of fifteen yes votes), along with the ability of its five permanent members to veto resolutions, have created significant political obstacles to the Council’s success. Efforts by the Security Council to regulate international affairs and effectively address threats to international peace and security generally fall into one of three categories. First, the Security Council can authorize economic sanctions against countries that it determines are in violation of the UN Charter and by virtue of their actions constitute a threat to peace. These sanctions may be tailored to target specific individuals or may be comprehensively applied to an entire country. Second, the Council can authorize peacekeeping operations (PKO) made up of contributions from multiple member states. PKOs may be authorized to oversee a disputed region, deliver humanitarian aid to people in distress, observe elections or monitor human rights compliance, or physically separate warring sides. Because the concept of peacekeeping is not found in the UN Charter, the Council’s ability to authorize such operations represents an inferred, rather than explicit, power. The UN Charter empowers the Security Council to make adjustments to promote peace in Chapter VI and allows the Council to authorize war in Chapter VII. Since peacekeeping falls between those two points, it is often referred to as a “chapter six and one-half” action.^[6] Finally, the Security Council can authorize war against violators. In 1950, when North Korea invaded its neighbour to the south, the Council authorized member states to use all force necessary to liberate South Korea. In 1990, in response to Iraq’s invasion of Kuwait, the Council again authorized an international campaign to repel Iraqi military forces and restore the sovereign integrity of Kuwait. The Council is not limited, however, to authorizing war against states that invade another state. In 2011, the Council authorized member states to use force in order to establish a no-fly zone over Libya in an effort to prevent that North African country’s military from physically suppressing its own people who were rebelling against their government.

The history of the UN Security Council can be divided into three distinct eras: Cold War, end of the Cold War, and post-Cold War. During the Cold War (1945-1989), the Security Council was increasingly ineffective in responding to global threats to peace and security due to the animosity of the era’s two principal antagonists — the United States and the Soviet Union. As the Cold War evolved, competition between the two nuclear superpowers rendered the Council virtually dysfunctional, with one or the other superpower casting a veto to prevent a resolution’s passage. From 1978 until 1987, in fact, the Security Council was unable to authorize a single peacekeeping operation due to the Cold War divide. The end of the Cold War, however, presented an opportunity for the major powers to cooperate and collectively respond to global threats to the peace. A series of successes resulted in a Nobel Peace Prize for peacekeepers, Kuwait was liberated from Iraqi occupation, and epic missions in Cambodia, Bosnia and Somalia were undertaken by the Council. From 1987, when the Cold War began to thaw, until 1993, the Security Council was both active and ambitious. Its decision to send heavily armed peacekeepers into on-going conflicts in Cambodia, Bosnia and Somalia represented its supreme confidence in mitigating international conflict and human suffering. Failures in those epic missions, along with a decline in the euphoria associated with the Cold War’s end, marked the beginning of the current era in Security Council history. Since the mid-1990s, the Security Council has been more careful in the operations that it authorizes and less willing to take on the risks of involvement in on-going conflicts.

18.6.2 International Court of Justice (ICJ)

The first permanent international court was created as a semi-autonomous organ of the League of Nations in 1919. The Permanent Court of International Justice (PCIJ) was seated in The Hague (Den Haag), Netherlands, and was limited in its jurisdiction to considering contentious cases brought by nation-states and issuing legal advice to international organizations. While its rulings were legally binding, the PCIJ relied upon states to appear before the Court and grant it jurisdiction. As such, the PCIJ was a reflection of international law in that it was consensual instead of mandatory. When the United Nations was established after World War II, its International Court of Justice (ICJ) replaced the PCIJ. Except for the fact that the ICJ was made a principal organ of the United Nations, it functioned exactly like its predecessor. The ICJ is highly effective when two or more states come before it requesting legal adjudication, less so when states exercise their right to reject its jurisdiction. In an effort to compel states to come before the Court, the ICJ encourages states to sign a compulsory jurisdiction clause. Those that do make a legal commitment to appear before the ICJ any time that another state files a suit against them. Less than one-third of all UN members have signed the compulsory jurisdiction clause, and many of those have attached reservations that make the clause less compulsory. Like the PCIJ, the ICJ may issue advisory opinions, which represent non-binding legal advice that may be requested by the UN General Assembly or Security Council. This legal advice can be highly influential, such as in 1951 when the Court ruled that reservations applied to treaties impact only those states which had attached them at the ratification stage. Before that ruling, reservations changed the legal meaning of treaties as they applied to all parties.

The ICJ, like its predecessor, is greatly limited in that it may only issue legal rulings on disputes arising among nation-states. The Court has no jurisdiction over non-state actors, such as terrorist organizations, corporations, quasi-states or individuals. It was not until 2002 that a permanent international court was established for the purpose of prosecuting individuals for their violations of international law. Until then, efforts to hold individuals accountable resulted in the establishment of temporary, or ad hoc, tribunals.

18.6.3 Tribunals

International legal tribunals serve two distinct, yet inter-related, purposes. First, they bring to justice those individuals who have violated core principles of international law. In that regard, international legal tribunals may prosecute violators of the laws of war and the laws of peace. Additionally, international legal tribunals, through their existence and success, serve as deterrents to future bad behaviour. If individuals, ranging from soldiers engaged in combat to political leaders, are convinced that their violations will be prosecuted, they will be less likely to commit such violations. As such, the second purpose of the tribunals, deterrence, logically flows from the first.

International legal tribunals take two basic forms, depending on their intended longevity and focus. They may be created for a particular purpose and for a limited amount of time. Such tribunals are ad hoc. They may also be created to serve, in a long-standing capacity, the general needs of the international community. Such tribunals are permanent. While the list of international tribunals, ad hoc and permanent, is far too lengthy to discuss here, several merit particular attention.

International efforts to hold war criminals responsible for their violations of the laws of armed conflict date, in the most meaningful sense, to the close of the First World War. After that conflict, the victors compiled a list of Germans war criminals. Rather than establishing a tribunal for prosecution, it was decided to call upon the new German government to assume responsibility for the prosecution of its own nationals. The results were dismal. Of the more than 900 Germans listed by the victors as war criminals, 888 were either acquitted of their charges or had their charges dropped. The lesson learned was that an international tribunal would be needed to effectively prosecute those alleged with the commission of war crimes. Shortly after the conclusion of the Second World War, the victorious allies established the International Military Tribunal (IMT) through the London Charter (1945). Two principal ad hoc tribunals, in Nuremberg and Tokyo, were created for the purpose of prosecuting Axis war criminals. The complaint that the IMT focused exclusively on the losing side was valid — World War II marks the historic low point in terms of respect for the laws of armed conflict — however, it did not prevent the tribunal from successfully prosecuting scores of war criminals. As ad hoc tribunals, the Nuremberg and Tokyo courts ceased to exist after their dockets were cleared of cases. It was not until after the end of the Cold War that the international community established another war crimes tribunal. In response to the conflict in the former Yugoslavia, the UN Security Council established the International Criminal Tribunal for Yugoslavia (ICTY). Seated in The Hague, Netherlands, the ICTY possessed the legal power to issue indictments and prosecute war criminals from that series of wars. The most famous indictment was issued against former Yugoslav president Slobodan Milosevic, who was accused of a wide range of violations of international law, including aggression, crimes against humanity and genocide. A long and complicated trial began in the ICTY in 2002, it concluded in 2006 when Milosevic died before the tribunal issued its ruling. The ICTY formally ceased operations in 2017 after completing all cases pending before it. A total of 161 individuals were indicted by the Court, 111 trials were completed and 90 war criminals convicted. Many cases were transferred to other courts for prosecution and 17 indicted individuals died before their cases were completed.

In 1994, the Security Council established another ad hoc tribunal. In response to the catastrophic loss of life in the African state of Rwanda, the International Criminal Tribunal for Rwanda (ICTR) was created. With its chief prosecutor in The Hague, the ICTR’s court was located in Tanzania. The ICTR discontinued operations in 2015 after bringing fifty cases to conclusion.

The two ad hoc tribunals (ICTY, ICTR) established by the Security Council at the dawn of the post-Cold War era contributed greatly to the development of international humanitarian law. Important advances include the designation of rape as a form of genocide and/or torture, the ability of prosecutors to charge individuals with crimes against humanity prior to the onset of armed conflict, and the development of a more precise code of laws of armed conflict.

There are several problems associated with the use of ad hoc tribunals to hold individuals accountable for their actions. First, ad hoc tribunals, by definition, must be created as their need arises. As such, interest in creating a war-crimes tribunal for a particular conflict or country may not be shared by other countries, creating a political obstacle to its establishment. Since recent tribunals have been established through the United Nations Security Council, legal objections have been raised over the legitimacy of the tribunals. Second, ad hoc tribunals, as their name implies, are created for a particular event or location. This means that an existing tribunal is limited in its jurisdiction to alleged crimes that occur only within its geographic and temporal scope. Injustices that occur outside of the jurisdiction of the tribunal, therefore, are not subject to its review and adjudication. For that reason, new ad hoc tribunals must be created for each circumstance resulting in the third major problem associated with ad hoc tribunals, fatigue. When states grow weary of creating one temporary tribunal after another, they are less likely to invest the time, energy, and resources required to create a new tribunal. Thus, while ad hoc tribunals may be effective in addressing localized violations of human rights and the laws of armed conflict, the only way to evenly and successfully apply international laws to the international community is through the establishment of a permanent criminal court.

18.6.4 International Criminal Court (ICC)

Throughout the 20^th century world leaders, international lawyers, academics and others called for the establishment of a permanent international court with the ability to prosecute individuals. It was not, however, until after the Cold War’s end that sufficient global consensus developed to turn the idea of a global criminal court into a reality. Meeting in Rome, Italy, in 1998, diplomats drafted a statute that was designed to create the world’s first permanent international criminal court. In 2002, after the sixtieth instrument of ratification was deposited, the court officially came into existence. Located in The Hague, Netherlands, the ICC has a membership of 123 countries.^[7] Additionally, more than thirty countries have signed the ICC Statute and are in various stages of the ratification process. As such, more than 75% of countries are either Party to the ICC or have signed the court’s statute and indicated an on-going interest in being bound by the court. The most prominent non-member of the ICC is the United States, which is ironic since President George H.W. Bush was the first head of state to call for the court’s creation. President Bush’s successor, Bill Clinton, signed the Statute of the ICC, but did so at the very end of his presidency, leaving the ratification process to George W. Bush. Contending that the ICC would not fairly treat Americans, President Bush “unsigned” the International Criminal Court Statute, ensuring that the United States would not join the Court during his presidency.

Unlike the ICJ, which has jurisdiction over states, the ICC’s jurisdiction is limited to individuals. Its chief prosecutor has the authority to undertake investigations and to issue indictments against individuals whose actions constitute grave violations of international law. As it enters its sixteenth year in existence, the ICC has issued indictments of thirty-four people, all of them for alleged illegal actions taken in Africa. Included among those indicted are heads of state from Cote d’Ivoire, Kenya, Liberia, Libya and The Sudan.

While creating international laws that define the permissible behaviour of states and individuals, along with the establishment of a permanent international court, represents milestone developments in international affairs, efforts have recently been undertaken to provide the international community with even greater capacities to respond to human suffering. Reflecting an interest in endorsing the right of states to intervene on humanitarian grounds is the emerging Responsibility to Protect (R2P) principle.

18.7 The Responsibility to Protect (R2P)

In September, 2000, Canada announced the creation of the International Commission on Intervention and State Sovereignty (ICISS). Its central concept, the Responsibility to Protect (R2P), acknowledges a primary responsibility of states to protect their own citizens. In the event of a failure to do so, the responsibility to protect reverts to the international community. The December 2001 ICISS Report embraces three specific responsibilities:

• The responsibility to prevent the root causes and direct causes of internal conflict and other man-made crises putting populations at risk
• The responsibility to react to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention
• The responsibility to rebuild, particularly after a military intervention.^[8]

While the ICISS Report calls upon states to seek approval for military intervention from the United Nations Security Council, it leaves ample room for extra-Council authorization for military intervention in the event that the Security Council fails to address the issue. Such alternative authorizations, accordingly, include the General Assembly of the United Nations and regional organizations.

Several points of critique of the Responsibility to Protect should be noted. First, allowing states to militarily intervene to protect foreign nationals gravely undermines the non-intervention enshrined in the UN Charter. Referencing R2P allows states to sidestep the legal restrictions found in jus ad bellum rules. Second, R2P interventions can make a bad situation worse if the introduction of foreign military forces attracts domestic protest. Finally, there is a concern that the Responsibility to Protect will be used by major powers to contain Third World problems and prevent them from spilling over rather than using R2P to solve those problems.

18.8 Conclusion

International efforts to reduce levels of violence among states and between people are based upon the drafting of international treaties and the creation of institutions empowered to enforce them. Hampering efforts to curb the destructive behaviour of states is the sovereignty of the modern state, which makes international law consensual rather than obligatory. In the absence of a world government with the capacity to limit the actions of states, the system relies largely on either the self-restraint of states or the collective action of nation-states through international institutions.

While it is very difficult to project into the future the likely success of international laws and institutions in their efforts to promote a more harmonious and less destructive international system, a few observations can be made with some degree of confidence. Regarding human rights, it is clear that the momentum that led to the drafting of scores of important human rights documents since 1945 has not abated. Public interest in the protection of human life and individual liberties remains extraordinarily high and, it seems certain, will lead to even more human rights treaties. Further, the immunity traditionally reserved for heads of state, such as presidents or prime ministers, is less applicable as human rights treaties increasingly erode it. The crime of aggression, i.e. authorizing an illegal war, exposes heads of state to prosecution by a foreign or international court, and the Convention Against Torture (CAT) explicitly rejects head of state immunity. As such, not only can we anticipate that further advances will be made in developing more human rights provisions, but also the capacity to hold violators accountable is increasing.

In terms of the laws of war, the trend lines appear to be negative. Since the end of the Cold War, certain powerful states have indicated an increased willingness to go to war without legal authority. The United States used military force in Bosnia in 1995, waged an extensive aerial bombardment campaign in Serbia in 1999 and invaded Iraq in 2003, all without invoking self-defence or obtaining Security Council authorization. In 2008, Russia invaded Georgia and in 2014 annexed Crimea from Ukraine, also without pretext or authorization. Members of the North Atlantic Treaty Organization (NATO) expanded upon a Security Council resolution in 2011 that authorized a no-fly zone over Libya to justify a six-month aerial bombing campaign that toppled the Ghaddafi government.

Actions by the major powers can have a sustained impact on the rest of the international community. The willingness of certain powers to use force with little reservation is an indication that the legal prohibition on the use of force may be weakening.

Resources and References

Review

.

List of Terms

See Glossary for full list of terms and definitions.

• ad hoc war crimes tribunals
• aggression
• anarchy
• anti-personnel landmine (APL)
• Chapter VII
• Cold War
• compétence de guerre
• Concert of Europe
• Convention on the Prevention and the Punishment of Genocide
  
• Customary International Law
• cyber attack
• Geneva Conventions
• human rights
• International Court of Justice (ICJ)
• International Criminal Court
• International Criminal Tribunal for Rwanda (ICTR)
• International Criminal Tribunal for Yugoslavia (ICTY)
• International Military Tribunal (IMT)
• jus in bello
• jus ad bellum
• Kellogg-Briand Pact (1928)
• London Charter (1945)
• non-intervention principle
• natural law
  
• nuclear weapon
• peacekeeping operation (PKO)
• positive law
  
• responsibility to protect (R2P)
• security council
• self-defence
• Treaties of Westphalia (1648)
• treaty law
• United Nations
• United Nations Charter (1945)
• Universal Declaration of Human Rights (UDHR)

Suggested Reading

Brownlie, I. (Ed.). (1995). Basic documents in international law (4th ed.). Oxford University Press.

Donnelly, J. (2006). International human rights (3rd ed.). Westview Press.

Joyner, C. C. (2005). International law in the 21st century: Rules for global governance. Rowman & Littlefield.

Mayall, J. (Ed.). (1996). The new interventionism, 1991–1994: United Nations experience in Cambodia, former Yugoslavia and Somalia. Cambridge University Press.

Shaw, M. N. (2008). International law (6th ed.). Cambridge University Press.

Silverburg, S. R. (Ed.). (2011). International law: Contemporary issues and future developments. Westview Press.

Steiner, H. J., & Alston, P. (1996). International human rights in context: Law, politics, morals. Oxford University Press.

von Glahn, G., & Taulbee, J. L. (2010). Law among nations: An introduction to public international law (9th ed.). Pearson Longman.

Walzer, M. (1977). Just and unjust wars: A moral argument with historical illustrations. Basic Books.

Weiss, T. G., & Daws, S. (Ed.). (2008). The Oxford handbook on the United Nations. Oxford University Press.

References

Donnelly, J. (2006). International human rights (3rd ed.). Westview Press.

International Commission on Intervention and State Sovereignty. (2001). The responsibility to protect: Report of the ICISS. https://www.globalr2p.org/resources/the-responsibility-to-protect-report-of-the-international-commission-on-intervention-and-state-sovereignty-2001/

Bibliography

Brownlie, I. (Ed.). (1995). Basic documents in international law (4th ed.). Oxford University Press.

Joyner, C. C. (2005). International law in the 21st century: Rules for global governance. Rowman & Littlefield.

Mayall, J. (Ed.). (1996). The new interventionism, 1991–1994: United Nations experience in Cambodia, former Yugoslavia and Somalia. Cambridge University Press.

Shaw, M. N. (2008). International law (6th ed.). Cambridge University Press.

Silverburg, S. R. (Ed.). (2011). International law: Contemporary issues and future developments. Westview Press.

Steiner, H. J., & Alston, P. (1996). International human rights in context: Law, politics, morals. Oxford University Press.

United Nations. (1945). Charter of the United Nations. https://www.un.org/en/charter-united-nations/index.html

von Glahn, G., & Taulbee, J. L. (2010). Law among nations: An introduction to public international law (9th ed.). Pearson Longman.

Walzer, M. (1977). Just and unjust wars: A moral argument with historical illustrations. Basic Books.

Weiss, T. G., & Daws, S. (Ed.). (2008). The Oxford handbook on the United Nations. Oxford University Press.