International courts and tribunals often appear to be a mechanism to prevent war by providing a forum for States to resolve disputes peacefully and helping to maintain international peace and security. Article 2(3) of the United Nations Charter obligates States to resolve disputes peacefully and Article 33 lists several pathways for doing so – including judicial settlement. But once hostilities are underway, can courts still play a meaningful role? Can they facilitate de-escalation, contribute to settlement, or even help bring wars to an end? Can they contribute in other ways to improve conditions and safeguard protections as conflicts wind down or come to a close?
Our End of War Project, which has in the past explored other themes related to the end of war, convened events on both sides of the Atlantic – at Oxford University and the George Washington University School of Law – to explore the role of international courts in ending, or at the end of, war. The discussions revealed that views on the effectiveness, desirability and ramifications of international courts’ involvement in armed conflict differ across disciplines and regions. Non-U.S. experts tended to be more receptive to judicial involvement than their U.S. counterparts. Even scholars who see judicial intervention as potentially constructive emphasized the importance of context: which court gets involved (International Criminal Court, International Court of Justice, regional courts?), when does a court intervene (while the conflict is ongoing or in its aftermath?), and what measures does it order (cessation of hostilities, compliance with international humanitarian law obligations, release of prisoners, reparations?). Many contributors question the value of arrest warrants issued by international criminal courts in the midst of ongoing conflict, whereas the International Court of Justice (ICJ) is generally viewed as better positioned to pursue broader objectives through a wider range of available tools.
The contributions to this Symposium reflect this spectrum of views. Although there is broad agreement that it would be naïve to assume that “international courts and tribunals are the ‘magic bullet technique for deterring and stopping wars and making peace,’” the forthcoming pieces present a range of perspectives regarding the appropriateness, benefits, or costs of judicial involvement during ongoing conflict, how cautious courts ought to be, and whether courts should consider the political or security ramifications of their rulings at all.
We suggest that the judicial involvement in ongoing armed conflicts should be examined from multiple vantage points: the courts themselves, the victims, the parties to the conflict, and the broader goals of international peace and security.
1. The Victim and Accountability Perspective
Courts — whether criminal tribunals, human rights courts, or hybrid bodies — are often the last resort for individuals seeking justice and relief. Courts traditionally play this role after conflicts have concluded — but increasingly have been asked to act while fighting is still ongoing, raising questions about timing. Courts should consider whether it matters when they get involved – early in the conflict, during a pause, when hostilities are winding down, or once they have ended. Any real time evaluation of the legality of wartime conduct will encounter inherent obstacles, including constraints on obtaining information, accessing sites, and interviewing witnesses.
The ability of an international court to be helpful to victims also depends on the measure(s) ordered. Hillebrecht and Traldi both highlight many of the purposes courts can help to accomplish – promoting compliance, enhancing accountability, providing reparations, and documenting the historical record as a means to combat the denial of atrocities. In pursuit of such goals, for example, courts may request the safe return of refugees, the implementation of the principle of non-refoulement, compliance with international humanitarian law obligations, access by the United Nations or other investigators, the creation of humanitarian zones, and respect for the rights of prisoners of war, and of course criminal tribunals can issue arrest warrants.
Courts can also add value by clarifying and re-affirming the parties’ obligations and improving conditions at the end of war – or, as Shany suggests, by reminding the parties of the need to address accountability in the aftermath of the conflict – even if that does not mean ending war per se. International law has an important role as an equalizer among all States, Parkhomenko explains, providing an opportunity for States and individuals who would not otherwise have the power or influence to protect their interests. International courts provide authoritative findings of law – determinations that can then be brought to bear in other courts, diplomatic negotiations, and U.N. bodies.
2. The Courts’ Perspective
Courts and tribunals must also consider the desirability or propriety of their involvement from the perspective of their own authority and effectiveness. As Grossman and Richemond-Barak both caution, judicial involvement under a narrow jurisdictional basis, or within the expedited procedural framework of provisional measures, can risk harming a court’s legitimacy and therefore merit judicial caution. International courts should also be wary of situations that could potentially backfire, such as when non-compliance with the court’s holding is likely or when “powerful elites view [the courts] as threats rather than tools,” notes Hillebrecht.
In addition, when courts become involved in conflicts, they become “conflict actors,” just like any other institution, party, State or other external actor engaging in the conflict arena – and necessarily become part of the broader ecosystem of the conflict. They might position themselves, unwillingly, as “managers” of the conflict or de facto mediators. Courts cannot expect to engage in an ongoing conflict situation without being instrumentalized by belligerents using the judicial route to gain an advantage on the battlefield, or without such involvement having an effect on the court in return. Overall, most contributors see value in identifying norms and mechanisms that can help courts uphold their legal mandate, protect their authority, and mitigate suffering without overstepping. But asking courts to end wars or even create the conditions conducive to ending a conflict may stretch the institutions beyond their structural and jurisdictional limits.
3. The Peace and Security Perspective
Although this last consideration is more contested, as Jensen also points out, we suggest that courts should ponder their involvement from the perspective of international peace and security. Edward Luttwak famously urged the international community to “give war a chance,” criticizing the involvement of external actors (particularly international and regional organizations) on the ground that it delays war termination.
Bringing a war to an end is key to restoring international peace and security – and the record for international courts is mixed at best. For example, Prorok’s research shows that International Criminal Court (ICC) warrants generally only have a limited impact on war termination, and in fact can harden belligerents’ positions and create incentives to continue fighting. In some situations, such as the conflict in Ukraine, arrest warrants may not make much of a dent one way or the other for the progression of the conflict. Pomper notes that the ICC arrest warrants against Putin do not appear to have either “softened his battlefield resolve or deterred Russian attacks on civilians” or led to an escalation of the conflict, suggesting that the impact of courts in the midst of an armed conflict may well be overestimated in both directions. Shany reaches a similar conclusion when he writes that “[e]nding a war remains … a quintessentially political decision, shaped predominantly by extra-legal strategic considerations.”
Others, including Parkhomenko, highlight situations in which courts have successfully de-escalated conflict or set the stage for negotiations, as when the ICJ ordered Cambodian and Thai troops to withdraw from the perimeter of the Temple of Preah Vihear or when it required Myanmar to report to the Court in the hope of constraining Myanmar’s conduct. Adjudication before international courts can also help the international community assess the legality of state behavior, giving States additional tools on the diplomatic stage.
Expecting courts to remain insulated from the geopolitical context in which they operate is challenging under ordinary circumstances, let alone amid ongoing armed conflicts. Recall, for example, the difficulties encountered by the Special Tribunal for Lebanon even outside of armed conflict, as fears of regional escalation overshadowed the administration of international justice. At the same time, Jensen provides an important reminder that escalation or calming of violence and tensions need not be the only way to assess the contribution of a court during or at the end of conflict – offering instead several suggestions for how courts can play a meaningful role in ending or preventing a return to war, such as setting standards for behavior, providing hope for victims, engaging civil society, and setting conditions for reconstruction and peace-building.
The importance of analyzing judicial intervention via the prism of international peace and security emerges as a key takeaway of this symposium. Political scientists can play a significant role in refining our understanding of the positive, negative, or perhaps over-exaggerated impact of judicial intervention on conflict. International lawyers must grapple with how considerations of peace and security can be meaningfully integrated into the judicial function when courts intervene in armed conflicts.
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Although situations of armed conflict do create an opportunity for international courts to play a stabilizing role, the contributions to this symposium identify several limits to what can and should be done, and when. We hope this symposium, which brings together leading scholars and practitioners of international law and international relations, will advance a research agenda that has remained relatively underdeveloped in both disciplines, particularly international law. The existing literature acknowledges the role of courts in accountability and post-conflict justice, but far less attention has been paid to their real-time involvement during war, the effects of their interventions, and the broader security environment in which they operate. The cross-fertilization initiated here is intended to help scholars and practitioners better set expectations for international courts and sharpen our understanding of what international courts can – and cannot – do in war.
Author’s note: Professor Laurie R. Blank and Professor Daphné Richemond-Barak are co-founders and co-directors of The End of War Project. We thank the outstanding Just Security team, contributors to this Symposium, participants and sponsors of the Oxford and GW events – particularly the American Red Cross. We welcome feedback as well as opportunities for future collaboration.
