There is nothing quite like watching two States fight it out in the International Court of Justice (ICJ) at the Peace Palace, rather than on the battlefield. Arising from the ashes of World War II, the ICJ was created to serve as the “principal judicial organ” of the United Nations, which was itself founded to “save succeeding generations from the scourge of war” and “to establish conditions under which justice and respect for [international law] can be maintained…” (see the United Nations Charter preamble and Article 92). The entire U.N. project was premised on moving away from organized violence toward maintenance of peace and security through international cooperation and law.
Yet what role exactly can, or should, international courts like the ICJ and the International Criminal Court (ICC), among others, play in ongoing armed conflicts? What can we realistically expect from international courts? To what extent can they be useful for limiting the intensity or length of such conflicts, and when can they be counterproductive to furthering the cause of peace?
Why Legitimacy Matters
We could analyze these and many other important questions about international courts in ongoing conflicts from multiple theoretical and practical perspectives, as well as at various phases in a conflict. We could consider when and how courts’ actions in ongoing conflicts strengthen their legitimacy or effectiveness, or preserve and promote justice, human rights, and the rule of law. We could also assess the role played by courts in preventing conflicts when they clarify applicable legal norms before hostilities break out or after they are concluded.
International courts can, and often do, play a valuable and important role in ongoing conflicts. They can provide a forum for peaceful dispute resolution rooted in shared norms, and for seeking truth, protecting human rights, and achieving accountability. They can help to reaffirm and to realize our fundamental commitments to order, justice, and peace, rather than brute force, impunity, and lawlessness. Yet, like many other international institutions, international courts remain works-in-progress, with strengths, weaknesses, flaws, and unmet potential. In some circumstances they stand on shaky ground with respect to their legitimacy. Their legitimacy or, “justified authority,” is essential because only legitimate courts have the “right to rule,” as Dan Bodansky and others have written. In other words, only legitimate courts’ decisions deserve respect and demand compliance. By contrast, when international courts lack or are perceived to lack justified authority, States and others may or will disregard their rulings – because they should or because they believe they should.
Understanding when and why international courts face challenges to their legitimacy is, therefore, imperative for protecting their role and potential to create a more just and peaceful world. Looking at courts through a legitimacy lens allows for reflection on when these challenges have merit and what reforms might address them. If international courts are to meet their potential, we must be willing to ask ourselves in what ways and in which circumstances they lack justified authority and when perceptions of illegitimacy are groundless or justified. Further, if international courts lose legitimacy in one pivotal context – in relation to ongoing armed conflicts – that loss of legitimacy may undermine perceptions of international courts’ abilities to adjudicate other types of disputes, as well as the utility of law and courts as problem-solving tools altogether. States may choose to criticize, undermine, and exit, rather than to seek ways to improve existing institutions and law. In other words, the rule of law more broadly is at greater risk when courts are illegitimate or believed to be so.
What Drives Legitimacy?
Legitimacy is often described as either “normative” or “sociological.” Whether an institution is normatively legitimate often turns on the application of supposedly objective legal, philosophical, political, and other standards. These might include justice, effectiveness, and democratic values among others. For example, Joseph Raz suggests (at page 53) that an institution is legitimate only when it helps those normatively addressed better to comply with rules that bind it independently. In other words, if a human rights court does not help States to comply with their human rights obligations better than they would on their own, then the court is not legitimate. Yuval Shany has argued that legitimacy and effectiveness are deeply intertwined. A court that achieves the goals of its mandate providers is more likely to be legitimate.
Sociological legitimacy, on the other hand, involves perceptions of justified authority. Whether a court is perceived to have the right to rule depends on who is making the assessment, and assessments may change over time. For example, while some international actors may perceive a court’s legitimacy to be enhanced when it issues a sweeping decision on an important issue of the day, others may find that such decision exceeds the scope of authority delegated to the court by those who created it, thereby undermining its legitimacy.
In addition, Joost Pauwelyn and Joseph Weiler (at page 193) usefully distinguish between internal and external legitimacy. While internal legitimacy focuses on how those working within the institutional regime of the court perceive legitimacy, external legitimacy is concerned with the views of constituencies outside the institution. Legitimacy, whether normative or sociological, can also be split into source, process, and results oriented factors, as Rudiger Wolfrum has done (at page 6). Consent to be bound is a source oriented factor, while process deals with fair and unbiased procedures. Results factors are concerned with the extent to which the court performs its functions.
Legitimacy, International Courts, and Ongoing Armed Conflicts
The resort to international courts during ongoing armed conflicts, undoubtedly the most politically loaded and sensitive situations that States and their leaders face, can present several threats to legitimacy. This post highlights two instances when the ICJ and the ICC should be particularly attuned to the potential legitimacy impacts of their decisions: when the ICJ’s jurisdiction rests on precarious grounds and when the ICC Prosecutor exercises discretion in applying the complementarity standard.
Fragile Jurisdiction at the ICJ
Although some disputes brought before the ICJ fall indisputably within its jurisdiction ratione materiae, or subject matter jurisdiction – such as if both States have accepted the compulsory jurisdiction of the Court with no limitations – others rest on more fragile grounds. The Court’s normative legitimacy is at risk when States have not consented to the Court’s jurisdiction or when the Court acts beyond the scope of jurisdiction granted to it by States. Sociological legitimacy is threatened when States perceive the Court to be trespassing the bounds of its jurisdiction, or when they believe that the Court is exceeding the scope of jurisdiction they have granted to it. In short, the Court’s source legitimacy, which is rooted in State consent as the source of the Court’s authority, is called into question.
This legitimacy challenge can arise, for example, when the ICJ’s jurisdiction is rooted in a compromissory clause. Article 36 of the ICJ statute establishes the bases for the Court’s contentious jurisdiction, including those grounded in a treaty provision. Most States have not accepted the Court’s compulsory jurisdiction without limitations, so advocates look for compromissory clauses in treaties as a jurisdictional hook. Applicant States have tried to fit what amounts to a large square peg into a small round hole. ICJ judges James Crawford, Rosalyn Higgins, and Sir Robert Jennings raised (at page 280-282) such concerns in dissenting and separate opinions in at least three cases, as identified by Callista Harris. As one illustrative example, Judge Crawford questioned whether the Georgia v. Russian Federation case “really concerned racial discrimination… or whether Article 22 was being used as a device to bring a wider set of issues before the Court” (para. 18).
The Court, hopefully, makes its decisions ultimately based on what it considers to be relevant and applicable facts and law in cases involving compromissory clause jurisdiction. But no meaningful mechanism exists to screen out material irrelevant to the legal question at hand during the oral hearings or in written pleadings or materials presented to the Court. The Applicant may make arguments and present evidence aimed at constituencies far beyond the courthouse doors, transcending or trespassing the court’s limited jurisdiction and involving facts and law that a Respondent State has not consented to being considered or applied in a particular dispute. In other words, advocates may use the Court primarily as a means for achieving broader political aims, rather than to interpret and apply a particular treaty’s provisions to a set of facts, as permitted by its compromissory clause jurisdiction. Doing so can threaten both the court’s justified authority and perceptions of it.
Of course, States’ choices to litigate in the ICJ are undoubtedly political and often aimed at satisfying or influencing domestic and international opinion. And using legal proceedings (at page 8) to achieve political or even kinetic battlefield goals is not a new phenomenon. Perhaps trying to divorce politics from law in international courts is a fool’s errand. But if courts are seen primarily or exclusively as political fora, questioning their legitimacy becomes much easier. States consented to the creation of the ICJ as a forum for resolving disputes based on applying relevant law to relevant facts, and they carefully tailor their consent to the Court’s jurisdiction with these premises in mind. For better or worse, States have never agreed to automatic jurisdiction. When the Court appears to be, or is in fact utilized for, airing political grievances or advancing foreign policy agendas that transcend the scope of States’ consent to jurisdiction, the Court’s source legitimacy is diminished.
Fragile jurisdiction can also imperil the Court’s legitimacy when it is seized for interim relief in the form of provisional measures, permitted by Article 41 of the ICJ Statute. At the provisional measures stage, the ICJ must satisfy itself that it has prima facie jurisdiction only , conducting a more robust and fulsome analysis of jurisdiction later at the merits stage. In at least three cases, the Court found it had prima facie jurisdiction at the provisional measures stage and then, after millions of dollars spent and several years, determined it lacked jurisdiction to entertain the Applicant’s claims on the merits – for example in Anglo Iranian Oil Co. (United Kingdom v. Iran), Legality of Use of Force (Yugoslavia v. Belgium and others), and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation).
When a State files an application with the Court on dicey jurisdictional grounds primarily to obtain provisional measures, the Court’s legitimacy is at risk. The Court may issue a provisional measures order with substantial legal and political ramifications, and then change its mind about whether it had authority over the case at all. In effect, the Court is empowered to make a high-stakes decision in an ongoing armed conflict on tenuous jurisdictional grounds. States undoubtedly – and sometimes justifiably – will question the Court’s legitimacy when it issues orders binding a Respondent State when its jurisdiction ratione materiae is fragile.
Prosecutorial Discretion at the ICC
Prosecutorial discretion at the ICC presents another significant legitimacy challenge, due to a lack of “coherence,” a concept Tom Franck described in The Power of Legitimacy Among Nations. The idea is simple: like situations must be treated in a like manner. The application of a rule must be consistent across like cases to generate compliance pull, that is, to increase the likelihood that states will comply with it (pages 135-49). Procedures must be fair and impartial, they must appear to be fair and impartial, and both procedures and law need to be consistently applied across situations.
Especially in its early years, the ICC faced doubts about its legitimacy when observers perceived it as overly focused on situations in Africa versus other regions of the world, whether such criticism was justified or not. More recently, the ICC’s application of the complementarity standard in uneven ways to different situations has raised similar concerns. The Venezuela situation is instructive. In support of a request for recusal of the ICC Prosecutor, the Office of Public Counsel for Victims noted victims’ “deep sense of frustration, feeling that their plight has not been given the same priority by the Prosecutor as in other situations where investigations have advanced more swiftly and led to the issuance of several arrest warrants,” and their “serious concerns regarding the Prosecutor’s continued emphasis on pursuing a ‘positive complementarity’ track,” especially after severe, violent repression following the July 2024 election (para. 34). Further, a UN Factfinding Mission assessing the Venezuelan justice system found as early as 2021that there were “reasonable grounds to believe that instead of providing protection to victims of human rights violations and crimes, the justice system has played a significant role in the State’s repression of Government opponents” (para. 119). Despite clear signals that the Venezuelan justice system had no intention genuinely to investigate or prosecute, and instead appeared complicit itself in human rights violations, no arrest warrants have been forthcoming. The Prosecutor has arguably acted with less patience and more skepticism in pursuing positive complementarity in other situations, without such justice system condemnations.
Inconsistent application of the complementarity standard is an example of Tom Franck’s coherence problem. When the rules are applied unfairly, or appear to be so, concerns about the justified authority or legitimacy of the institution are an unsurprising consequence. Failure to address these shortcomings risks not only the ICC’s legitimacy, but also its ability to play an important and necessary role in pursuing accountability in both current and future conflicts.
Conclusions
Legitimacy issues can arise in many ways when international courts act in ongoing armed conflicts. This short post highlights only a few key issues and does not, for example, address the relationship between legitimacy and effectiveness or justice, or whether or in what circumstances international courts help States better to comply with their legal obligations than they would in the absence of such international courts’ engagement, as Joseph Raz might encourage us to consider. Nor does it consider potential reforms or interpretive approaches that might address these concerns, or how States and other actors might change their behavior to buoy international courts’ legitimacy.
In short, many more questions and issues remain for consideration and reflection on the relationship between legitimacy and international courts seized to play a role in ongoing armed conflicts. If we wish to protect the rule of law and these institutions’ roles in upholding it, we must seek to better understand and address these legitimacy challenges.
