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27.1.2 International Court of Justice, International Criminal Court, special UN tribunals and European Court of Human Rights (ECHR)

Why Has the ICJ Not Been More Successful?

Although the International Court of Justice (ICJ) is designed to resolve disputes between states and prevent conflicts, its effectiveness is limited by several factors:

1. Realism vs. Liberal Principles

  • Conflict with Realist State Egoism: States often prioritize their own interests over international law, undermining the ICJ's authority.

2. Limitations of ICJ's Jurisdiction and Functioning

  • Lack of Case Initiation: The ICJ can only hear cases brought to it by states; it cannot initiate cases on its own.
  • Optional Clause: States can choose whether to accept ICJ decisions by signing an optional clause. As of February 2017, only 72 out of 193 member states had signed it.

3. Enforcement Challenges

  • UNSC Veto Power: The ICJ's rulings require enforcement by the UNSC, where the veto power of the five permanent members can prevent action.
  • Examples of Non-Compliance:
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  • 1980: Iran ignored ICJ's ruling regarding the U.S. embassy seizure.
  • 1984: Nicaragua's case against the USA for aiding rebels was largely ignored.
  • 2012: Nicaragua's maritime border case ruling was rejected by the USA.
  • 2014: Japan resumed whaling despite the ICJ's ruling.
  • 2010: Russia ignored ICJ's ruling on Kosovo's independence.

Issues Faced by International Organizations When Dealing with Human Rights

International Court of Justice (ICJ)

1. Jurisdictional Limitations

  • State-Centric Jurisdiction: The ICJ only handles disputes between states, not individuals or non-state actors.
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  • Example: Bosnia and Herzegovina v. Serbia and Montenegro (2007) could not prosecute individuals responsible for genocide.

2. Consent-Based Jurisdiction

  • Voluntary Participation: States must consent to ICJ's jurisdiction, often leading powerful states to reject its authority.
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  • Example: The U.S. did not recognize ICJ's ruling against its actions in Nicaragua.

3. Enforcement Challenges

  • Lack of Direct Enforcement Power: The ICJ relies on the UNSC for enforcement, which is subject to political vetoes.
    • Example: The ICJ's ruling on Mexican nationals' consular rights was not fully enforced by the U.S.

4. Political Considerations

  • Balancing Act: ICJ's cautious approach to avoid international conflicts can result in diluted justice.
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  • Example: The ICJ's Israeli Wall Advisory Opinion (2004) had limited impact due to political sensitivities.

International Criminal Court (ICC)

1. Jurisdictional Constraints

  • Temporal Jurisdiction: The ICC can only prosecute crimes from July 1, 2002, onward.
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  • Example: The ICC cannot address crimes from the Rwandan Genocide (1994).
  • Geographical Jurisdiction: The ICC can only prosecute crimes within member states or referred by the UNSC.
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  • Example: The ICC's investigation into Afghanistan faced challenges due to U.S. opposition.

2. Selective Justice

  • Perceived Bias Against Africa: The ICC has been criticized for disproportionately targeting African states.
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  • Example: The ICC's indictment of Sudanese President Omar al-Bashir faced accusations of bias.

3. Non-Cooperation by States

  • Lack of Universal Support: The ICC relies on state cooperation for investigations and arrests.
    • Example: Omar al-Bashir travelled freely despite an ICC arrest warrant.

4. Enforcement Issues

  • Challenges in Arrest and Surrender: The ICC lacks a police force and relies on states for arrests.
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  • Example: Joseph Kony, despite an ICC warrant, remains at large.

5. Lengthy Judicial Process

  • Extended Trial Duration: ICC's trials can be lengthy and bureaucratic.
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  • Example: The trial of Thomas Lubanga took nearly six years.

Special UN Tribunals

1. Ad Hoc Nature

  • Case-Specific Mandates: Special tribunals are established for specific conflicts, often leaving many human rights abuses unaddressed.
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  • Example: ICTY's mandate was limited to the Yugoslav Wars, excluding broader regional issues.

2. Limited Mandate and Scope

  • Narrow Focus: Special tribunals often have a limited scope, affecting their ability to address broader issues.
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  • Example: The Special Court for Sierra Leone focused primarily on the Sierra Leone Civil War.

3. Political Influence

  • Establishment and Operations: Political negotiations can influence the creation and operation of tribunals.
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  • Example: The ICTY's establishment faced delays due to political concerns among UNSC members.

4. Resource Constraints

  • Funding and Staffing Issues: Special tribunals often operate under tight budgetary constraints.
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  • Example: The ICTR struggled with limited funding, affecting its effectiveness.

5. Challenges in Legacy and Reconciliation

  • Impact on Local Communities: International tribunals may struggle to contribute to long-term reconciliation.
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  • Example: The ICTY faced criticism for its limited impact on reconciliation in the Balkans.

European Court of Human Rights (ECHR)

1. Overwhelming Caseload

  • Backlog of Cases: The ECHR faces a massive backlog, leading to delays.
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  • Example: The ECHR had over 60,000 pending cases as of 2021.

2. Compliance and Enforcement Issues

  • Voluntary Compliance: Enforcement of ECHR rulings depends on state compliance.
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  • Example: Russia has delayed or refused to implement ECHR judgments.

3. Politicization of the Court

  • Accusations of Overreach: The ECHR faces criticism for interfering with national sovereignty.
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  • Example: The UK has criticized ECHR rulings on prisoner voting rights.

4. Limited Jurisdiction

  • Regional Scope: The ECHR's jurisdiction is limited to Council of Europe member states.
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  • Example: Human rights abuses in non-member states, like Belarus, fall outside its purview.

5. Balancing Rights with National Security

  • Complex Judgments: The ECHR must balance individual rights with state security concerns.
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  • Example: The court's ruling on the deportation of suspected terrorists involves complex legal and ethical questions.

Examples of peacekeeping operations

Iraq 1991 - fail

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Trigger: Saddam Hussein (Iraqi leader) invades Kuwait, a sovereign state Authority: UNSCR 678 empowered states to use 'all necessary means' to force Iraq from Kuwait

Participants: UK, US, France and a wide other range of Arab states (much broader coalition than Iraq 2003)

Short term success: Kuwait liberated after the 42-day air campaign

Long term effects: This did not remove the cause of the invasion (Saddam Hussain) and uprisings were triggered from the rebel group against Hussain (these were brutally put down by the Hussain regime leading to a refugee crisis where 2 million were displaced. Many republicans in the US regretted this and said that the 2003 Iraq war was part of 'finishing the job'.

Bosnia 1992-1995 - fail

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Trigger: The former republic of Yugoslavia's break up meant that the region of Bosnia (a complex mix of Serbs, Muslims and Croats) aimed to become an independent state. The Bosnian Serbs resist breaking away from Serbia and seek to dominate territory in Bosnia -therefore over a million Bosnian Muslims and Croats are driven from their home in 'ethnic cleansing'. Authority: Several UNSCR's passed;

UNSCR 743 created a UN peace-keeping force for the former Yugoslavia region to protect food supply and safe zones with permission to act in self-defence.

UNSCR 819 designated 'safe areas' including Srebrenica which should be free from any army attack against civilians or the peace-keeping force.

Participants: 39,000 troops from the UK, the US and 30 other countries. NATO became involved in air strikes in 1990 after the UN peace-keeping operation requested help following an escalation in hostilities including the Srebrenica genocide.

Short term success: UN peace-keeping operation struggled to make an impact with just ground troops as they did not have sufficient resources to prevent the Srebrenica genocide where UN peacekeepers were vastly outnumbered.

Long term effects: Once NATO 'saved the day' and provided sufficient military power in air strikes, the Bosnian Serbs backed down but this was only after approximately 100,000 deaths including genocide, war crimes and crimes against humanity later prosecuted by the ICTY (international criminal tribunal for former Yugoslavia).

Important moments: Srebrenica genocide (1995) - UN peacekeepers were powerless to prevent the genocide of 8,000 Bosnian Muslims by Bosnian Serbs.

Somalia 1991-94 — fail

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Trigger: Civil war broke out between multiple armed groups and clans with the central government collapsing around 1991. Authority: UNSCR 751 - passed in 1992 created a UN observer mission of 50 personnel to monitor a ceasefire which was unsuccessful as fighting broke out again.

UNSCR 794 - passed unanimously later in 1992 created a full peacekeeping force to 'create a secure environment for the survival of the civilian population.

Participants: President George H W Bush committed US troops in December 1992, as well as other states.

Short term success: UN peacekeepers struggled with complex insurgency from multiple armed groups with a defensive posture not feasible ('no peace to keep').

Long term effects: Somalia remains in a state of civil war with a highly unstable government authority. From 1994, international peace-keepers withdrew entirely and the Al Qaeda-linked group Al Shabaab dominated Somalia.

Important moments: The Battle of Mogadishu (capital of Somalia) in 1933 saw 19 US soldiers killed and 73 wounded and led directly to the withdrawal of the UN mission in 1994.

Rwanda 1994 - Huge fail

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Trigger: Ethnic conflict between the Hutu majority population who planned to kill the minority Tutsi population. It is estimated that 200,000 Hutu participated in the genocide. Authority: UNSCR 872 passed unanimously and created the UN assistance force for Rwanda which authorised a defensive posture to monitor a ceasefire and help with humanitarian assistance, but not to prevent genocide.

Participants: UN member states but predominantly Canada-led.

Short term success: Early signs of a genocide being planned and requests from UNAMIR on the ground to take pre-emptive action were refused by the UN headquarters. The UNSC also refused a stronger resolution with the US sceptical of becoming involved in the 'new Somalia' and didn't want a repeat of the devastation and failure.

Long term effects: 100 days of genocide which saw between 500,000-600,000 killed.

Important moments: 10 Belgian peace-keepers were killed in one of the first acts of genocide with the immediate announcement of their withdrawal from UN assistance force for Rwanda.

Kosovo 1999 - SUCCESS

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Trigger: Rebel forces in Kosovo started an armed uprising against Serbian forces who responded with ethnic cleansing. The UN arms embargo was not successful in holding back Serbian forces and thousands of Albanians were displaced. Authority: UNSCR 1203 passed in 1998 demanded both sides cease hostilities and respect NATO forces.

Participants: NATO intervened with an air campaign against Serbian forces between March and June 1999 led by the US and UK.

Short term success: Serb forces backed down under pressure from the NATO air bombardment. NATO ground troops backed up the air campaign and were received very positively by the Albanian population (tonibler).

Long term effects: A success, there was sufficient military air power used to push back serb forces and the use of ground troops in cooperation backed this up.

Important moments: The NATO air campaign and Blairs' Hero were welcomed in Kosovo's capital Pristina in July 1999. There was also a Bill Clinton Boulevard with a statue of the president unveiled in 2009.

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Trigger: Civil war after numerous military coups, and several rebel groups were competing to take control of the central government resulting in numerous war crimes and violence against civilians and use of child soldiers. Authority: UNSCR created the UN mission in Sierra Leone which authorised the protection of civilians under imminent threat of physical violence to disarm rebel groups.

Participants: UK led operation (also many other nation-states) to push back a rebel group in SL called the Revolutionary United Front (RUF)

Short term success: 800 UK troops prevent rebels from capturing the capital (Freetown) and evacuate British citizens and secure the airport to allow UN peacekeepers to arrive.

Long term effects: Hostages are safely released and stability is established to enable a peace process and the establishment of the UN special tribunal to hold those responsible for war crimes accountable. The UN peacekeeping forces also remained in SL after the conflict to train soldiers.

Important moments: UN peacekeepers were abducted in late 1999 by a rebel group.

East Timor - 1999-2001 - Success

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Trigger: An independence referendum in 1999 in ET was won by separatists hoping to break away from Indonesia which resulted in a violent backlash of pro-Indonesian militia and a refugee crisis among the East Timorese population. Authority: UNSCR 1264 authorised a peace-keeping force to disarm militia groups.

Participants: UN force led by Australia (as it was the country most likely to be affected by the refugee crisis - realist aims?)

Short term success: mission was successful in maintaining order with a sufficient amount of troops to do so. This enabled troops to deploy humanitarian assistance and for refugees to return home.

Long term effects: 2001 elections were held for the East Timor assembly with independence being achieved in 2003 and ET becoming a sovereign state in its own right.

Important moments: The peace-keeping mission combined military and political objectives with troops creating enough stability for a political process of elections to take place.

Libya 2011 - Success at first then fail

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Trigger: In response to the uprisings against his leadership as part of the Arab Uprising, Libyan leader Gaddafi caused issues which later generated a civil war in Libya due to his poor leadership. Authority: UNSCR 1973 was created which stated 'all necessary means to protect civilians'.Russia and China abstained and later regretted that NATO had been premised on carrying out regime change.

Participants: NATO led with the UK and France leading a reluctant but ultimately supportive US Obama administration.

Short term success: Air strikes against the Libyan government successfully pushed back Gaddafi forces and prevented the threat of killing civilians in opposition cities.

Long term effects: The removal of Gaddafi (after his killing) resulted in a power vacuum and violent civil war as NATO forces failed to put troops on the ground, and two rival governments were formed.

Obama later said that failing to prepare for the aftermath of the Libyan intervention had been the greatest mistake of his presidency.

Important moments: Gaddafi was captured and killed by a militia group in the streets resulting in the collapse of the central government. UNSCR 2016 ended NATO's military involvement very quickly and was passed unanimously in Oct 2011.

Where might there (should there) have been HI's? Syria (2011 - present)

  • The death toll of over 500,000 with over 6 million internally displaced and over 5 million leaving the country
  • Intervention is complicated by the lack of a clear alternative government (meaning a power vacuum and a repeat of Libya is possible).
  • There is also a vast number of rebel groups (including Al Qaeda-linked groups) which might take over or gain strength during or after the
  • The Russian backing of Assad the Syrian president means they will veto any resolution that threatens Syria due to their strong interdependent alliance
  • China will also veto as both Russia and China have complex investments into fuel and energy in Syria.

Yemen (2015 - present)

  • Ongoing conflict since 2015 and is one of the world's most serious humanitarian crises with hunger, disease and attacks on civilians
  • One million have been displaced
  • The conflict, however, is part of a wider tension with Iran and military intervention in Saudi Arabia
  • Foreign intervention is complicated by the fact that the UK and US defence industries have a relationship with the Saudi government for fuel and energy (seen in recent trade deals)

Other options for humanitarian intervention

  • Sanctions are not always effective but if targeted against wealthy individuals (e.g. freezing financial assets) they can be powerful/wealthy enough not to e.g. Russian sanctions have been huge over Ukraine with TNC's getting involved, although it has not yet proved effective.

  • Expulsion from IGO's unable to be expelled from the UN but can be expelled from the G8 e.g. Russia 2014

  • Soft Power Can name and shame states by using NGO's and relying on condemnation although this is not a strong

  • Doctrines (a stated principle of gov policy) encourage good behaviour e.g. The Blair Doctrine and the Clinton If powerful states make it clear that they will intervene, states may change their behaviour. If not, doctrines are flexible.


Is humanitarian intervention an abandoned project?

YesNo
There has been very little intervention since 2001 (maybe been a shift from over-intervention to under-intervention).

The decrease in intervention is not due to any lack of human rights abuses but rather the lack of willingness to intervene.
Scarce but not fully abandoned, it is possible that when humanitarian concerns and state interests are aligned or when major powers do not have national interest reasons to prevent interventions (Libya, East Timor, Mali).
The increasingly multi-polar world since 2001 and has been an infrequent consensus in the UNSC.

The threshold for legitimacy and feasibility is now higher (UNSC resolutions are needed) at a time when it is harder to get UNSCR's approved.
R2P has been developed as doctrine at UN level, however, this is not binding.
Major powers are more motivated to act militarily for self-interested reasons than humanitarian (Iraq, Afghanistan, Crimea, Syria)Increased legitimacy and stricter criteria for success may not indicate an abandoned project but rather a desire to make the humanitarian intervention more effective (intervention in Syria might have repeated mistakes of previous intervention)

Perhaps wanting smarter interventions rather than abandonment.
Nation-building is difficult to achieve and states are now reluctant to pursue it. Public opinion has also shifted post-Iraq and Afghanistan in the US and UK (parliament voting against military action in Syria 2013)
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