International Courts and International Law
International Criminal Court and the International Court of Justice
Over the past sixty years, the development of international institutions and agreements has accelerated in response to globalization and the partial erosion of the state system. One new type of international institution is the international court. Unlike human rights courts, trade agreements, and ad hoc tribunals, these two international courts have a broad mandate to hear cases between nations and against individuals who commit the most heinous crimes.
An important aspect of these courts is that they operate based on consent. Unlike national courts, where the court has jurisdiction over individuals by virtue of national sovereignty over territory, international courts are not sovereign over any territory. Nations consent to hand jurisdiction over to the court – jurisdiction over territory, nationals, or the state itself. This is one reason why international law is considered "weak" by some detractors, as it only has as much authority as states are willing to give up.
International Court of Justice (ICJ)
The International Court of Justice is the principal judicial organ of the United Nations. Only states can be parties to a case in the ICJ, and the ICJ has jurisdiction over states either by general recognition of the state or by the state's acceptance of individual cases. States can also accept jurisdiction through a provision in a treaty dealing with cases arising under that treaty. The United States, for example, recognized ICJ jurisdiction for forty years, but in 1985 withdrew recognition following the Court's ruling against the US regarding US support for the Nicaraguan contras. Currently, the US accedes to jurisdiction in individual cases, and also recognizes jurisdiction in certain treaties.
The ICJ can also give advisory opinions on a question of international law at the request of another United Nations body or at the request of certain agencies. In contested cases, only States can submit a claim.
International Criminal Court (ICC)
Unlike the ICJ, which has broad authority to hear disputes under international law, the ICC has jurisdiction only over specific crimes. Also formed out of the United Nations, the ICC came into existence in 2002 as an independent court. It has jurisdiction over nationals and territory of states who are signatories to the Rome Statute, but only over crimes against humanity, war crimes, and genocide. It was intended to serve as a permanent version of the ad hoc tribunals that sprang up in the tradition of the Nuremburg Tribunals, and so far has dealt only with African nations, including most notably Sudan. The United States, notably, is not a party to the ICC.
International Law in the ICJ and ICC
What is the law that lawyers in these two courts apply? Both courts apply international law, which includes customary international law (norms that have been accepted so long as to be binding on all nations unless a nation persistently objects) and treaties signed by the parties to a case. Where the ICJ can hear cases alleging any violation under international law, the ICC’s more limited jurisdiction is also well defined under international law. Crimes of humanity, war crimes, and genocide all have very specific meanings, and the court doesn’t have authority to go beyond them. In some cases, national courts also have jurisdiction to hear a case alleging a violation of international law, and may use this dual jurisdiction to escape jurisdiction before an international court – Britain, for example, asked that the ICC not pursue claims of war crimes committed by British soldiers in Iraq because Britain already had a system in place to try those soldiers.
