International Criminal Court https://www.icc-cpi.int/
PAYAM AKHAVAN
CONTRIBUTED TO THE GLOBE AND MAIL
PUBLISHED AUGUST 5, 2024
In 1899, at the First Hague Peace Conference in the Netherlands, a group of countries – exhausted by a century of war – established the Permanent Court of Arbitration (PCA). They were in pursuit of a future where differences would be resolved by international law rather than armed conflict. The principles of peaceful dispute settlement that emerged then, and the institutions they established to dispense justice, are especially relevant today.
The world continues to grapple with divisive political currents that have inflicted catastrophic harm on millions, and which threaten to escalate further. Amid the chaos and violence tearing apart our interdependent global community, it is essential for international courts and tribunals to create a neutral space that transcends the extreme politicization of international relations that has emerged in recent times. Conversely, the international community, including influential actors such as Canada, should help strengthen such institutions and encourage their impartiality.
The ornate Peace Palace that was built in The Hague to house the PCA was completed in 1913, just one year before the outbreak of the First World War. In 1922, under the League of Nations, the Permanent Court of International Justice (PCIJ) was established to adjudicate disputes between countries, but by 1939, the Second World War had destroyed the promise of peace that many had hoped for. It was the unprecedented horrors of total war and the Holocaust that gave birth to the United Nations Charter in 1945, with the International Court of Justice (ICJ) as its principal judicial organ.
In the same year, the International Military Tribunal at Nuremberg began prosecuting the Nazi leadership based on the premise that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” It was only after the Cold War ended, however, that a permanent institution for prosecuting international crimes came into being. In 1993 and 1994, respectively, the UN established two ad hoc tribunals to prosecute atrocities in former Yugoslavia and Rwanda. By 1998, this momentum led to the adoption of the Statute of the International Criminal Court (ICC) at the Rome Diplomatic Conference. Canada played a pivotal role in the development of these institutions.
Because of the principle of sovereignty, the ICJ and ICC depend on the consent of countries to exercise jurisdiction, and even then, there is no means of enforcing judgments without international co-operation. Nonetheless, in the rapidly contracting global community, legitimacy is increasingly important. In situations as diverse as Russia’s invasion of Ukraine or the Israel-Hamas conflict, the once-elite language of international law has become popularized as both diplomats and activists take sides. Whether it is accusations of “genocide” or “terrorism” or the invocation of “self-defence,” it is essential for international courts to stay above the controversy. The objectivity and impartiality that legal reasoning requires are more important than ever in ensuring that these institutions do not become politicized.
The lawfare surrounding these conflicts has unfortunately overshadowed one of the most significant legal developments in recent times – namely, the request for advisory opinions on climate change. Since 2021, the small Pacific island countries of Vanuatu and Tuvalu, together with Antigua and Barbuda in the Caribbean, have led successful efforts to raise this existential question before the ICJ and the International Tribunal for the Law of the Sea (ITLOS). In the face of alarming inaction against global warming, they have sought clarification of the obligations of the major polluters most responsible for greenhouse gas emissions to prevent catastrophic harm.
Confronted with the threat of extinction from rising sea levels and extreme weather events, the plight of these smallest of countries is a stark reminder that while geopolitical rivalries and hateful ideologies are ripping us apart, we must urgently join forces to prevent the destruction of the common home we inhabit. This unprecedented expression of planetary politics brings us full circle to the visionaries assembled in The Hague in 1899, who dreamed of a world in which humankind would unite under the banner of international law. They scarcely imagined then that a global village would one day face an existential threat like climate change, which would leave it with no choice but to set aside its differences.
Today, a world order based on respect for international law can no longer be considered a desirable but distant utopia; it is now a matter of our common survival. Canada must play its role at this crucial juncture, to strengthen the institutions that are vital for global governance.
Payam Akhavan is the Human Rights Chair at Massey College at the University of Toronto, a member of the Permanent Court of Arbitration, and a special adviser to the Prosecutor of the ICC. He previously served as a UN prosecutor with the International Criminal Tribunal for the former Yugoslavia. The views expressed are in his personal capacity.
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