Chapter 21. Is the International Court of Justice Just?

By James Pione

The International Court of Justice (ICJ) is the primary judicial wing of the United Nations, seated in the Hague, the Netherlands. The ICJ is composed of 15 judges, no two from any one country, and include a President and Vice President. Judges are elected by UN member countries every three years. The ICJ makes decisions on issues between countries that apply for a ruling. These issues can range from the legality of the use of force to international fishing boundaries. The ICJ makes its rulings by having a vote of all the judges, and the majority vote wins.

 

Do the rules of the ICJ make it an unbiased forum for international law? Not if you look at the way that judges are elected to the ICJ: through a vote in the United Nations, with special weight to the Security Council. Taken at face value, this could seem fair, but it actually isn’t. The United States, United Kingdom, and France are permanent members of the Security Council, which gives three of the most powerful NATO nations a lot of power. Also, the Netherlands and Canada are members of the Security Council. This amount of power for NATO countries gives them the ability to heavily influence the outcome of an election of judges to the ICJ. Also, the permanent members of the Security Council have veto powers for admission of a state into the council, so the NATO powers in the council could keep progressive nations out. This presents more opportunities for them to get more votes for their candidates in the ICJ. If there was a candidate that they don’t want, their votes and influence could make that candidate lose. Or, if there was a candidate whom they wanted, their influence could get the person elected to a seat in the ICJ.

I have looked at most of the recent cases of the International Court of Justice where the United States or a nation under the influence of the United States were involved, and I found a very large trend of cases being judged in favor of these countries.

The ICJ recently tried the case of Yugoslavia vs. the United States, United Kingdom, Belgium, Canada, France, Germany, Italy, Greece, Netherlands, and Portugal, where Yugoslavia attempted to prove that the NATO bombing of Yugoslavia in the spring of 1999 was an illegal use of Force that violated the Genocide Convention. Yugoslavia’s contention is that the United States and other NATO countries indiscriminately attacked Yugoslav targets, destroying schools, bridges, factories, foreign embassies, and other civilian objects. In addition, Yugoslavia charged them with illegally funding, arming, and training the terrorist paramilitary group the Kosovo Liberation Army. Yugoslavia requested an order by the court for the NATO countries to stop their military actions against Yugoslavia and to pay for damages. In the case against Germany, the ICJ found that the actions of NATO are not genocide! Even though NATO destroyed schools, homes, killed rescue workers with cluster bombs, destroyed Yugoslav TV and media, bombed the Chinese Embassy, destroyed bridges, used poisonous and environmentally harmful Depleted Uranium weapons, destroyed factories (thus taking away over 500,000 jobs), and many other trespasses, the ICJ found that NATO’s actions didn’t qualify as genocide. The rulings were the same for the rest of the Yugoslavia vs. NATO cases. Because the ICJ decided that the belligerent actions of NATO were not genocide, the ICJ found that it did not have jurisdiction to rule on the case.

The United States, however, had a different reason for the ICJ not having jurisdiction against it: the US exempted itself from Article IX of the Geneva Convention. So even if the court had found that NATO had violated Article IX, the United States would not be punished. The US has shown itself to be arrogant enough to consider itself above the law, and to still use that law to prosecute other nations. In 1993, the United Nations established a special criminal court on Yugoslavia, called the International Criminal Tribunal for the Former Yugoslavia (ICTY). ICTY is located in the Hague, the same location as the ICJ. The US and other nations have indicted President Slobodan Milosevic of Yugoslavia for war crimes. There are even international arrest warrants against President Milosevic. The US has the nerve to exempt itself from parts of the Geneva Convention, and yet here it is punishing other countries for violations of the Geneva Convention!

The ICJ’s current President is Stephen M. Schwebel, an American. President Schwebel was the assistant legal advisor to the U.S. Department of State for five years, from 1961 to 1966. He was also a consultant to the Department of State from 1967 to 1973, and was the Counselor on International Law for the Department of State from 1973 to 1974, and then was Deputy Legal advisor from 1974 to 1981. Directly after all of these US government jobs, he was admitted as a member of the International Court of Justice in January 1981. Since then, President Schwebel has cast his votes for the US pretty consistently.

In the case of Nicaragua vs. the United States of America, dealing with US attacks on the Sovereignty of Nicaragua, then-Judge Schwebel did vote for some measures that the US did not want, such as the ICJ order to the US to stop putting mines in Nicaraguan bays. But Schwebel stuck with the US where it counted: he voted against the order to cease all American activities in Nicaragua.

President Schwebel voted on the side of the US in the case of Libyan Arab Jamahiriya vs. United States of America, a case over whether the United States had the right to command Libya to surrender two suspected bombers. He voted in favor of the United States in the case of Iran vs. the United States, over the legality of the United States destroying Iranian oil platforms. He has voted for US supported causes and nations, like in Bosnia-Herzegovina vs. Yugoslavia over the Crime of Genocide. He voted for the rejection of all of Yugoslavia’s preliminary objections. And now we have the rulings on Yugoslavia vs. NATO countries.

In conclusion, the International Court of Justice is a tool of powerful nations like the United States and the United Kingdom. Any important case is likely to be found in favor of a defendant NATO country. And even if a ruling is against a powerful country like the United States, that country is above the law. For example, in Nicaragua vs. the United States of America over threats to Nicaraguan sovereignty, the overall court decision was for the United States to cease its activities of training the Nicaraguan Contras and other assaults on Nicaragua, but the US ignored the ruling. In light of this, the ICJ is a mostly a NATO weapon against impoverished nations.

Commission of Inquiry
c/o International Action Center
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email: iacenter@iacenter.org
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war crimes

Table of Contents: Selected Research Findings