Is the future of international justice domestic?
Armaan Verma - 8 May 2024
Image credit: FOX 52, Wikimedia Commons
In her seminal work on international law, Anne-Marie Slaughter famously declared that the “future of international law is domestic.” The shortcomings of the international justice system are well-documented and known to those even remotely familiar with the subject, and one suggested way of addressing them has been to shift some of the responsibility of enforcing international law onto states. It is true, international law suffers from several structural problems, and its enforcement on a domestic level could potentially alleviate some of them. However, certain problems come with the devolution of international justice to national courts, and it is ultimately the combination of international and national legal systems that can address some of the failings of the current international justice paradigm.
At its core, the ICJ is fundamentally a conservative court, evident from its dismissal even of large parts of Ukraine’s allegations against Russia for conducting terrorism. Although it recognised Russia’s violation of a UN anti-terrorism treaty and an anti-discrimination treaty following its annexation of Crimea, it rejected Ukraine’s request for reparations, instead merely calling on Russia to respect both treaties. However, if a court functions only to remind countries to respect international law with no corresponding mechanism to enforce it, the efficacy of international law in making the world a safer and more just place to live in becomes questionable. Then there is the International Criminal Court (ICC), which has time and again been accused of having an enormous bias against Africa and has been criticised for its extremely low conviction rate. To top it off, the US has, since the Court’s inception, refuted the idea of putting an American citizen on trial for any sort of crime before the ICC. The Court is thus reduced to prosecuting high-profile cases against those who threaten the West’s interests, such as that against Vladimir Putin, rather than giving victims meaningful access to justice. And finally, there is the fact that the ICC’s jurisdiction is not even universal—only 124 of the 193 UN member states are parties to the ICC’s Rome Statute.
To add to these troubles is the problem of enforcement. The legitimacy of both the ICJ and ICC are undermined when their judgements are not enforced. Take, for instance, the International Court of Justice’s (ICJ) ruling ordering Israel to prevent acts of genocide in Gaza. It has been called by UN experts a “landmark ruling” that is a “significant milestone in the decades-long struggle for justice by the Palestinian people”. But the ruling was never a confirmation of Israel’s actions as perpetrating genocide. The closest that the ICJ came was simply to say that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the (Genocide) Convention,”, which is merely a restatement of South Africa’s allegations rather than any concrete judgement. This, too, is in no way sufficient to stop Israel from continuing to blockade or bomb the Gaza Strip, as it is currently doing. There is, in effect, no way to really stop Israel from carrying out genocide without the use of force, and such force is not something the courts possess.
The influence of global politics on international justice mechanisms is starkly apparent. The ICC is often unable to prosecute individuals because the world’s superpowers do not allow it to, as when China and Russia vetoed a UNSC resolution referring the situation in Syria during the Syrian Civil War to the court. The ICJ, too, is hamstrung by the objectives and alignments of particular states, as is clear from the example of Israel, which enjoys the backing of the United States. Justice bends to power, and that is the fundamental issue at hand, when really justice should be a tool for the disenfranchised to stand up to the powerful.
Some observers argue that the way forward is the delivery of international justice at a domestic level rather than an international level. Even the response to crimes committed in Ukraine drove judicial officials in several countries to open domestic investigations using the principle of universal jurisdiction. Patryk Labuda has found that national courts now prosecute more people for war crimes, crimes against humanity, and genocide than the ICC. However, too much of an emphasis on the national level throws any unified conception of justice into the air and risks promoting dubious legal practices in persecuting crimes. It is rather viable, and indeed likely, that international justice will, in the future, be achieved through a mixed mode of international and domestic courts. States are capable of enforcing law. They are more capable of it than an international court with no police force of its own. But their own agendas obscure and challenge a collective idea of justice for all, based on shared norms and values deemed applicable to all of humanity. The value of an international court is its capacity to identify a wrongdoing as an authority that, despite the politics, surpasses the agendas of national governments. Even though its power to enforce its own judgements is not guaranteed, and remains contingent on the use of force, or the threat of it, it is unlikely that the relevance of international justice will fade any time soon. But the modes in which states and individuals approach it is bound to change.
We are also seeing an increasing number of smaller states asserting their moral positions in the courts themselves. The ICJ case against Israel was, after all, fought by South Africa and endorsed by a number of countries in the Global South. The very fact that a country like the Maldives held an equal amount of time to deliver an address during the case proceedings as China or the United States reinforces the idea that there is a kind of equality before the law between states, even in the face of asymmetric power relations. It is this kind of recognition, however surface-level, that forms the basis for the power of international law. For all their flaws, the courts are often the only forum where small states can voice their positions and be heard on a global scale. It makes sense that, as the world order becomes less unipolar, and power diffuses among middle powers, the ways in which individual states negotiate international justice will necessarily change.
So, justice is only partly about law and morality. It also includes power, and those who hold it, as well as the norms of what is just that the powerful espouse. The pursuit of true justice is necessarily a struggle against power in any of its forms, and this must be done both at an international and a domestic level, with cooperation between courts, governments, and civil society actors. Power shifts, and so do ideas of justice.