Professor Laurie Blank and Professor Daphné Richemond-Barak’s End of War Project motivates us to think in new ways about the institutions and processes that can play a role in ending wars, and doing so in a way that facilitates the maintenance of peace. As the previous posts in this symposium demonstrate, the question of whether, how, and when international courts play a role in facilitating – or improving conditions at – the end of armed conflict involves a range of considerations, including many that appear to operate at cross purposes. In this post, I consider if and how international courts can play a more meaningful role in ending or at the end of war.
Courts and “Ending Wars”
As an initial matter, there are at least three ways to understand the phrase “ending wars” in the context of the role of international courts. First, we could consider the role of courts in ending a current war. Courts have been active in this area, particularly in the issuance of provisional measures (see here, here, here, here, and here for examples from the International Court of Justice (ICJ), and an excellent commentary on the Russia-Ukraine provisional measures here; see here for a link to the interim measures issued by the European Court of Human Rights in relation to Ukraine; and see here for a provisional measure issued by the Inter-American Court of Human Rights in relation to Colombia). Although the effect is highly debated, the use of provisional measures has dramatically increased over the past decade, including during ongoing armed conflicts. International courts such as the International Criminal Court (ICC) have also issued arrest warrants during ongoing armed conflicts (see here and here), the effectiveness of which is also highly debated, including because it seems to disincentivize engaging in a peace process (see here and here). Nonetheless, the issuance of these arrest warrants is another example of international courts taking actions during ongoing armed conflicts that, if effectuated, would almost certainly have an impact on the conclusion of the armed conflict. Here the debate is centered not on whether international courts can play that role, but on whether they have the tools needed to implement and enforce the arrest warrants once they have been issued.
Second, we could consider the role of international courts in discouraging a return to war after it has been concluded, for example by setting the conditions for peace through provisional measures (such as the above-referenced 2004 provisional measures ruling by the Inter-American Court of Human Rights in Colombia, Matter of Pueblo Indígena de Kankuamo, ordering Colombia to take specific steps to implement “measures necessary to protect the life and the integrity of the person of all members of the communities that comprise the Kankuamo indigenous people” from “outlaw armed groups operating in the area”), setting global expectations for peace, legitimizing post-conflict accountability mechanisms, and providing a voice for victims. These types of post-conflict actions can set the conditions that will discourage or disincentivize a return to war by the previously warring parties.
Finally, international courts can play a role in ending the prospect of war more generally by setting or reaffirming legal standards for entering into and conducting armed conflicts as well as potentially deterring the commission of future crimes and atrocities by individual actors (see more below).
Limitations on What Courts Can Do or Achieve
Many of these potential actions unfortunately are not as effective in practice as they might seem in theory. I focus here only on the role of international courts as a means of deterring individual actors. Proving a negative (that individuals have been deterred) in these discussions is, of course, difficult, but here are some helpful data points on deterrence:
• As the International Criminal Tribunal for Rwanda (ICTR) was sitting in Arusha to prosecute atrocities committed in Rwanda, the Second Congo War was raging involving nine African nations (including Rwanda), as well as about 20 armed groups. During that conflict, 5.4 million people died, including by disease and starvation. The contemporaneous adjudication of international criminal law did not appear to have any deterrent effect on the ongoing hostilities.
• Despite ICC arrest warrants for several Russians, including President Vladimir Putin, the war in Ukraine, and the conduct that is the subject of those arrest warrants, continues.
• As the ICJ hears at least two cases about, and the ICC investigates, the conflict in Gaza, including ICJ provisional measures and ICC arrest warrants, the conflict continues.
Clearly, the mere issuance of an arrest warrant does not automatically move the needle on ending an armed conflict, in and of itself. Although potential success in other or future cases cannot be wholly discounted by these individual examples, a number of underlying issues go beyond deterrence and impact the ability of international courts to play an effective role in ending war:
• Some military leaders may believe that they have an increased chance for immunity for bad acts if they are ultimately successful in their military campaigns. Non-State armed groups fighting against current governments are the most likely example, as Alyssa Prorok explains in her post.
• The typical sentences that the ICC imposes and the nature and conditions of captivity for those convicted may not represent significant inhibitors for leaders who are violating international law, given that the sentences are considered “lenien[t] especially in light of the gravity of the crimes,” imprisonment is often in European countries, and most of those convicted are granted early release.
• International courts do not have a direct enforcement mechanism but rather have to rely on third party enforcement, which often has no immediate effect (if carried out at all).
• Finally, my experience in working with military leaders from State militaries and leaders from organized armed groups is that they simply do not consider potential punishment very much; they tend to prioritize their military missions. In ongoing armed conflict, they are too focused on the tasks at hand and trying to stay alive and keep their fighters alive to be influenced by a potential criminal trial resulting in detention that is likely to provide better circumstances and medical care than they currently experience.
Admittedly, this final observation is anecdotal and based solely on my own personal experience, but I do not think these perspectives by military leaders are isolated.
Moving Forward
Given the roles that courts have recently played and are currently playing, and the relevant limitations, how can courts play a more significant and meaningful role in ending war, or in preventing a return to war after it has concluded? Some of the suggestions below will be more practical than others, but I think each deserves some thought and development as the international community increasingly turns to courts to put an end to ongoing conflicts.
Set Standards
International courts have played a key role in the development and expansion of international criminal law. The inclusion of rape as a crime against humanity, the protections for child soldiers, and the development of the doctrine of indirect responsibility are several examples. However, more needs to be done. Some areas where courts can continue to develop or promote clear standards include:
• The increasingly recognized role of women in the peace process. Courts can demand that peace processes include women and other marginalized populations, and provide actionable access to remedy gaps or failures in this regard.
• The use of emerging technology in both the gathering and preserving of evidence as well as the facilitation of reconnection, aid distribution, and other important post-bellum processes.
Provide More Hope for Victims
Victims of armed conflict – their needs, risks, and challenges – are now receiving increased attention. Existing and developing attempts to not only give victims a voice, but also provide effective reparations, should be intensified. The ICC’s Trust Fund for Victims (TFV) is a significant step in the right direction and has the potential to bring hope to victims for reparations, but is only at its very early stages and is less effective because of its reliance on donations, as the Ongwen case illustrates. Until a more stable funding base is created, the long-term impacts of the trust fund will be severely limited. Although the TFV is unlikely to have much impact on ending wars, it could become a key aspect of avoiding a return to war by directly addressing the grievances of the victims of armed conflict.
Focus on the Establishment and Maintenance of Peace
Currently, international courts focus primarily on retribution, punishment, and incapacitation, with much less emphasis on the criminal justice theories of rehabilitation and general acceptance of society to the legal process. As discussed above, given the weakness of both general and specific deterrence, taking a broader role on peace and justice may yield benefits that will give courts a more active role in ending wars and avoiding the resurgence of violence. As one example, courts could take a more active role in ordering rehabilitation rather than incarceration, working in concert with religious and tribal leaders who have proven, for example, to be an effective force in reintegrating child soldiers into post-conflict communities.
Set Conditions for Reconstruction/Reintegration/Peace-building
Focusing not just on retribution or punishment but also allowing courts to take a role in setting the conditions for a lasting peace would certainly represent a shift to a more active judicial platform for judges. It may, however, present an important opportunity to move forward. One example would be demanding the involvement of women and other marginalized groups not only in the peace process, as discussed above, but also in the implementation of those peace agreements. As courts provide oversight for peace-building, or establish mechanisms that will do so, ensuring women and marginalized groups are included would help achieve a more durable peace. Another example might include judicial decisions that focus on economic reconstruction, including by applying corporate assets to rebuild the country and mitigate the impact of the conflict on victims.
These types of actions will understandably make some uncomfortable about giving this role to judges. Some might argue that these are political functions and not judicial. Nevertheless, if the international community is committed to find ways for courts to play a larger role in ending wars, there may be a meaningful way forward.
Involve Civil Society
The 2024 Report on Civil Society and the International Criminal Court: Pathways to Collaborative and Genuine Engagement (at pages 36-39) offers interesting recommendations on approaches to increase civil society involvement in the activities of international courts in ways that could, in theory, help end wars and prevent a return to armed conflict. These recommendations include increasing communication with civil society and reliance on civil society information with respect to victim assistance, acting through member States to ensure greater protection for civil society in conflict areas, and enhancing cooperation and the sharing of information between the courts and civil society. Although many of these recommendations are not new and build on previous work, the Report places renewed emphasis on demonstrated successes.
Conclusion
International courts will never be the primary driver in ending wars and probably should not try to take on that role. Politics will continue to remain the most important aspect of the peace process. However, playing second or third fiddle does not mean that international courts cannot and should not play an increased role. In fact, at a time when international peace and security seems ever more at risk, the global community should be working to develop more options rather than fewer to work toward this important goal.
FEATURED IMAGE: Wooden judge’s gavel resting on a sound block in front of stacked law books, symbolizing law, justice, and court proceedings. (via Getty Images)
Great Job Eric Jensen & the Team @ Just Security for sharing this story.
