News coverage of international law often mentions two courts in The Hague whose names are easy to mix up: the International Court of Justice and the International Criminal Court. Both are described as “world courts,” both have judges from many countries, and both appear in headlines about wars and disputes. But they were created for different purposes, rest on different legal foundations and can do very different things. Knowing which is which helps readers make sense of the news.
What is the International Court of Justice?
The International Court of Justice, or ICJ, is the principal judicial organ of the United Nations. It was established under the UN Charter in 1945 and began work the following year, succeeding an earlier court set up after World War I. It sits in the Peace Palace in The Hague, and it is often called the World Court.
Its job is to settle legal disputes between states, meaning countries, and to give advisory opinions on legal questions referred to it by authorized UN bodies. Typical cases involve border and maritime disputes, the interpretation of treaties, the treatment of diplomats, and claims that a state has violated its obligations under international agreements. Individuals cannot bring cases to the ICJ, and the court does not try people.
What is the International Criminal Court?
The International Criminal Court, or ICC, is a separate institution created by a treaty, the Rome Statute, which took effect in 2002. It is also based in The Hague, but it is not part of the United Nations, though it cooperates with it. Its purpose is to investigate and prosecute individuals accused of the gravest crimes of concern to the international community: genocide, crimes against humanity, war crimes and the crime of aggression.
The ICC is meant to be a court of last resort. Under a principle known as complementarity, it steps in only when national courts are unable or unwilling to genuinely investigate and prosecute such crimes. A prosecutor’s office investigates, and judges decide whether to confirm charges and, ultimately, whether a defendant is guilty. If someone is convicted, the court can impose prison sentences, including long terms, and orders for reparations to victims.
Who can be a party before each court?
This is the clearest dividing line. At the ICJ, the parties are states. A case is a dispute between countries, such as one state accusing another of violating a treaty. At the ICC, the defendant is an individual person, such as a military commander or political leader, and the case is brought by the court’s prosecutor, not by a country. A state can refer a situation to the ICC prosecutor, but the proceedings are criminal cases against individuals.
The same underlying events can lead to proceedings in both courts, but they ask different questions. One might ask whether a state has breached its legal duties, and the other whether a particular person is criminally responsible. Cases before the ICJ about genocide, for example, concern state responsibility under the Genocide Convention, while the ICC examines individual criminal liability.
What gives each court jurisdiction?
Consent is the central idea at both courts, but it works differently.
At the ICJ, jurisdiction in contested cases depends on the consent of the states involved. Consent can come in several ways: a special agreement to bring a particular dispute, a treaty clause that sends disputes to the court, or a declaration by a state accepting the court’s jurisdiction. All UN members are parties to the ICJ’s statute, but that does not mean they can be sued without their agreement. Because of this, some states choose to stay out of cases or to limit their acceptance.
At the ICC, jurisdiction generally covers crimes committed on the territory of a state that is a party to the Rome Statute or by a national of such a state. States can also accept the court’s jurisdiction case by case, and the UN Security Council can refer a situation to the court even when the state involved is not a party. The number of states parties is more than a hundred, and it changes over time as states join or withdraw, so the court’s website has the current list.
How are the judges chosen?
The ICJ has 15 judges, elected for nine-year terms by the UN General Assembly and the Security Council voting separately. No two judges may be from the same country, and the bench is meant to reflect the world’s main legal systems. The ICC has 18 judges, elected by the states parties to the Rome Statute for single nine-year terms, along with an independent prosecutor and a registry that handles administration.
What can the courts order, and can they enforce it?
The ICJ’s judgments are binding on the parties to the case and are final, without appeal. Typical remedies include declarations that a state breached its obligations, orders to stop certain conduct and compensation. The court issues provisional measures, comparable to emergency orders, when there is urgency. But it has no police force. If a state fails to comply with a judgment, the other side can go to the UN Security Council, which may decide on measures, though its permanent members can block action through the veto.
The ICC can issue arrest warrants and, after trial, convict and sentence individuals. It also lacks its own police and relies on states to arrest suspects and hand them over, and the court does not hold trials in the defendant’s absence. When states decline to cooperate, warrants may go unexecuted for years. This dependence on cooperation is one of the court’s most discussed limits.
What is the position of the United States?
The United States was a founding member of the United Nations and accepts that the ICJ exists, though it has at times withdrawn from or limited its acceptance of the court’s compulsory jurisdiction in specific areas. The United States is not a party to the Rome Statute of the ICC. It signed the treaty in 2000 but did not ratify it, and later notified the UN that it did not intend to become a party. The question of when a treaty binds the U.S., and the Senate’s role in giving advice and consent, is explained in how treaties are ratified by the Senate. Other major countries have also stayed outside the ICC, and the court’s reach and legitimacy are debated.
How do they relate to other bodies?
The ICJ is one of the UN’s main organs, alongside the General Assembly and the Security Council. The ICC is independent but relates to the UN through cooperation agreements. Other international courts and tribunals exist too, covering human rights, trade, the law of the sea and other fields. The World Health Organization, for example, is a UN agency with its own rules, discussed in what the World Health Organization does, and disputes over international commitments can sometimes reach the ICJ.
How to follow their work
Both courts publish documents online, including judgments, orders, press releases and case summaries. The ICJ’s site lists pending cases and the texts of its decisions, and the ICC’s site lists situations under investigation and cases at each stage. When reading news about either court, a few questions help: Is the case between states or against a person? Is it a final judgment, a provisional order or a procedural step? And what mechanism, if any, exists to carry it out? Asking them keeps the two courts, and their very different powers, clearly separated.
Sources: International Court of Justice; International Criminal Court; United Nations Charter; Rome Statute of the International Criminal Court
