A CLOSER LOOKAT SOME SPECIFIC QUESTIONS
1. The role of law in conflict resolution
Dealing with the various methods of dispute settlement by legal means, in particular, arbitration and judicial settlement, raises the more general question of the ‘law factor' in conflict resolution.
The broad picture shows that there is no simple answer to this question. Sometimes, political considerations prevail over the respect for international law. On the other hand, it would be wrong to underestimate the influence of legal rules on the actual behavior of international actors. In determining its conduct, no member of the international community can afford to openly defy the authority of international law. Therefore, states and other subjects of international law always seek to legitimize their behavior on the basis of international law. This being said, there is no denying that powerful states, in pursuing their policy goals, are less prone to observe the obligations of international law as they have other means at their disposal to win the day. Weaker states do not have the same clout and, therefore, depend to a much greater extent on the observance of law by all members of the international system. In disputes, they have a tendency to resort to legal settlement methods because judicial proceedings provide a better way to equalize theparties than negotiations. To some extent, the saying that negotiations weaken the weak does not only apply to domestic but also to international disputes.What motivates great and powerful states to subject themselves to judicial settlement procedures if they can win a dispute by other than legal means?
There are several reasons which may convince a great power to choose a legal method for settling a specific dispute. To a certain degree, each state, great or small, is interested in a functioning system based on law and endowed with impartial judicial institutions.
These institutions with their body of case law provide a measure of predictability which is in the general interest. International law as the basis for the jurisdiction of international courts can be considered as the lowest common denominator on which the parties to a dispute may agree. Against this backdrop, powerful states may conclude in specific cases that the best option for them is to refer the settlement of the dispute to a legal body even if they have other instruments at their disposal. To illustrate this point, the Iran-USAClaims Tribunal, mentioned above, may be cited. Under the then prevailing circumstances, the establishment of the claims tribunal offered to both sides the best possible mechanism to settle many outstanding financial and property issues. The USA considered the tribunal as an acceptable substitute for lengthy negotiations with Iran, a country with which diplomatic relations had been severed. Another striking example going in a different direction shows the limits of legal settlement procedures.In the Nicaragua case (1984 ICJ 392), brought before the ICJ in 1984, the USA was charged by Nicaragua that US support of the contras and other activities directed against the Sandinista regime violated international law. In the course of the proceedings, the USA protested the Court's decision that it had jurisdiction over Nicaragua's claim against the USA and that the matter was admissible and appropriate for judicial consideration.
In consequence, in October 1985, the USA terminated its acceptance of the Court's compulsory jurisdiction under the optional clause, to take effect one year from that date. The lesson to be drawn from the first example (USA-Iranian claims tribunal) is to show that under certain circumstances, even for a big power, the use of a legal instrument may be the most convenient method to settle unresolved issues. The claims at stake were differences over property rights, most of them falling within the purview of private or business law.
When, on the contrary, an acerbic dispute erupts with profound political connotations involving a great power and a small country (in the example of the Nicaragua case), the chances are slim that it can be settled by means of a court decision.2. Conflictsoflegalsystems
It cannot be overlooked that the search for a conflict resolution by legal means may be hampered by possible inconsistencies between different national legislations or between national and international legal systems.
A serious complication impeding the smooth administration of justice consists in the possible conflict of legal systems. There may be differences of opinion on the question of what legislation applies and of what courts are competent to pass a judgement in a particular case. The controversy about the applicability of law and the competence of courts has the potential to exacerbate the tensions about the substance of the dispute in question.
The example of the Helms-Burton Act of 199612 may be given. This US federal law strengthens and continues the US embargo against Cuba. The act extended the territorial application of the initial US embargo to apply to foreign companies trading with Cuba. The Helms-Burton Act was condemned by the European Union which introduced a Council Regulation (binding all EU member states), declaring the extra-territorial provisions of this US law to be unenforceable within the EU, and permitting recovery of any damages under it.
A recent controversy about the Helms- Burton Act involved the former Austrian Bank, BAWAG, which was recently taken over by Cerberus, a US fund. When the CEO of BAWAG announced in a public statement that, in compliance with the provisions of the said US legislation, the bank now owned by a US company, had to close about 100 accounts of Cuban citizens, a conflict of legal systems broke out. The Austrian Foreign Minister stated that ‘administrative criminal proceedings' would be introduced against BAWAG in accordance with the relevant Austrian law that implements the aforementioned EU regulation.
In Brussels too, tempers were high, as BAWAG was told that it could face EU penalties for having violated the said regulation. At the end of the day, BAWAG caved in and announced it would continue doing business with its Cuban clients. The predicament stemming from a classic conflict of law was finally resolved out of court. Rather, it was managed through direct talk between the CEO of BAWAG and the US authorities.3. The winning principle
It is true that adjudication and arbitration belong to those schemes of conflict resolution which, unlike negotiation, usually lead to an outcome considered by one party as a victory and a defeat by the other. In vertical jurisdictions, a similar pattern appears. A person accused of having committed crimes will claim victory if the court dealing with the matter decides to let him free. The winning principle is immanent in judicial decisions, although in many cases the judgements leave ample room for ambivalent interpretations allowing each side to save its face and claim victory.
Powerful states are rarely willing to accept the jurisdiction of an international court if there is a serious risk that the winning principle would play in favor of the adversary camp. Sometimes, however, they cannot prevent the court from dealing with a matter whose outcome is likely to be unpleasant for them.
A case in point may be cited. In December 1994, the UN General Assembly requested an advisory opinion from the ICJ on the question of whether the threat or use of nuclear weapons would be forbidden by international law. The USA voted against the relevant GA resolution but was unable to impede its adoption by a majority of UN member states. As a consequence, the ICJ was seized irrespective of the negative vote cast by the US representative in the General Assembly. The Court then gave an advisory opinion on the present question.
The gist of its findings is a masterpiece of ambiguity and therefore deserves to be quoted in full (1996 ICJ 226):
‘ Itfollowsfrom the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflicts, and in particular the principles and rules of international humanitarian law.
However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake'.13
This opinion is like a sphinx leaving it to the reader to stress either the argument in the first or the second paragraph. The question arises whether such pronouncements of the world’s highest judicial authority do indeed contribute to the settlement of a legal dispute. Critics have questioned the usefulness of legal opinions of this kind. On the other hand, one has to admit that the ICJ’s proceedings on this most sensitive legal and political issue had an overall positive effect. To those states which supported the request to seize the ICJ by way of a request for an advisory opinion, the very fact that the Court had to deal with it was seen as a victory (winning principle). The proceedings served as an outlet for their concern about nuclear weapons and their use. The examination by the Court also channelled the debate into the domain of international law, thereby setting the parameters of the contentious issue in a legal framework. In spite of the ambivalent conclusions of the legal opinion, it had a pacifying effect insofar as it de-escalated a nasty political and legal conflict which had been poisoning inter-state relations for many years.
One of the lessons to be drawn from this case is certainly the perception that international judicial bodies can make a contribution to conflict resolution in many different ways. While the parties are usually seeking a ‘yes or no’ answer to their question brought before the court, the reply may turn out to be ‘maybe’ or ‘yes and no’. These more subtle outcomes make it all the more difficult to apply the winning principle without differentiation. The present case concerning the legality of nuclear weapons clearly shows that an authoritative pronouncement by an international judicial body has the capacity to reduce tensions and contribute to the settlement of a conflict even though no party to the dispute can claim full victory.
In rendering a most ambiguous legal opinion, the ICJ has done little to clarify the precise law on the matter but it has allowed each side to save its face, highlighting those parts of the legal opinion which support its own position. At the same time, the dispute could be put to rest and the parties were able to strike the issue from their political agenda. In sum, the court acted in this case as a conflict manager rather than as the authority passing a clear cut judgement on what is right or wrong.
4. The effect ofcriminal courts on conflict resolution
As has been pointed out above, international criminal courts are considered as indispensable instruments to re-establish peace and to foster reconciliation in the wake of international or domestic armed conflicts. However, the record of these courts in the relatively brief period since their creation shows a mixed picture. It is not possible to give a clear-cut positive assessment of the impact of criminal courts on the process of conflict resolution. To assert that international criminal courts are necessary to re-establish justice after war is one thing. However, showing how and to what extent they are actually making a decisive contribution to the peace consolidation process appears to be much more difficult. In Iraq, for instance, the trial of Saddam Hussein and his execution were considered by many observers as botched. Some critics even went as far as to say that this trial did not have a positive effect on the efforts aimed at stabilizing the situation in Iraq but, on the contrary, that it had rather exacerbated tensions between the various factions in the country. In the context of the conflict in the former Yugoslavia, international justice was also put to the test. When the former Yugoslav leader Milosevic was indicted by the ICTY with more than 60 separate charges, a number of experts of criminal law criticized the lack of focus of the indictment which, in their view, had avoided straightforward proceedings.
They were also critical about the long duration of the proceedings that dragged on for more than four years and Mr Milosevic died before a verdict could be given. So it is too early to tell whether in the final analysis the ICTY has exerted a positive influence in stabilizing the Balkans regions.
In spite of the criticisms levelled against them, it is undeniable that the ad hoc criminal tribunals have also accomplished significant successes. Their jurisprudence has undoubtedly contributed to the development of international criminal law and given a decisive impetus to the creation of the ICC. On the question of whether the two ad hoc tribunals, as some critics say, have exacerbated tensions rather than promoted reconciliation in the conflict areas concerned, one should not put into doubt the impartiality and the legal authority of the judges who were appointed members of these special courts. It can be said that the ICTY and the ICTR have carried out their mandate with a keen sense of impartiality. There is just no alternative to a neutral international institution when it comes to shifting from impunity to accountability in the wake of an armed conflict. It is hard to imagine that the existing national courts in the region would have been inclined to prosecute and try the perpetrators of the serious crimes committed during the armed conflict. This aspect alone justifies the judicial activities of the two special tribunals.
5. A burning case leading to the creation of a special tribunal
It is tempting to briefly discuss a particularly hot issue to shed some light on its legal dimensions and to examine whether adjudication can indeed be a means for the settlement of a burning case. A closer look at the reaction of the international community to the killing of the former Lebanese Prime Minister Hariri, murdered on 14 February 2005 in a terrorist bomb attack in Beyrouth, provides an excellent opportunity to study the difficult relationship between crime, politics, and law in a dramatic conflict situation. After lengthy consultations on 30 May, 2007, the UN Security Council adopted resolution 1757 (2007) whereby a ‘Special Tribunal for Lebanon'14 was established to prosecute the persons responsible for the attack of 14 February 2005 resulting in the death of former PM Hariri. The Security Council adopted the present resolution under Chapter VII of the UN Charter, thereby re-affirming that the Hariri murder and its consequences were considered as a threat to international peace and security. The decision of the SC to create a special Criminal Tribunal for Lebanon to try the perpetrators of this criminal act is noteworthy in many respects. The main driving forces behind the creation of this tribunal were France and the USA, two states which have their own reservations with regard to the concept of a universal criminal jurisdiction as realized in the ICC. At the same time, they were the proponents of the special Lebanon tribunal which provides at least some hope that the killing of former PM Hariri will not go unpunished. Bringing justice back to Lebanon obviously is an endeavour which cannot be left to Lebanese courts. Therefore, an international tribunal appears to offer the only chance to indict and prosecute those who are guilty of having killed ex-PM Hariri. The very fact that no permanent member of the SC has vetoed the decision to establish the Lebanon tribunal sends a strong warning to Syria, suspected of having instigated the Hariri murder.
In the debates of the SC preceding the adoption of the said resolution, several states criticized the fact that the new tribunal was imposed on Lebanon and that it infringed upon the principle of non-intervention into domestic affairs as enshrined in Article 2 (7) of the UN Charter. The proponents of the Lebanon tribunal then pointed to the relevant request by the PM of Lebanon of 13 December 2005 asking inter alia for the establishment of an international tribunal to try all those who are found responsible for this terrorist crime. The states supporting the project of the tribunal also stressed the need for the Security Council to pass this particular resolution under Chapter VII of the Charter, thus creating binding international obligations. The pre-emptive effect of the Lebanon tribunal was also underlined by its proponents. The practical implementation of the SC resolution creating the Lebanon tribunal still raises enormous challenges indeed. It is hard to see how the various enemy factions in Lebanon will find a minimal consensus to put the tribunal on track. Without any co-operation of the main Lebanese groups, this judicial body simply will not work.
Critics of the Lebanon tribunal assert that it weakens the very idea of a universal system of criminal justice as embodied in the ICC. By establishing one international criminal court after the other (on ex-Yugoslavia, Rwanda and Lebanon), the Security Council reduces the global scheme. However, when discussing the need for the establishment of an international Lebanon tribunal, one has to bear in mind that the ICC has no competence to deal with the case of the Hariri murder.
In view of the particular circumstances of the Lebanese conflict, which in many respects presents the features of a civil war, the establishment of a special court through a UN Security Council resolution provides the sole prospect for bringing justice in a burning case. Without such outlook, the prospects for the process of reconciliation in Lebanon would look even dimmer.
6. Implementation of court decisions and orders
It goes without saying that the impact of judicial decisions varies to the degree to which they are heeded by the parties. The very concept of international jurisdiction would be undermined if the judgements of the courts were ignored by the parties to the dispute. If court decisions were systematically disregarded by the contestant parties, the conclusion would be that adjudication and arbitration had no significant influence on conflict resolution. However, the conduct of the international actors shows that, generally speaking, court decisions and arbitral awards are not ignored. There may be some cases of disregard for court decisions but these are the exceptions rather than the rule. This state of affairs underlines the important role of adjudication and arbitration in the international system.
Various mechanisms exist to ensure that the parties fulfil the obligations deriving from the judicial decision in question.
A particularly effective leverage to persuade the parties to comply with court decisions is provided by Article 171 of the Treaty on the European Community. In cases of noncompliance of a judgement by a member state, this provision enables the European Court of Justice to impose a penalty. Within the framework of the European Convention on Human Rights, the Committee of Ministers of the Council of Europe is given the authority to supervise the execution of the judgements of the European Court of Human Rights and may take appropriate action in cases of noncompliance. In the UN context, reference was already made to Article 94 of the Charter which enjoins member states of the UN to comply with the decisions of the ICJ in any case to which they are a party. In case of non-compliance of any party with the obligations incumbent upon it under a judgement, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgement.
Although the stick of sanctions is seldom used to enforce the implementations of international court decisions, its existence alone puts pressure on the parties to act in compliance with the relevant obligations. The fact that the competence of international courts to institute proceedings in a particular case requires the prior consent of the parties concerned also means that they have accepted the possibility that they may lose a case and that they are obliged to honour the stipulations of the judgement in cases to which they are a party. This way, the acceptance of international jurisdiction exerts a ‘civilizing’ influence on the conduct of international actors in the sense that they have to reckon with the possibility of losing a case and to bear the negative consequences thereof.
The prospect of losing, together with the obligation to heed a possibly irksome judgement, constitutes in itself an important factor in framing the behavior of international actors. States are thereby induced to act in compliance with international law, otherwise they run the risk of being sued before the court whose jurisdiction they have accepted. Once the court judgement is pronounced, the parties are obliged to implement it faithfully. Otherwise, they would expose themselves to international criticism for being in breach of international law on the substance of the case and for not complying with the relevant court decision.
Furthermore, they would face the negative consequences of the sanction mechanisms whenever they apply.