Two international courts, the International Criminal Court (ICC) and the International Court of Justice (ICJ), have been in the news recently for their roles in addressing allegations that Israel committed genocide in Gaza. This post explains these courts’ similarities and differences and describes their distinct roles in this and other international crises.
First, the similarities. Both the ICC and ICJ are international courts. Both reside in The Hague (in Dutch, Den Haag), the city on the North Sea of the Netherlands about a 50-minute train ride from Amsterdam. Both courts have subject matter jurisdiction over the “crime of crimes” of genocide, among other matters.
But the two courts are not the same. For one, they are physically separate. The ICJ resides in the stately and cathedral-like Peace Palace near The Hague’s downtown, while the ICC is in a futuristic glass-encased building on the east side of the city a few miles away.
The two courts hear different kinds of cases. The ICJ hears disputes between nations, not private parties or persons. The Court has been in the news recently from a case that South Africa brought against Israel, claiming that Israel failed to meet its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. That Convention is an international treaty signed and ratified by both Israel and South Africa. The parties just finished their initial presentations to the Court, which will now decide whether to order provisional measures until it can decide the merits of the dispute.
The ICC, on the other hand, is a criminal court, as its name suggests. It investigates and prosecutes individuals. But not just for any crimes: its mandate is limited to just four crimes: genocide, crimes against humanity, war crimes, and aggression. These are the so-called “core international crimes,” also known as “atrocity crimes.” The ICC operates on the principle embraced at the Nuremberg Tribunals decades earlier that atrocity crimes are of such universal concern that international prosecutions may be warranted when nations cannot or will not prosecute them on their own.
The ICC’s jurisdiction is based on consent, meaning that it can address crimes committed in countries or by their nationals only when those countries have signed and ratified the ICC’s governing treaty, the Rome Statute. Currently 124 states have done so. Major powers such as the United States, China, and Russia have refused to join. Israel, too, has refused to join, but Palestine’s accession to the Rome Statute in 2015 opened the door for the ICC’s prosecutor to examine atrocities committed in Palestine or by its own nationals. So far, the ICC prosecutor has been receiving information about alleged recent atrocities but has yet not announced charges against any individuals, or even a formal investigation.
The ICC and ICJ also differ in their relationship to the United Nations (UN). The ICJ is the official judicial organ of the UN. The ICC, on the other hand, is an outgrowth of frustration with the UN. Collective action by the UN requires the unanimous approval of all five permanent members of the UN Security Council: the United States, China, Russian Federation, United Kingdom, and France. Time and time again, those five nations have disagreed on how to respond to international crises. The discord proved too much in the 1990s, when insufficient responses to atrocities such as a genocide in Rwanda and ethnic cleansing in Bosnia-Herzegovina fueled a desire for an alternative international institution to address atrocities. That effort begot the ICC in 2002—a court separate from, but occasionally addressing the same issues as, the UN’s ICJ.