Introduction
History has shown that when states have no legal place to resolve their differences, they turn to war.
When war criminals face no punishment, they repeat their crimes. The 20th century with its two World
Wars and countless atrocities, forced the international community to build legal institutions that could
prevent conflict and ensure accountability. Two of the most important results of this effort are the
International Court of Justice (ICJ) and the International Criminal Court (ICC). Though different
in their nature, purpose and design, both courts serve the same broad mission to protect international
peace and promote justice. This essay explains how each court was formed, what jurisdiction it holds,
what role it plays and where its limitations lie.
The International Court of Justice (ICJ)
Formation
The ICJ was established in 1945 as the principal judicial organ of the United Nations under Article 92 of
the UN Charter. It replaced the earlier Permanent Court of International Justice (PCIJ), which had
functioned under the now-dissolved League of Nations. The court operates according to the Statute of
the International Court of Justice, which is annexed to the UN Charter and forms an integral part of it.
The ICJ is seated in The Hague, Netherlands, at the Peace Palace. It is composed of 15 judges who are
elected jointly by the UN General Assembly and the Security Council for nine-year renewable terms. No
two judges may be nationals of the same country, which helps ensure diverse and balanced
representation from different legal traditions of the world.
Jurisdiction
The ICJ exercises two types of jurisdiction. First, it handles contentious cases and formal legal disputes
between sovereign states. Only states can appear as parties before the ICJ; individuals, companies and
international organizations have no direct access. Critically, the court's jurisdiction over contentious
cases is consensual meaning both parties must agree to submit to the court. This consent may arise in
three ways: through a compromis (a special agreement), through a clause in a treaty granting ICJ
jurisdiction or through the optional clause under Article 36(2) of the ICJ Statute, where states voluntarily
accept compulsory jurisdiction in advance. Second, the ICJ can give advisory opinions on legal
questions referred by UN organs or specialized agencies under Article 96 of the UN Charter. These
opinions are not binding but carry significant legal and moral authority.
The International Criminal Court (ICC)
Formation
The ICC was established by the Rome Statute, adopted on 17 July 1998 at a diplomatic conference in
Rome and it entered into force on 1 July 2002. Unlike the ICJ, which is a UN organ, the ICC is an
independent international organization, though it has a cooperation agreement with the UN. As of 2024,
124 states have ratified the Rome Statute. The ICC is also located in The Hague, Netherlands. It is the
first permanent international criminal court in history, created to try individuals not states for the most
serious crimes of international concern. The court consists of 18 judges, elected by the Assembly of
States Parties for non-renewable nine-year terms.
Jurisdiction
The ICC's jurisdiction is limited to four core crimes listed in the Rome Statute. These are: genocide
(Article 6), crimes against humanity (Article 7), war crimes (Article 8) and the crime of aggression
(Article 8 bis, which became active in 2018). A critical feature of the ICC's design is the principle of
complementarity; the ICC only acts when national courts are genuinely unwilling or unable to prosecute.
This respects state sovereignty while filling accountability gaps. The ICC can exercise jurisdiction
where: the accused is a national of a Rome Statute member state; the crime occurred on the territory of a
member state; or the UN Security Council refers a situation to the court under Chapter VII of the UN
Charter (which allows referral even for non-member states, as in the Darfur situation). Importantly, the
ICC can only prosecute crimes committed after 1 July 2002.
Role of the ICJ in Promoting International Peace and Justice
The ICJ's most fundamental contribution is providing states with a peaceful legal alternative to armed
conflict. When tensions arise between nations, the court offers a forum for rational legal argument rather
than military confrontation. This shifts the resolution of international disputes from the battlefield to the
courtroom.
In Nicaragua v. United States (1986), the ICJ ruled that the United States had violated international law
by supporting Contra rebels and mining Nicaraguan harbors, finding breach of the customary prohibition
on the use of force. Although the US refused to comply and withdrew its declaration of compulsory
jurisdiction, the judgment strengthened the legal norms against intervention and the illegal use of force
principles still cited in international law today.
In Bosnia and Herzegovina v. Serbia and Montenegro (2007), the court addressed responsibility under
the Genocide Convention of 1948 in relation to the Srebrenica massacre. The ICJ found Serbia
responsible for failing to prevent genocide even while not holding it directly liable as the perpetrator.
This case confirmed that states, not just individuals, bear obligations to prevent genocide.
The ICJ's advisory opinions have also shaped international norms significantly. In Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory (2004), the court declared Israel's
separation barrier in the West Bank contrary to international law. While non-binding, this opinion
influenced political debates and legal discourse globally.
More recently, the ICJ's role has expanded to address climate-related legal questions. The UN General
Assembly requested an advisory opinion on states' obligations regarding climate change showing the
court's evolving relevance in 21st-century international challenges.
Role of the ICC in Promoting International Peace and Justice
The ICC's central contribution is ending impunity for those who commit the gravest crimes. Before the
ICC existed, war criminals, genocidaires and perpetrators of crimes against humanity often escaped
accountability because no permanent court existed to try them. Ad hoc tribunals, like those for Rwanda
and the former Yugoslavia, were temporary and limited. The ICC is designed to be permanent and
universal.
The court's first conviction came in 2012 in the case of Prosecutor v. Thomas Lubanga Dyilo, a
Congolese militia leader found guilty of conscripting and enlisting children under the age of 15 a war
crime under Article 8 of the Rome Statute. This landmark ruling showed that non-state armed actors
could face international criminal liability.
In the Situation in Darfur, Sudan (Prosecutor v. Omar Al-Bashir), the ICC issued arrest warrants in 2009
and 2010 against Sudan's sitting President for genocide, crimes against humanity and war crimes. This
was the first time an ICC arrest warrant was issued against a serving head of state, a powerful statement
that no one stands above international law, regardless of their political position.
By establishing individual criminal accountability under international law, the ICC also functions as a
deterrent. The knowledge that international prosecution may follow serious crimes is intended to
discourage political and military leaders from ordering atrocities.
Limitations of the ICJ
Despite its contributions, the ICJ suffers from significant limitations. The most serious is the lack of
enforcement power. The court has no army, police force or mechanism to compel compliance. Under
Article 94(2) of the UN Charter, a party may take non-compliance to the Security Council but any
permanent member can veto enforcement action. The US simply ignored the Nicaragua judgment,
suffering no meaningful consequences.
The consensual nature of jurisdiction is another major weakness. States that do not want to be sued can
simply avoid giving consent, making powerful nations effectively immune unless they choose otherwise.
This creates a system where the most dangerous actors are least likely to be reached.
ICJ proceedings are also very slow. Cases routinely take between five and fifteen years to resolve from
filing to final judgment. In situations of active conflict or humanitarian crisis, this timeline makes the
court largely ineffective as an immediate remedy.
Limitations of the ICC
The ICC faces equally serious, if not more severe, limitations. The most fundamental is that major world
powers the United States, China, Russia and India have not ratified the Rome Statute. Large portions of
the world's military and political power therefore fall beyond the ICC's automatic reach. While Security
Council referrals can extend jurisdiction, the veto power of permanent members effectively shields them
and their allies.
The court has also faced credible accusations of regional bias. A large majority of ICC investigations
and indictments have concerned African states and African leaders, while situations involving Western
powers or their political allies such as alleged crimes during the Iraq War have not proceeded to
prosecution. This perception of double standards has seriously damaged the court's legitimacy in parts of
the world and led states like Burundi to withdraw from the Rome Statute.
The complementarity principle, while theoretically sound, can be exploited. States may launch sham
domestic proceedings purely to block ICC jurisdiction, using the principle as a shield rather than as a
genuine accountability mechanism.
Enforcement remains the ICC's Achilles heel. The court depends entirely on state cooperation to arrest
suspects. Omar Al-Bashir, despite carrying two ICC arrest warrants, traveled freely to multiple ICC
member states, some of which were legally obligated to arrest him without consequence. This exposes a
profound gap between the court's legal authority and practical reality.
The Two Courts Together
It is important to note that the ICJ and ICC do not compete; they are complementary. The ICJ addresses
state responsibility; the ICC addresses individual criminal responsibility. Together, they attempt to cover
both dimensions of accountability in international law. A state may be found responsible by the ICJ for
failing to prevent genocide while individual perpetrators face criminal prosecution before the ICC.
Conclusion
The ICJ and ICC represent some of the most ambitious achievements in the history of international law.
They have given the world institutions where disputes can be settled by argument instead of arms, and
where the worst crimes can be prosecuted rather than forgotten. The ICJ has clarified and developed
international legal norms that now govern state behavior, while the ICC has broken the shield of
impunity that once protected the most powerful criminals. Yet both courts operate in a deeply political
world, and their limitations, lack of enforcement, political selectivity, gaps in jurisdiction, and the
absence of key states prevent them from fully delivering on their promise. Real international peace and
justice will require not just better courts, but greater political will from the global community to respect
and support these institutions consistently and equally. For students of international law, understanding
both the achievements and shortcomings of these courts is the first step toward building a more just
world order.
References
1. UN Charter, Articles 92–96 (1945)
2. Statute of the International Court of Justice (1945)
3. Rome Statute of the International Criminal Court (1998), UN Doc. A/CONF.183/9
4. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), ICJ Reports 1986, p. 14
5. Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, p. 43
6. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Reports 2004, p. 136
7. Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Judgment (14 March 2012)
8. Situation in Darfur, Sudan (Prosecutor v. Omar Hassan Ahmad Al-Bashir), ICC-02/05-01/09,
Arrest Warrant (4 March 2009)
9. Shaw, M.N., International Law (8th edn, Cambridge University Press, 2017)
10.Schabas, W.A., An Introduction to the International Criminal Court (5th edn, Cambridge
University Press, 2017)
11.Cassese, A., International Law (2nd edn, Oxford University Press, 2005)
12.Brownlie, I., Principles of Public International Law (7th edn, Oxford University Press, 2008)
13.Statute of the International Court of Justice, Article 36(2) — Optional Clause
14.Rome Statute, Articles 6, 7, 8, 8 bis, 17 (Complementarity)