Suspend Your Judgment? The Role of International Courts in Ending Wars

(Yuval Shany – Just Security) The End of War Project – in one of whose workshops I was fortunate to participate – explores the “range of legal, policy, moral and strategic challenges arising at the end of conflict.” The rise in resort to international adjudication before the International Court of Justice (ICJ) in recent years and, even more significantly, the increased propensity to refer “mega-political cases” to international adjudication, is inevitably bringing many of the same challenges to the doorstep of the ICJ and other international courts. Although international adjudication historically has been perceived as part of the settlement of disputes framework designed to provide a non-violent outlet for addressing State grievances, international courts are increasingly dealing in real time with cases relating to events occurring during war, including how wars start and end. They confront, in this capacity, the need to contend with how (and whether) they can contribute to ending wars and shape the post-war aftermath. The Balkan wars of the 1990s offer what is perhaps a paradigmatic example of such a judicial involvement – four major ICJ cases (here, here, here and here), many dozen criminal cases before the International Criminal Tribunal for the former Yugoslavia (ICTY) and several European Court of Human Rights (ECtHR) decisions (see e.g., here) have addressed multiple aspects of these wars. Some of the cases dealt with events in real time – e.g., provisional measures orders seeking to change the conduct of the belligerent parties during the hostilities, or criminal warrants for the arrest of political and military leaders while the armed conflict was still ongoing. Others dealt with the aftermath of the conflict – the assignment of State and individual responsibility and evaluation of the legal implications of the post-war settlement. For example, one famous ECtHR judgment reviewed the legality of a central provision of the 1995 Dayton Agreement that ended the first stage of the Balkan wars by introducing a power-sharing arrangement in Bosnia and Herzegovina. – Suspend Your Judgment? The Role of International Courts in Ending Wars