Demystifying the Legitimacy of International Tribunals: Case Study of the International Court of Justice and Its Decisions on Armed Activities in the Congo

• Citation: Vol. 35 No. 3
• Publication year: 2021

Demystifying the Legitimacy of International Tribunals: Case Study of the International Court of Justice and Its Decisions on Armed Activities in the Congo

Roger-Claude Liwanga

Casondra Turner

DEMYSTIFYING THE LEGITIMACY OF INTERNATIONAL TRIBUNALS: CASE STUDY OF THE INTERNATIONAL COURT OF JUSTICE AND ITS DECISIONS ON ARMED ACTIVITIES IN THE CONGO

Roger-Claude Liwanga^* Casondra Turner^*

Abstract

Over the last seven decades, there has been a proliferation of international tribunals. Yet, they have not received unanimous approval, raising questions about their legitimacy. A legitimate international tribunal is one whose authority to adjudicate international disputes is perceived as justified. Using the case study of the International Court of Justice (I.C.J.), this Article highlights the three criteria that should be considered in assessing the legitimacy of an international tribunal, which include legal, sociological, and moral elements. It also contends that the I.C.J. cannot claim "full" legitimacy if any of these components are missing in its decisions. The Article further suggests that the legitimacy of the I.C.J. has a dynamic nature, as litigating parties may continually change their perception of the court's authority at any time before, during, or after the judicial process. The Article equally describes other factors that can contribute to maintaining the international court's legitimacy, including fairness and unbiasedness, sound interpretation of international legal norms, and transparency.

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Introduction

The principal function of international and regional courts is to adjudicate disputes between States or between States and individuals.¹ International judicial bodies, such as the International Court of Justice (I.C.J.), can issue rulings on various issues, including the scope of protection of human rights, the reparations due to victims of human rights abuses, the legality of armed aggression, the delimitation of international borders, and the conditions in which the use of force can be authorized or forbidden, among other matters.²

In June 1999, the Democratic Republic of Congo (DRC) filed a series of complaints to the I.C.J. and claimed, among other things, that Burundi, Rwanda, and Uganda committed armed aggression against its territory.³ The DRC also argued that the armed forces of those countries perpetrated massive and serious human rights violations against its populations.⁴ Through this proceeding, known as the Cases Concerning the Armed Activities on the Territory of the Congo, some parties questioned the I.C.J.'s legitimacy to adjudicate this dispute.⁵ In particular, Burundi and Rwanda challenged the authority of the I.C.J. to adjudicate this dispute, positing that some provisions of the Statute of the I.C.J. and the U.N. Charter may preclude the I.C.J. from examining the merits of the DRC's claims.⁶

In its 2002 decisions in the Cases Concerning the Armed Activities on the Territory of the Congo: DRC v. Rwanda and DRC v. Burundi, the I.C.J. dismissed the charges against Burundi and Rwanda for their involvement in the armed aggression and violations of human rights in the DRC.⁷ The I.C.J. based

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its rulings on the fact that neither of these two countries had recognized its compulsory jurisdiction.⁸ Yet, in its December 2005 judgment on the same claims against Uganda,⁹ the I.C.J.: (1) held that Uganda violated human rights in the DRC due to acts of killing and torture committed by its army against the Congolese populations; (2) compelled the respondent State to cease military activities;¹⁰ and (3) required Uganda to make financial reparations to the DRC on behalf of the victims of human rights violations.¹¹ As of June 2020, no financial compensation has been provided.¹²

This Article examines the legitimacy of international tribunals. The analysis of the legitimacy of the international courts, such as the I.C.J., is essential given the importance of the matters that the litigating parties submit to them. The I.C.J.'s legitimacy may have some implications on litigating parties' voluntary compliance with its judgments¹³ or impact human behavior by transforming litigating parties' attitudes on refraining from violating international laws in the future.¹⁴ Not surprisingly, the decisions rendered by a tribunal considered

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illegitimate by the involved parties are more likely to be unaccepted, unenforced, and without impact on society than the decisions issued by a tribunal that has more legitimacy.¹⁵

This Article argues that a legitimate tribunal is one whose authority is justified and accepted.¹⁶ It suggests that three criteria should be considered in assessing the I.C.J.'s legitimacy, including legal, sociological, and moral elements.¹⁷ This Article further posits that the I.C.J. could not claim "full" legitimacy if any of these three components of legitimacy are missing in its decisions. In fact, the court's judgment could be legally correct and legitimate (if it was issued in accordance with the applicable laws) while at the same time being morally and sociologically illegitimate if that decision was morally unjustifiable and socially rejected.¹⁸ This Article also contends that the legitimacy of the I.C.J. has a dynamic nature because litigating parties can change their perception of the I.C.J.'s authority before, during, or after the judicial proceedings.¹⁹ This Article further highlights the factors that can contribute to maintaining the I.C.J.'s legitimacy, such as fairness and unbiasedness, sound interpretation of international legal norms, and transparency.²⁰ In doing so, this Article underlines the relationship between the I.C.J.'s legitimacy and State compliance with the I.C.J. decisions through addressing the question as to whether the State's non-compliance could imply the State's rejection of the I.C.J.'s legitimacy. In this regard, this Article theorizes that the States' non-compliance with the I.C.J. judgments can be linked to numerous variables, such as the lack of precision within the court's ruling; the politicization of the post-adjudicative phase, coupled with the lack of sanctions against defaulting States; and the issue of State sovereignty, coupled with the nonexistence of a judicial enforcement mechanism at domestic levels.²¹ Yet, the

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Article concludes by claiming that even if each of these variables for non-compliance may not have a direct connection with the rejection of the I.C.J.'s legitimacy, each of them exposes the weakness of a tribunal that is unable to enforce its decisions; thereby revealing the contestation of the I.C.J.'s justified authority.

This Article is structured as follows: Section I will examine the concept of legitimacy of international tribunals, explore the criteria of assessing the I.C.J.'s legitimacy, and survey the factors contributing to the I.C.J.'s legitimacy. Section II will analyze the enforcement of the I.C.J.'s decisions and respond to the question of whether partial compliance or non-compliance with the I.C.J.'s judgments by State parties amounts to rejection of the I.C.J.'s legitimacy.

I. Understanding the Concept of Legitimacy of the I.C.J.

This Section responds to questions such as: What is a legitimate (international) tribunal? What makes one (international) tribunal more legitimate than another? What are the indispensable elements making an international tribunal to be perceived as less legitimate in the eyes of litigating parties and/or those whom its decision would impact? Does the I.C.J. meet the criteria of a legitimate judicial institution?

A. Definition

Before seeking to understand what a legitimate international tribunal is, it is important to understand the meaning of the term "legitimacy." There is no single definition of the term "legitimacy."²² Etymologically, the term "legitimacy" derives from the Latin word "legitimare," which means to "make lawful, declare to be lawful."²³ The term "legitimacy" refers to the condition of being in accordance with law and principle or being justifiable²⁴ and denotes the "justified authority" of an institution that acts according to its assigned

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function.²⁵ For example, the authority of the parliament is to make laws, the authority of the government is to execute the laws, and the authority of the court is to adjudicate disputes, and thus, they are viewed as employing these functions legitimately.²⁶ Black's Law Dictionary defines "legitimate" in many ways, including "lawful," "genuine", "valid," and, in the case of children, "born of legally married parents."²⁷ Thus, one can see already that legitimacy takes many forms and is not only something that is compliant with the law but also seen as socially acceptable.

In the context of courts:

Judicial legitimacy derives from the belief that judges are impartial and that their decisions are grounded in law, not ideology and politics. Often in sharp contrast to other political institutions (such as legislatures), courts are respected—indeed often revered—because their decisions are viewed as being principled rather than motivated by self-interest or partisanship.²⁸

As to international tribunals specifically, "a legitimate international adjudicative body [is] one whose authority is perceived as justified . . . A legitimate international court or tribunal must possess some 'quality that leads people (or states) to accept [its] authority . . . because of a general sense that the authority is justified.'"²⁹ Often, it is not just one quality but various qualities, that make an institution legitimate. As such, it is clear that the concept of "international tribunal legitimacy" is likely multidimensional rather than mono dimensional.

B. Dimensions of the Legitimacy of the I.C.J.: The Legal, Moral, Sociological Viewpoints

1. Legal Legitimacy

The legal legitimacy of an institution relates to the legal norms that establish that institution.³⁰ The legal legitimacy of the I.C.J. emanates from the...