Over the past decade, the International Court of Justice (ICJ) has edged closer than ever to the frontlines of armed conflict. The ICJ’s provisional-measures orders in Ukraine v. Russia (2022), Armenia v. Azerbaijan (2023), and South Africa v. Israel (2024) were all issued while hostilities were ongoing. The International Criminal Court (ICC) has pursued arrest warrants for sitting heads of State amid continuing violence. Together, these developments reflect a decisive shift: courts are no longer confined to preventing war but increasingly seek to operate within it.
This evolution raises difficult questions. When international courts intervene in active wars, do they help bring the conflict to an end or, on the contrary, do they risk becoming embroiled in conflict dynamics? There are several warning bells that ought to put courts on notice to proceed carefully. These warning bells are a call for judicial prudence, not judicial silence. They are also a reminder that judicial engagement can either stabilize or destabilize an already fragile security environment.
Courts in the Fog of War
Acting while hostilities were ongoing, the ICJ has recalled belligerents’ obligations under international law (Congo v. Uganda, 2000), ordered the withdrawal of troops (Cambodia v. Thailand, 2011), ordered the cessation of hostilities (Ukraine v. Russia, 2022), and emphasized humanitarian obligations (South Africa v. Israel, 2024).
Judicial engagement in times of war might be perceived as a moral imperative. It might also be symptomatic of the weakness of (other) international institutions. Judicial bodies may intervene to compensate for the inability of others to act. Yuval Shany highlights the role international courts play as custodians of international norms when other international institutions are weak. When implementing the requirements of Article 41 of its Statute, the Court has reinforced this idea by allowing provisional measures to be ordered only when protected rights are irreparably prejudiced (Fisheries Case, 1972). In this narrative, judicial intervention is an act of responsibility, not intrusion, designed to protect international rights and norms. The fear of a decline of international law might explain the increasingly visible role played by courts as protectors of rights. In practice, however, it is a fine line between responsibility and intrusion, and the desire to be seen as doing something can at times be costly for courts.
By getting involved in active armed conflicts, international courts risk being drawn into the conflict’s management rather than in its resolution. And when they venture beyond their traditional function of settling legal disputes, courts must navigate political and security considerations. Navigating in these waters is not impossible, but courts must tread carefully, cognizant of both the promise and peril of their involvement during active hostilities. Identifying and recognizing such perils – or, as I call them, the warning bells – is key.
Promise and Peril
Supporters of judicial engagement point to its potential benefits. Courts can reaffirm the rule of law at moments of normative collapse, shape States’ behavior through the clarification of obligations, and provide a shared foundation for future peace talks. But empirical evidence of these benefits is mixed. Alyssa Prorok’s study of the ICC finds that prosecutions often prolong civil wars by removing incentives for leaders to negotiate. The latter, Prorok argues, may instead “favor conflict continuation as a way to avoid capture, extradition, and trial.” She therefore cautions the ICC to “carefully weigh the potential conflict-exacerbating effects of investigation before becoming involved in ongoing conflict situations.”
There are also inherent limits to international adjudication and international justice, the effects of which can be exacerbated in times of war. For instance, international criminal courts rely on State cooperation to bring the accused to trial. It took several years for Serbia to bring Radovan Karadžić (the former Bosnian Serb political leader) and Ratko Mladić (the former commander of the Bosnian Serb army) to The Hague, and the perpetrators of Rafik Hariri’s killing had to be tried in absentia by the Special Tribunal for Lebanon.
The ICJ’s record is similarly ambivalent, in part because the Court does not have a way to ensure compliance with its judgements. Its order to the Russian Federation to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine” remained unheeded.
Fragile assessments of prima facie jurisdiction made as part of provisional measures proceedings also have their limits. Consider for example, the measures ordered amid the 2008 military confrontation between Russia and Georgia. Although the Court found that it had prima facie jurisdiction to deal with the case under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) at the provisional measures stage, it eventually declined to proceed to the merits for lack of jurisdiction.
Finally, the tendency to rely on jurisdiction emanating from large multi-lateral treaties such as the CERD or the Genocide Convention can risk displacing legal assessments away from the main normative framework applicable in armed conflicts, i.e. international humanitarian law.
At stake is the legitimacy of international justice. As Nienke Grossman argues, courts have legitimacy when their authority is perceived as justified. Bias, inconsistency, and a lack of transparency undermine courts’ legitimacy. The importance of maintaining legitimacy requires “strategic behavior” and “engagement with a coalition of supporters,” as Courtney Hillebrecht explains in her work. In sum, preserving legitimacy is as difficult as it is important – especially in war. Given these potential pitfalls, I argue that caution is the preferred course of action.
When the Warning Bells Ring
To translate the above considerations into practical, actionable guidance, I would say that the warning bells should sound in the following scenarios: (1) courts are seized of a case in the midst of an armed conflict; (2) jurisdiction is thin, stretched, or “unnatural;” (3) the court has unusually poor access to the facts; or (4) one of the parties to the conflict is not a party to the proceedings in a case before the ICJ.
Each of these scenarios is elaborated upon below. All of them should trigger heightened scrutiny, more caution, and a less than casual involvement on the part of courts – even when such involvement seems otherwise morally or legally imperative.
1. In Bello Intervention and the Risk of Destabilization
The first warning bell sounds when an international court or tribunal is asked to intervene as the canons still roar. In these situations, adjudication or accountability processes take place under conditions of fluid military and political realities. Courts are compelled to act without the temporal distance that typically stabilizes legal assessment, heightening the stakes of any decision – both legally and politically. Their involvement can produce unintended effects and destabilize an already fragile security environment or reduce the chance for peace. Although symbolically powerful and legally important, the ICC’s arrest warrants issued against Sudan’s Omar al-Bashir and Russia’s Vladimir Putin may have diminished incentives to pursue negotiated peace by complicating mediation efforts. Duursma explains that “continued fighting is often perceived as the only way to circumvent prosecution by the ICC”; others add that international prosecution “tarnishes the public image of those accused” and negatively affects their willingness to enter negotiations.
To put it differently, even a procedurally correct and legally sound judicial intervention may unintentionally alter conflict dynamics or escalate political tensions. The Special Tribunal for Lebanon experienced such difficulties when it indicted members of Hezbollah (see here and here). As noted in the introductory post to this Symposium, courts must consider the effect of their actions, mindful that legal rulings can reverberate in ways that affect battlefield behavior and diplomatic efforts. They must consider whether, in the particular case under examination, such a risk exists and if it does, they must proceed with added caution.
2. Thin or Unnatural Jurisdiction
The ICJ is often seized in times of war by way of a request for provisional measures. Although it only needs to establish prima facie jurisdiction (Article 41 of the ICJ Statute) at the provisional measure stage, the Court is keenly aware that jurisdictional grounds are precarious and that the case could later be dismissed for lack of jurisdiction. When the legal basis for its involvement is fragile, the Court’s authority and legitimacy are more vulnerable to challenge and contestation.
It is therefore critical that Article 41 continue to be interpreted restrictively. The Court should by all means resist attempts to reinterpret the standards under which the ICJ can order provisional measures – such as a broadening of the “plausibility standard,” a loosening of the requirement to establish a link between the rights sought to be protected by the provisional measures and the subject matter of the dispute on the merits, or the idea that the Court could indicate provisional measures directed at preventing the aggravation of a dispute without first establishing prima facie jurisdiction. Especially when provisional measures are requested in time of war, these suggestions threaten to undermine the legitimacy of the Court’s holdings.
Beyond the use of provisional measures, the basis of jurisdiction chosen to bring the case matters. If the case relates directly to the armed conflict, the ICJ should consider whether the conflict is brought under a natural basis of jurisdiction – international humanitarian law – that entitles the Court to address jus in bello aspects of the armed conflict. It does not mean that the Court should refrain to take a case that does not cover in bello aspects, but it means that prudence is required. ICJ jurisdiction based on compromissory clauses included in a large multilateral treaty may push the Court away from the natural legal environment of international humanitarian law by displacing the debate onto other, less relevant, corpi of international law.
3. Factual Limitations
The warning bells should also ring when the ICJ does not have sufficient access to diverse, corroborated, and reliable information. In the Gambia v. Myanmar case, the Court leaned heavily on UN fact-finding reports produced without on-site access, raising concerns of “methodological rigor or evenhandedness,” particularly as the latter were heavily contested by Myanmar. In Bosnia v Serbia and in Legal Consequences of the Construction of a Wall, the Court relied heavily on UN Secretary General Reports (here and here). As Michael Becker notes, there is a difference between “giving weight to factual findings by a UN fact-finding body and deferring to its legal conclusions.” This warning resonates with even more severity when access by foreigners and investigators might be restricted, and when the fog of war cloaks the battlefield.
4. The Missing Party Problem
In Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, both Russia and Ukraine were parties to the proceedings. In Gambia v. Myanmar and South Africa v. Israel, however, only one of the parties to the armed conflict appeared before the Court and was bound by its pronouncements. When a principal belligerent is absent from the proceedings, the Court adjudicates an incomplete dispute. This structural asymmetry limits the Court’s authority to render decisions perceived as fully legitimate or enforceable, since they will not bind all belligerents in equal ways. Whereas one belligerent will have to take the Court’s holdings into consideration in its wartime decision-making, the other will not. In practice, this means that (certain) international courts are inherently and structurally limited in their ability to intervene in ongoing non-international armed conflicts, and specifically to bring such conflicts to an end – the central question raised in this Symposium. Those situations, in which the res judicata does not extend to all parties to the armed conflict, call for judicial restraint.
Conclusion: Do No Harm
I advocate in favor of judicial prudence, not judicial silence. As a participant at the workshop held by the End of War Project at the Blavatnik School of Government emphasized, international courts should approach active conflicts with “strategic humility:” they must intervene only where they possess legitimacy, a solid and “natural” basis of jurisdiction, a relative confidence that their involvement will bring the parties closer to peace, reliable sources of information (preferably obtained through adversarial processes), and a reasonable prospect of compliance.
The do no harm principle can offer some useful guidance here. Applied to international courts, it means that judicial action – however legally sound – should not worsen the conflict environment or undermine prospects for peace. The ICJ often stresses that it indicates provisional measures to prevent the “aggravation of the dispute” (first in the Land and Maritime Boundary case between Cameroon and Nigeria, later reaffirmed in several cases, see here) – a formulation that echoes (and arguably commands) a do-no-harm logic.
In practice, the do no harm principle means that courts should evaluate the foreseeable consequences of their decisions within the broader political and security ecosystem before intervening: Will provisional measures or an arrest warrant stabilize or inflame tensions? Will they increase or decrease the incentives of the parties to the conflict to negotiate? Is the court’s jurisdiction unnaturally stretched to advance the political goals of a party? Will non-compliance erode its authority? These questions should inform how a court formulates its orders, frames its language, and times its decisions. Judicial restraint under this principle is not timidity or an admission of failure or inability to act – it is a form of institutional ethics or, as Nienke Grossman puts it, a way for the court “to protect its space” from overuse and overreach. Although most international lawyers might find this difficult to accept, international relations scholarship has emphasized the role of international courts as political actors. Yuval Shany offers a valuable path forward when he states that “international courts cannot afford to ignore their political context; yet, they must also strive to maintain the distinction between law and politics.” Taking such considerations into account does not detract from the courts’ judicial function.
In sum, international courts undeniably play an essential role in sustaining law’s authority amid violence: the ICJ should continue to uphold its function as a mechanism for dispute settlement; the ICC should remain guided by the quest for accountability. Yet their methods must be informed by the do no harm principle. By acknowledging the limits of their reach, taking courageous steps when necessary to denounce abuse or misuse, and considering the consequences of their decisions – international courts and tribunals can preserve the credibility of international justice in an age when both law and peace seem increasingly fragile.
– Daphné Richemond-Barak, Published courtesy of Just Security.
