The settlement of international conflicts!

Prof. Dr. Wolfgang Baumann is Chairman of the Bergische Juristengesellschaft. As a notary from Wuppertal, he worked for more than 30 years for the Federal Chamber of Notaries in European and worldwide international professional organizations (CACE, CAE, UINL), at times in leading positions as President or Vice President, and is today Conseiller Honoraire of the International Union of Notaries, a worldwide association of almost 90 member notaries, including Russia and China.  The cooperation of these professional organizations with other international organizations, such as the UN and its sub-organizations or the World Bank and institutions of the EU is one of the tasks of these International Professional Organizations. For example, Baumann was invited by UNESCO to speak at the Global Forum of the World Environment Conference in Rio de Janeiro as early as 1992, i.e. on a topic that is currently of concern to all of us. The Hague is home to several international institutions with which the aforementioned professional organizations cooperate.

The UniService Transfer of the Bergische Universität spoke with Wolfgang Baumann about the origins and development of the Permanent Court of International Justice and the International Court of Justice in The Hague.

On February 15, 1922, the Permanent Court of International Justice, based in The Hague, met for the first time.It evolved into the International Court of Justice after the end of the Second World War in 1946. For what reason did it come into being?

Baumann: The Permanent Court of International Justice with its seat in The Hague was the forerunner of today's International Court of Justice.  It operated as the judicial organ of the League of Nations from 1922 to 1946. The League of Nations came into being after the experiences of the First World War. It had its headquarters in Geneva. The aim of the League of Nations was to settle international conflicts peacefully and to ensure the security of states. Thus, it was already pursuing goals similar to those of the United Nations (UN). The International Court of Justice was founded as the World Court in 1945 after the horrible experiences of the Second World War and also has its seat in The Hague. It is the main judicial body of the UN, which is an international organization based in New York. The International Court of Justice began its work on April 18, 1946. Because the League of Nations had not achieved its intended goals, the then U.S. President Franklin D. Roosevelt, together with British Prime Minister Winston Churchill, drafted the Atlantic Charter. Still in the middle of the - by the German National Socialists triggered - II. World War II, the United Nations Declaration was signed by 26 states on January 1, 1942. After the end of the war, with the involvement of the Soviet Union and France, the United Nations Charter was finalized at the Yalta Conference. On June 26, 1945, this Charter was signed by 50 states at the San Francisco Conference. The seat of the United Nations became New York. The Charter was later supplemented by the Universal Declaration of Human Rights. In 1946, after the experiences of the Second World War, the International Court of Justice was established in The Hague as the judicial body of the UN. At the same time, the League of Nations was dissolved, and with it the Permanent Court of International Justice.  The International Court of Justice is thus the successor institution of the Permanent Court of International Justice.

The Permanent International Court of Justice was instrumental in the development of international law. Do you know why?

Baumann: International law is a relatively young law. In 1795, the German philosopher Immanuel Kant had called for the development of international law for the permanently peaceful coexistence of peoples in his work "On Perpetual Peace." The term international law (ius gentium) was probably first introduced into public discourse in 1625 by the Dutch legal scholar and philosopher Hugo Grotius. Enlightenment ideas influenced by Kant then gave rise to several international peace movements in the 19th century, leading to the Hague Peace Conferences (1899 and 1907).
Today, the most important legal source of international law is the Charter of the United Nations of 1942 or 1945, but also all multilateral and bilateral treaties of the states as well as norms of all supranational state structures, such as the European Union, form international law. Since the League of Nations had already developed essential foundations of international law, its judicial body, the Permanent Court of International Justice, was also involved in the development of international law. Known to the public are 27 legal opinions of this Court as well as hearings on 29 interstate disputes. All of the advisory opinions and court hearings have made groundbreaking contributions to the development of international law. From national law, which always ends at the borders of a state, we know that jurisprudence is based on the application of laws and of precedents, that is, on leading decisions of higher or supreme courts. In international law, there are no laws from which the International Court of Justice could derive its decisions by way of legal subsumption. Legal sources of international law are the international treaties, the so-called customary international law and general principles of law, which are recognized as fundamental principles by all legal systems. These include, for example, the recognition of the equality of all states and the legal principles of private law recognized in agreement in all legal systems.

Who can refer a case to the International Court of Justice in the first place?

Baumann: Only legal subjects of international law can bring cases before the International Court of Justice.  Legal subjects of international law are primarily states recognized by the international community of states, but also international organizations founded by states, such as the UN and its subsidiary organizations. For historical reasons, the Vatican (Holy See), the Order of Malta and the International Red Cross are independent subjects of international law. Due to modern legal developments, within very narrow limits, the protection of international law can also be granted to individual persons, i.e. single individuals.

The first case in which the International Court of Justice rendered a judgment was the Corfu
Canal case in 1949, a case brought by Great Britain against Albania. What was the case about?

Baumann: The Corfu Canal case is a good example to illustrate the scope of the International Court of Justice. It was a conflict under international law between Great Britain and Albania, based on three interrelated facts in 1946. The Strait of Corfu is a strait between the Greek island of Corfu and Albania. While passing through this strait, British naval vessels had been fired upon from the Albanian coast. More serious was the second incident a few months later, in which 44 British marines were killed and British ships damaged due to laid sea mines. In the third incident, again a month later, the British Navy conducted naval mine-clearing operations, which then led to protests by Albania to the United Nations because the clearance violated Albanian territory. The cases show how early after World War II the East-West conflict between the victorious powers began with the Cold War. Indeed, Britain's complaints to the UN Security Council against communist Albania failed because of the Soviet Union's veto. Britain's subsequent complaint to the International Court of Justice, however, was then mostly successful. Albania was ordered to pay compensation, but Great Britain's mine-clearing operation was ruled illegal. Unfortunately, this did not settle the conflict, because Albania refused to recognize the verdict. It was not until 1996, several years after the collapse of the communist dictatorships and the end of the Cold War, that an agreement was reached between the two countries in a bilateral treaty. The ruling of the International Court of Justice had a major influence on the content of this agreement, because Albania ultimately paid compensation.

Germany only signed a so-called declaration of submission in 2008, as did 73 other states. What does this declaration mean?

Baumann: With the declaration of submission, the Federal Republic of Germany committed itself under international law to recognize the decisions of the International Court of Justice as binding. This declaration of submission is criticized because Germany has included a politically controversial reservation of armed forces in this declaration of submission. This declaration of submission is not to apply to military deployments of the Bundeswehr abroad or to military use of German territory. Another criticism is that this declaration of submission is based only on a cabinet decision and that parliament has been bypassed. I personally consider the latter to be very problematic in a representative democracy, because every federal government is only an administrative executive body of the elected representatives of the people.

The International Court of Justice has a total of 15 judges from different nations who are elected for 9 years. One of them is a German, who also holds a chair in public law. Who is this man?

Baumann: This man is called Georg Nolte. He is an international law expert and professor with a chair in international law, European law and public law at the Humboldt University in Berlin. He is known in international law circles through numerous publications. His term runs from 2021 to 2030, and he has also been a member of the United Nations International Law Commission since 2007. Incidentally, he is the son of the well-known historian and philosopher Ernst Nolte, who triggered the Historikerstreit in 1986 with his theses on the crimes of the Holocaust and the Gulag system. Before Georg Nolte, two Germans had already served as judges at the International Court of Justice, Hermann Mosler (1976-1985) and Carl-August Fleischhauer (1994-2003).

The work of the International Court of Justice is not entirely straightforward politically. The Criminal Court's founding treaty stipulates that the court in The Hague will only act if a state itself is unwilling or unable to seriously investigate or prosecute. In March 2020, the judges had allowed investigations to begin in Afghanistan, and shortly thereafter the Afghan government at the time filed a request to be allowed to take over the proceedings. The investigation, which also targeted alleged U.S. crimes in Afghanistan, had faced fierce opposition in Washington. Because of fears that U.S. soldiers could be indicted in The Hague, the administration of then-President Donald Trump had imposed sanctions on employees of the court, but those were lifted under President Biden. Despite signed treaties and consent decrees, isn't such a court ultimately always subject to the power of the strongest?

Baumann: There are several issues here at the same time. First, the International Criminal Court must be distinguished from the International Court of Justice. Although both courts are based in The Hague, they are independent courts with different tasks. The composition of the judges is also different. Bertram Schmitt, a German, has been a judge at the International Criminal Court since 2015. He is also a judge for criminal cases at the Federal Supreme Court in Karlsruhe, but has been on leave at the BGH since his appointment to the International Criminal Court.
The International Criminal Court is responsible for judgments on international criminal law and has only existed since 2002. International criminal law covers genocide, war crimes, crimes against humanity and sog, crimes of aggression, e.g. preparations for acts of war.
On the power of the strongest: Unfortunately, the acceptance and enforceability of the judgments of international courts remains the biggest problem in the long run. However, the outlawing of the international community of states combined with sanctions can exert considerable pressure. States such as China, Russia or the USA are to a certain extent immune to this pressure. In democratic states, such as the U.S., however, there can be additional domestic political pressure, which the Trump administration in particular has faced, and which can also influence the acceptance of an international jurisdiction's rulings. In a dictatorship like China, this domestic political criticism is absent. Therefore, the rule of law and democratization, combined with free media and freedom of expression always guaranteed by the state even in the case of critical reporting, are closely linked. With an internal democratic rule of law, it is possible, to a certain extent, to prevent the world from being ruled by the law of the jungle and the power of the strongest.
The aforementioned war in Afghanistan is certainly not a glorious one, but rather a dark chapter in the history of Western democracies. That war crimes have also been committed in Afghanistan can be assumed as probable. That is probably why Trump wanted to protect his soldiers from prosecution. However, imposing sanctions on or threatening independent judges is unacceptable even if one wants to credit Trump very favorably for ending the war in Afghanistan, which was not started under his political leadership.

Uwe Blass (conversation from 09.12.2021)