Are there benefits, except moral support for the victim country, to approach the ICJ when the offender is a UNSC Permanent member?

Question

I am having some trouble understanding the present relevance of the International Court of Justice (ICJ) in matters of war between two countries when at least one of them is a permanent member of the United Nations Security Council (UNSC). Indeed, cases of 2 permanent members never appeared for the good.

Let's go back to the verdict of Nicaragua v. United States, which was a decisive victory for Nicaragua. In the judgment, in all decisions, Nicaragua won by a majority. In 2022, anyone would say they should have unanimously (or unanimously minus one) won. In most decisions, only three were against: a British judge, an American judge, and a Japanese judge. And in some 2 or 1, the same people.

Regardless, the USA didn't follow the orders. I will not post their stated reason. What I am saying is, today, can't Russia do something similar?

Assuming Ukraine won the case, what would they gain in reality? Russia won't pay reparations, so why should they, the US didn't. I am not saying they should or shouldn't, it logically follows, doesn't it?

Answer 1

It's a reputational cost to the US. Ask yourself, you are right now quoting the US vs Nicaragua controversy. How much of your awareness of that controversy is precisely derived from that "useless" court case?

Not only that, but it's one thing to claim "the US sucks, look at XYZ". But now you can point an impartial court backing exactly that statement. It is not, to take an example, Chomsky flogging his favorite whipping horse. It is not Oliver Stone selling his next movie. It's backed by legal opinion. Which can, of course, be disputed: "this was not a credible impartial court". But that's already a much higher bar than "you are just spouting anti-US propaganda".

Most nations nowadays, even the US, even Russia, don't act alone. They try to cajole and convince other nations to come in on their side and join coalitions, effect sanctions. Such a ruling will not affect the really deep relationships, like say US-UK or Russia-Belarus (not saying the 2 are equivalent). They will affect more distant members of the international community, like say India.

Ignoring a UN ruling, for example the UK in the case of Diego Garcia, will also make it specifically harder to use UN infringements as an argument against other nations elsewhere.

It's a factor that affects soft power. Countries try quite hard to avoid losing face. For example, permanent Security Council members try to avoid having to cast their veto vote to get out of some resolution or other - they'd much rather it not get to a vote at all, even though the apparent end result looks much the same.

Now, strictly in the case of the US, and not Putin's Russia, there is also a (likely slight) domestic cost to this reputational loss of face. Some voters will, on general principle, choose to always vote against the party that launched the Nicaragua intervention. Or maybe Congress members that voted to give it a green light. In tight races, every bit counts.

One thing to remember, as sometimes gets mentioned on answers here: international law isn't like normal law. There is, most of the time, no automatic enforcement of judgments by "the police" on sovereign nations. So a lot of it looks pointless, from a distance. It's not, but it is different.

Edit March 2023:

Since this question has seen some new activity, I thought I'd update my answer re. the outcome of that ICJ's 2019 ruling re. Diego Garcia, against the UK, also a Veto-carrying member, and some recent developments in November 2022: UK to open negotiations over future of Chagos Islands - BBC News.

The UK has agreed to open negotiations with Mauritius over the future of the Chagos Islands, a British territory in the Indian Ocean since 1814.

Foreign Secretary James Cleverly said he wanted to "resolve all outstanding issues" over the archipelago.

Answer 2

The ICJ (and for that matter, the United Nations more generally) simply isn't a very good institution for resolving matters of war and other warlike hostilities between countries, and is especially poor at doing so when a permanent member of the security council is involved.

What I am saying is, today, can't Russia do something similar?

It can.

Assuming Ukraine won the case, what would they gain in reality?

Not much.

Because the ICJ has no effective means of enforcing its orders in these circumstances, it is effectively just an arbitration panel that only really works when the nations with the dispute consent to its decisions being binding post-dispute, but prejudgment.

In practice, ICJ rulings are most commonly followed when, for example, it rules in cases where it is used to resolve low stakes boundary disputes between countries who are not on the brink of war, that all parties are committed to honoring the results of in advance of either of them resorting to the ICJ.

Answer 3

International courts are just political theatre, so you are correct in that nothing substantial will come of this other than a politician of a democracy using the ruling to bolster their political campaigns. e.g. "Times are tough with these sanctions in place but the International Court of Justice agrees that we are doing the right thing"

According to realism in international politics:

the international political system is anarchic, as there is no supranational authority to enforce rules;

Therefore it follows that any court that deals with international issues relies completely on the cooperation of both states. So international courts are really just political theatre. They have no power to enforce their rulings against the will of either state like a local court can use the police against a local criminal.

You could certainly say that by bolstering the political power of politicians who oppose Russia, who in turn convert that political power into real offensive measures against Russia, is an indirect way of serving Ukraine's desire for self-preservation. In that case Ukraine does actually gain something from the court ruling, but that seems impossible to measure.

Answer 4

In a [more] democratic country, the effects can be significant, giving extra ammo to the domestic opposition, even enabling legislation to stop the acts in question. That's exactly what happened in the US in the Nicaragua case, even if they paid no restitution, Congress made it much harder for the executive to keep at it.

The mining and World Court episodes gave new ammunition to long-time critics of Reagan’s foreign policy. More importantly, however, they turned a significant number of previous Reagan supporters against the administration’s actions in Nicaragua. Outrage over Reagan’s foreign policy now expanded beyond groups that supported the Sandinista regime and the more liberal members of the U.S. Congress. Now, more moderate Congressional niches where Reagan’s policies had enjoyed support or at least acquiescence were also opposing continued support for the contras. As major newspapers in the U.S. detailed, Congressional reaction to the mining and World Court incidents was wrathful. On 10 April, The Chicago Tribune quoted Republican member of the House foreign affairs committee, James Leach, as saying that “withdrawing from the World Court made the U.S. look like it is above the law.” (Atlas and Worsham 1984). Democratic representative John Selberling was more explicit, saying that the action “reduces our nation to the position of international scofflaws.” House Speaker Thomas O’Neill, a Democrat from Massachusetts, condemned President Reagan for overstepping the jurisdiction of the World Court. “Up to this point, I have contended that the Reagan administration’s secret war against Nicaragua was morally indefensible. Today, it is clear that it is illegally indefensible as well.” (Atlas and Worsham 1984). House Speaker O’Neill was cited on the front page of the Los Angeles Times as saying: “thirty-eight years of U.S. support for the peaceful and lawful resolution of disputes between nations has been undermined by this unfortunate decision.” (McManus and Houston 1984).

In effect, controversy over the mining crisis and rejection of the World Court drove a marked wedge between the executive and the legislative branches of the U.S. government. Senators argued that the President had abused his authority and intruded in the war-making powers of Congress. The Reagan administration contended that it had both the authority and moral duty to act in the way that it had. In the immediate aftermath of the mining and World Court crises, Congress members mobilized to end their country’s support for the contras. In a closed session in early April 1984, the House Foreign Affairs Committee approved a non-binding resolution expressing opposition to the mining operation (Wall Street Journal Staff Writer 1984). In the Republican-dominated Senate, Senator Edward Kennedy of Massachusetts promptly spearheaded the approval—by an overwhelming majority of 84-12—of a non-binding resolution calling for an end to the use of CIA funds to assist in the mining of Nicaraguan ports.

[...] In assessing Reagan’s foreign policy, U.S. Congress members supporting the Boland amendment referred directly to the case at the ICJ and to global public opinion. House Representative from Massachusetts, Edward Patrick Boland—after whom the Amendments restricting aid to the contras were named—frequently referenced the World Court and world opinion as factors that should move Congress to block all aid to the contras (United States Congress 1987). Members from both the House and Senate argued that the contras had produced “our growing isolation in world affairs” and that withdrawal from the World Court had “been widely interpreted as a sign of our contempt for international law and world opinion.” (Panetta 1987).

[...] Changes in public opinion and bipartisan congressional opposition to continued aid for the Nicaraguan contras were behind the passing of the Boland Amendment II. The lawsuit brought before the ICJ by the Sandinista government of Nicaragua played a major role in changing public opinion in the U.S. and internationally and it moved majorities in the U.S. Congress to reject continued aid for the contras.

Of course, it is much less likely to have a similar effect in present day Russia, even if they lose their ICJ case against Ukraine. BTW, Russia seems to have changed their strategy, and is no longer just ignoring the ICJ case.

But even there, it would be interesting to see what, e.g. the Chinese judge says, since abstaining at the ICJ is harder than abstaining at the UNSC or UNGA. In the Nicaragua case, the continental European judges (France and Italy) voted against the US, which no doubt was in part why those US politicians could then say that the US foreign policy was experiencing growing int'l isolation over the matter.

Of course, as we know, the Reagan administration then resorted to means that were illegal even according to the black letter of US law to fund their policy. That Reagan himself managed to escape responsibility for that while blaming his underlings is a somewhat different matter.

And by the way, in 2017 Nicaragua again pressed their case at the ICJ, this time for a concrete sum of money ($17 billion, plus interest). Essentially, you don't really know how things will turn out with a future government of a country. Maybe they'll pay something. And while historically the ICJ has avoided giving concrete monetary awards, they bucked that trend in 2022 with the Congo case.

Answer 5

It's important to note that a court (local, national or international) still depends on governments to enforce it rulings. When it comes to enforcing international court rulings, diplomatic support and military strength of a country matters to stand up to another powerful nation state (like one the permanent members of the UNSC).

The Bangladesh liberation war offers good insights on this.

When British India got its freedom, it was partitioned into 3 parts - West Pakistan (now Pakistan), India and East Pakistan (now Bangladesh). West Pakistan and East Pakistan were not geographically connected, and were linguistically and culturally different. West Pakistan, then under a military dictatorship, started a witch hunt against the politicians of East Pakistan that democratically opposed its attempt to impose its cultural hegemony on East Pakistan. This unfortunately turned into a genocide. Millions of Bengalis started pouring into India. India then was struggling to feed its own nation, and was suddenly burdened with taking care of millions more. The stories of violence and undemocratic reprisals of political rights from the refugees also inflamed public anger in India. India urged the great powers to take actions, but they had their own political reasons to not do so.

In particular, the United States of America, then under President Nixon, and an ally of Pakistan was absolutely loathe to act against Pakistan. Nixon was using Pakistan (or he thought he was - it is now clear that Pakistan made better use of him) to somehow open a diplomatic relation with China to try and pivot it against Russia. He thus didn't want to upset them.

Burdened with 10's of millions of refugees that continued to pour into India, and public anger rising against the Pakistanis and the Government of India, India's Government under Mrs. Indira Gandhi decided it had no option but to seek a military solution to force a political settlement. But Pakistan had 3 permanent members of the UNSC as its ally - the US, UK and China. And both US and UK had directly warned the indian Prime Minister that they would not tolerate any military actions by India (though UK was more sympathetic to both India and Bangladesh's political situation). China had fought a war with India, believed that the USSR was using India to increase its influence in the area, and also as an ally of Pakistan, was also hostile to India.

To make a long story short, Mrs. Indira Gandhi decided to do a personal outreach as part of an international diplomatic mission to highlight the genocide happening in East Pakistan / Bangladesh, and advocate support for the Bengalis, and to push forward India's views that a military solution was increasingly inevitable in the absence of a negotiated political settlement by the international community. At the same time, on rightly perceiving the western hostility to her military plans, India pragmatically abandoned its non-alignment foreign policy and signed a temporary military pact with Russia.

The indian military had started equipping itself and training Bengali rebels. Pakistan launched a pre-emptive strike against India, immediately escalating the issue. India and Bengali rebels worked together together and defeated both the invading army from West Pakistan and the occupying army in East Pakistan. When the US threatened to attack India, Russia stepped up and warned the US that it would get involved too due to military pact with India. This ensured that the west dropped its plans to attack India. At the same time, the international diplomatic mission had managed to create a huge support for the independence and creation of Bangladesh.

While India's international diplomacy under Mrs. Indira Gandhi was at its finest during this period, the role of the Bangladeshi's were also exceptional and important in diplomacy during this period. A consequence of West Pakistan's genocide was that many East Pakistan diplomats in Pakistan embassies around the world rebelled and turned against them. The words of these diplomats, who had better access to what was actually happening in East Pakistan / Bangladesh, carried a lot of weight among the international community and was instrumental in earning international support for India and Bangladesh.

This has some parallels with the Russian - Ukraine crisis currently ongoing in Europe. Ukraine, thanks to its NATO allies, has managed to win considerable support among the international community. Ukraine has also shown to the world that it has a capable military. It also has a military alliance with the NATO. These exact factors - a capable military, strong international support, a military alliance with a P5 member - are what helped India stand up to the Nixon's USA in liberating Bangladesh.

So the answer to your question is that if Ukraine can persist in maintaining the support of the international community, its military alliance with NATO (which includes many P5 members) and maintain the capability of its military, Ukraine could very well be in a position to enforce any international court ruling against Russia. (Atleast some parts of it anyway, realistically, as Russia is still considerably powerful).