Occasional Paper#9:OP:2
by Lori Fisler Damrosch

This paper addresses two different trends in the problem of using judicial bodies for the control of violence. The first concerns the International Court of Justice (ICJ), whose jurisdiction is limited to disputes between states on the basis of their consent and to requests for advisory opinions that can be made by certain U. N. organizations. Second is the progress being made toward prosecuting individuals for violations of internationally accepted rules concerning war crimes, genocide and other serious offenses. International courts already have made significant contributions to averting or controlling violent conflict, and the potential for the future is even greater. The two different kinds of tribunals (one dealing with state-to-state disputes and the other dealing with the obligations of individuals) can play complementary roles.
   

Concerning the International Court of Justice, the paper examines several different kinds of cases, beginning with those in which the Court has been asked to determine, authoritatively and with finality, boundary disputes between countries who might otherwise be tempted to fight, or might even actually be fighting, over the territory in question. The Court can also opine on the content of contested normative principles which, if clarified and observed, could prevent or restrain conflict or contribute to conflict resolution. As a subset of this category, the Court can be - and has been - asked to render judgment on the norms governing use of force and intervention, notably in the Nicaragua judgments of 1984 and 1986. The paper deals with recent and pending ICJ cases including the Bosnian Genocide case, cases brought by Iran and Libya against the United States and the requests for advisory opinions concerning the legality of the use or threat of use of nuclear weapons.
   

The paper then turns to consideration of the two ad hoc bodies created to prosecute serious violations of international law in the situations in former Yugoslavia and Rwanda and of the momentum toward creation of a standing international criminal court building on these precedents. The paper argues that it is essential to create and equip international judicial institutions with power to adjudicate the criminal responsibility of individuals in order to ensure effective mechanisms for the enforcement of international law in situations where national institutions have failed.

Dr. Lori Fisler Damrosch is professor of law at Columbia University Law School. For a briefer version of the paper see Report No. 8.

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