Croatia and Serbia are seeking not so much punishment for their opponents as a kind of national vindication.
In any case, while the court’s rulings are legally binding, the ICJ has no power to enforce them, especially when national or local authorities ignore the court’s decisions.There is no ICJ police force or prison. A plaintiff who does not receive resolution must take the case to the UN Security Council. The ICJ ruled in 2004 that the separation barrier between Israel and the occupied West Bank was illegal, but it is still standing. That same year the ICJ ruled that the United States was in violation of its obligations under the Vienna Convention, which guarantees diplomats access to their nationals arrested in foreign countries. The ICJ said 51 Mexican nationals had had their rights violated, including Edgar Tamayo Amias, and their case should be reviewed.
The Texas authorities ignored the request. Arias, who was convicted of the 1994 murder of a Houston police officer, was executed in January 2014. Both the Bush and Obama administrations requested that such executions be stayed and reviewed, because of the potential consequences for Americans arrested in other countries.
The ICJ has also taken on the spooks. On March 3 the court issued a significant ruling that will be welcomed by small states with large and powerful neighbours. The court ordered Australia to stop spying on East Timor. One of the world’s newest countries, East Timor achieved independence from Indonesia in 2002. East Timor’s legal wrangles with Australia continue over the boundaries of a $36.2 billion maritime natural gas deposit in the Timor Sea. The case is being heard at the Permanent Court of Arbitration, also located in The Hague.
Three months before the ICJ ruling, on December 3, 2103, agents of the ASIO, the Australian secret service, raided the offices of Bernard Collaery, the Australian lawyer acting for East Timor. A dozen agents seized legal documents, electronic files, correspondence between East Timor and its lawyers, and a statement by a former ASIO agent which alleged that the ASIO bugged East Timor’s offices during negotiations over the gas deposit. The agentalso had his passport seized.
In a setback to Canberra, the ICJ ruled that Australia must not “interfere in any way in communications” between East Timor and its lawyers. Australia must keep all the seized documents and data sealed until further decisions by the court and must ensure that the seized material cannot be used in any way to the disadvantage of East Timor until the maritime arbitration case is concluded, which is not likely to be for another year. However, the judges did not order the material to be returned to the country’s lawyers.
As Tom Allard notes in the Sydney Morning Herald, the ruling, which comes in the wake of the Snowden revelations about the reach of Western intelligence agencies, is the first time that the ICJ has imposed restrictions on the ‘Five Eyes’: the intelligence services of the United States, Great Britain, Canada, Australia and New Zealand. The ICJ may be little known, but it is becoming an increasingly important international forum.
The Geneva Option, Adam LeBor’s thriller set in the United Nations, is published by HarperCollins.