New initiatives have been aired recently in high political circles about creating two new courts to deal respectively with piracy off the Horn of Africa (stemming from Somalia), which continues to make headlines, and nuclear security issues.
Not long ago, there was a Dutch proposal that the UN should support the establishment of a tribunal to try Somali pirates, preferably located in Kenya, to work under the supervision of the UN. Russia also seems supportive of the idea. Many countries are not keen to try the pirates themselves, primarily for lack of legislation and other related issues. Case in point, in a recent operation, after successfully thwarting off a pirate attack, the Russian forces released the captured pirates. A question which needs to be asked first is whether establishing such a court is going to have any deterrent effect for people for whom piracy has become a way of life, in view of lack of other alternatives. In a previous post last year I pointed out the need for a comprehensive effort of the international community, based on finding a political solution to the crisis in Somalia, economic assistance and UN and/or African peace-keeping forces on the ground, to finally bring Somalia back on its feet and put an end to piracy.
Another idea, expressed by the Dutch Prime Minister Balkanende in the 2010 Nuclear Security Summit in Washington, is that of examining the possibility of establishing a nuclear tribunal. The US President Barack Obama said that the idea of an international nuclear court requires further study in terms of international law and other areas. Most of the parties represented in the Dutch parliament expressed doubt whether a special nuclear tribunal is necessary. The parliamentary discussion over this matter showed that indeed further study and a proper briefing of parliamentarians on this issue would be desirable.
The overarching issue underlined by these two proposals is whether there is a need to establish new international courts to face specific global or regional security threats? Indeed, enforcement mechanisms for different important international law norms relating to peace and security are lacking, even in the case of a customary international law norm such as the prohibition of piracy. But the issue of establishing new courts should be approached with restraint. Before committing to such a huge step a feasibility study needs to be prepared and options explored whether an already existing court can eventually exercise jurisdiction for that specific issue or be bestowed jurisdiction over it. The Review Conference of the International Criminal Court in Kampala, Uganda, or similar world summits offer splendid opportunities for considering such issues.
In any case, establishing new international courts, provided they are or will be deemed necessary, is not going to have the desired effects, unless that is accompanied by other necessary political and economical measures which aim at addressing the root causes for existing problems.