International law in times of war: "The ICJ won't save the world – but it's good that it's busy"

Dapo Akande is a professor of international law at Oxford university. The United Kingdom National Group nominated him as candidate for election as a judge to the International Court of Justice (ICJ) for the term 2027 to 2036. LTO met him at the British Embassy in Berlin. Translated German version, deutsche Übersetzung lesen Sie hier.

LTO: Professor Akande, if we look at the recent surge in Russia’s drone strikes in Ukraine or Gazans being starved by Israel, many people feel that international law isn’t worth much anymore. You are a candidate to become a judge at the International Court of Justice (ICJ). If you are to serve at the world court, you have to be more optimistic than that, don’t you?

Dapo Akande: Yes, and I am, in the sense that international law has never been more popular. It's much more in the public consciousness, not just international law, but also the ICJ. In the past, if I told somebody – a taxi driver or my next door neighbor – I'm an international lawyer, they would probably smile and then ask: "so, what does that mean? What do you actually do?" 

And today? When you’re driving to the airport, the taxi driver knows what you do? 

If you tell somebody today that you're an international lawyer, they probably have a good sense of what that means. Maybe not every taxi driver or every next-door neighbor, but the public is much more conscious about international law and its institutions. 

That’s the one side. On the other side, when people talk about the crisis in international law and violations of international law, that is all true. You just have to turn on the TV.  

So, there is a crisis in international law.

Yes, but what’s not so clear to me is whether, in absolute terms, there are more violations of international law now than before, or whether we're just much more conscious now of measuring things by reference to international law than in the past. 

"There's a danger that people say: What's the point?"

Then there might only be a growing discrepancy between expectations and reality: while the reality “on the ground” stays the same, people expect more from international law and its institutions? 

Exactly. I think that's the biggest development: that the discrepancy between the expectation and the reality today is bigger than what was before. 

And I think it's a dangerous moment right now, because expectations are so high. If legal standards are not fulfilled, there's a danger that people just say, "What's the point? This is just hopeless, useless." 

What is your reference point when you say "before"? What is the "high point" of international law? And where are we now? 

We can think back to the 1990s and the early 2000s, where there was a lot of hope and optimism. We're in Berlin, the Berlin Wall comes down, it’s the end of the Cold War. 

We’re not there anymore. Metaphorically speaking, the car is in reverse, it's going backwards. But it’s still further forward than it has been at most points in history, especially during the Cold War or any time before the Second World War. 

And then hope made expectations grow higher – to the point they cannot be met anymore? 

"International law serves as the common language"

You’ve said earlier: "you just have to turn on the TV." Does the availability of information play a role, too? When I turn on the TV, I see images of destruction, death and hunger in Gaza. In the past, or in conflicts with less media coverage in Europe, like Sudan, people might just care, or have cared, less because violations of the law didn’t appear as tangible. 

Media attention plays a key role. But over time, the way of how we measure state conduct has changed. In the past, there was a moral sense of what's right and wrong. But it's one thing to say, "that's immoral, that's unethical, that's not right." You might respond to me saying: "that's only your morality, your feeling."  

But if I say, that's unlawful under international law, what I'm really saying is that there is a shared view in the world that this is wrong. 

Can you give examples? 

If you take Gaza, you mentioned the horrible humanitarian situation and the lack of food.  

In the past there have been other conflicts where there have also been accusations against one party of using food as a weapon. However, today, we think about all of that through the lens of international law.  

You mean we’re now calling it "starvation of civilians as a method of warfare", a war crime punishable under the Rome Statute. 

Yes, when making that accusation, we make reference to the relevant conventions and treaties. Whereas if you go back like 55 years, the Biafran War, the Nigerian Civil War in the late 1960s. Or even 25 years, the conflict in the Congo at the end of the 20th century. These are conflicts where much, if not most, of the deaths arose because of lack of access to food. We didn't talk about those things in international law terms. So, that is the role that international law is fulfilling today: it serves as the common language that we can use for assessing state conduct.  

The problem is when you then don't see compliance with those standards. 

What functioned better in the 90s and 2000s? 

But you don’t see a decline in state compliance with international law coming from the high point in the 90s and early 2000s? 

It is hard to say in numbers. At least so far no one says, "We're violating international law." Even if you are an authoritarian regime, you're still referring to the law, you’re trying to justify your behavior under international law. 

However, it is alarming when world leaders today question basic international norms like the prohibition of acquiring territory by force.  

But we've seen this in the past, too. We've seen times, for example, when states have questioned if it may not sometimes be lawful to use torture, like in a ticking time bomb scenario? 

Would you say that in the 90s, the law or its institutions also have functioned better in some ways? Or was it just the perception of it, the hope, the emotionally charged atmosphere? 

No, things did function better. For example, the Iraqi invasion of Kuwait in 1990, just after the end of the Cold War. The Security Council was able to assemble and make a resolution to remove Iraq from Kuwait. Even the war in the former Yugoslavia, the Security Council was not very effective, but it was able to agree to authorize the use of force to protect what it called “safe areas” and impose sanctions on Serbia and Montenegro.  

A bit late, critics might say … 

It came a bit late, of course. But at least there was agreement to be able to make concerted decisions, a common understanding of what’s wrong. Apart from that, the Security Council set up an international criminal tribunal for Yugoslavia, ICTY. That happened in 1993, in the middle of the ongoing war, two years before the genocide against the Bosniaks in Srebrenica.  

"More than half the states are involved in a case at the ICJ"

The ICTY later convicted several military commanders, leaders and politicians, especially among the Bosnian Serbs and the Bosnian Croats. Some of them for committing the Srebrenica genocide, war crimes and crimes against humanity. 

Exactly.  

And the same thing happened after the genocide against the Tutsi in Rwanda: the Security Council set up a criminal tribunal. Of course, in that case, the reaction of the international community was more than a bit late. 

Not all of these are success stories, agreement among states doesn't necessarily make international law effective. But at least they agreed that they could do some things, whereas now, there is not even agreement to do anything. 

All that sounds very depressing: higher expectations of the disciplining power of international law met by less agreement on legal norms and disregard of essential norms by military superpowers. Do you also observe change for the better? 

I do. What gives me cause for optimism is the fact that the ICJ today is much more widely used than at any time in history. More than half the states in the world today are involved in one case or another at the ICJ. That really is mind-blowing as an international lawyer. 

Only, as mentioned before, you must worry a bit about the gap between expectation and reality. In other words: that people are not expecting too much – because a court is a court. The ICJ is not going to save the world. If we think that it is, we are deluded. But it's good that the court is very busy. 

"The success stories don't get a lot of attention"

Is there a case in more recent history, where international law helped to mitigate a conflict, which was about to evolve into violence? 

Yes. If you look at the cases at the ICJ, there were lots of boundary disputes historically. This type of conflict often does lead to violence. But there are many cases in which an ICJ ruling prevented that. For example, in a boundary dispute between Equatorial Guinea and Gabon, a 50-year-old dispute, which did involve the use of force in the 1970s. Gabon claimed an island, which was under dispute. The ICJ now decided, in late May, that the island belongs to Equatorial Guinea.  

And then there was a boundary dispute between Nigeria and Cameroon, which had from time to time involved the use of force. It was resolved peacefully by the ICJ in the early 2000s. There are many more examples of this. 

Are there also examples where international law worked without an ICJ ruling, where the sole risk of being dragged to court – or the legal norms themselves – prevented (further) escalation? 

I don’t know that the issue is whether it is the legal risk that itself or solely prevents escalation. International law often works as part of a broader picture and to me it is a mistake to try to see whether on its own it is achieving effects. 

In any case, I do think there are instances where cases at the ICJ help to spur or promote the settlement of disputes even though those cases did not reach a conclusion. Sometimes cases are brought to the Court and then the parties go away to negotiate a settlement, and the case is then withdrawn. 

So, there are success stories. But in international law, as is the case for law generally, the success stories don't get a lot of attention. It doesn’t make the news. 

"The horrific images are attributed to the failure of the law"

It’s also more difficult to see. If prevention mechanisms work well, you don’t see it. That’s the prevention paradox. 

Exactly, where international law has prevented violence from taking place, the law doesn’t get a lot of attention. And this is also true vice versa: if a conflict turns violent, and we see death and destruction, then it’s in the news. Today, obviously, what's going on in in Gaza would be at the top of that list. Also, Russia’s full-scale invasion of Ukraine, the bloody war in Sudan. And those cases, the horrific images are attributed to the failure of the law. 

There is a conception that states from the Global South get punished for their violations of the law while "Western" states get away with it. Is it a misconception, or is that feeling of double standards justified? 

Sometimes it’s justified, even obvious. But sometimes it's played up and then used as an excuse to not be held accountable yourself – we call that "whataboutism". 

Can you give an example? 

There is a case at the ICJ against the UK about the Chagos Islands, an archipelago in the British Indian Ocean Territory. The ICJ, in an advisory opinion of 2019, found that Chagos, which still is under UK administration, belongs to Mauritius rather than to the UK. Thankfully, in 2025, we have an agreement between the UK and Mauritius which implements that decision. 

But until that time, when the UK hadn't reached an agreement with Mauritius, it's been easy for other countries to say: "well, how can you be telling others to abide by the decisions of the International Court of Justice when you are not abiding by the decisions?" 

"When you don't comply, it’s difficult to accuse others"

Did someone do that? 

Yes, the Russian ambassador back in 2022, just after the ICJ had issued a provisional measures order calling on Russia to cease the invasion. The International Criminal Court had just opened an investigation into the conduct of Russian forces in Ukraine. 

At the UN, the ambassador basically defended the invasion using "whataboutism". He said: "what about the UK? What about the Chagos Islands? We're being accused of not complying with a decision of the International Court, but there's a judgment, a decision of the ICJ about the Chagos Islands which the UK hasn't complied with." He also did that with regard to an older ICJ decision against the US. And just sensing the body language of the other ambassadors around the table, you could see that what he was saying was effective. 

So that's the danger: when you don't comply, you make it much more difficult to make accusations that other people are not complying. 

The idea of abiding by the law to be able to hold others accountable for their violations of the law sounds promising. But that’s not enough to get all states to fully comply with the norms. That’s usually what sanctions are for. 

That is true. But I’m wary of saying that the problem is a lack of sanctions. This is a problem with all law when it is applied to the state, even domestic law when applied to state institutions. In domestic law we do not think that imposing sanctions on the state is the way in which we get the state to comply with international law. What we do is we build a culture that is respectful of the rule of law. 

Professor Akande, thank you very much.