How does a man from conflictual Somalia become the highest ranking judge in the world at the International Court of Justice (ICJ)? I meet Judge Abdulqawi Yusuf at a cafe near his chambers at The Hague to find out. Yusuf is soft spoken with gleaming eyes. Despite his daily exposure to man’s inhumanity to man Yusuf believes mankind is making progress. “In the past, we used to take revenge against each other,” he tells me.
Territorial wars and mass casualties were a constant practice of nations. But, since the creation of the United Nations and the International Court of Justice in 1945, far less blood has been spilled in pursuit of global or regional power. “Interstate wars have diminished and have actually almost disappeared,” he observes. Yusuf, who presided over the court from 2018 to 2021, explains that its dispute settlement function has played a prominent role in this global transformation. Remarkably, “more than 99% of the judgments and orders of the court are automatically respected, implemented, and enforced.”
As we discuss these developments near the clock tower that, it should be noted, houses a clock gifted to the Peace Palace by Switzerland, I note the irony of the occasion. The prime mover of the first Hague Peace Conference in 1899 was the Russian tsar, Nikolaus II — a fact about which Russian strongman, President Vladimir Putin, must surely be aware.
“The tsar was fed up with endless wars in Europe. He was determined to find a way of peacefully settling international disputes.” Yusuf and the Court of International Justice are now tasked with realizing the original tsar’s ambition.
Weltwoche: Judge Yusuf, how did the case of the current war in Ukraine come before your court?
Judge Yusuf: Ukraine brought the case to the Court on February 26th. It referred to a statement made by the president of Russia, Vladimir Putin [during a televised speech on February 23rd] and said , “Russia is engaged in a military invasion of Ukraine because of an alleged genocide undertaken by Ukraine against Russian speakers in eastern Ukraine in violation of the convention against genocide.” Ukraine therefore invoked as the basis of jurisdiction of the Court the Genocide Convention and the existence of a dispute between the two parties on the interpretation and application of that Convention. It also asked for provisional measures of protection.
Weltwoche: At this moment, the court had to become active. What did you do?
Judge Yusuf: The court always refers the application to institute proceedings to the other state. Russia was notified but it replied, “No. The ‘special military operation’ was not launched because of a genocide. It was launched because of self-defense. Russia was under threat, and therefore Russia has, under the charter of the United Nations, the right of self-defense.” For Russia, therefore, the Genocide Convention had nothing to do with the case.
The court looked at the arguments of the two parties. For the purposes of the provisional measures of protection, which was requested by Ukraine, the court had to determine whether it has a prima facie jurisdiction. The court said that the matter falls prima facie under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. After having examined the matter, it also came to the conclusion that the special military operation should be suspended, and that is what it ordered.
Weltwoche: On March 16, 2022, the court ruled that Russia must “immediately suspend the military operations” in Ukraine while waiting for the final decision on the case. Is the court still examining Russia’s allegation of genocide as we speak?
Judge Yusuf: The case is still pending before the court. Russia has raised preliminary objections to the jurisdiction of the Court and this issue has to be decided before the court can address the case on its merits.
Weltwoche: The court’s order for Russia to “immediately suspend the military operations” is binding, correct?
Judge Yusuf: Oh, yes. It is.
Weltwoche: Regardless of the order, Russia has continued its military operation to this day. So, the order is binding, but the International Court of Justice cannot enforce it.
Judge Yusuf: I find your description of the situation very interesting because it is a formula that is always used by journalists. The court issues an order or a judgment, and they all come to the court to cover it. They stand outside the Peace Palace here, and they are broadcasting live on television, and they say, “The court has ordered this or that to the other state but cannot enforce it.”
Weltwoche: Because a court can never enforce a judgment. It's somebody else who has to enforce it.
Judge Yusuf: Exactly. That is the wrong formula. Because whether it is a domestic court or an international court, a judge doesn't go after the parties with his judgment and say, “What are you doing? You are still behaving in the same way? I told you to stop behaving that way. I am going to enforce it with a baton or something like that.” No. The court is not the police.
Weltwoche: Who then would be authorized and capable to enforce your orders and judgements? Is it the United Nations? The Security Council?
Judge Yusuf: Let me tell you this: More than 99% of the judgments and orders of the court are automatically respected, implemented, and enforced. You can look at the list https://www.icj-cij.org/en/list-of-all-cases/introduction/desc of judgments of the International Court, and you will see. Also, Article 94 of the UN Charter allows a party to have recourse to the UN Security Council in case the other party fails to comply with its obligations under a judgment or order of the court.
Weltwoche: In other words, when your court makes a judgment, it is almost always automatically enforced?
Judge Yusuf: Yes. Take a very recent example. There was the conflict between Uganda and the Democratic Republic of the Congo (DRC). The DRC brought the case to the court and said, “Uganda did not only invade our territory, but it committed massacres and engaged in widespread looting of natural resources from the country.” In 2005, the court found that Uganda had actually breached its international obligations, had invaded the DRC, and violated the charter of the United Nations and the principle of non-use of force in international relations. The court also found that Ugandan troops committed grave breaches of humanitarian law and that there was an unlawful exploitation of the natural resources of the DRC. Then, the court said that Uganda owes reparations to DRC and should pay such reparations. The court ordered first that the parties should negotiate the amount of the reparations, and if they failed to agree, they could come back to the court.
The negotiations between the parties on the reparations lasted for ten years. They could not agree on the amount. They came back to the court. The court issued a new judgment on reparations in February 2022. The court said that Uganda has to pay $325,000,000 [US] to the DRC for reparation. Uganda was very unhappy. “Where are we going to get $325,000,000?” it protested. “It's too much.” Since Uganda is a least developed country, the court ordered it to pay US$ 65,000,000 every year for five years. The first installment of 65,000,000 was paid in September this year.
Weltwoche: More than 99% of compliance is a remarkable figure. It proves that the authority the ICJ has in the world is enormous.
Judge Yusuf: Yes, exactly. I will give you another example. There were the sanctions of the United States against Iran. Iran came to the ICJ and said, how can the US impose sanctions on Iran, and particularly on medicine, food, spare parts for US-made airplanes, when we still have a treaty of Amity, commerce and navigation concluded in 1952? The court issued a provisional order of protection in which it said that the sanctions should not cover goods required for humanitarian needs, like food, medicine, and spare parts for airlines.
Weltwoche: How did the Trump administration react?
Judge Yusuf: Mike Pompeo, then secretary of state, held a press conference, and he said, “We disagree with the court because Iran is trying to use the court for political purposes, but we respect its decision.”
Weltwoche: So even a superpower, like the USA, does respect your order.
Judge Yusuf: Yes. They do.
Weltwoche: So, Russia ignoring the court’s order to “immediately suspend” the military operations is a rare exception. What are the next steps in this current case?
Judge Yusuf: The case is ongoing before the court. It has not yet come to an end. The court has to decide on its jurisdiction. Russia has never said it does not respect the court or its decisions. Russia is fully participating in the case, and the case is still being instructed by the court. That is extremely important for the court and for international law.
Weltwoche: Russia has unilaterally changed the situation on the ground by annexing four Ukrainian regions — Luhansk, Donetsk, Zaporizhzhia and Kherson — which cover around 15% of Ukraine. The Kremlin-installed governments held so-called annexation referendums and have all declared victories. In 2014, Russia had already annexed the Crimea. How has the ICJ dealt in the past with annexations of portions of a sovereign state by another state?
Judge Yusuf: The issue of annexation of the regions you mentioned is a separate one. The case currently before the court concerns allegations of genocide and was brought under the Genocide Convention. In any case, since the UN Charter was adopted, annexations occur only in extremely rare cases.
Weltwoche: Are there examples to compare it with?
Judge Yusuf: With regard to cases brought before the Court on annexation, there was the case of South West Africa (now called Namibia), which was entrusted to South Africa under the regime of the mandates of the League of Nations. South Africa essentially annexed the territory before the implementation of the UN Charter, and kept it as part of the South African state.
The case was brought before the International Court of Justice by Liberia and Ethiopia, which were the only African states that were members of the League of Nations and had, therefore, participated in entrusting Southwest Africa to South Africa, at that time, in the 1920s. The court unfortunately said, at the time, that Ethiopia and Liberia had no legal standing and, therefore, could not bring the case before the court.
The UN came back and asked for an advisory opinion on the consequences of the continued presence of South Africa in South West Africa (Namibia). The court was very clear. The court said that the people of Namibia had a right to self-determination and therefore they should be given an opportunity to express their right to self-determination. That's how Namibia became independent finally.
Weltwoche: Such a referendum must be held under international observation?
Judge Yusuf: Elections were held under the auspices of the United Nations. I was there as part of the UN mission. It was called “UNTAG.” We were sent to Namibia to conduct the elections, and the people overwhelmingly expressed their wish to become independent.
Weltwoche: That was a successful case to settle a case of annexation.
Judge Yusuf: Yes.
Weltwoche: The recent case of Russia annexing large portions of sovereign Ukrainian and, then, holding own referendums without the hospice of the United Nation — this is a violation of international law?
Judge Yusuf: Well, the case between Ukraine and Russia is pending before the court, so I do not want to talk about it or go into legal consequences of other issues between the parties which might come up.
Weltwoche: As a judge, you cannot talk about current cases. This is to be respected. Moscow now regards the annexed territories as “Russian” territory. In other words, what is happening within those new entities Russia regards as a domestic issue. Let me ask in general terms: If a government is waging war within its own national borders, it cannot be brought to the ICJ?
Judge Yusuf: Civil wars cannot be brought before our court. Unfortunately, for all of us in the world, and especially for Africa, where I come from, and for my own country Somalia, many of the wars in the last fifty, sixty years have been civil wars.
The charter of the United Nations forbids the use of force in international relations, but it does not forbid the use of force in internal relations because it does not concern itself with what happens inside the state except, of course, what happens inside the State in terms of human rights violations. There the UN does concern itself.
Weltwoche: Has the ruling of the International Court of Justice helped to decrease the number of war victims in general?
Judge Yusuf: The number of people killed in wars has generally diminished by comparison to the first half of the twentieth century because the number of victims in the two world wars was outrageous. But people are still being killed in wars. These are mainly internal wars, and they have increased. But since the creation of the United Nations, interstate wars have diminished and have actually almost disappeared. This is one of the major achievements of the UN Charter principles and its organs, including the international court of justice.
Weltwoche: In other words, we are living now in one of the most peaceful times.
Judge Yusuf: Exactly. Our time is one of the best times to live. We have experienced in Africa human enslavement and slave trade. We have experienced colonial oppression. Interstate wars were frequently waged in Europe in the 19th century. There were the thirty years war, the fifty years war, which were extremely cruel. Then, in the 20th century, the worst of them all: the First World War and the Second World War.
In the last seventy years, the number of interstate wars has diminished. They have been occurring at a very, very small scale. If you look at it overall, you see that the situation has improved a lot. We have never lived as human beings in an era which has globally been as peaceful and as satisfying as the last seventy five years. That is the UN Charter era. That is what we should build upon. We should not regress now. We should progress.
Weltwoche: So, this era of interstate peace is a consequence of your work at the ICJ?
Judge Yusuf: And of the Charter of the United Nations. Both. It is a consequence, to a certain extent, of our jurisdiction because when a dispute which, could escalate into an armed conflict or which has already escalated into an armed conflict, is brought to our court, then that dispute is not allowed to fester or grow into an armed conflict. It is resolved through the law, and therefore it calms down everything.
Weltwoche: In the past months, several actors have tried to bring both parties – Russia and Ukraine — to the negotiating table. What is the difference between a third state trying to facilitate peace and the International Court of Justice?
Judge Yusuf: Disputes can be settled peacefully in many ways. The first one is negotiation between the parties, and that is what's used very often. If negotiations fail, then you can either have mediation, or conciliation, or arbitration and judicial settlement. Mediation and conciliation are done through a third party. The use of these methods of dispute settlement has been decreasing while recourse to judicial and arbitral settlement of disputes has been increasing. This is a good thing for humanity because it means that the rule of law at the international level has become stronger, and that states increasingly believe in a rules-based international order where disputes are settled through the law.
In the past, human beings used to take revenge against each other instead of resorting to the law; they used to kill each other more often. As human beings become more civilized, the rule of law assumes a more important role, whether it is at the domestic level or at the international level.
Weltwoche: Your personal biography is in itself a great success story. Born in war torn Somalia, you rose to leadership in highest court of the world. What motivated you to study law?
Judge Yusuf: I went to the law faculty by accident. I wanted to study medicine, but there was no medical faculty in Mogadishu. At the time, Somalia was involved in territorial disputes with its neighbors, Ethiopia and Kenya. Once I embarked on my career studying law, what was of interest to me was the peaceful settlement of disputes. I found out that there was a protocol on conciliation, mediation, and arbitration of the Organization of African Unity, and that this protocol allowed for the peaceful settlement of disputes among African states in an African context. I decided to devote my thesis to that topic. Later, I started to teach international law at the Somali National University and to spread the message of peaceful settlement of disputes, and that was also the reason I went to Geneva to further my studies in international law.
Weltwoche: While you were climbing up the ranks and became a legal counsel at UNESCO, your native country, Somalia, remained war torn. In fact, when you applied to become a judge at the Court of International Justice you had no home country.
Judge Yusuf: My country existed, and I had a home country, but there was hardly any government there at the time. Therefore, I had to campaign by myself for election to the court. This is extremely unusual because the candidates to the court are normally supported by their own government, which finances their campaigns and which contacts other governments at the highest level and organizes, also, all kinds of receptions, meetings for the candidates. This support is important because the election to the International Court of Justice is the most difficult election in the United Nations system.
Weltwoche: How high is the threshold to become one of the fifteen judges of the ICJ?
Judge Yusuf: You have to obtain simultaneously a majority in the General Assembly and in the Security Council. No other elected position in the UN system has such a requirement. Therefore, it was really a hard sale for someone like me who had no government to support him. But I think that it's extremely important to understand that such elections do not only take place on the basis of politics.
Because of my work as a legal counsel in UNESCO, many of the delegations, envoys, permanent representatives to UNESCO felt that I should go for the International Court of Justice. They encouraged and supported me and acted actually as my envoys to their respective governments and helped me with my election. I think my example can give hope to others. If the person is qualified, the person can have a shot at it. I think that my case proves that.
Abdulqawi Yusuf has been Judge at the International Court of Justice since 2009. See official biography: https://www.icj-cij.org/public/files/members-of-the-court-biographies/yusuf_en.pdf
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