Wars in the Era of Multiple International Adjudication
The End of War Project – in one of whose workshops I was fortunate to participate – explores the “range of legal, policy, moral and strategic challenges arising at the end of conflict.” The rise in resort to international adjudication before the International Court of Justice (ICJ) in recent years and, even more significantly, the increased propensity to refer “mega-political cases” to international adjudication, is inevitably bringing many of the same challenges to the doorstep of the ICJ and other international courts. Although international adjudication historically has been perceived as part of the settlement of disputes framework designed to provide a non-violent outlet for addressing State grievances, international courts are increasingly dealing in real time with cases relating to events occurring during war, including how wars start and end. They confront, in this capacity, the need to contend with how (and whether) they can contribute to ending wars and shape the post-war aftermath.
The Balkan wars of the 1990s offer what is perhaps a paradigmatic example of such a judicial involvement – four major ICJ cases (here, here, here and here), many dozen criminal cases before the International Criminal Tribunal for the former Yugoslavia (ICTY) and several European Court of Human Rights (ECtHR) decisions (see e.g., here) have addressed multiple aspects of these wars. Some of the cases dealt with events in real time – e.g., provisional measures orders seeking to change the conduct of the belligerent parties during the hostilities, or criminal warrants for the arrest of political and military leaders while the armed conflict was still ongoing. Others dealt with the aftermath of the conflict – the assignment of State and individual responsibility and evaluation of the legal implications of the post-war settlement. For example, one famous ECtHR judgment reviewed the legality of a central provision of the 1995 Dayton Agreement that ended the first stage of the Balkan wars by introducing a power-sharing arrangement in Bosnia and Herzegovina.
The ICTY’s indictments of President Milosevic are of particular interest here: He was indicted on May 22, 1999, in connection with crimes allegedly committed in 1999 during the ongoing armed conflict in Kosovo. Only after his surrender to the Hague on June 29, 2001, were indictments filed regarding his alleged involvement in the commission of crimes in Croatia between 1991-1992 and Bosnia and Herzegovina between 1992-1995. This timeline has given rise to speculation that both the timing of the quick Kosovo indictment and the slow indictments for crimes committed during the other wars was motivated or facilitated by political considerations – the former, to consolidate international support for NATO’s intervention in the conflict, intended to end the Kosovo war – and the latter, being allowed to proceed only after Milosevic was no longer seen as playing a constructive role in ending the Balkan wars.
The Yugoslav example of multiple international proceedings, including some involving mega-political cases, has arguably inspired other strategic litigation initiatives aimed at influencing the duration of armed conflicts, the contours of their aftermath, and the assignment of legal responsibility in connection to them. Such efforts include the conflicts in Sudan, the Democratic Republic of the Congo, Georgia, and Myanmar. Two recent conflicts particularly stand out for use of a similar litigation strategy by warring parties and their allies: the Russian war against Ukraine and the Israel-Hamas war in Gaza.
Ukraine v. Russia
Russia’s full, renewed, invasion of Ukraine in February 2022 was preceded by a string of legal proceedings already pending before the ICJ, the ECtHR, the International Tribunal for the Law of Sea (ITLOS) and the Permanent Court of Arbitration (PCA), aimed – at least partly – to defend the sovereignty of Ukraine against Russian de jure and de facto measures of annexation after the partial invasion of 2014. Following the 2022 full-scale invasion, Ukraine brought a case against the Russian Federation at the ICJ under the Genocide Convention, seeking, among other forms of relief, a determination that Ukraine was not committing genocide in the Donbas region (this allegation was a pretext for the Russian invasion). On March 16, 2022, Ukraine obtained an order on provisional measures requiring that “[t]he Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” Russia never implemented this order. Still, on Feb. 2, 2024, the Court declined jurisdiction over Ukraine’s other primary claim in the case – i.e., that Russia’s invocation of the Genocide Convention to justify the full invasion constituted a violation of that convention, retaining jurisdiction only over the question of whether Ukraine was committing genocide in the Donbas. This holding collapsed, in effect, the legal edifice on which the 2022 order rested. (Note that on Dec. 5, 2025, the Court accepted jurisdiction over Russia’s counter-claim, in which it alleges that Ukraine did indeed commit genocide in the Donbas region.)
In parallel, a number of international criminal law proceedings have been instituted against Russian political and military leaders after the full-scale invasion, culminating in the ICC Prosecutor’s public request for an arrest warrant for President Putin on Feb. 22, 2023, and the issuance of a warrant by the Court on March 17, 2023. Furthermore, Ukraine and the Council of Europe agreed, on June 25, 2025, to establish a Special Tribunal for the Crime of Aggression. Ukraine has also submitted to the ECtHR an inter-State case against Russia relating to post-February 2022 events (this case was consolidated with the ECtHR’s Ukraine and the Netherlands v. Russia case). Finally, several of the many thousands of individual cases pending against Russia in the ECtHR relate to events following the full invasion.
The upshot of these legal developments is that a direct attempt to end the war through resort to legal proceedings appears to have failed – notwithstanding the fact that the ICJ was willing to lend its legal authority in support of the attempt. It is not clear, at this moment, whether other efforts to use legal proceedings to resist Russia’s policy of carving out and annexing parts of Ukraine will succeed in frustrating these policies. Nor is it clear whether the efforts to generate deterrence through adjudication against specific Russian policies and practices, such as the indiscriminate bombing of civilian areas and removal of children from Ukraine to Russia, have succeeded or are likely to succeed. To be sure, such uncertainty may have as much to do with Russia’s status as a permanent member of the United Nations Security Council and its ability to retain its military strength and many of its political alliances, as with the impact of any international adjudication. It also could be argued that efforts in the judicial arena have enabled Ukraine to consolidate considerable diplomatic and military support for its positions regarding the rejection of Russian territorial ambitions and for remedial measures, such as reparations to Ukraine. This legal strategy might have complicated and slowed down Russia’s military and political campaign.
In any event, it is interesting to note that the recent 28 point plan to end the war in Ukraine that President Trump has promoted does nominally reaffirm the sovereignty of Ukraine, but also promises to recognize de facto Russian title over Crimea, Luhansk, and Donetsk and to permanently bar Ukraine from joining NATO. In other words, it falls short of fully respecting Ukraine’s sovereignty and territorial integrity in the manner the legal cases sought to establish. The plan also fails to provide for comprehensive reparations (with the exception of a return of detainees, including children, a vague allusion to measures to alleviate the suffering of victims, and a provision for Russian investment in U.S.-led efforts to rebuild Ukraine). Instead, it explicitly provides for “full amnesty” and the renunciation of claims and complaints. The plan and the negotiations offer little indication that the international legal proceedings – as opposed to geopolitical considerations and actual conditions on the battlefield – have shaped Trump’s approach to the territorial and political dimensions of ending the war. Although the cases may have had some marginal influence on some reparative aspects of the plan (e.g., the return of children), even that aspect is not necessarily included in a fully legally compliant manner (e.g., the “full amnesty” provision, which goes against the international law aversion to giving amnesty for perpetrators of international crimes).
Palestine Before International Courts
The Ukraine-Russia “playbook”, involving judicial efforts to end the war, shape its aftermath, and assign legal responsibility to law-violating States and individuals, appears to have influenced the litigation strategy of the Palestinians and their allies in connection with the 2023-2025 Gaza war. Here too, when the conflict sharply escalated, following Hamas’s October 7, 2023, attack on Israel and the large-scale Israeli response, advisory proceedings were already pending before the ICJ concerning the legality of Israeli policies and practices in the Occupied Palestinian Territory, and ICC investigations were already underway in connection with allegations of crimes committed in previous rounds of violence in Gaza and the West Bank.
After the October 7th attacks, three new ICJ proceedings were launched: South Africa brought a genocide case in December 2023, alleging that the Israeli military response constituted the crime of genocide and seeking an end-the-war order comparable to the one the Court issued in Ukraine v. Russia; a case by Nicaragua against Germany challenged the latter’s supply of arms to Israel on the ground that it constitutes complicity in genocide and other international law violations; and the United Nations General Assembly requested from the Court a new advisory opinion, examining Israel’s refusal to continue cooperating with the UN Relief and Works Agency for Palestine Refugees (UNRWA) due to the latter’s alleged breach of neutrality during the war. Although South Africa was successful in obtaining provisional measure orders, the ICJ did not instruct Israel to end the war, but rather to refrain from violating the Genocide Convention – including avoiding military operations that could result in group destruction – and to facilitate access to humanitarian aid (necessary to protect the group). Israel’s level of compliance with these orders remains a matter of contention (see here and here). The ICJ has not issued provisional measures in the case against Germany, but the case itself may have contributed to Germany’s decision in August 2025 to suspend shipments of arms to Israel that could be used in the Gaza war. Finally, the ICJ issued two advisory opinions in 2024–2025 demanding that Israel end its presence in the Palestinian Occupied Territory, “as rapidly as possible,” and resume its cooperation with UNRWA. Israel, however, rejected the two (non-binding) advisory opinions (see here and here).
While these various ICJ proceedings were taking place, the ICC also became involved in real time adjudication of the war. Building on an earlier investigation, the Prosecutor, Karim Khan, sought arrest warrants against Israeli Prime Minister Netanyahu and Defense Minister Gallant in May 2024 for war crimes and crimes against humanity in connection with the alleged imposition of deliberate limitations on humanitarian aid and the killing of aid workers in Gaza (in parallel, warrants were also sought for three Hamas leaders for war crimes and crimes against humanity – all of whom have since been killed by Israel). The ICC granted the request for arrest warrants in November 2024; these warrants have not been enforced (even when Netanyahu visited an ICC member state) and remain the subject of multiple legal motions and appeals (for a discussion of some of them, see here).
Here too, the impact of the various international legal proceedings on the end of the war and its associated challenges is unclear. The ICJ never clearly ordered the end of the war (and even its order barring the extension of the war to Rafah used ambiguous language and appears to have had little impact on the ground), and any correlation between international judicial interventions concerning Israel’s humanitarian aid policy – which has important group protection implications – and the many fluctuations the policy underwent throughout the war appears to be limited in scope. In fact, the ICC Prosecutor’s rush to seek an arrest warrant publicly in connection with humanitarian aid policies might have had the opposite effect from the one he intended – creating broader, not narrower, policy space for the Israeli leadership. Once the threat of opening ICC proceedings against them already materialized, the threat that future policy decisions would lead the decision-makers to the Hague actually became less credible or effective, because they have already suffered the reputational damage that comes from being branded as criminal suspects, with the associated travel restrictions. Indeed, the most dramatic (and most legally problematic) suspension of humanitarian aid during the war happened between March and May 2025, almost a year after the arrest warrants were requested. As mentioned above, the ICJ advisory opinions were ignored by Israel (and also rejected by the United States – Israel’s main ally) and appear to have had limited real world impact. Finally, Nicaragua’s case against Germany may have contributed to the partial arms embargo imposed by the latter on Israel – but it is unlikely that there was any causal connection between that specific policy decision and the ceasefire deal reached only a few weeks later at the strong urging of President Trump (who previously removed restrictions on military aid to Israel imposed by the Biden administration).
The Trump peace plan itself – which has since been ratified by Security Council Resolution 2803 – reflects the legal demands pursued by the Palestinians and their allies through international adjudication only to a very limited degree. It ties the end of hostilities and Israeli withdrawal from the Gaza Strip to hostage release and the demilitarization of Gaza. The plan thus differs from the unconditional end of war order that South Africa sought, and from the ICJ’s call in its 2024 advisory opinion for Israeli withdrawal “as rapidly as possible” from the Occupied Palestinian Territory. Still, the plan does provide for increased humanitarian aid for Gaza, conditions that will enable the reconstruction of Gaza for the benefit of its people, and a pathway to Palestinian self-determination and Statehood (a legal outcome that is aligned with the 2024 advisory opinion). Whether UNRWA will have a role to play in Gaza in the future remains unclear in the plan, notwithstanding the ICJ opinion suggesting that UNRWA is indispensable (the continuing role of UNRWA has been reaffirmed since by the General Assembly but rejected by the United States and Israel). The plan is also silent on questions of accountability (with the exception of a promise of amnesty to Hamas operatives who commit to peaceful co-existence and decommissioning). As with the Ukraine peace plan, international adjudication appears to have played a very modest role, if at all, in shaping the terms of the end of war settlement.
Concluding Remarks
Why does the contribution of international adjudication to end of war challenges appear to be marginal, in the best of times? One reason is the chronic gap between the roles played by law and politics in the realm of armed conflicts. Ending a war remains, in the current state of the world, a quintessentially political decision, shaped predominantly by extra-legal strategic considerations – military, economic, diplomatic, etc. In such a normative landscape, introducing legal requirements into the decision-making process through international adjudication might, at times, complicate – rather than facilitate – political negotiations to end the war. This risk is especially relevant when legal demands to end a war and to shape its aftermath have insufficient political and military power behind them.
For example, if the West has limited appetite to place troops in harm’s way to protect Ukrainian sovereignty and territorial integrity and is unable to bring Russia to its knees through diplomatic and economic pressure, it is not obvious where the practical value – as opposed to the moral value – of an unenforceable Court order requesting Russia to stop the war actually lies. In the same vein, it is not surprising that (legally non-binding) ICJ advisory opinions insisting on legal positions that are diametrically opposed to what Israel considers to be critical national interests (e.g., maintaining security control over territories from which a military threat emanates and the exclusion of UNRWA from Gaza) tend to be ignored. The critical comments that some international lawyers made regarding Security Council Resolution 2803 suggest that a legal track to end the war may have taken a different route than the one taken by the politicians, but also that its prospects for success – as indicated by Israel and United States’ hostile reactions to the relevant ICJ and ICC decisions delineating such a track – would have been more limited. Of course, once adopted, Resolution 2803 has become part of international law (pursuant to article 25 of the UN Charter and due the agreement of all relevant parties to its contents), complementing, if not overriding, the previous law applied by international courts. For example, any requirement the ICJ imposed for Israel to end its military presence in the Occupied Palestinian Territory “as rapidly as possible” appears to have been overtaken with respect to the Gaza Strip by the specific arrangements found in the Resolution in connection with the terms of withdrawal.
A second reason for skepticism about the contribution of international adjudication to the end of wars involves the utility of the real time involvement of international courts in armed conflicts. A major concern here is the limited quality of such judicial interventions. Provisional measure orders, for example, are decided by the ICJ under a very short timeline and on the basis of what is only a very rudimentary process of evidence gathering and analysis. Advisory opinions also feature fact-finding deficiencies – especially when relevant parties decide not to participate in the proceedings. In the same vein, ICC arrest warrants in real time are issued in ex parte procedures, sometimes without investigators and prosecutors having access to crime scenes in active war zones and without them having the ability to gain cooperation of all parties to the conflict. These factors do not necessarily militate against timely judicial intervention, but they do invite caution in the application of judicial authority and appreciation of the risk that inaccurate interventions might complicate, not facilitate, the end of wars. For example, the Netanyahu and Gallant arrest warrants were based, like the contemporaneous ICJ orders, on claims of a catastrophic food situation in Gaza in early 2024 and unjustified Israeli obstruction. Israel and other actors vehemently rejected both of these claims as factually inaccurate, and this position was partly vindicated by the ICC Pre-Trial Chamber rejection of the Prosecutor’s request of arrest under extermination charges (which require evidence of mass killings). It now appears that famine thresholds were reached, if at all, more than a year after the events discussed in the request for arrest warrants transpired (the late 2025 deterioration in food security was more likely linked to the suspension of aid in early 2025 than to the partial restrictions in late 2023 and early 2024). The contested evolution of conditions and causes further underlines the difficulty of courts ascertaining facts – and ruling on rapidly changing and likely incomplete information – in the midst of an armed conflict. Arguably a more robust fact-finding process – in which Israel was willing to participate before the warrants were requested – could have helped the ICC better time and calibrate its intervention, so as to maximize its group protection potential.
Finally, international courts operate under narrow jurisdictional mandates. They can review the application of some legal instruments but not others, exercise authority over some parties to an armed conflict and not others, etc. It is not surprising, in light of their limited judicial powers, that their exercise of jurisdiction in sensitive questions of war and peace is seen by (some) parties to armed conflicts and others as forms of selective justice and is highly contested. In the same vein, it is not surprising that their decisions – rendered through the particular prism of their jurisdictional powers – are sometimes treated as controversial and biased (such as when addressing violations of some but not all parties to the conflict). The combined effect of overriding political considerations employed by States, quality concerns about real time international proceedings, and objections to international courts’ jurisdiction does not bode well for accepting the authority of international adjudicative bodies to end of wars and determine the relevant terms under which they will end.
Still, in situations where the parties to an armed conflict are particularly vulnerable to outside pressure, international courts may be somewhat more effective in shaping the positions of third parties and public opinion vis-à-vis the conflict and the way to end it than in the cases discussed above. Such a role may have happened in connection with the war in Kosovo, where ICTY proceedings helped apply pressure on Serbia to end the war, as did Serbia’s failure to obtain provisional measures from the ICJ. Furthermore, in all events, the operation of international courts could offer the parties to an armed conflict a useful reminder about the need to address matters of legal accountability in the aftermath of armed conflicts. Realistically speaking, however, such measures of accountability typically become available only after the war has already ended.
FEATURED IMAGE: A top view of a gavel and sounding block sitting on a warm marble surface. Next to the gavel sits a globe turned towards the North American continent. (Via Getty Images)
Great Job Yuval Shany & the Team @ Just Security for sharing this story.
