ICJ

The ever-evolving landscape of International Criminal Law (ICL), as a field that connects different branches and levels of law, requires meticulous deliberation. Establishing international justice is a crucial step in ensuring that all perpetrators are held accountable. The International Criminal Court (ICC/the Court) has issued two arrest warrants against the President and Commissioner for Children’s Rights of the Russian Federation, on March 17, 2023, for their involvement in forced population transfer which is an international crime under the Rome Statute. This research article seeks to explore the Ukraine situation from the perspective of ICL and examine the arrest warrants issued by the ICC against Russian authorities. Additionally, it briefly addresses the Ukraine’s lawfare against Russia at the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR). While the issuance of the arrest warrants is in itself a positive step toward the fortification of international criminal justice, the implementation of these warrants specifically regarding the President of the Russian Federation seems to be very problematic. Nevertheless, in spite of the challenges faced by the ICC in this situation, issuance of the arrest warrants reveals a significant reality: international criminal justice does not exempt even the president of a permanent member of the UN Security Council. Furthermore, the legal actions taken by Ukraine against Russia at both the ICJ and ECtHR are legally positive steps towards halting aggression and restoring international peace and security through international law. However, these actions face challenges such as time constraints and compliance.

The International Court of Justice (ICJ) often faces criticism for allegedly exceeding its mandateby engaging in what some perceive as lawmaking. This debate, though not new, continues tospark significant scholarly discourse and is even echoed by some of its own judges. Althoughthe ICJ consistently denies having a lawmaking function, its practices demonstrate its role in thedevelopment of international law. This raises the question: How can the Court contribute to thedevelopment of international law, particularly in addressing gaps, if it lacks formal lawmakingcapacities? Are the criticisms of the Court exceeding its mandate valid? Existing literatureoften conflates ‘judicial legislation’ with ‘lawmaking’, creating a bottleneck in reasoning whichcausing scholars to necessarily conclude that the ICJ inevitably exceeds its judiciary mandate andengages in creating new laws. However, understanding the ICJ’s role in developing internationallaw and addressing gaps, despite its statutory limitations, requires distinguishing between ‘judicial legislation’ and ‘lawmaking’. While the latter involves creating new laws, ‘judiciallegislation’ refers to a method of interpretation for adapting existing laws and establishing newlegal relationships to address emerging legal requirements. This article goes further to identifywhich types of interpretation are most effective for such judicial legislation. By examining theapproaches of the UN International Law Commission (ILC), the article highlights ‘evolutiveinterpretation’ as a particularly suitable method. Evolutive interpretation enables the Court torejuvenate existing laws, clarify ambiguities, and develop legal frameworks for unregulatedissues – all while staying within its adjudicative-only mandate and avoiding lawmaking.