ICJ
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This article is written by Jessica Kaur, a first-year student currently pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Punjab. Here, she discusses the differences between the functioning of the International Criminal Court and the International Court of Justice.

Introduction

The International Criminal Court and the International Court of Justice are two big-shot names in the sphere of International Law. With such similar-sounding names and seemingly same work, one might get confused between the two. This article will help you resolve these troubles, as we examine the major differences between the scope and functioning of these two international bodies. If you want to get a quick glance at the main points of difference, you can also refer to a handy table provided at the end.

A quick study of their backgrounds

International Criminal Court

The Paris Peace Conference, which took place in 1919 after the First World War, proposed an international criminal court to prosecute political leaders and other individuals accused of international crimes. It was again discussed by the League of Nations in 1937, which resulted in a convention, but it did not lead anywhere. After the Second World War, the Allied powers established two ad hoc tribunals to prosecute Axis leaders accused of war crimes. Finally in 1948 the United Nations General Assembly recognised the need for a permanent international criminal court. The International Law Commission (ILC) drafted two statutes for this but they were again dropped with the beginning of the Cold War. 

The idea was then again revived in 1989, and the UN tasked the ILC to draft a statute for a permanent court. The final draft statute for the International Criminal Court was presented to the General Assembly in 1994 and finally, the Rome Statute of the International Criminal Court was adopted. Following 60 ratifications, the Rome Statute came into force in 2002 and thus, the International Criminal Court was formally established.

International Court of Justice

Article 14 of the Covenant of the League of Nations provided for the establishment of a Permanent Court of International Justice (PCIJ), which could settle international disputes and give an advisory opinion upon any question referred to it by the Assembly of the League of Nations. Thus, this international court was born in 1922. It decided tons of contentious cases, but saw a decline in activity around the 1930s, and this only became worse after the outbreak of the Second World War in 1939. Ultimately, a need was felt to bring in a new international court, one which would be an integral part of the newly-established United Nations and which would allow non-European countries to play more important roles. This gave us the International Court of Justice.

The PCIJ met for the last time in October 1945 and transferred its archives and effects to the new International Court of Justice, which, like its predecessor, was to have its headquarters at the Peace Palace in The Hague, Netherlands. The elections of the first Members of the ICJ took place on 6 February 1946, at the First Session of the United Nations General Assembly and the United Nations Security Council.

Any international organisation needs its own headquarters, from where it can regulate its worldwide functions. However, the location of headquarters is one thing where the two organisations in question do not differ, with both the International Criminal Court and the International Court of Justice having their headquarters in the Hague, Netherlands.

What are the main points of difference?

To make things easy, we shall look at all the differences between the International Criminal Court and the International Court of Justice point-wise, which can be seen below.

Relationship with the United Nations

The International Criminal Court is an independent organisation and is not a part of the United Nations. However, they do work alongside each other and the United Nations Security Council can refer to situations involving international crimes to the ICC.

Meanwhile, the International Court of Justice is an integral part of the United Nations and acts as its primary judicial branch. In fact, the United Nations Security Council enforces the rulings and judgements passed by this court.

Members

Presently, the International Criminal Court has around 105 members. In 2017, the African Union moved a resolution encouraging member nations to leave the ICC, because it has been the subject of controversy due to allegations that it unfairly focuses only on the developing world, and has only punished their leaders since its inception. Countries like Burundi and South Africa, in fact, have gone through with their withdrawal. The next year, in 2018, Philippines decided to withdraw from the international organisation. 

Some countries, like the United States, have never joined the ICC due to concerns regarding ceding their sovereignty to an international body. It is interesting to note that our country is also not a part of the ICC.

The International Court of Justice has as its members all the members of the United Nations, which means around 193 countries. Clearly, the ICJ is a bigger organisation than the ICC and has a wider membership. 

Derivation of authority

Both these organisations derive the authority to conduct their affairs and perform their functions by certain international treaties or statutes that are signed and ratified by nations of the world. The International Criminal Court derives its authority from the Rome Statute, which was ratified and became executable in 2002. There are certain countries, like the United States of America, which have ratified this treaty but have not become a party to the ICC over concerns regarding the succession of their sovereignty and power to the International Criminal Court.

On the other hand, the International Court of Justice derives its authority from the Charter of the United Nations, which was signed by all the members of the UN in 1945. Countries that are not members of the United Nations can also become parties to the ICJ, by ratifying the Statute of the International Court of Justice, which currently has 50 signatories.

Scope of work

As the name suggests, the International Criminal Court deals with criminal matters. It was established in 2002 by the Rome Statute to investigate and prosecute individuals for committing international crimes of genocide, crimes against humanity, and war crimes. No immunity is granted against this, not even to the Presidents in office at the time- which is necessary, considering that top government officials are more often than not at the root of war crimes and the like.

The website of the International Criminal Court talks in detail about the types of crimes it adjudicates, which are as follows:

  1. Crime of genocide, which means the specific intent to destroy wholly or partly a national, ethnic, racial or religious group, either by killing its members or by other means.
  2. Crimes against humanity, which are serious violations involving large-scale attacks against civilian populations. The Rome Statute mentioned 15 crimes against humanity, such as murder, rape, enslavement, etc.
  3. War crimes, which are grave breaches of the Geneva conventions in the context of armed conflict between countries. These crimes include the use of child soldiers, killing or torturing prisoners of war, etc. 
  4. Crime of aggression, which is the use of armed force by one State against the sovereignty, integrity or independence of another. This was added to the scope of work of the ICC in July 2018.

The ICC is “the court of last resort”. It exercises its powers when a state’s legal system collapses, or when a government is the perpetrator of heinous international crimes.

On the other hand, the International Court of Justice is a civil court. It was established in 1946, and it settles legal disputes between the member-states and gives advisory opinions on international legal issues referred to it by these member states in the form of the United Nations General Assembly or other authorized international agencies. The matters it generally deals with include sovereignty and boundaries, treaty violations, maritime disputes, trade disputes, etc. It has emerged as one of the main guarantors of peace, security and co-operation among states and for this reason, it is also called the World Court.

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Jurisdiction

The territorial jurisdiction of the International Criminal Court is restricted to its member states. Also, we can say that the International Criminal Court has jurisdiction to investigate three areas of crimes, which are:

  1. Crimes that were committed in member-countries.
  2. Crimes that were committed by people from member-countries.
  3. Crimes that the United Nations Security Council want the International Criminal Court to investigate.

The ICC can also put individuals under trial who have been accused of committing international crimes.

The territorial jurisdiction of the International Court of Justice is wider, as it can deal with matters relating to any of the member states of the United Nations, which essentially means almost all the countries in the world. The ICJ, however, can only entertain cases where states appear before it. Unlike the ICC, it cannot try individuals. It also does not have jurisdiction to deal with applications from non-governmental organizations, corporations or any other private entities. It cannot provide them with legal advice or help them in their dealings with national authorities. However, a state may take up the case of any of its nationals in the court where the national has claimed to have suffered at the hand of another state. This is because such a dispute becomes a dispute between two states, which the ICJ has jurisdiction over.

Composition

The International Criminal Court is made up of 18 judges who make decisions on international criminal matters, where each judge serves a nine-year term. They all come from member-countries of the ICC however, no two of them can be from the same country. It also has a prosecutor, who investigates crimes and, if he finds evidence suggesting that a crime has been committed, he asks the judges to begin the trial. Apart from this, the management of the ICC is taken care of by the Assembly of State Parties, who elect the above-mentioned prosecutor and judges. Each member country of the International Criminal Court has one vote in the Assembly. 

The International Court of Justice constitutes 15 judges where each of them, like those in the ICC, also serve a nine-year term. They are elected by the UN General Assembly and the UN Security Council, with 5 judges being elected every 3 years to ensure continuity within the court. Also, no two judges can be from the same country. Interestingly, Justice Dalveer Bhandari from India serves as a permanent judge in the ICJ. There is an informal understanding that the seats for the judges shall be distributed according to geographic regions, hence there are 5 seats for Western countries, 3 for African states, 2 for Eastern European states, 3 for Asian states and 2 for Latin American and Caribbean states.

Funding 

Like any other organisation, these two international legal bodies also require funds to carry out their affairs. The source of their funding differs based on their status. The International Criminal Court, being an independent body, mainly functions on contributions made by state parties to the Rome Statute and voluntary contributions from the United Nations, governments, individual corporations, etc. Meanwhile, the International Court of Justice, being a part of the UN, is funded by the same. 

The differences that we have discussed above have been laid out in the tabular form below, for easy and quick understanding.

BASIS

INTERNATIONAL CRIMINAL COURT

INTERNATIONAL COURT OF JUSTICE

Relationship with the United Nations

Independent; UN Security Council may refer matters to it

Primary judicial branch of the UN.

Members

105 members

193 members (all members of the United Nations).

Derives authority from

The Rome Statute

Charter of the United Nations and the Statute of the International Court of Justice.

Scope of work

Criminal matters – investigating and prosecuting crimes of genocide, crimes against humanity, and war crimes

Civil matters- settling legal disputes between the member-states and giving advisory opinions on international legal issues

Jurisdiction

Only the member nations of the ICC, which means around 105 countries. Can try individuals.

All the member nations of the UN, which means 193 countries. Cannot try individuals and other private entities.

Composition

1 prosecutor and 18 judges, who are elected for a 9-year term each by the member-states which make up the Assembly of State Parties with all being from different nations

15 judges who are elected for a 9-year term each and are all from different nations.

Funding

Funded by state parties to the Rome Statute and voluntary contributions from the United Nations, governments, individual corporations, etc.

Funded by the UN.

Conclusion

The International Criminal Court and the International Court of Justice are fairly different in several respects, like their scope of work, relationship with the United Nations, funding, jurisdiction, etc. While there is a lot more to unpack about these two international organisations, we have seen above their main features and points of differentiation. However, there is one thing which makes them alike i.e. their fundamental motive – to facilitate international peace and cooperation and to ensure that the world works as per the law.

References


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1 COMMENT

  1. This is a very relevant piece of work, well-written and researched . While preparing to get into NLU, i am happy to read such articles from NLU students.

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