This article is written by Millia Dasgupta, a second-year student studying BA LLB at Jindal Global Law School. This article talks about The International Court of Justice, it functions and relevant criticisms.
The international community is a dynamic one. This leads to clashes between the various members of this community. States disagree on where their border is, contest islands of maritime borders, violate treaties and other rules of international law. Then to who do states turn to for help? Resolving matters of these natures is the job of the International Court of Justice (ICJ).
The ICJ is not only needed for resolving international disputes. Even the UN seeks their help when they need an opinion on a legal question.
The court has existed since 1946. The official languages are English and French. The United Nations Charter is an integral part of the ICJ. Thus, all UN members state automatically recognize the authority of the ICJ and can call for its help in any legal matter.
The ICJ has, up till now, dealt with 177 cases. It does not try individuals and only disputes between states can be submitted to it.
It is the successor court of the Permanent Court of International Justice. The Permanent Court of International Justice was created in 1922 and by the league of nations. Between 1932 and 1940, it handled 60 cases. It was dissolved after World War II. The ICJ succeeded the permanent court on the 18th of April 1946. It inherited not only its statue but also its jurisprudence and its traditions.
The court consists of 15 judges and they are elected for a term of 9 years by the General Assembly and the Security Council. Five posts are renewed every three years. Here, judges may be re-elected.
The members of the court must all be from different countries. But, we must keep in mind that they do not represent their country and they are independent judges.
The composition of the court represents the following geographic balance.
- Three seats on the bench are occupied by African judges.
- Two seats are occupied by judges from Latin America and the Caribbean.
- Three are occupied by Asian judges.
- Five judges are occupied by judges from Western Europe and other Western States.
- Two judges are from Eastern Asia.
Usually, there is one judge from each of the countries who are permanent members.
Ad Hoc Judges
When a case is presented before the ICJ, and a state party does not have a judge on the bench from their state, then they can choose a judge, known as a judge ‘ad hoc’. These judges can be from any nationality and not necessarily have to be from the state party. They have the same rights and duties as an elected judge.
President and Vice President
After every three years, the court elects its President and Vice President. The president chairs all sittings of the court. He or she directs its work and supervises its administration.
Annually, the President presents a report on the workings of the ICJ to the General Assembly.
Like it’s predecessor, the ICJ has two roles. The first is to decide disputes between states. These are known as Contentious Cases. The second role is to analyze legal questions submitted to it by the General Assembly, the Security Council and other organisations and agencies under the UN. These cases are known as Advisory Proceedings.
The courts first role is to judge legal disputes between states. This constitutes a large part of its work. In the past, these cases would relate to border disputes, maritime delimitation and diplomatic protection. But now cases such as human rights, environmental rights and the responsibility of states are brought in front of the court.
The court’s jurisdiction is general and can consider any issue of international law. All UN members can bring cases of contentious nature before the court. Non-member nations can also access the court but are subject to certain conditions. Thus, the court’s jurisdiction extends throughout the world.
It must be kept in mind that states are sovereign and they can decide how to resolve their disputes. The ICJ can not ask sovereign states to act without them approaching the court. Thus, the ICJ can only hear a case if both the national parties have freely consented to it.
Once they have appeared before the court, the proceedings take place in two steps.
First, the states submit their arguments, evidence and submissions in writing. Then, their representatives and their lawyers present oral arguments before the court.
The court then begins its deliberations. These deliberations are confidential and questions or issues of the case are decided by the judges present. On an average, deliberations last from 4-6 months.
Once a decision is made, the judgment is released in the court’s two official languages and reproduced in several sealed copies.
All judgements of the court are final and without appeal. By coming before the court of justice on their own consent, the state parties take an oath to comply with the judgement and such judgements are binding upon the parties. If one of the parties refuses to comply with the decision, the aggrieved party may seek recourse from the Security Council. The Security Council may then, under Article 94 of the UN Charter make recommendations or decide measures on how to give effect to the judgement.
The second role is of advisory procedures where they deal with legal questions given by the organisations and the agencies of the UN. A majority of these requests come from the General Assembly.
Unlike judgements, advisory opinions are not binding per se. It is up to the organisations and the agencies to follow up on them. But, regardless of them being binding or not, these opinions are important as they usually lead to the festering of international law.
Their decisions go beyond states directly involved in the cases. On many occasions, the court has helped to defuse crises and normalize relations between states and to restart deadlock negotiations, either by the settlement of disputes by judicial means or by stating the law for the issue in question.
The Rohingya Genocide
The Rohingya Genocide is a chain of persecutions by the Myanmar government and the Buddhist community of Myanmar against the community of Muslim Rohingyas. The Myanmar military and police cracked down on Rohingya Muslims and failed to check the growing islamophobic sentiments against them. This resulted in thousands of Rohingyas being killed, refugees fleeing to other countries, destruction of Rohingya villages, schools and businesses, wide-scale violation of human rights by the military and gang rapes and other sexual violence against women and girls of the Rohingya community.
The Gambia (or Republic of The Gambia) had brought a case against Myanmar for the Rohingya genocides. It was noted by the ICJ that thousands of Rohingya refugees were made stateless due to state-sponsored violence.
The court observed that the Rohingyas were a ‘protected group’ under Article II of the Genocide Convention. They stated that despite Rohingya Muslims living in Myanmar prior to independence, they were ‘made stateless by the 1982 Citizenship Act and disfranchised in 2015 from electoral processes’.
The bench ruled that Myanmar must keep in mind the duties given under the Genocide and ensure all acts of prejudice against Rohingya Muslims are stopped.
The following points are common criticisms of the ICJ-
- The ICJ has been accused of being biased. Judges usually rule in favour of states which their own country looks favourably upon. Bias also plays a great role in voting for the President and Vice President of the bench.
- The ICJ can only rule on cases where both the states have given their consent. Thus, even if there is a case where the authority of the ICJ is much needed, the ICJ can not do anything unless they get consent from the other states involved.
- Only states can seek recourse under the ICJ, not organisations, private enterprises or even individuals. Thus, in cases where minority groups are being exploited by their state, the individuals of these minority communities can not seek recourse under the ICJ
- Other International courts like the International Criminal Court are not under the umbrella of the ICJ. Thus, conflicting opinions from various international courts make it difficult for the international community to collectively enforce peace.
- The ICJ does not enjoy the separation of powers and is sometimes at the mercy of the Security Council. Permanent member states can veto attempts to enforce the decision of the ICJ.
Cases where the ICJ has failed to enforce peace
United States occupation of Nicaragua- The Contra Rebellion
The Contra rebellion was a right-wing rebel group against the socialist government of Nicaragua. These rebels violated numerous human rights and used terrorist tactics to usurp the government. They have been accused of targeting health centres, kidnapping, torturing and even executing civilians (some were children), raping and committing other sexual crimes against women, seizing civilian property and burning civilian houses.
Nicaragua stated that the American government had funded the Contra Rebellion against the Nicaragua government. They were also accused of planting naval mines in their territorial waters.
There was established evidence that the Contra Rebellion was not only funded by the CIA but was also established by Ronald Reagan’s administration. To fund the rebellion, the USA sold weapons to Iran and assisted the Colombian cocaine trade.
The ICJ held that the US had grossly violated international law as well as Nicaragua’s sovereignty. Nicaragua asked for 17 billion dollars in reparations.
In response, the US withdrew its support of the International Court of Justice and as a permanent member, vetoed any attempt to enforce the ICJ’s judgement.
Till this day, Nicaragua has seen no compensation.
Israel and Palestine
One of the greatest violations of international law has to be the West Bank wall constructed by Israel that cuts through Palestine communities, homes and farmlands. Under the guise of protecting Israel against terrorism, the wall goes deep into the West Bank which is Palestine’s territory. It seeks to redefine borders by annexing Palestine and thus is a grave violation of not only Palestine’s sovereignty but international laws as well.
15 years ago, the ICJ had ruled through an advisory opinion that the wall was illegal. While such opinions are non-binding, they also said the wall violates international law and should be dismantled. It also stated that Israel should pay reparations.
But such orders fell on deaf ears and Israel was not willing to comply. The UN General Assembly tried to force Israel to cooperate but that was a failure as well.
Till the present date, the wall strangulates the West Bank and the present government continues to expand it, pretending like the ICJ ruling never happened.
As the principal judicial organ of the United Nation, it is an important facet for promoting and maintaining peace. They regularly host visits by heads and dignitaries of states. It settles cases of extreme international complexity in less than five years. The court accounts for less than 1% of the UN’s budget. It is unique to the world. Through its judgement, opinions and orders, ICJ lends its support to the United Nations so that it can achieve its primary purpose which is to maintain and promote international peace and security.
But despite having so much authority, it fails to achieve its purpose. In many cases, we have seen that Countries do not comply with rulings from the International Court of Justice. Thus despite being a giant in the world of International law, it seems to grow increasingly less influential on States and regulating its compliance with international law.
To know the role of ICJ in Kulbhushan Jadhav Case, please Click Here.