International Justice signifies ensuring accountability for some of the most serious crimes like genocide, crimes against humanity, war crimes, torture and ill treatment. Among the greatest achievements of the United Nations (UN) is the development of a body of international law, which is central to promoting economic and social development, as well as to advancing international peace and security. The international law is enshrined in various conventions, treaties and standards. Many of the treaties brought about by the United Nations form the basis of the law that governs relations among nations. While the work of the UN in this area does not always receive attention, it has a daily impact on the lives of people everywhere. The UN Charter, in its Preamble, has set an objective that is: “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.
The Charter of the United Nations specifically calls on the Organization to help in the settlement of international disputes by peaceful means, including arbitration and judicial settlement (Article 33), and to encourage the progressive development of international law and its codification (Article 13).
The International Justice Program works to uphold the international norms and international law and generally this work is carried out by courts, tribunals, multilateral treaties and by the Security Council which can approve peacekeeping missions, impose sanctions, or authorize the use of force when there is a threat to international peace and security.
Pacific Settlement of Disputes under UN Charter:
Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements. Some of these methods involve the services of third parties,such as, mediation, which places the parties to a dispute in a position in which they can themselves resolve their dispute with the intervention of a third party. Arbitration goes further, in the sense that the dispute is submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. The same is true of judicial settlement (the method applied by the International Court of Justice), except that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural matters.
The Hague Peace Conferences and the Permanent Court of Arbitration (PCA):
The Hague Peace Conference of 1899, convened on the initiative of the Russian Czar Nicholas II, marked the beginning of a third phase in the modern history of international arbitration. The chief objective of the Conference was to discuss peace and disarmament.. It culminated in the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.
With respect to arbitration, the 1899 Convention provided for the creation of permanent machinery which would enable arbitral tribunals to be set up as desired and would facilitate their work. This institution, known as the Permanent Court of Arbitration, consisted in essence of a panel of jurists designated by each country acceding to the Convention, each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. The Convention also created a permanent Bureau, located in The Hague, with functions corresponding to those of a court registry or secretariat, and laid down a set of rules of procedure to govern the conduct of arbitrations.
The Permanent Court of International Justice (PCIJ)
Article 14 of the Covenant of the League of Nations gave the Council of the League responsibility for formulating plans for the establishment of a Permanent Court of International Justice (PCIJ), which would be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute, but also to give an advisory opinion upon any dispute or question referred to it by the Council or Assembly of the League of Nations. All that remained was for the League Council to take the necessary action to give effect to Article 14. At its second session early in 1920, the Council appointed an Advisory Committee of Jurists to submit a report on the establishment of the PCIJ. The committee sat in The Hague, under the chairmanship of Baron Descamps (Belgium). In August 1920, a report containing a draft scheme was submitted to the Council, which, after examining it and making certain amendments, presented it to the First Assembly of the League of Nations, which opened in Geneva in November of that year. The Assembly instructed its Third Committee to examine the question of the Court’s constitution. In December 1920, after an exhaustive study by a subcommittee, the Committee submitted a revised draft to the Assembly, which unanimously adopted it. This was the Statute of the PCIJ.
International Court of Justice:
The United Nations Charter in Chapter XIV authorizes the UN Security Council to establish International Court of Justice (ICJ). The ICJ is the principal judicial organ of the United Nations (UN). It was established in June 1945 to replace the Permanent Court of International Justice. The statute of ICJ forms an integral part of United Nations Charter and began functioning on April 1946.
The most important role played by the ICJ is to settle, in accordance with international law, legal disputes submitted to it by States and to act as an advisory board and give opinion on legal questions/issues referred to it by authorized International Organisations, United Nations organs and specialized agencies.
The United Nations Charter in Chapter XIV further authorizes the UN Security Council to enforce the Court rulings. However, such enforcement is subject to the veto power of the five permanent members (France, U.K, China, U.S, and Russia) of the Council.
Jurisdiction of ICJ:
The International Court of Justice acts as a world Court. The Court’s jurisdiction is twofold: it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and gives advisory opinions on legal questions at the request of the organs of the United Nations, specialized agencies or related organization authorized to make such request (advisory jurisdiction)
- Contentious Jurisdiction:
In the exercise of its jurisdiction in contentious cases, the International Court of Justice settles disputes of a legal nature that are submitted to it by States in accordance with international law. An international legal dispute can be defined as a disagreement on a question of law or fact, a conflict, or a clash of legal views or interests.
Only States may apply to and appear before the International Court of Justice. International organizations, other authorities and private individuals are not entitled to institute proceedings before the Court.
Article 35 of the Statute defines the conditions under which States may access the Court. While the first paragraph of that article states that the Court is open to States parties to the Statute, the second is intended to regulate access to the Court by States which are not parties to the Statute. The conditions under which such States may access the Court are determined by the Security Council, subject to the special provisions contained in treaties in force at the date of the entry into force of the Statute, with the proviso that under no circumstances shall such conditions place the parties in a position of inequality before the Court.
The Court can only deal with a dispute when the States concerned have recognized its jurisdiction. No State can therefore be a party to proceedings before the Court unless it has in some manner or other consented thereto.
- Advisory Jurisdiction:
Since States alone are entitled to appear before the Court, public (governmental) international organizations cannot be parties to a case before it. However, a special procedure, the advisory procedure, is available to such organizations and to them alone. This procedure is available to five United Nations organs, fifteen specialized agencies and one related organization.
Though based on contentious proceedings, advisory proceedings have distinctive features resulting from the special nature and purpose of the advisory function.
Advisory proceedings begin with the filing of a written request for an advisory opinion addressed to the Registrar by the United Nations Secretary-General or the director or secretary-general of the entity requesting the opinion. In urgent cases the Court may take all appropriate measures to speed up the proceedings. To assemble all the necessary information about the question submitted to it, the Court is empowered to hold written and oral proceedings.
Composition of ICJ:
The Court is composed of 15 Judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. These two organs vote simultaneously but separately. A candidate must receive an absolute majority of votes in both sides for getting elected.
Following are the region wise distribution of the Judges:
- 3 from Africa.
- 2 from Latin America and Caribbean.
- 3 from Asia.
- 5 from Western Europe and other states.
- 2 from Eastern Europe.
India at ICJ:
India was involved in a case at the ICJ at six different occasions including a very significant and a recent one..
The Kulbhushan Jadhav case:
Kulbhushan Jadhav was captured by Pakistan in March 2016 and tried in a Military Court which pronounced its judgment on charges of espionage and terrorism in April 2017. India moved the ICJ in May 2017 challenging the Pakistani Military Court judgment.
As per the claim of Pakistan Kulbhushan Jadhav was arrested from its restive Balochistan province on March 3, 2016 ashe entered Balochistan from Iran for espionage.
India, on the other hand, refuted Pakistan’s version of the incident contending that Kulbhushan Jadhav was abducted by militants from Chabahar area of Iran where the retired naval officer has business interests.
The militants handed over Kulbhushan Jadhav to Pakistani agencies for money. India then sought consular access to Kulbhushan Jadhav which was denied by Pakistan alleging that Indian authorities would try to extract information from its spy.
Though Pakistan denied India consular access, the sustained pressure from New Delhi saw Islamabad allowing a meeting of Kulbhushan Jadhav with his mother and wife in Islamabad on December 25, 2017.
Judgement: The International Court of Justice (ICJ) stayed execution of sentence passed to Kulbhushan Jadhav. First, the ICJ suspended the death penalty awarded to Kulbhushan Jadhav by the Pakistani Military Court. Secondly, the ICJ ruled that Pakistan will have to review the entire process of trial and conviction of Kulbhushan Jadhav. It directed Pakistan to take all measures at its disposal to ensure that he is not executed pending the final decision in the present proceedings. The Court considered that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr Jadhav.Thirdly, the ICJ noted that Pakistan breached the obligation incumbent upon it under Article 36 of the Vienna Convention on consular relations and has to provide India consular access to Kulbhushan Jadhav.
Courts and Tribunals
In addition to the International Court of Justice, a wide variety of international courts, international tribunals and UN assisted tribunals have varying degree of relation to the United Nations.
After the Second World War, the Nuremberg and Tokyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War.
The ad hoc tribunals and UN-assisted tribunals have continued to contribute to combating impunity and promoting accountability for the most serious crimes. In the 1990s, after the end of the Cold War, the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) were established to try crimes committed within a specific time-frame and during a specific conflict. This applies, as well, to three courts established by the states concerned, but with substantial UN support: the Special Court for Sierra Leone (2002), the Extraordinary Chambers in the Courts of Cambodia (2006) and the Special Tribunal for Lebanon (2007). Sometimes referred to as ‘hybrid’ courts, they are non-permanent institutions which will cease to exist once all their cases have been heard.
International Criminal Court:
The idea of a permanent international court to prosecute crimes against humanity was first considered at the United Nations in the context of the adoption of the Genocide Convention of 1948. For many years, differences of opinions forestalled further developments. In 1992, the General Assembly directed the International Law Commission to prepare a draft statute for such a court. The massacres in Cambodia, the former Yugoslavia and Rwanda made the need for it even more urgent.
The International Criminal Court (ICC) has jurisdiction to prosecute individuals who commit genocide, war crimes and crimes against humanity. It will also have jurisdiction over the crime of aggression when an agreement is reached on the definition of such a crime. The ICC is legally and functionally independent from the United Nations, and is not a part of the UN system.
In 2002, the International Criminal Court came into being with a broad mandate to consider genocide, war crimes, crimes against humanity and the crime of aggression. While very promising, the ICC has become embroiled in criticism that it focuses almost exclusively on criminal cases in Africa, without looking at breaches of the law elsewhere. Some also argue that legal prosecution by the ICC may prevent political solutions to conflicts and neglect the opportunity of negotiated settlements of disputes.
The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The President is the most senior judge chosen by his or her peers in the Judicial Division, which hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor who investigates crimes and initiates criminal proceedings before the Judicial Division. The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit, and public defense office.
The Rome Statute requires that several criteria exist in a particular case before an individual can be prosecuted by the Court. The Statute contains three jurisdictional requirements and three admissibility requirements. All criteria must be met for a case to proceed. The three jurisdictional requirements are (1) subject-matter jurisdiction (what acts constitute crimes), (2) territorial or personal jurisdiction (where the crimes were committed or who committed them), and (3) temporal jurisdiction (when the crimes were committed).
- Subject-matter jurisdiction requirements
The Court’s subject-matter jurisdiction means the crimes for which individuals can be prosecuted. Individuals can only be prosecuted for crimes that are listed in the Statute. The primary crimes are listed in article 5 of the Statute and defined in later articles: genocide (defined in article 6), crimes against humanity (defined in article 7), war crimes (defined in article 8), and crimes of aggression (defined in article 8 bis) (which is not yet within the jurisdiction of the Court; see below). In addition, article 70 defines offences against the administration of justice, which is a fifth category of crime for which individuals can be prosecuted.
- Territorial jurisdiction
The territorial jurisdiction of the Court includes the territory, registered vessels, and registered aircraft of states which have either (1) become party to the Rome Statute or (2) accepted the Court’s jurisdiction by filing a declaration with the Court.
In situations that are referred to the Court by the United Nations Security Council, the territorial jurisdiction is defined by the Security Council, which may be more expansive than the Court’s normal territorial jurisdiction. For example, if the Security Council refers a situation that took place in the territory of a state that has both not become party to the Rome Statute and not lodged a declaration with the Court, the Court will still be able to prosecute crimes that occurred within that state.
- Personal jurisdiction
The personal jurisdiction of the Court extends to all natural persons who commit crimes, regardless of where they are located or where the crimes were committed, as long as those individuals are nationals of either (1) states that are party to the Rome Statute or (2) states that have accepted the Court’s jurisdiction by filing a declaration with the Court. As with territorial jurisdiction, the personal jurisdiction can be expanded by the Security Council if it refers a situation to the Court.
- Temporal jurisdiction:
Temporal jurisdiction is the time period over which the Court can exercise its powers. No statute of limitations applies to any of the crimes defined in the Statute. However, the Court’s jurisdiction is not completely retrospective. Individuals can only be prosecuted for crimes that took place on or after 1 July 2002, which is the date that the Rome Statute entered into force. If a state became party to the Statute, and therefore a member of the Court, after 1 July 2002, then the Court cannot exercise jurisdiction prior to the membership date for certain cases. For example, if the Statute entered into force for a state on 1 January 2003, the Court could only exercise temporal jurisdiction over crimes that took place in that state or were committed by a national of that state on or after 1 January 2003.
Legal institutions play a very important role in interpreting and upholding the law and justice. Justice is a state where the rights of the individual are protected. The concept of International Justice is crucial for the developing and promoting economic and social development and helps to achieve the goals of peace and security. With the growing intensity among the nations, there is an dire need of promoting such awareness which will help to achieve a welfare state and lead to overall development of the nations. There are various global issues which are hampering the international relation, creating problems in the economic and social growth and under such situations international justice is a progressive step. The UN and its organs are the agencies which are working on and promoting peace and hence, it is very important for all the nations to contribute to such cause to facilitate in creating a healthy and a better world.
1. https://www.un.org/en/sections/what-we-do/uphold-international-law/ last visited on July 15, 2020.
2. https://www.un.org/en/sections/un-charter/chapter-vi/index.html last visited on July 15, 2020.
3. www.icj-cij.org/en/history last visited on July 15, 2020.
2019-07-17 last visited on July 15, 2020.
5. https://www.un.org/en/sections/issues-depth/international-law-and-justice/index.html last visited on July 15, 2020.
7. https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf last visited on July 15, 2020.