PAN MOHAMAD FAIZ

The US President Bush in his televised address to his nation on 17 March 2003 demanded: “Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commenced at a time of our choosing”. The question is why Saddam and his sons should leave Iraq, their motherland on the dictate of a foreigner?

The Bush ultimatum was the US response it failure to get an US-UK-Spanish draft resolution through UN Security Council. The draft resolution would have the Council to decide that “Iraq will have failed to take the final opportunity afforded by resolution 1441 (2002) unless, on or before 17 March 2003, the Council concludes that Iraq has demonstrated full, unconditional, immediate and active cooperation in accordance with its disarmament obligations under resolution 1441 (2002) and previous relevant resolutions, and is yielding possession to UNMOVIC and the IAEA of all weapons, weapon delivery and support system and structures, prohibited by resolution 687 (1991) and all subsequent relevant resolutions, and all information regarding prior destruction of such items”.

The Resolution 661 of 1990 reaffirmed: “the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter” and asked all states “to take appropriate measures to protect of the legitimate Government of Kuwait”. The Resolution 678 (1990) authorized “Member States co-operating with the Government of Kuwait” – a euphemy for then US-led 28 nation multinational force – “to use all necessary means to uphold and implement Security Council Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”. The Resolution 1441 of 2001 noted that the Council “has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligation”.

Evidently, the draft resolution did not anticipate any role for the Council in this second Iraq war, save that of reaffirmation of the authorization it had given, more than a decade ago, to the US-led multinational force. This was against the legal position that once a decision is taken by the Security Council, pursuant to Article 42 of the UN Charter, to use armed force against a state, the Council shall be in total control of the prosecution of all military measures including “plans for application of armed force (Articles 44-49).

The other permanent members of the Security Council, namely, France, Russia, and China, strongly objected to the Council into another authorization of use of force against Iraq. They were of the view that peace be given another chance, and that the UN inspectors be given some more time. Why all this rush to use of force?

According the US and UK, previous Council resolution on Iraq, including those of 661 and 678 (1990) and 687 (1991), already embodied adequate legal basis for any use force against Iraq. Evidently, they did not want to give the Council an opportunity to specify what action it would take, as that would have deprived them of their so-called ‘right’ to unilateral military action. The bush ultimatum specifically invoked resolutions 678 and 687. The Resolution 661 of 1990 reaffirmed: “the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter” and asked all states “to take appropriate measures to protect of the legitimate Government of Kuwait”. The Resolution 678 (1990) authorized “Member States co-operating with the Government of Kuwait” – a euphemy for then US-led 28 nation multinational force – “to use all necessary means to uphold and implement Security Council Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”. The Resolution 687 (1991), adopted after Iraqi withdrawal, imposed on Iraq a broad range of devastating disarmament obligations, with the Council opting “to remain seized of the matter and to take such further steps as may be required for the implementation of this resolution and to secure peace and security in the area”. Thus constitutional prerogative to enforce its previous resolutions remains exclusively with the Council.

The justification for unilateral use of force include a right of collective self-defence, a right of individual self-defence, a right or a duty to enforce international sanctions, a right of action to prevent and combat international terrorism, and a right to humanitarian intervention.

The right of collective defence of Kuwait was specially recognized by a Security Council resolution of 1990. By Resolution 661 of 6 August 1990, the Council affirmed through its sixth preamble paragraph, “the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter”

Armed attack is the pre-condition for invocation of the right of collective self-defence. The international Court of Justice (ICJ) held in the Nicaragua case: – “States do not have a right of “collective” armed response to acts which do not constitute an “armed attack”. (ICJ Reports 1986, p. 14, at. p. 110, para. 211).

The right of individual self-defence of the United States is probably based on three gorunds. First, the attempted attack on Bush Senior. But the right of self-defence is only available against an ‘armed attack’ and the response has to be sufficiently ‘immediate’, leaving no choice of other means and as short a time as the context allows for deliberation. Second, the suspected linkages of Iraq with Al-Qaeeda, an international terrorist organization that was behind the 11 September 2001 terrorist attacks on the US. This ground of self-defence against Iraq will only be tenable on proof – not just allegations – of definite connection between Iraq and that terrorist organization to the 11 September attacks. Third, the so-called right of pre-emptive attack. The US argument is that Iraq has deadly weapons of mass destruction (WMD’s), delivery systems and subsystems, that these will be deployed against the US and that the US has a right to take pre-emptive action to prevent this eventuality.The issue of WMDs has been central to the work of the UN inspectors led by Hans Blix and El-Barodei and tangiable results were being achieved and reported to the Council. The argument of a “possible Pearl Harbour” does not fit in with scenario of a right of self-defence against an armed attack. “In the case of individual self-defence,” stressed the International Court in Nicaragua case, “the exercise of this right is subject to the State concerned having been the victim of an armed attack”. Legitimation of the so-called right of pre-emptive attack would be a free licence for unrestrained and whimsical unilateral use of force by the mighty against the weaker countries, and odes violence to the UN Charter scheme of international community action through the instrumentality of the Security Council.

Discussing the legality of the concept of “anticipatory self-defence”- more fashionable name for the rush and ready “pre-emptive attack” – Albrecht Randelzhofer’s commentary on Article 51 of the UN Charter has this to say, “An anticipatory right of self-defence would be contatry to the wording of Article 51 (‘if armed attack occurs’), as well as to the object and purpose, which is to cut a minimum the unilateral use of force in international relations. Since the (alleged) imminence of an attack cannot usually be assessed by means of objective criteria, any decision on this point would be necessarily have to be left to the discretion of the state concerned. The manifest risk of an abuse of that discretion which thus emerges would de facto undermine the restriction to one particular case of the right of self-defence”. Therefore Art. 51 has to be interpreted narrowly as containing a prohibition of anticipatory self-defence.

The Bush statement of 17 March that “Security Council has not lived up to its responsibilities, so we will rise to ours” has been most irresponsible and arrogant statement for the most powerful country on earth to make.

The ban on unilateral use of force in international relations under Article 2(4) of the Charter is absolute and near total, except in case of self-defence pursuant to Article 51.

For instance, Article VI of the Nuclear Non-Proliferation Treaty 1968 imposes an obligation on all parties to the treaty to evolve “effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control”.

Philip C. Jessup has clearly stated that no state could resort to use of force in the pretext of promoting the “Purposes of the United Nations” – a phrase employed in Article 2 (4) of the Charter -, because such as United Nations, i.e., “to take effective collective measures for the prevention and removal of threats to the peace …” (Article 1(1) of UN Charter).

The term “or in any manner inconsistent with the Purposes of the United Nations” in Article 2(4), according to Ian Brownlie was not intended to have any restrictive affective on that article, but to reinforce the prohibition of the use of force, and perhaps, to refer to the legality of force when his took the form of enforcement action sanctioned by the Security Council.

No state can claim a unilateral right to use force against another state in the pretext of combating terrorism either, unless it acts in self-defence, in which case the conditions of the right of self-defence apply.

Use of force in self-defence is only legally permissible against an armed attack. It is further conditioned and limited by the principles of necessity, immediacy (without undue delay), and proportionality. It must also be in conformity of the principles of international humanitarian law.

The so-called right of humanitarian intervention against Iraq offers a range of justification. The US argument is that Saddam Hussein is a detestable dictator, that Iraq must have a regime change and the people there deserve a western form of democratic government, that under Saddam, the Iraqi people constantly suffer gross violations of human rights, and that the UN sanctions have failed to bring down the Saddam regime.

Any action against gross violations of human rights must come from competent international institution such as the Security Council reflecting international community consensus, not based on unilateral and selective judgments by a mighty power. The more so when it involves core issues of national self-determination, such as regime change. The International Court held in the Nicaragua case ruled: – “A prohibited intervention must accordingly be one bearing in matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices which must remain free ones”. The Court further held that while a state might “form its own appraisal for the situation as to respect for human rights” in another state, “the use of force could not be the appropriate method to monitor or ensure such respect. With regard to the steps actually taken [in this case], the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or gain with the training, arming and equipping of armed bands in the state accused of human rights violations.

Finally, the Bush statement claims with impunity, “The United States of America has the sovereignty authority to use force in assuring its own national security”. The sovereignty argument is the hallmark of bankruptcy of international legality and legitimacy. Anything can be ‘justified on ground sovereignty, unless one recognizes that national sovereignty is subject to law. So not state, however mighty, enjoys absolute sovereignty, only sovereignty under law.

Unilateral resort to armed force by a group of states outside the framework of the UN Charter remains condemnable both under international law and international morality. The International Court declared in 1949, at the height of the first Cold War: “the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever, be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to preventing the administration of international justice itself”. (Corfu Channel case, ICJ Reports 1949, p. 4, at p. 35. This ruling was in the context of the British justification of use of force in self-defence or self-help, in the forcible removal of mines from the Albanian territorial waters with the help of naval minesweepers).

The Conclusion is that the Second Bush war has been illegal war, ab initio, in terms not only of the UN Charter, but also of the peremptory norms of international law. As the war unfold itself, other international law issues such as the proportionality of use of force (the “shock and awe” military strategy and the resulting shock, pain death of civilians), compliance with the rules of international humanitarian law (allegations of mistreatment of POWs, use of civilians as a human shield, etc.), protection of historical monuments (bearing in mind that Iraq has the cradle of as many as three ancient civilizations). So it means Bush should changes or at least accompanies Saddam position in the Court at the present. Let’s dragging Mr. Bush either to The International Court of Justice (ICJ) or The International Criminal Court (ICC), shall we?

Marriage before the age of 18 is a reality for many young women. In many parts of the world parents encourage the marriage of their daughters while they are still children in hopes that the marriage will benefit them both financially and socially, while also relieving financial burdens on the family.

In actuality, child marriage is a violation of human rights, compromising the development of girls and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty.

The right to ‘free and full’ consent to a marriage is recognized in the Universal Declaration of Human Rights – with the recognition that consent cannot be ‘free and full’ when one of the parties involved is not sufficiently mature to make an informed decision about a life partner. The Convention on the Elimination of all Forms of Discrimination against Women mentions the right to protection from child marriage in article 16, which states: “The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage…”[3]

While marriage is not considered directly in the Convention on the Rights of the Child, child marriage is linked to other rights – such as the right to express their views freely, the right to protection from all forms of abuse, and the right to be protected from harmful traditional practices – and is frequently addressed by the Committee on the Rights of the Child. Child marriage was also identified by the Pan-African Forum against the Sexual Exploitation of Children as a type of commercial sexual exploitation of children.[4]

Young married girls are a unique, though often invisible, group. Required to perform heavy amounts of domestic work, under pressure to demonstrate fertility, and responsible for raising children while still children themselves, married girls and child mothers face constrained decision-making and reduced life choices. Boys are also affected by child marriage but the issue impacts girls in far larger numbers and with more intensity.

UNICEF’s Innocenti Research Centre published the digest Early Marriage: Child Spouses in 2001, exploring both the reasons behind the perpetuation of child marriage and its harmful impact. The digest provides guidelines towards ending the practice of child marriage through changing attitudes within families and societies, expanding opportunities for education, offering appropriate support to families and children, and working to ensure that all children – girls and boys – are recognized as valuable members of society. The digest deliberately focuses on unions that are recognized as marriages in either statutory or customary law.[5]

Cohabitation – when a couple lives together as if married – raises the same human rights concerns as marriage. Where a girl lives with a man and takes on the role of caregiver for him, the assumption is often that she has become an adult woman, even if she has not yet reached the age of 18. Additional concerns due to the informality of the relationship – for example, inheritance, citizenship and social recognition – might make girls in informal unions vulnerable in different ways than those who are in formally recognized marriages.

Therefore, the following study considers girls in both formal marriage and in cohabitation to determine relationships between early unions (within or outside of marriage) and socio-economic and demographic variables, characteristics of the union, as well as knowledge and access related to reproductive and sexual health. The literature suggests that many factors interact to place a child at risk of marriage. Poverty, protection of girls, family honour and the provision of stability during unstable social periods are suggested by Innocenti as significant factors in determining a girl’s risk of becoming married while still a child.[6]

Jenson and Thornton found little overall change in the average age at marriage for age cohorts born between 1950 and 1970 in most regions, as well as little change in the incidence of child marriage. Focusing primarily on Benin, Colombia, India and Turkey, Jenson and Thornton noted strong correlations between a woman’s age at marriage and the level of education she achieves, the age at which she gives birth to her first child and the age of her husband. Women who married at younger ages were more likely to believe that it is sometimes acceptable for a husband to beat his wife and were more likely to experience domestic violence themselves.[7]

The age gap between partners is thought to contribute to these abusive power dynamics and to increase the risk of untimely widowhood,[8] although Westoff notes that older husbands may be better providers for the household. Closely related to the issue of child marriage is the age at which girls become sexually active.[9]

The relationship between age at marriage and age at first sexual intercourse is examined here with an eye to fertility trends; however, it is important to note that trends indicate that, while in some countries marriage may be increasingly delayed, sexual activity is not, leading to a greater incidence of pregnancy outside of union.[10]

Women who are married before the age of 18 tend to have more children than those who marry later in life. According to Bhattacharya, 97 percent of women surveyed in India in 1992-1993 did not use any contraception before their first child was born.[11]

However, the Population Council and UNICEF found that, in Pakistan, a substantial number of young married women indicated an interest in the use of contraception in the future.[12] Pregnancy-related deaths are known to be a leading cause of mortality for both married and unmarried girls between the ages of 15 and 19, particularly among the youngest of this cohort.[13]

Protection from HIV/AIDS is another reason for child marriage. Parents seek to marry off their girls to protect their health and their honour, and men often seek younger women as wives as a means to avoid infection. In some contexts, however, the evidence does not support this hypothesis and practice. Bhattacharya found that in India, 75 percent of people living with HIV/AIDS are married.[14] In fact, the demand to reproduce and the stigma associated with safe-sex practices lead to very low condom use among married couples worldwide, and heterosexual married women who report monogamous sexual relationships with their husbands are increasingly becoming a high-risk group for HIV/AIDS.[14]

In 2003, UNICEF and partners agreed to focus on five indicators related to child marriage:
■ Percentage of women first in union by age 18 by age group (15–19, 20–24 and 45–49)
■ Percentage of girls 15–19 years of age currently in union
■ Spousal age difference
■ Percentage of women currently in a polygynous union by age groups
■ Percentage of ever-married women who were directly involved in the choice of
their first husband or partner.

The context and indicators related to child marriage and cohabitation can be approached through the examination of several age groups. One approach is to consider all women in a society. Another would be to observe the situation of girls aged 15–19 to determine the number of girls currently in union and the characteristics associated with that age group. However, the possibility of gauging how many of those girls will be married or in union by their 18th birthday is more complex because many have not yet reached the age of 18. Looking at the 20–24 age group is simpler and allows for the inclusion of all girls who were married or in union by age 18 within the closest time period for which complete data are available.

The term ‘child marriage’ will be used to refer to both formal marriages and informal unions in which a girl lives with a partner as if married before the age of 18. The report presents a global assessment of child marriage levels, differentials in child marriage rates according to socio-economic and demographic variables, characteristics of the union, and knowledge and access to sexual and reproductive health information and materials.

Statistical associations between indicators can reveal potential linkages in programming to promote the delay of marriage and point to opportunities to integrate advocacy and behaviour-change campaigns toward the prevention of child marriage and a multivariate analysis allows for the illumination of the net effect of each variable. Anomalies to general trends are often highlighted in the text in order to direct programmers and researchers towards case examples that may require further study or circumstances that may provide models for eradication efforts. ۩

[1] Based on research paper from UNICEF – 2005.

[2] Writer is a Postgraduate Student of Master of Comparative Law (M.C.L.) at Faculty of Law, University of Delhi and Master of Political Science at Indira Gandhi University.

[3] The full text of the Convention on the Elimination of all Forms of Discrimination against Women is available at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.

[4] Mikhail, S., ‘Child marriage and child prostitution: Two forms of sexual exploitation’, Gender and Development, vol. 10, no. 1, 2002, pp. 43–49.

[5] UNICEF, Early Marriage: Child Spouses, UNICEF Innocenti Research Centre, Florence, 2001.

[6] Ibid.

[7] Jenson, R. and R. Thornton, ‘Early female marriage in the developing world’, Gender and Development,vol. 11, no. 2, 2003, pp. 9–19.

[8] Tiemoko, R., ‘The Gender Age Gap: Marriage and rights in the Côte d’Ivoire’, Development, vol. 44, no. 2, 2001, pp. 104–106.

[9] Westoff, C., Trends in Marriage and Early Childbearing in Developing Countries; DHS Comparative Reports No. 5, ORC Macro, Maryland, 2003.

[10] Calves, A., ‘Marginalization of African Single Mothers in the Marriage Market: Evidence from Cameroon’, Population Studies, vol. 53, no. 3,1999, pp. 291–301.

[11] Bhattacharya, G., ‘Sociocultural and Behavioural Contexts of Condom Use in Heterosexual Married Couples in India: Challenges to HIV prevention programmes’, Health Education & Behavior, vol. 31, no. 1, 2004, pp. 101–117.

[12] Sathar, Z. et al., Adolescents and Youth in Pakistan 2001–2002: A nationally representative survey, UNICEF and Population Council, Islamabad, 2002.

[13] Otoo-Oryortey, N. and S. Pobi, ‘Early Marriage and Poverty: Exploring links and key policy issues’, Gender and Development, vol. 11, no. 2, 2003, pp.42–51.

[14] Bhattacharya, G., op. cit.

Brief Introduction

The U.N. General Assembly, in 1989, requested the International Law Commission to address the question of establishing an international criminal court. The commission prepared a Draft Statue. The Rome Conference – U.N. Diplomatic Conference of Plenipotentiaries, in Italy, adopted the statue known as the “Rome Statue of the International Criminal Court” on 17 June 1998. The Conference was attended by 162 countries.

Beside the Preamble, there are 128 Articles in the Statue, divided into 13 parts. According to Art. 126, the Statue shall come into force on the 1st day of the month after 60th day following the date of deposit of the 60th instrument of ratification, acceptance, approval or accession with the U.N. Secretary General. The Statue of ICC has come into force from 1st January 2003.

Earlier, an International Tribunal for Prosecution of Violators of International Humanitarian Law in Former Yugoslavia was established in 1883 by the Security Council. It was for the first time that UN has established an International Criminal Court with jurisdiction to prosecute crimes committed during armed conflict. The Tribunal is to deal with “crimes against humanity”, such as murder, extermination, enslavement, torture, rape, persecution on political racial and religious grounds and other inhuman acts. It may be noted that “crimes against humanity” were first recognized in the UN Charter and judgment of Nuremberg Tribunal (1945).

Then, Rwanda International Criminal Tribunal was established in 1994 under Chapter VII of the UN Charter by the Security Council for the purpose of prosecuting persons responsible for genocide, etc. committed in the territory of Rwanda and other neighbouring States.

Major Features of International Criminal Court (ICC)

1. Establishment of the Court.

Art. 1, which establishes the ICC, provides that it shall be a permanent institution and shall have power to exercise jurisdiction over persons for the “most serious crimes” of International concern. The ICC shall be complementary to national courts. The ICC will exercise jurisdiction only when the national judiciary concerned is genuinely unwilling or unable to prosecute crimes mentioned in the Statue of ICC.

The Court shall be brought into relationship with UN through an agreement to be approved by the Assembly of State to this. The seat of the Court shall be established at the Hague (Netherlands).

2. Jurisdiction

The Court has jurisdiction in accordance with the Statue with respect to the following crimes: (a) Crime of genocide, (b) Crime against humanity, (c) War crimes, (d) Crime of aggression (Art. 5). The Court has jurisdiction only with respect to crimes committed after the entry into force of the Statue (Art. 11). A State which becomes a party to the Statue thereby accepts the jurisdiction pf the Court with respect to these crimes (Art.12).

The Statue shall apply equally to all persons without any distinction based on official capacity (a Head of State/Government, a Member of Parliament, etc.); Immunities or special procedural rules which may attach to the official capacity (under national or international law) shall not bar the court (Art. 27). However, the Court shall have no jurisdiction over a person under age of 18 at the time of the commission of a crime (Art. 26).

3. Applicable Law

According to Art. 21 (1), the Court shall apply firstly this Statue’ elements of crime and its rules of procedure and evidence; secondly, where appropriate, applicable treaties and principles of international law (including those of armed conflict); lastly, general principles of law derived by Court from national laws of legal system of the world including the national laws of States that would normally exercise jurisdiction over the crime (provided that those principles are not inconsistent with the statue/international law).

Art. 21 (2) lays down that the Court may apply principles and rules of law as interpreted in its previous decision. Art. 21 (3) provides that the with internationally recognized “human rights”, and be without any adverse distinction founded on grounds such as gender, age, race, colour, language, religion/belief, political or other opinion, national/ethnic/social origin, wealth, birth or other status.

A person shall not be criminally responsible under this Statue unless the conduct in question constitutes, at the time it takes place, a crime within the court’s jurisdiction –Nullum crimen sine lege. The definition of a crime shall be strictly construed; in case of ambiguity, there shall be interpretation in favour of persons being investigated, prosecuted or convicted (Art. 22).

A person convicted by the court may be punished only in accordance with this Statue – Nulla poena sine lege (Art. 23). Art. 24 lays down that no person shall be liable for conduct prior to the entry into force of the Statue. In the event of a change in the law applicable to a given case prior to final judgment, the law more favourable to the persons being investigated, etc. will apply.

Art, 25 deals with “individual criminal responsibility”. The Court shall have jurisdiction over natural pursuant to this Statue. A person committing a crime shall be individually responsible and liable for punishment; it does not matter whether he commits crime as and individual, jointly with another or through another person. A Person is also criminally responsible if he orders, solicits or induces the commission of a crime which in fact occurs or is attempted.

A person is also liable if for the purpose of facilitating the commission of a crime, he aids, abets, etc. in its commission; contributes to the commission (or attempt) of a crime by a group of persons acting with a common purpose; in respect of the crime of genocide, directly and publicly incites other to commit crime.

It also laid down that no provision in this Statue relating to individual responsibility shall effect the responsibility of States under international law.

4. Composition of Court

According to Art. 34, the Court shall be composed of: (a) The Presidency; (b) Appeal Division, Trial Division and Pre-Trial Division; (c) Office of the Prosecutor; and (d) The Registry.

The Court is to consist of 18 judges (having established competence in Criminal Law and Procedure as a judge, prosecutor, advocate, etc, or international humanitarian law and the law of human rights). Nominations of candidates for election to the Court may be made by any State Party to the Statue; every candidate is required to be fluent in one of the working languages of the Court (i.e. Arabic, Chinese, English, French, Russian and Spanish). No two judges may be nationals of the same State.

The judges shall hold office for a term of 9 years. But at the first selection, 1/3rd of judges elected shall be selected to serve for a term of 3 year; 1/3rd to serve for a term of 6 years; and the remainder for a term of 9 years (Art. 36). The ‘place of trial’ shall be the seat of the Court.

5. Penalties

Art. 77 lays down the following penalties: Imprisonment up to a maximum of 30 years; or a term of life-imprisonment when justified by the extreme gravity of the crime and individual circumstances. These penalties are subject to Art. 110 (review by the Court concerning reduction of sentence).

In addition to imprisonment, the Court may order a fine; a forfeiture of proceeds, property and asserts derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

6. Appeal and Revision

A decision under Art. 74 may be appealed in accordance with the Rules of Procedure and Evidence (Art. 81). The convicted person, or his spouse, children, etc. may apply to the Appeals’ Chamber to revise the final judgment of conviction/sentence on the ground specified in the Statue (Art. 84).

Anyone who has been the victim of unlawful arrest/detention shall have an enforceable ‘right to compensation’.

7. Assembly of State Parties

The State Parties are under a general obligation to cooperate with Court (Art. 86). A sentence of imprisonment shall be served in a State designated by the Court from a list of States, which have indicated their willingness to accepts sentenced persons (Art. 103).

The Rome Statue also established an Assembly of State Parties; each State Party to have one representative. Other States, which have signed the Statue, may be observes in the Assembly (Art. 112). The Assembly shall’ve a Bureau consisting of a President, two Vice-President and 18 members.

The Assembly shall consider and adopt recommendations of the Preparatory Commission; provide management oversight; decide the court’s budget; decide, whether to alter, the number of judges; to consider question relating to non-cooperation. The Assembly may establish subsidiary bodies for evaluation and investigation of the Court, in order to enhance its efficiency. The Assembly shall adopt its own rules of procedure.

8. Settlement of Disputes

Any dispute concerning the judicial functions of the Court shall be settled by the Court’s decision. Any other dispute between two or more State Parties relating to the interpretation or application of the Statue shall be referred to the Assembly of State Parties; the latter may itself seek to settle it or make recommendations on further means of settlement including referral to the ICJ (Art. 119).

9. Miscellaneous

A unique feature of the Rome Statue is that it does not provide for any reservations (Art. 120). A State Party may, be written notification addressed to the UN Secretary General, withdraw from this Statue (Art. 127).

Seven years after the entry into force of this Statue, the Secretary General of U.N. shall convene a Review Conference to consider any amendments to this Statue. Such review may include, but is not limited to, the list of crimes contained in Art. 5.

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[1] Writer is a Postgraduate Student of Master of Comparative Law (M.C.L.) at Faculty of Law, University of Delhi and Master of Political Science at Indira Gandhi University.

Brief Introduction

The need for the establishment of a Permanent Court to solve international disputes was felt in the First Hague Conference. It was in the Second Hague Peace Conference, the USA proposed for the establishment of such a Court. The Permanent Court of International Justice (PCIJ) was established in 1921 under the covenant of the League of Nations. After its dissolution, the new International Court of Justice (ICJ) started functioning on 18 April 1946 with headquarters at the Hague.

ICJ is the principal judicial organ of the UNO. The rules concerning the ICJ are set out in a Statue annexed to the UN Charter. All members of the UN are ipso facto parties to the Statue of ICJ. The member States are under an obligation to comply with decision of ICJ in the cases to which they are parties.

The function of the ICJ was conceived primarily to decide legal disputes between State parties when they agree to submit their dispute to it. The ICJ was not given the power of judicial review over the actions taken by other international organs. Thus, the absence of compulsory jurisdiction over States and lack of power of judicial review makes it a weaker Court than the municipal courts.

Art. 34 (1) of the Statue provides that “only States may be parties before the Court.” But the international organization may be requested to provide information relevant to cases before the Court. International organizations bring a claim in contentious litigation before the Court. Individuals and corporations totally lack any locus standi as parties before the Court. The individuals can bring claims only through their own Governments.

Organization of ICJ

The court consist of 15 judges who are elected regardless of their nationality, from among persons of high moral character who posses the qualifications required for the appointment to the highest judicial office of their own States, or, who are jurisconsults of repute in international law. But, no two judges shall be elected from the same State.

The system of election based on the “Root-Phillimore plan” devised in 1920. The list persons to be elected as the judges are prepared by the national groups in the Permanent Court of Arbitration on the request of Secretary General of U.N. No national group shall nominate more than four persons. The Secretary General then prepare the list of nominees in alphabetic order from which judges are to be elected by the General Assembly and Security Council, each voting independently, but simultaneously (by absolute majority).

These two organizations keep in mind that the judges elected are representatives of “main forms of civilization” and “principal legal system of the world”. Under a short of “gentlemen’s agreement”, the judges elected on regional basis and as per present practice 3 from Africa, 3 from Asia, 2 from Latin America, 2 from Eastern Europe and 5 from Western Europe and other countries are elected. The casual vacancies due to death or resignation are also filled in the same manner.

One third, i.e. 5 judges are elected, once in every three years. Thus, once elected a judge enjoys tenure of 9 years and is also eligible for re-election. The seat of the Court is at the Hague, though it can also sit elsewhere if it considers necessary. The quorum of the Court is nine judges. The judges elect a President and a Vice-President from among themselves, to preside over the Court for a period of three years.

The decisions regarding the disputes before the Court are taken by majority of votes of judges and in case there is a tie, the President of the Court exercises his casting vote. The salary and allowances of judges are determined by the General Assembly. Each judge of the Court receives an annual salary. The judges enjoy diplomatic privileges and immunities.

No judge of the Court may exercise any political or administrative function or engage in any other occupation of a professional nature. The judges of the nationality of each of the parties retain right to sit in the case before the Court. If the Court includes upon the bench a judge of the nationality of one of the parties, any other party may choose a person to sit as a judge. This, ad hoc judges could be appointed so.

The statue also provides for the information of three types of chambers: the chambers of summary procedure, chambers for dealing with particular categories of cases, like labour or environment, and chambers for dealing with a particular case.

Though the judgment of the Court is “final and without appeal”, yet a State party may appeal for revision of judgment under certain circumstances. The Court’s decision has no binding force except between parties and in respect of that particular case only. Art. 38 (1) of the Statue of ICJ directs the Court to apply international law to disputes derived from international conventions, international customs, general principles of law, and subject to Art. 59, judicial decisions and teachings of the most highly qualified publicist.

Jurisdiction of ICJ

The access to the Court is open to State which are parties to the Statue and Charter, as well as to the non-members who are admitted to UN under Art. 92 (2) of the Charter. The States, which are not parties to the Statue, can have access to the Court if they fulfill the conditions laid down by the General Assembly in each case and upon the recommendation made by the Security Council. Such State must deposit a declaration with Registrar of the Court accepting the jurisdiction of the Court, and contributing towards expenses of the Court. The court enjoys types of jurisdictions, namely (1) Contentious, and (2) Advisory.

1. Contentious Jurisdiction

It comprises the following kinds of cases:
a. All cases which the parties refer to it.
b. All matters specially provided for in the Charter of the United Nations.
c. All matters specially provided for in the treaties and conventions on force.

In all contentious cases, the Court can exercise it jurisdiction only with the consent of the State parties to the dispute, which convey their consent through notification in bilateral agreement known as ‘compromise’. But since the 1980s, the usual method of notifying their joint consent is through a ‘Special Agreement’, instead of a ‘compromises’.

A unilateral reference of a dispute to the Court by one State party without prior Special Agreement can also be made under the “Principle of Prorogatun”, provided the other State party or parties convey their assent to voluntary submission to the jurisdiction of Court either after the case is referred or subsequently. However, if the consent of the other State party or parties is not forthcoming either after the case is referred or subsequently, the Court cannot exercise jurisdiction over such a case.

The Court also exercises compulsory or obligatory jurisdiction over following types of cases:

a. Where the State parties to a treaty have agreed that the Court shall have jurisdiction over the disputes arising under the treaty; or, where a treaty, which is in force, has a provision also come under compulsory jurisdiction of the ICJ. For example, disputes arising out of the working of the specialized agencies like the I.L.O. give compulsory jurisdiction to the ICJ.

b. The Statue in Art. 36 (2), known as “Operational Clause” provides “the States parties to the present Statue may at any time declare that they are recognized as compulsory subjects ipso facto, and the same obligation” the jurisdiction of the Court in all legal disputes: relating to (1) interpretation of a treaty (2) any question of international law (3) the existence of any fact which, if established, would constitute a breach of an international obligation; (4) the nature and extent of reparation to be made for the breach of an international obligation.

Such declaration under ‘Optional Clause’ by States may be made, with the Secretary General of UN, either unconditionally or on condition of reciprocity on the part of several or certain States, or for a specified time only. Under the reciprocity principle, a State accepts the Court’s jurisdiction vis-à-vis any other State only in so far as that State has also accepted it.

The States can also make such declarations subject to certain reservation. The reservations may be regarding the following: Past disputes; Disputes for which other methods of settlement are available; Question within the domestic jurisdiction of a State; Dispute arising in time of war or hostilities. But the too many reservations which are “merely escape clauses or consciously designed loopholes” prompted Starke to say “such a system of ‘optional’ compulsory jurisdiction verges on absurdity”.

c. The disputes regarding application or interpretation of trusteeship agreement between a trustee and another member of UN.

d. The Statues of certain Specialized Agencies of the UN contain provisions to refer their disputes with other specialized agencies to the Court.

At one time, it was thought that another category of compulsory jurisdiction existed, namely, where under Art. 36 of the UN Charter, the Security Council recommends the parties to a dispute to refer their case to the Court if the dispute is of a legal character. But after the decision of the ICJ in the Corfu Channel Case [Preliminary Objection (1948)], it is now settled that if a Member State had not accepted the jurisdiction of the ICJ under a special agreement or under a treaty or convention under a declaration made according to Para 2 of Art. 36 of the Statue, compulsory jurisdiction cannot be exercised by the Court.

The Statue does not provide any method for enforcement of the decision in the decisions in the contentious cases, which is a major weakness of ICJ. However, under Art. 94 of the Charter, each member of UN undertakes to comply with the decision of the Court in a case to which it is a party. If a State party to a dispute does not fulfill its obligations as per the decision of the Court, the other State party has a right to approach the Security Council which may decide how the decision can be made effective.

2. Advisory Opinion

The ICJ may give an advisory opinion on any legal question, at the request of anybody authorized by, or in accordance with, the Charter of the UN, to make such a request. According to Art. 96 of the Charter, the General Assembly and the Security Council may request the advisory opinion of the Court on any legal question. Other organs of the UN may also do so, if authorized by the General Assembly. An advisory opinion lacks the binding force of a judgment as in contentious case. But, States may, by treaty or agreement, undertake in advance to be bound by advisory opinion on certain questions.

The advisory function is designed primarily to assist the General Assembly and Security Council in the discharge of their duties of conciliation over disputes submitted to them, by rendering them an authoritative legal opinion. Strictly speaking, the Court’s opinion is not given to States, but only to organs entitled to do so. However, States are permitted, along with international organizations to participate in proceedings before the Court.

The Court should not decide upon the merits of a dispute between States by way of an advisory opinion. It may be noted that the absence of consent of a State or States does not prevent the Court from giving an advisory opinion on a legal question, the solution of which may clarify a factor in a dispute between States or between a State and an international organization, without affecting the substance of the dispute.

Ordinarily the Court cannot refuse to render advisory opinion, but it may do so when: (a) The main point of the legal question referred involves other than legal aspects (viz. political or purely academic question), or is embarrassing. However, it may not refuse to give an advisory opinion where the interpretation of a treaty provisions is concerned, even though such a question and request are of a political nature.

Though the advisory opinion lacks the binding force, yet the agencies, which sought such opinion, have invariably treated the opinions wit respect and as authoritative statements of law. Advisory opinions have a great persuasive value.

Oppenheim has rightly said:
“The advisory jurisdiction has in fact proved to be much fertile and more important than was originally contemplated. The number of advisory opinions given by the Court almost equals that given by way of judgments.”

The “clientele” of the ICJ is much larger (some 187 States are parties to the Statue) than that of its predecessor i.e. PCIJ. However, it is credited with more instances of non-compliance with its judgments and orders were all complied with. The judgments in the Corfu Channel Case, the Fisheries Jurisdiction Cases, Nicaragua Case, etc. have not been complied with.

ICJ and Human Rights:

In spite of the impressive record of the United Nations in setting the norms of human rights, and setting up the international and regional machinery for their observance and enforcement, their violations are rampant. This requires some political will and concerted efforts at the national, regional and international levels by the State. There must be perennial vigilance.

Though the concept of “domestic jurisdiction” has not remained absolute in the matter of human rights violation, the national sovereignty is still a formidable obstacle in the enforcement of human rights. Furthermore, the protection of human right is closely dependent upon many other factors, viz. international peace and security, and the economic and social development of nation, which require close cooperation between the States.

The ICJ is nor a human rights court in the contemporary sense of that term. The Statue of the court provides, in Art. 34, that: “Only States may be parties in cases before the Court.” If follows that individuals, corporations, NGOs, etc. may not be parties to contentious cases before the court. Moreover, the focus of the large majority of contentious cases between States, and advisory opinions given by the Court has not been on human rights questions.

In comparison, the European Court of Human Rights, the Inter-American Court of the Human Rights and some other international judicial bodies provide for adjudication of human rights. Therefore, the World Court’s statue should also be suitably amended to cognize human rights question by modifying Art. 34.

[1] Writer is a Postgraduate Student of Master of Comparative Law (M.C.L.) at Faculty of Law, University of Delhi and Master of Political Science at Indira Gandhi University.

The crisis in the Middle-East Asia between Israel and Lebanon has become a hot issue in every newspaper, magazine, journal or in society daily conversation. A lot of article addressing that Israel should be responsible for their action that caused huge damage in the cities of Lebanon. Even some practitioner had given opinion that Israel shall be dragged into International Court because they not obey the International Convention and International Law. But, in their opinions there still occurs of contrary and debatable opinion whether Israel shall be punishing for their armed attack in International Criminal Justice (ICJ) or International Criminal Court (ICC).

For this argumentation, we shall refer to United Nation Charter that lays down the regulation for the state to use a force [Art. 2(4)] to maintain international peace and security or using self-defence [Art. 51] to protect their people sovereignty.

After read these several articles above, I’m sure you will make a good hypothesis and conclusion for that debatable opinions. I hope it will make a clearly explanation whether Israel, if only they proved to used an illegal action, should be dragged into ICJ or ICC.

“QUATATION FROM CHARTER OF THE UNITED NATIONS”

CHAPTER I

PURPOSES AND PRINCIPLES

Article 1

The purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threat to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and so take other appropriate measures to strengthen universal peace;
3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4. To be a center for harmonizing the actions of nations in the attainment of these common ends.

Article 2

The Organization and its Members, in pursuit of the Purpose stated in Article 1, shall act in accordance with the following Principles:

1. The Organization is based on the principle of the sovereign equality of its Members.
   All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the pursuit with the present Charter.
2. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
3. All Members shall refrain in their international relations from the threat or use force against the territorial integrity or political independent of any state or any other manner consistent with the Purposes of the United Nations.
4. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
5. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
6. Nothing contain in the present Charter shall authorized the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

CHAPTER VII

ACTION WITH RESPECT TO THREATS
TO THE PEACE, BREACHES OF THE PEACE,
AND ACTS OF AGGRESSION

Article 51

Nothing in present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security, Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.