UN Photo. The Peace Palace in The Hague is the seat of the International Court of Justice.
At the end of December last year, South Africa filed an application with the International Court of Justice alleging that Israel had violated the Convention on the Prevention and Punishment of the Crime of Genocide. Since then, more and more eyes have been turned to the International Court of Justice. To understand the Judiciary, here's the main primer.
What is the function of the International Court of Justice and how does it work?
The International Court of Justice (ICJ), established in 1945 in the Peace Palace in The Hague, the Netherlands, is responsible for settling legal disputes between States and providing advisory opinions on legal questions referred to other authorized bodies of the United Nations.
The International Court of Justice, widely known as the "World Court of Justice", is one of the six principal organs of the United Nations, with the same status as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat, and is the only one of them that is not based in New York.
Unlike the Court of Justice of the European Union, the International Court of Justice is not a "supreme court" to which national courts have recourse, and it can only hear disputes when requested by one or more countries.
The Court is composed of 15 judges, all of whom are elected by the General Assembly and the Security Council for a term of nine years. Elections for judges are held every three years and one third of the seats on the Court are elected, and judges are eligible for re-election. The judges of the International Court of Justice do not represent the Government of their country of nationality but act as independent judges, and they all belong to different nationalities.
At the commencement of the trial, the parties file and exchange pleadings detailing the facts and points of law on which each party is based. It then moves on to the oral stage, such as a public hearing, where the agent and lawyer speak in court. The State appoints an agent to defend its case, who has the same rights and obligations as a lawyer in the national courts. There have also been cases where politicians have defended their countries, as in the case of Gambia v. Myanmar in 2020.
After this stage, the judge deliberates behind closed doors and then the court issues a verdict, which can take anywhere from a few weeks to several years.
联合国图片/ICJ-CIJ/Frank van Beek
Tribunal of the International Court of Justice.
Why is the International Court of Justice important?
The International Court of Justice is the only international tribunal for the settlement of disputes among the 193 Member States of the United Nations. Thus, the International Court of Justice has made an important contribution to world peace and security, providing States with a way to resolve their problems without resorting to conflict.
What cases are before the International Court of Justice?
There are two types of cases that the International Court of Justice can adjudicate: ad libate and advisory proceedings. "Litigation case" means a legal dispute between States, and "advisory procedure" means the provision of advisory opinions on legal questions before the Court by United Nations organs and certain specialized agencies.
South Africa's case against Israel on December 29, 2023, is the first case in which Israel has been prosecuted before the International Court of Justice. This was preceded by an advisory opinion only in 2004 finding that Israel's construction of the wall and its associated regime in the Occupied Palestinian Territory, including in and around East Jerusalem, was contrary to international law.
South Africa believes that "Israel's actions and omissions...... Genocidal in nature, as the acts were committed with specific intent...... aimed at destroying the Palestinians in Gaza, a group that is part of a wider Palestinian national, racial and ethnic group".
South Africa and Israel are both signatories to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and South Africa seeks to use the Convention as a basis for the Court's jurisdiction to bring proceedings against Israel. However, Israel denies these allegations.
国际法院图片/Frank van Beek
Daw Aung San Suu Kyi appears before the United Nations International Court of Justice (ICJ) on 11 December 2019.
Another case that has attracted international attention in recent years is a January 2020 ruling against Myanmar that ordered Myanmar to protect its Rohingya ethnic minority and prevent the destruction of evidence related to allegations of genocide. The case was brought by The Gambia, and Aung San Suu Kyi, then Myanmar's de facto leader, appeared in The Hague to defend her country.
With regard to the advisory process, on 20 January 2023, the General Assembly requested an advisory opinion from the International Court of Justice on "Israeli violations of the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem", and in March 2023, the General Assembly adopted a resolution requesting the International Court of Justice to issue an advisory opinion on States' obligations with regard to climate change. Both consultation processes are still ongoing.
Who can file a lawsuit before the International Court of Justice?
Only the State can be a party to a case. When the common interests of the international community are threatened, any Member State can bring proceedings against any other Member State, regardless of whether there is a direct conflict between them.
For example, in the case of Gambia v. Myanmar, although the Gambia was not directly affected by the alleged genocide committed by Myanmar, this did not prevent the country from prosecuting on behalf of the Organization of Islamic Cooperation.
What is the effect of a judgment of the International Court of Justice?
The judgment of the International Court of Justice shall be final and shall not be subject to appeal.
Everything depends on whether the State concerned will enforce the judgment of the International Court of Justice within its national jurisdiction. In most cases, the State concerned will comply with and fulfil its obligations under international law.
If one of the parties refuses to comply with its obligations under the judgment, the only thing that can be done for the other party is to resort to the UN Security Council. The Security Council has the power to vote on relevant matters and adopt resolutions in accordance with the Charter of the United Nations.
In 1984, Nicaragua filed a lawsuit against the United States Government before the International Court of Justice, seeking compensation from the United States for its support of the Canterlot rebels. In the end, the International Court of Justice ruled in favor of Nicaragua, but the United States refused to accept the decision. Subsequently, Nicaragua referred the matter to the Security Council, but the United States exercised its veto power over the relevant resolution.
International Criminal Court
The International Criminal Court in The Hague, Netherlands, is hearing the case of Ali Mohamed Ali Abdul Rahman, also known as Kushayb, for war crimes and crimes against humanity.
What is the difference between the International Court of Justice and the International Criminal Court?
The International Criminal Court (ICC) and the International Court of Justice (ICJ) are often confused.
The simplest way to explain the difference between the two is that the International Court of Justice deals only with legal disputes between States in accordance with international law, while the International Criminal Court is a criminal court that deals with individual war crimes or crimes against humanity.
In addition, the International Court of Justice is the principal judicial organ of the United Nations and one of the six principal organs of the United Nations. The International Criminal Court, on the other hand, is legally and functionally independent of the United Nations, although recognized by the United Nations General Assembly.
Although not all 193 States Members of the United Nations are parties to the Rome Statute of the International Criminal Court, the Court has the power to investigate and open cases for crimes committed in the territory of its States parties and in the territories of States under its jurisdiction, or for alleged crimes committed by nationals of those States.
From the use of rape as a weapon of war to the recruitment of children as combatants, the ICC has heard and handed down sentences in a range of cases of human rights violations.