The International Court of Justice (ICJ) ruled on Friday, 26 January, that Israel must take “all measures in its power” to prevent acts of genocide in the Gaza Strip. It ordered provisional measures to protect Palestinians from death and destruction and allow provision of basic services and humanitarian aid. It did not call for a full ceasefire. Israeli officials accused the ICJ of anti-Semitic bias in its interim order and questioned why South Africa’s case alleging war crimes and genocide in Gaza was not thrown out altogether.
Israel is expected to preserve evidence of all its actions within Gaza and report back to the ICJ within a month. At best it puts temporary pressure on Israel and its allies. The final judgement may take very long, even years, to come. The ICJ, which sits in The Hague, is the principal judicial organ of the United Nations (UN). Whether and how much Israel will adhere to the order will depend on Israel itself. Meanwhile United Nations Relief and Works Agency (UNRWA) staffers have been accused of involvement in the October 07, attacks. After the US, many countries have halted funding to the UN agency in Gaza.
In 2013, the South China Sea (SCS) Arbitration case was initiated by Philippines against China under the United Nations Convention on the Law of the Sea (UNCLOS), concerning the unilateral actions by China in the SCS, including the unilateral alignment of the nine-dash line introduced by China. China refused to participate in the arbitration. It actually published a white paper to elaborate its position that, among other points, the tribunal lacks jurisdiction. On 12 July 2016, the arbitral tribunal ruled in favour of the Philippines. It clarified that China’s historic claims over maritime areas within the “nine-dash line” had no lawful effect unless entitled to under UNCLOS. China rejected the ruling. Global responses were mixed. The UN did not hold any position on the case or on the disputed claims. Is the international justice system without sufficient teeth?
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International Court of Justice
The ICJ is the only international court that adjudicates general disputes between nations, and gives advisory opinions on international legal issues. It is an organ of the UN. All 193 UN members are automatically parties to the court’s statute. Non-UN members may also become parties to the court’s statute under specific provisions. The ICJ consists of a panel of 15 judges elected by the UN General Assembly (UNGA) and Security Council (UNSC) for nine-year terms. No more than one judge of each nationality may be represented on court at the same time, and the judges collectively must reflect the principal civilizations and legal systems of the world. The elections are staggered, with five judges elected every three years to ensure continuity within the court.
There is an informal agreement to evenly cover all the global regions. The five permanent members of the UNSC have always had a judge serving. A judge can be dismissed only by a unanimous vote of the other members of the court. Despite clear provisions, the independence of ICJ judges has been questioned. For the first time, from 2024 there will be no Russian judge or from any Commonwealth of Independent States. So the ICJ is not fully divorced from international politics. Currently, Indian judge Dalveer Bhandari is a member. Indian member Nagendra Singh was the President of the ICJ from 1985 to 1988.
The court deals only with judicial and not political matters. While the ICJ has a compulsory jurisdiction, some including the United States accept the court’s jurisdiction only on a discretionary basis. The UNSC is meant to enforce Court rulings. However, such enforcement is subject to the veto power of the five permanent members of the council. Since the first case in May 1947, the ICJ has entertained 191 cases by November 2023.
Many disputes are territorial in nature, or cases of hostage taking. Among some of the famous cases has been US Hostages in Iran (1980); shooting down of Iran Air Flight 655 by a United States Navy guided missile cruiser (1989); a complaint in 1999 by Yugoslavia against NATO actions in the Kosovo War; a 2017 complaint by India regarding a death penalty verdict against Indian citizen, Kulbhushan Jadhav, by a Pakistani military court; the 2022 complaint by Ukraine against Russia to halt its offensive, among others. Most cases remain unresolved or ICJ rulings have often been ignored.
While there is not true compulsory jurisdiction, when the parties concerned have a desire for the dispute resolution by the ICJ, then they are more likely to comply with the court’s judgment. If parties do not comply, the issue may be taken before the UNSC. There are obvious problems with such a method of enforcement, because all UNSC members have global geo-political inclinations.
International Criminal Court
The International Criminal Court (ICC), established in 2002, is an international tribunal also seated in The Hague. It is the only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. It is distinct from the ICJ that hears disputes between states. But ICC has faced criticisms from many on its jurisdiction, bias, Euro-centrism, racism, and fairness of its case selection and trial procedures.
The requirement had been felt immediately after World War II, in view of alleged Nazi crimes. The large-scale atrocities committed by armed forces during the Yugoslav Wars, and the Rwandan genocide were final triggers for its establishment. The Statute of the ICC was adopted by a vote of 120 to seven, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the U.S., and Yemen. Israel’s opposition stemmed from the inclusion in the list of war crimes “the action of transferring population into occupied territory”. Russia withdrew from ICC in 2016. As of November 2023, there are 124 ICC member states; 41 states have neither signed nor become parties to the Statute.
ICC’s Judicial Division is composed of eighteen judges. The ICC employs over 900 personnel from roughly 100 countries. The Court issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga guilty of war crimes related to using child soldiers. He was sentenced to 14 years in prison.
Dozens of individuals have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, former President Omar al-Bashir of Sudan, President Uhuru Kenyatta of Kenya, Libyan head of state Muammar Gaddafi, President Laurent Gbagbo of Ivory Coast and former Vice President Jean-Pierre Bemba of the Congo. On 17 March 2023, ICC issued arrest warrants for Russian leader Vladimir Putin and the Presidential Commissioner for Children’s Rights in Russia, Maria Lvova-Belova, for child abductions in the 2022 Russian invasion of Ukraine. Putin also became the first head of state of a UNSC Permanent Member to be the subject of an ICC arrest warrant. In 2023 Russia retaliated by placing several ICC officials on its wanted list.
To date, the Prosecutor has opened investigations in 14 situations that included Afghanistan; Burundi; the Central African Republic; Côte d’Ivoire; Darfur, Sudan; the Democratic Republic of the Congo; Georgia; Kenya; Libya; Mali; Uganda; Bangladesh/Myanmar, Palestine and Venezuela. Additionally, preliminary examinations have been conducted in Colombia; Guinea; Nigeria; the Philippines; Ukraine and Bolivia. The Court has publicly indicted 52 people. Proceedings against 20 are ongoing: 15 are at large as fugitives and five are on trial. The ICC depends heavily on NGOs for detailed collection. Some of them are controversial.
On 6 July 2020, two Uyghur activist groups filed a complaint with the ICC calling for it to investigate Chinese officials for crimes against Uyghurs, including allegations of genocide. On 31 October 2023, the Israeli families of over 34 victims of Hamas attacks of 7 October 2023, filed an Article 15 communication with the ICC urging an investigation into the killings and abductions. Reporters Without Borders also lodged a complaint regarding the deaths of eight Palestinian journalists in the Gaza Strip during Israel’s bombardment.
Lack of teeth: No easy solutions
The ICC is accused by African states of being a neo-colonial force and a tool of Western imperialism that punishes leaders from small, weak states while ignoring crimes committed by richer and more powerful states. The sentiment is backed by the alleged disproportionate focus of the Court on Africa, while it claims to have a global mandate. In fact there has been an active African Union (AU) withdrawal proposal.
The Court’s decision to issue an arrest warrant for President Vladimir Putin for war crimes in Ukraine was also seen as highly West-centric, and the Russians called it a result of Western ‘hysteria”. “Yankees, hands off Putin!” was advised. Because of the arrest warrant, it was mutually decided that Putin not take part in the BRICS meeting in South Africa in July 2023. Meanwhile Russia issued warrants for the arrest of multiple ICC officials, including the court’s president Piotr Hofmański and its vice-president Luz del Carmen Ibáñez Carranza.
President George W Bush signed the American Service-Members’ Protection Act, to signal the United States’ opposition to any possible future jurisdiction of the court or its tribunals. The Donald Trump administration was considerably more hostile to the Court, and even threatened prosecution and financial sanctions on ICC judges and staff in U.S. courts as well as imposing visa bans in response to any investigation against American nationals, especially related to operations in Afghanistan. “The US government has reason to doubt the honesty of the ICC”, Trump officials said. The United States argues that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”. The US has also criticized Palestinian efforts to bring Israel before the ICC over allegations of human rights abuses in the West Bank and Gaza.
On the other hand, many Human Rights groups accuse the ICC of being two soft. Research indicates that prosecutions of leaders who are culpable of international crimes in the ICC makes them less likely to peacefully step down, which can prolong conflicts and incentivize them to make continued use of mass violence.
While justice is meant to bring peace, the ICC has often been used as a means of intervention in ongoing conflicts. There is little evidence of the efficacy of justice as a means to peace. The ICC cannot succeed without state cooperation. The ICC is accused of taking on softer cases and thus loses legitimacy. It also makes the ICC less deterrent against potential perpetrators of war crimes. Many also believe that ICC should rather work to strengthen each nation’s capacity for individual prosecutions that will be more realistic and cost effective. There is a debate on whether the ICC should have jurisdiction over corporations that violate international law. Some are accused of committing human rights violations, such as war crimes linked to raw materials in conflict zones. But there is little consensus.
United Nations relevance
There has been a continued debate on the UN’s successes, failures and relevance. With 193 members, there is always some hope in the institution. There have been many successful peacekeeping operations in the initial years.
Many believe that in today’s highly estranged world order, the Secretary-General has no power and very little influence. All events are shaped by dynamics among member states, and the UN success depends on whether they agree with one another or not.
Most wars, from Korea, Vietnam, and Iraq, Libya, to Afghanistan were not conducted in accordance with the UN Charter and technically illegal. The UN has been standing like a bystander in Syria, Bosnia, Rwanda, Ukraine, and now the Gaza conflict. Most powerful members, especially the United States, take unilateral decisions. The US routinely threatens to hold back funding. There is no active support for UN reforms. The composition of UNSC is unreal after 75 years. The Veto power has mostly been misused.
It is always better to have a central coordinating institution than find bilateral solutions. Many alternative groupings such as G20, BRICS, SCO, have emerged and are finding their own joint solutions. For the UN to be relevant, it must work towards “networked multilateralism”. The UN has to have a greater role in sustainable global development.
The United States create the UN and has been its major contributor. Yet it has often been accused of undermining it. Are rising China and India, leaders of the global south, likely to take on the mantle of initiating reforms?
The writer is Director General, Centre for Air Power Studies. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect Firstpost’s views.
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