International Law

International Criminal Court (ICC)

 International Terrorism Part- 2
INTERNATIONAL CRIMINAL COURT (ICC)
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 Statute. The Rome Conference
U.N. Diplomatic Conference of Plenipotentiaries, in Italy, adopted the statute known as the "Rome Statute of the
International Criminal Court" on 17 July 1998.
 Besides the Preamble, there are 128 Articles in the Statute, divided into 13 parts. The Statute of ICC and the
body itself has come into force from 1st July 2002. As of November 2019, 123 states are parties to the Statute of
the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of
Africa. Forty-one additional states have neither signed nor acceded to the Rome Statute. Some of them,
including China and India, are critical of the Court.
 Earlier, an International Tribunal for Prosecution of Violators of International Humanitarian Law in Former
Yugoslavia was established in 1993 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 neighboring States.
 The seat of the ICC is at The Hague, Netherland, although it may sit elsewhere. It is an independent and
permanent court that tries persons accused of the most serious crimes of the international concern, namely
genocide, crimes against humanity and war crimes. The court shall exercise its jurisdiction over crime of
aggression once a provision is adopted defining the crime and setting up the conciliations under which the court
shall exercise jurisdiction with respect to it. It is a court to be approached as a last resort. It will not intervene if a
case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine
for example if formal proceedings were undertaken solely to shield a person from criminal responsibility.
 I.C.C. is not an organ of the United Nations and its relationship with the United Nations is governed by a special
agreement. The court is funded by contributions from state parties and by voluntary contributions from
governments, international organizations, individuals, corporation and other entities.
Major Features of International Criminal Court (ICC)
1. Establishment of the Court
 Article-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 Statute of ICC.
The Court shall be brought into relationship with the U.N. through an agreement to be approved by the
Assembly of State Parties to this. The seat of the Court shall be established at the Hague (Netherlands).
2. Composition of Court
 According to Article-34, the Court shall be composed of:
(a) The Presidency - The Presidency is responsible for the overall administration of the court with the
exception of the office of the prosecutor, and for specific functions assigned to the Presidency in
accordance with the statute. The Presidency is composed of three judges of the Court, elected to the
Presidency by their fellow judges, for a term of 3 years.

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 (b) Appeal Division, Trial Division and Pre-Trial Division - It consist of eighteen judges organized into the pre-
trial Division, the Division and the Appeal Division. The judges of each Division sit in chambers which are
responsible for conducting the proceedings of the court at different stages.
(c) Office of the Prosecutor - The mandate of office is to conduct investigations and prosecutions of crimes
that fall within the jurisdiction of the court.
(d) The Registry - It is responsible for the non-judicial aspects of the administration and servicing of the
court.
 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.
 The judges constitute a forum of international experts that represents the world’s principal legal systems.
 Nominations of candidates for election to the Court may be made by any State Party to the Statute; 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/ 3d of judges elected shall be
selected to serve for a term of 3 years; 1/3 to serve for a term of 6 years; and the remainder for a term of 9
years (Article-36).
 The place of trial shall be the seat of the Court, i.e. The Hague, Netherlands.
3. Jurisdiction
 The Court has jurisdiction in accordance with the Statute with respect to the following crimes:
(a) Crime of genocide.
(b) Crime against humanity.
(c) War crimes, and
(d) Crime of aggression (Article-5).
 The Court has jurisdiction only with respect to crimes committed after the entry into force of the Statute
(Article-11).
 A State which becomes a party to the Statute thereby accepts the Jurisdiction of the Court with respect to
these crimes (Article-12).
 The Statute 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 (Article-27).
 However, the Court shall have no jurisdiction over a person under the age of 18 at the time of the
commission of a crime (Article-26).
 The Court is allowed to exercise jurisdictions only under the following limited circumstances:-
1. Where the person Accused of committing a crime is a national of a state Party; or
2. Where the alleged crime was committed on the territory of a state party; or
3. Where a situation is referred to the court by U.N. Security Council.
 The court’s jurisdiction does not apply retroactively. The Court can only prosecute crimes committed on or
after 1st July, 2002, the date on which the statute entered into force. Where a state becomes a party to the
Rome statute after that date, the Court can exercise jurisdiction automatically w.r.t. crimes committed after
the statute enters into force for that state.
Case of Democratic Republic of Congo
 In March 2004, the government of Congo referred to the prosecutor in case of Thomas Lubanga, former
leader of Union of Conyolese Patriots militia in Huri. He recruited children under the age of 15 to conduct
armed hostilities.
 Decision – Lubanga convicted for committing crime against humanity.

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  Article 103 provides that a sentence of imprisonment shall be served in a state designated by the Court from
a list of states which have indicated to the court their willingness to accept sentenced persons.
 Conclusion – The I.C.C brings to trial those who commit large-scale political crimes-genocide, war crimes and
crimes against humanity. Building on the UN’s special tribunals and no new legal precedents of universal
jurisdiction, the ICC can take important step towards global accountability for all, including political and
military leaders.
4. Applicable Law
 According to Article-21(1), the Court shall apply
o This Statute elements of crime and its rules of procedure and evidence
o Where appropriate, applicable treaties and principles of international law (including those of armed
conflict)
o General principles of law derived by Court from national laws of legal systems 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 statute/international law).
 Article-21(2) lays down that the Court may apply principles and rules of law as interpreted in its previous
decisions.
 Article-21(3) provides that the application and interpretation of law pursuant to this Article must be consistent
with internationally recognized "human rights," and be without any adverse distinction founded on grounds such
as gender, age, race, color, 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 Statute unless the conduct in question constitutes, at the
time it takes place, a crime within the court's jurisdiction - Nullium crimen sine lege.
 The definition of a crime shall be strictly construed; in case of ambiguity, there shall be interpretation in favor of
persons being investigated, prosecuted or convicted (Article- 22).
 A person convicted by the court may be punished only in accordance with this Statute - Nulla poena sine lege
(Article-23).
 Article-24 lays down that no person shall be liable for conduct prior to the entry into force of the Statute. In the
event of a change in the law applicable to a given case prior to final judgment, the law more favorable to the
persons being investigated, etc. will apply.
 Article-25 deals with "individual criminal responsibility." The court shall have jurisdiction over natural persons
pursuant to this Statute.
o A person committing a crime shall be individually responsible and liable for punishment; it does not
matter whether he commits crime as an individual, jointly with another or through another person.
o A person is also criminally responsible if he orders, solicits or induces the commission of a crime which in
fact occurs or is attempted.
o A person is also liable if for the purpose of facilitating the commission of a crime, he aids, abets, etc. in its
commission;
o Contributes to the commission (or attempt) of a crime by a group of persons acting with a common
purpose;
o In respect of the crime of genocide,
o Directly and publicly incites others to commit crime.
 It is also laid down that no provision in this Statute relating to individual responsibility shall affect the
responsibility of States under international law.
5. Victim and Witnesses
 One of the great innovations of the Rome statute of I.C.C. and its Rules of Procedure and Evidence is the series of
rights granted to victims. These Rules of Procedure and Evidence are prepared by the Preparatory Commission
for the International Criminal Court.

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 o Participation of victims in proceedings – The Rome statute contains provisions which enable victims to
participate in all submissions before the pre-trial chamber when the Prosecutor requests for its
authorization to investigate. They may also file submissions on all matters relating to the competence of the
Court or the admissibility of the cases.
o Reparation for victims - Article 75 of the statute provides that the court may lay down principles for
reparation to victims, which may include restitution, indemnification or rehabilitation.
o Victims and witnesses Protection – Article 43 (6) of the statute provides that the Registrar shall setup victims
and witnesses unit which shall provide, in consultation with the office of the Prosecutor, protective
measures and security arrangements, counseling and other appropriate assistance for witnesses, victims
who appear before the Court and others who are at risk on account of testimony given by such witnesses.
6. Penalties
 Article-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 Article-110 which provides review by the Court concerning reduction of
sentence.
 In addition to imprisonment, the Court may order a fine: a forfeiture of proceeds, property and assets
derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
7. Appeal and Revision
 A decision under Article-74 may be appealed in accordance with the Rules of Procedure and Evidence
(Article-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 grounds specified in the Statute (Article-84).
 Anyone who has been the victim of unlawful arrest/detention shall have an enforceable right to
compensation.
8. Assembly of State Parties
 The State Parties are under a general obligation to cooperate with the Court (Article-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 accept sentenced persons (Article-103).
 The Rome Statute also establishes an Assembly of State Parties; each State Party to have one representative.
Other States, which have signed the Statute, may be observers in the Assembly (Article-112).
 The Assembly shall have a Bureau consisting of a President, two Vice-Presidents 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.
9. 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 Statute 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 (Article-119).
10. Miscellaneous
 A unique feature of the Rome Statute is that it does not provide for any reservations (Article-120).
 A State Party may, by written notification addressed to the U.N. Secretary General, withdraw from this
Statute (Article-127).
 Seven years after the entry into force of this Statute, the Secretary General of U.N. shall convene a Review
Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the
list of crimes contained in (Article-5).
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 INTERNATIONAL COURT OF JUSTICE (ICJ)
 Late Dr. Nagendra Singh, who was one of the judges and also served as President of the International Court of
Justice, “Two basic pillars are necessary for the establishment of public order: the existence of a proper law
and the machinery for enforcing it, including the sanctions behind the law”.
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 the headquarters at the Hague.
 ICJ is the principal judicial organ of the UNO. The rules concerning the ICJ are set out in a Statute annexed to the
UN Charter. All members of the UN are ipso facto parties to the Statute of ICJ.
 The member States are under an obligation to comply with the 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.
 According to Article 36 of the statute the Court was competent to decide following cases:
(i) Which were entrusted by State Parties; and all matters specially provided for in the charter of the United
Nations or in treaties and conventions in force.
(ii) States could also confer jurisdiction through a treaty or convention; and
(iii) State Parties to the statute at any time, without special agreement, confer compulsory agreement.
 International organizations may invoke the advisory jurisdiction of the Court. Thus, the UN may request the
Court to give an advisory opinion on any legal question, but it cannot 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 and Composition of ICJ
 The Court consists of 15 judges who are elected regardless of their nationality, from among persons of high
moral character who possess 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 is based on the "Root-Phillimore plan" devised in 1920. The list of persons to be elected
as the judges is prepared by the national groups in the Permanent Court of Arbitration on the request of
Secretary General of UN.
 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 sort of "gentlemen's agreement", the judges are 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.
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 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 their 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. Thus, ad hoc judges could be appointed so.
 The Statute also provides for the formation of three types of chambers:
o The chambers of summary procedure,
o Chambers for dealing with particular categories of cases, like labor or environment, and
o 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.
 Article- 38 (1) of the Statute 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 publicists.
Jurisdiction
 By jurisdiction it means that the power or authority of the court to render a binding decision on the substance,
or merits, of a case placed before it. The International Court receives this power only from the consent of the
States concerned that it should so act.
 Neither the Charter of the United Nations, nor any general rule of contemporary International Law, imposes on
States the obligation to refer their legal disputes to the court.
 International Court of Justice is a World Court in true sense of the term because it is open for all States of the
World. However, there is a great limitation as provided under Article 34 of the Statute that only States may make
use of the court or file their cases in it. That is to say, individuals cannot be a party to a dispute and even the
States can use the Court in only limited circumstances.
 The Court enjoys two types of jurisdictions:
o Contentious
o Advisory
 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 in force.
 Voluntary jurisdiction of I.C.J. in Contentious Cases extends to cases which the parties refer to it and cases
brought before the court by one of the parties and other party, expressly or impliedly accepts the jurisdiction of
the court under article 30, Para 1.
 In all contentious cases, the Court can exercise its 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
'compromise'.
 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 Forum Prorogatum", 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.
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 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:
1. 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.
2. The Statute in Article-36 (2), known as "Optional Clause" provides "the State parties to the present Statute
may at any time declare that they are recognized as compulsory subjects ipso facto, and without special
agreement, in relation to any other State accepting the same obligation"
 The jurisdiction of the Court in all legal disputes: relating to
(a) Interpretation of a treaty.
(b) Any question of international law.
(c) The existence of any fact which, if established, would constitute a breach of an international
obligation.
(d) The nature and extent of reparation to be made for the breach of an international obligation.
 Such a 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 reservations.
 The reservations may be regarding the following:
o Past disputes
o Disputes for which other methods of settlement are available
o Questions within the domestic jurisdiction of a State
o Disputes 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".
3. The disputes regarding application or interpretation of trusteeship agreement between a trustee and
another member of UN.
4. The Statutes 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
Article-30 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 Article-36 of the Statute, compulsory jurisdiction
cannot be exercised by the Court.
 The rigidity of the principle of consensual basis of jurisdiction has come to be mitigated to some extent through
pronouncements of the Court relating to the manner in which that consent may be expressed.
 Rights of Minorities in Upper Silesia (Germ. v. Pol.), 1928 P.C.I.J
 In this case, it was observed that There seems to be no doubt that the consent of the state to the submission of
a dispute to the Court may not result from an express declaration but may also be interred from acts
conclusively establishing it. It seems hard to deny that the submission of arguments on the question of
jurisdiction must be regarded as an unequivocal indication of the desire of a state to obtain a decision on the
merits of a suit.
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 Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J.
 Greece sued U.K by filing an application on the basis of a treaty or convention in force, namely the mandate for
Palestine and also treaty of Lausanne which at the time of filing of the application was not in force. To that
extent therefore, the application was defective and the respondent state filed a preliminary objection to the
jurisdiction of the Court. Before this judgment was given, the Treaty of Lausanne came into force in relation to
the two litigating states. The Court pointed out that even if the application was presented because the Treaty of
Lausanne had not been ratified at the time of its submission, the particular defect would be covered by the
subsequent deposit of the necessary ratification. PCIJ ruled that the absence of one party’s consent to
jurisdiction when proceedings were instituted was cured by a subsequent consent to jurisdiction given outside
and without specific reference to the proceedings before the court.
 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), 2016 I.C.J.
 On 24 April 2014, the Republic of the Marshall Islands filed Applications against nine States, which are China,
Democratic People’s Republic of Korea, France, India, Israel, Pakistan, Russian Federation, United Kingdom of
Great Britain and Northern Ireland and United States of America, accusing them for failing “to pursue in good
faith and bring to a conclusion, negotiations leading to nuclear disarmament”.
 While these nine Applications all related to the same matter, the ICJ only accepted cases against India, Pakistan
and the UK as the other six countries had never acceded to the compulsory jurisdiction of the world court
pursuant to Article 36, paragraph 2, of its Statute, and the six others, in respect of which the Marshall Islands
proposed to found the jurisdiction of the Court on consent yet to be given.
 India’s arguments objecting to the ICJ’s jurisdiction were:
 First, that there was no dispute between the parties; second, even if the court finds that there is a dispute, it
could only be settled if at least all the states possessing nuclear weapons and certainly more than one were
parties to the proceedings; this not being the case, the court has to decline to exercise jurisdiction. Third, several
reservations to India’s optional declaration under Article 36 (2) bar the court’s jurisdiction; and fourth, that any
judgment rendered in these circumstances would be devoid of any concrete practical effect.
 The reference to India’s optional declaration was its recognition of ICJ’s jurisdiction in September 1974, but with
12 reservations. Out of the list of 12 exceptions, India has used four in its plea to establish the ICJ’s lack of
jurisdiction in the Marshall Island’s case.
 The Court recited its unanimous decision that there exists an obligation to pursue in good faith negotiations
leading to nuclear disarmament in all its aspects. Half of the judges of the highest court in the world confirmed
that jurisdiction exists here as opposed to the contention made by India, U.K. and Pakistan that the ICJ does not
have jurisdiction to hear the cases on the merits.
 The Statute does not provide any method for enforcement of the decisions in the contentious cases, which is a
major weakness of ICJ.
 However, under Article 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.
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 Article-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.

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 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:
(i) The main point of the legal question referred relates to a controversy between certain States and any one
of these States is not present before the Court.
(ii) The 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 with 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."
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.

Previous Year Questions

Q1. What are the parameters of contentious jurisdiction exercisable by the International Court of Justice?
[2020 5(d)]
Q2. “The effectiveness of the International Criminal Court depends on the degree of co-operation provided by the
States. This co-operation concerns not only the State-party to the International Criminal Court but also the non-
party State.” Discuss. [2019 6(c)]
Q3. Does the International Court of Justice (ICJ) have the competence to determine its own jurisdiction? Discuss
with case law. [2017 5(c)]
Q4. The Republic of Marshall Islands (RMI) recently filed an application against India in the International Court of
Justice (ICJ) alleging India's breach of its obligation to pursue in good faith and conclude negotiations leading to
nuclear disarmament. Would it fall under the compulsory jurisdiction of ICJ? Discuss. Also mention about the
possibility of challenging jurisdiction by India. [2015 6(a)]
Q5. Enumerate the main features of International Criminal Court. What credit would you attribute to the
functioning of this Court? What are the major drawbacks of this Court? Discuss, in this context, the possible
amendments to the Regulations of the International Criminal Court. [2009 6(b)]
Q6. Write explanatory notes on the International Criminal Court. [2007 8(b)]
Q7. Answer the following questions: The establishment of compulsory jurisdiction of the International Court of
Justice is essential for the maintenance of international peace and security. Comment. Why are countries
generally reluctant to accept the compulsory jurisdiction of the court. [2006 6(a)]
Q8. Discuss the jurisdiction of International Court of Justice. Who will decide as to whether the Court has
jurisdiction or not? [2004 8(a)]

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