Introduction

An international dispute is a disagreement on the point of law or fact, a conflict of legal views
or interests between States. As per article 2 (3) of the UN Charter, parties must peacefully
settle their international disputes. Security Council Shall determine the existence of a threat to
the peace, Breach of the peace or act of aggression. It will take measures to maintain and
restore international peace and security.

Settlement of Internal Dispute

There are 2 Methods of international dispute.

1. Pacific Means- Chapter VI of the United Nations Charter:

Negotiation, Good Offices, Enquiry, Mediation, Conciliation, Arbitration, Judicial

Settlement, Regional Agencies/Authorities or other peaceful means.

2. Compulsive Means – Chapter VIl of the United Nations Charter:

Complaints, Reprisal, Hostile Embargo, Blockade, Intervention, War.

Causes of Internal Dispute

Ideological differences National integrity Territorial claim

National prestige Unlimited colonialismLiberation movements

Peaceful Settlement of an Internal Dispute

As per article 2 (3) of the UN Charter, parties must peacefully settle their international
disputes. The Security Council Shall determine the existence of a threat to the peace, Breach
of the peace or act of aggression. It will take measures to maintain and restore international
peace and security

 settlement of Internal Dispute

 Causes of Internal Dispute

Amicable Means (Pacific Means)

Historically International Law has been regarded as an international community to ensure the
establishment and preservation of global peace and security. The basic objective of the
creation of the League of Nations, 1919 and the United Nations 1945 has been the
maintenance of international peace and security. Various multilateral treaties have been
concluded that aim for the peaceful settlement of disputes. One of the most important ones is
the Hague Convention, 1899 for the Peaceful Settlement of disputes. Article 2 para 3 of the
UN Charter provides that all international disputes must be settled by the member by peaceful
means while maintaining international peace, security, and ensuring justice is not endangered.
The Charter under Article 33, Para 1 enumerates a number of means for the peaceful
settlement of disputes. Negotiation, inquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies are among the few choices they have. The various
peaceful methods of settlement can be broadly divided into two categories- extra-judicial and
judicial method of settlement.

Geneva Convention

The main provisions of the Geneva Convention relating to Treatment of Civilian Persons in

Times of War are following –

 The opposing aliens who seek to leave the nation before or during the war would
be entitled to do so conferred that their fleeing is not contrary to the interest of
belligerent nations. They ought to be allowed to bring along with them capital
considerably essential for their travel and also their goods. 

 When the matter relates to national security, enemy aliens ought to be treated in
the same way as they were treated during the war. 

 They would be obligated to do merely those duties and to the same extent which
would be obtained from the residents of the belligerent nations and their operating
circumstances and situations to derive earnings or revenues must also be the same
and would not be bound to perform acts that are directly connected to military
actions. 

 The detention of alien enemies or their position in an allocated residence could be

ruled merely if the security of the detaining authority compels it to be mandatory. 

 Article 44 of the Geneva Convention provides that the detaining power would not
be treated against alien aliens, entirely based upon their nationality statutory of an
opponent nation, refugees who do not enjoy the protection of any government. 
  Protected persons shall not be transferred to a power that is not a party to the
convention. However, this provision shall in no way constitute an obstacle to the
repatriation of protected persons or their return to their country of residence after
the cessation of hostilities. In no circumstances shall a protected individual be
transported to a nation where he or she may have reason to fear prosecution for his
or her political opinions or religious beliefs. 

 Articles 27 to 33 of the Convention apply to persons both in the territory of the

belligerent and in occupied territory. These articles lay down principles of a
general character. For example, it is provided that such persons are entitled to
respect of their persons, their honour, their religious convictions and practices, and
their family rights. In particular, no physical or moral coercion must be exercised
against them to obtain information. The convention specifically prohibits measures
of such a character as to cause physical suffering or extermination of the protected
persons. Besides these, collective punishment and all measures of intimidation and
terrorism are prohibited. 

 According to the convention, the International Committee of the Red Cross and the

National Red Cross Societies must be granted facilities for the fulfillment of their
task. However, this is subject to military considerations and national security.

Extra-Judicial Peaceful Means

In the extra-judicial settlement, a dispute is settled by means of an agreement between the

disputant parties. This method is also known as the political means or diplomatic measures.

Methods of Peaceful Settlement of an International Dispute 

1.  Arbitration: Arbitration is a method to settle a dispute by certain arbitrators. The

decision of arbitrators is called an award. The parties to dispute select arbitration.
2. Judicial Settlement: Judicial settlement is a peaceful mode to settle the international
dispute. There is a court called an international court of justice, which decides
international disputes. The decision of the international court of justice is binding
upon the parties concerned.
3. Negotiation: The simplest form of settling the international dispute by the states. It
may be carried out by the head of state or diplomatic agents.
 4. Mediation and Good Offices: When the parties refuse to negotiate, usually a friendly
third state assists in solving an international dispute. The third state plays its role
without participating in the negotiation between the parties. In mediation, the third
state offers its services and actively participates in disputes.
In 1966, the Soviet Premier Kosygin resolved the dispute between India and Pakistan by
signing the Tashkent Agreement. Sir Owen Dixoti was appointed as a mediator by the UN on
the India and Pakistan issue of Kashmir.
5. Conciliation: Conciliation is a process of formal settlement proposals after
investigating a fact by a commission or committee.
Under Articles 10 and 14 the General Assembly has the power to appoint a commission to
settle disputes. Similarly, the Security Council under Article 34 is vested with same power.

the most important ones among the various treaties signed through the Conciliation
Commission are:

 Pacific Settlement (1948)

 Pact of Bogota (1948)
 The Vienna Convention on Protection of the Ozone layer 

6. Enquiry: In enquiry, facts are investigated. The main purpose of the enquiry is to
investigate the relevant matters to establish facts that may help the ultimate solution
of the problem. 
7. United Nations: The general assembly and security council have been given wide
powers regarding the pacific settlement of the international dispute.
Chapter VI (Articles 33-37) of the UN Charter, entitled Pacific Settlement of Disputes establishes
further obligations of the parties and various dispute settlement powers of the Security Council. Under
Article 35, any state may bring any dispute to the attention of the Security Council or the General
Assembly.

Under Article 36, the SC may, at any stage of a dispute the continuance of which is likely to endanger
the maintenance of international peace or security, recommend appropriate procedures or methods of
adjustments; in doing so, the SC should take into consideration that legal disputes should be as a
general rule be referred by the parties to the International Court of Justice.
Article 37 provides that, should the parties to a dispute of nature referred to in Article 33 fail to settle it
by the means indicated in Article 33, they shall refer it to SC which, if it deems that the continuance of
the dispute is, in fact, likely to endanger the maintenance of international peace and security, shall
decide whether to take action under Article 36 or to recommend such terms of settlement as it may
consider appropriate.

Article 38 provides that:

Without prejudice to the provisions of Article 33 to 37, the Security Council may, if all the parties to
any dispute so request, make recommendations to the parties with a view to a pacific settlement of the
dispute.

The links between the principle of the peaceful settlement of disputes and other specific principles of
international law are highlighted both in the friendly relations declaration and in the Manila
Declaration, as follows:
 The principle of non-use of force in international relations.
 The principles of non-intervention in the internal affairs or external affairs of states.
 Principles of equal rights and self-determination of people.
 Principles of the sovereign equality of states.
 Principles of international law concerning the sovereignty, independence, and territorial
integrity of states.
 Good faith in international relations.
 Principles of justice and international law.
However, the distinction between the two becomes extremely important because the
procedure for settlement of disputes as laid down in International Law deals only with the
legal disputes. In Nicaragua v. Honduras, a case concerning Border and Transborder Armed
Action, the court clearly stated that it is only concerned with the legal aspects of disputes. If a
case so arises involving both political and legal aspects, the court cannot concern itself
merely with the political aspect. In an advisory opinion given in the Legality of the Threat or
Use of Nuclear Weapons that the presence of a political aspect along with the legal aspect
does not deprive the case of its a legal question. However, when a question arises whether the
disputes of the State are legal or not, then such a question is solved in accordance with Article
36, para 6 of the Statue, that says the matter shall be settled by the decision of the court.
Therefore in International Law ‘dispute’ must be taken in a restricted sense as it does not
concern all forms of disputes but only legal disputes. In International Law, there have been
two methods devised for settling legal disputes- amicable or pacific means of settlement, and
coercive or compulsive means of settlement.
Peaceful Settlement of Dispute by the United Nations:
The Settlement of international disputes is one of the most important roles of the United
Nations. The Charter of the United Nations stipulates that it is the task of the United Nations
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.
To this end, the Charter provides a system for the pacific settlement or adjustment of
international disputes or situations under which the wide competence of the United Nations in
this matter is established, and the corresponding obligations of the members of the United
Nations are imposed. This system is delineated mainly in Chapter VI of the Charter.

Chapter VI of the Charter contains the United Nations mechanism for the pacific settlement
of disputes. Article 33 obliges the parties to a dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, to settle such a dispute by any
of the enumerated peaceful means therein, or by any peaceful means of their choice. When
the parties fail to observe their obligations or their efforts are not successful, the United
Nations will intervene to consider the dispute and give its recommendations on the matters.
The Security Council is given the primary responsibility in this regard.

It is entitled to intervene either on its own initiative, upon invitation of any member of the
United Nations, upon invitation by the General Assembly, or upon a complaint of a party to a
dispute. The Security Council may follow three courses of action. First, it may call upon the
parties to a dispute to settle their dispute by any of the peaceful means listed in Article 33(1).
Second, it may recommend to the parties appropriate procedures or method of settlement.
Third, it may recommend terms of settlement, as it may consider appropriate.

Although under the Charter the Security Council is given the primary role for maintaining
international peace and security, the General assembly is not excluded from doing so. Under
Articles 11, 12 and 14, the General Assembly may discuss and make recommendations for
procedures or methods of adjustment, or for terms of settlement, with regard to any dispute or
situation brought before it. The disputes or situations may be brought before the General
Assembly by the Security Council, any member of the United Nations, or any State party to
such dispute.

Peaceful Settlement of Dispute by Regional Organizations:

Article 33(1) of the Charter of the United Nations requires the parties to any dispute, the
continuance of which is likely to endanger the maintenance of international peace and
security, to seek, first of all, a solution by any of the peaceful methods enumerated therein.
Among these enumerated methods is the resort to regional arrangements or agencies.

Article 52 of the Charter recognizes the right of the members of the United Nations to
establish regional arrangements or agencies for dealing with such matters related to the
maintenance of international peace and security. Paragraph 2 of this Article requires the
member States that are members of regional arrangements or agencies to make every effort to
achieve pacific settlement of local disputes through such regional arrangements or by such
regional agencies before referring them to the Security Council.

It seems that the obligation imposed upon the member States by Article 52(2) is consistent
with their obligation under Article 33(1). However, paragraph 1 of Article 52 imposes two
explicit limitations with regard to the utilization of regional arrangements and agencies:
First, it requires that the matters dealt with must be appropriate for regional action.
Second, it requires that the arrangements or agencies and their activities are consistent with
the Purposes and Principles of the United Nations. Moreover, a third explicit limitation is
imposed by Article 54 which requires that the Security Council should at all times be kept
fully informed of activities undertaken or in contemplation under regional arrangements or by
regional agencies for the maintenance of international peace and security. No similar explicit
limitations are imposed with regard to the utilization of other procedures for pacific
settlement.

Article 52 is not only confined to legitimizing regional arrangements or agencies and

imposing an obligation upon the member States, but goes beyond such legitimization and
obligation by pacing a duty on the Security Council itself. Paragraph 3 of this Article requires
the Security Council to encourage the development of pacific settlement of local disputes
through such regional arrangements or by such regional agencies either on the initiative of the
states concerned or by reference from the Security Council.

This provision is in harmony with the general approach of the Charter related to the pacific
settlement of disputes which requires the parties themselves to seek a solution to their dispute
by any peaceful means of their own choice, and that the Council should give every
opportunity to the parties to do so. If the parties have referred their local dispute to the
Security Council before making any effort to achieve a settlement through the regional
arrangements or agencies, then the Council is under a duty to remind them of their obligation,
or to refer such dispute at its own initiative to such arrangements or agencies.

Declaration and Resolutions of the General Assembly

The principle of the peaceful settlement of disputes has been reaffirmed in a matter of
General Assembly resolution, including resolutions 2627 (XXV) of 24 October, 1970, 2734
(XXV) of 16th December, 1970 and 40/9 of 8th November, 1985. It is dealt comprehensively
in the Declaration on Principles of International Law concerning Friendly Relations and
cooperation among states in accordance with the charter of the United Nations (resolution
2625 XXV, annex), in the section entitled The principle that states shall settle their
international disputes by peaceful means in such a manner that international peace and
security and justice are not endangered, as well as in the Marile Declaration on the Peaceful
Settlement of International Disputes (resolution 37/10, annex), in the Declaration on the
Prevention and Removal of Disputes and situations which may threaten international peace
and security and on the Role of the United Nations in this field (resolution 43/51, annex) and
in the Declaration on Fact Finding by the United nations in the Field of maintenance of
International Peace and Security (resolution 46/59, annex).
Conclusion

An international dispute is a disagreement on the point of law or fact, a conflict of legal views
or interests between States. international law has been considered as an international
community that ensures the preservation of global peace and security. The very basic
objective of the formation of the League of Nations, 1919 and the United Nations 1945 has
been the maintenance of international peace and security.
International law intends to overcome the chances of war and violence. It believes in solving
the dispute through amicable and pacific means on the merits of diplomatic, judicial and
political bases. To avoid the chances of war, it provides for certain measures and means of
resolving the disputes arising among the states. However, it recognizes the coercive and
compulsive means of settling disputes in certain extra ordinary cases that threaten the
international peace and security.

JURISDICTIONS OF ICJ

Introduction

After the Second World War the Permanent Court of International Justice (PCIJ) was
replaced by the International Court of Justice (ICJ), which is the principal judicial organ of
the UNO according to Art.92 of the UN Charter. International Court of Justice (ICJ) is a
world court to manage international law and peace and also called as ‘Principle Judicial
Organ’ of the International Organization. The statute of ICJ has been adopted from the statute
of the Permanent Court of Justice which had been established in 1920. It was established by
the UN Charter, signed on 26 June 1945 in San Francisco but it started operating from 1946.
The primary purposes of the United Nations: “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”.The ICJ is a
part of the organs of the United Nations and it is located in the Peace Palace at The Hague.
The members (193) of the UN are also part of ICJ. French and English are the endorsed
languages of the Court.ICJ’s important purposes are to settle down the legal problems
submitted to it by states and to offer suggestive thoughts on legal queries submitted to it by
accordingly authorized international organs and agencies.

JURISDICTION:

The most important challenge facing the International Court of Justice borders on its
jurisdiction. Jurisdiction is the sine qua non for the exercise of judicial powers. Where it is
lacking, a judicial body can not exercise legally binding judicial power over a subject.
“Jurisdiction is the authority by which courts and judicial officers take cognizance of and
decide cases.”34 Where a court or judicial officer lacks the requisite authority, any attempt to
take cognizance of, and decide upon any case, will be declared null and void. Indeed, just like
a person, a court cannot give what it does not possess. Nemo dat quod non habet. Jurisdiction
is simply “the legal right by which judges exercise their authority.” The ICJ, in particular,
exercises both original jurisdiction as well as a limited appellate jurisdiction.38 The original
jurisdiction of the Court can be exercised under two main grounds: (a) contentious
jurisdiction and (b) advisory jurisdiction. The International Court of Justice acts as a world court.
The Court’s jurisdiction is twofold: it decides, in accordance with international law, disputes of a legal
nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions
on legal questions at the request of the organs of the United Nations, specialized agencies or one related
organization authorized to make such a request (advisory jurisdiction).

Contentious Jurisdiction:

CONTENTIOUS JURISDICTION The contentious jurisdiction of the ICJ can only be

invoked where there exists a genuine dispute of a legal nature. Such “[a]n international legal
dispute can be defined as a disagreement on a question of law or fact, a conflict, a clash of
legal views or of interests.” The jurisdictional basis can be found under Article 34(1) of the
ICJ Statute, which explains that “only states may be parties in cases before the Court.”
Another critical basis for the exercise of the Court’s jurisdiction in contentious cases is the
consent of the parties. It is noteworthy that “the form in which this consent is expressed
determines the manner in which a case may be brought before the Court.” Article 36 of the
Statute of the ICJ states, “[t]he jurisdiction of the Court comprises all cases which the parties
refer to it and all matters specially provided for in the Charter of the United Nations or in
treaties and conventions in force.” It is critical to note that the consent of the parties “. . . may
be made unconditionally or on condition of reciprocity on the part of several or certain states,
or for a certain time.” In essence, the consent of the parties may take a variety of forms
ranging from unconditional consent to consent based upon reciprocity or consent limited in
time. Whatever form the consent may take, it must still serve as a prerequisite for the exercise
of the Court’s jurisdiction. The consent of the states parties may be explicit or implicit, and is
derived from several areas: (i) by special agreement; (ii) in treaties or conventions; (iii) by
compulsory jurisdiction; (iv) via forum prorogatum; (v) by the Court’s own determination of
its jurisdiction; (vi) from interpretation of a judgment; and (vii) from the revision of a
judgment

1. Special Agreement Where the parties conclude a special agreement to submit a legal
dispute to the Court, the agreement can be said to be an express and unequivocal consent to
the Court’s jurisdiction. Typically, the parties send such notification of special agreement or
written application to the Court’s Registry, specifying the subject of the dispute as well as the
parties to the dispute.

2. Treaties and Conventions The state parties may also consent to the Court’s jurisdiction in
bilateral or multi-lateral treaties by the inclusion of jurisdictional clauses in such treaties.
Where a legal dispute arises from such treaty or convention, a party can unilaterally bring a
written application instituting proceedings. Such application must state the parties, the subject
of the dispute, as well as the treaty or convention provision upon which the issue arose.54
Included under this category are treaties and conventions which were meant to be referred to
a tribunal instituted under the League of Nations or the Permanent Court of International
Justice, which were inherited by Article 37 of the ICJ Statute.

3. Compulsory Jurisdiction State parties may consent to the jurisdiction of the Court by
recognizing as compulsory the jurisdiction of the Court. The focal point for such compulsory
jurisdiction can be seen in Article 36, paragraph 2, which states as follows: the State parties
to the present Statute may at any time declare that they recognize as compulsory 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 concerning: a) the 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 or extent of the reparation to
be made for the breach of an international obligation. In other words, Article 36(2) is an
optional clause which State parties may choose to adhere to. If both parties have previously
recognized such compulsory jurisdiction, consent is present and the Court has jurisdiction
over the matter.

THE ISSUE OF THE COURT’S COMPULSORY JURISDICTION

Member parties to the ICJ are free to accept or reject the compulsory jurisdiction of the
Court, which undermines the authority of the ICJ to adjudicate relevant international issues of
fact and law. Four out of the five permanent members of the Security Council have exercised
this choice by rejecting the compulsory jurisdiction of the court. By so doing, these powerful
member parties have ‘watered down’ the influence of the Court and encouraged a continuous
erosion of its powers and influence. This trend, no doubt, will continue to contribute to the
decline of the influence of the Court as long as countries that have a powerful global presence
continue to set a bad precedent by choosing not to adhere to the Court’s compulsory
jurisdiction.

4. Forum Prorogatum The rule of forum prorogatum enables a State which had, hitherto, not
recognized the jurisdiction of the Court when a legal proceeding was filed against it to
subsequently consent to the Court’s jurisdiction.

5. Determination of Its Own Jurisdiction Under Article 36(6), the Court is empowered to
determine whether it has jurisdiction with respect to a legal dispute. the ICJ may resolve the
issue of its own accord.

6. Interpretation of a Judgment Where there is a legal dispute with respect to the meaning or
scope of a judgment, the Court can construe it upon the request for interpretation. Such a
request may be made by an agreement of all the parties or any party.

7. Revision of a Judgment Any party may apply to the Court for revision of the judgment of
the Court. Such a rare application may be entertained “upon the discovery of some fact of
such a nature as to be a decisive factor.” Moreover, such a fact must be unknown to the Court
and the party seeking revision when the judgment was rendered.

The jurisdiction of ICJ founded upon the consent of the parties is known as the contentious jurisdiction. In
Nicargua case (1986) ICJR, the ICJ held that it is a fundamental principle that the consent of the state
parties to a dispute is the basis of the courts jurisdiction in contentious cases. However, the consent need
not be in any particular form and and in certain circumstances the court will infer it from the conduct of the
parties. In Corfu Channel Case (1948) ICJR between UK and Albania, the court inferred consent from the
unilateral application of the plaintiff state U.K coupled with subsequent letters from the other party
Albania. It is known as the doctrine of forum prorogatum.

In Cameroon vs. Nigeria (2002) ICJR, the ICJ stated that it is a well-established principle that the Court
will exercise jurisdiction over a state only with its consent and therefore cannot decide upon legal rights of
third states not parties to the dispute. In East Timor case (1995) ICJR, the ICJ held that it could not rule on
the lawfulness of Indonesia's conduct with regard to East Timor as Indonesia is not a party to the dispute.

Apart from this kind of contentious jurisdiction, quite a large number of bilateral and multilateral treaties
contain a clause awarding jurisdiction to the ICJ with respect to questions that may arise from the
interpretation and application of the agreements. For instance, in Bosnia vs. Yugoslavia (1996) ICJR, the
ICJ founded its jurisdiction upon Art.9 of the Genocide Convention. Similarly, in Nicaragua vs. US (1984)
ICJR, the court founded its jurisdiction on the basis of a treaty provision, Art. XXIV (2) of US-Nicaragua
Treaty of Friendship, Commerce and Navigation, 1956 providing for submission of disputes over the
interpretation or application of the treaty.

Further in Nicaragua vs. Honduras (1988) ICJR the ICJ observed that the existence of jurisdiction was a
question of law and dependent upon the intention of the parties. The Court found such intention between
the parties on the basis of Art.31 of Pact of Bogota, 1948.

B. ADVISORY JURISDICTION

Advisory opinions are non-binding opinions of the Court that nevertheless carry great weight
in the realm of international law and have the ability to strengthen “peaceful relations
between States.”58 The advisory jurisdiction of the Court is guaranteed under Chapter IV of
the ICJ Statute. Specifically, Article 65 contains the following guide: The Court may give an
advisory opinion on any legal question at the request of whatever body may be authorized by
or in accordance with the Charter of the United Nations to make such a request.

   (i) Voluntary  jurisdiction - 

           Article 36 of the Statute (International Court of Justice) provides that its jurisdiction comprises all cases
which the parties referred to the court (by agreement). The agreement to refer the dispute may be made by both
the parties or one of the party only may refer the matter to the court and the other party may signify his assent to
the reference. In voluntary jurisdiction, the consent is given before the concurrence of the dispute.
   (ii) Ad hoc Jurisdiction
                
           When the disputant parties themselves refer the dispute to the Court, there is no question about the Curts
rights to take up the case. This jurisdiction of the Court is known as ad hoc jurisdiction, as in such cases parties
give their consent after the concurrence of the dispute by the notification of a special agreement concluded for
that purpose by the two States. 
   (iii) Compulsory Jurisdiction 
              
              Article 36 para 2 Statute provides that the States parties to the present Statute may at any time declare
that they recognize as compulsory 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 concerning:

           (a) the 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 or extent of the reparation to be made for the breach of an international obligation.
            The Court has compulsory or obligatory jurisdiction where the parties concerned are bound by a treaty or
convention under which they agreed to refer the matter to a tribunal to have been instituted by the League of
Nations or to the Permanent Court of International Justice and by virtue of Article 37 of the Statute, such
matters are automatically referred to the International Court of Justice.   
   (iv) Advisory jurisdiction - 

            Article 65 of the Statute the Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United Nations or in the General
Assembly may request to the Court to give an advisory opinion. to make such a request. Questions upon which
the advisory opinion of the Court is asked shall be laid before the Court by means of a written request
containing an exact statement of the question upon which an opinion is required, and accompanied by all
documents likely to throw light upon the question. In addition to them, other organs of the United Nations and
the specialized agency may also request for an advisory opinion. International Court of Justice (ICJ) has
discretionary power to give advisory opinion.

In 1974, India made a declaration by which it made jurisdiction of ICJ ipso facto  compulsory
with certain reservations. India has been party to 5 cases at the ICJ but only one of them was
referred by India.
1. In 1954, Portugal referred a case to ICJ against India denying it right of passage
to the then Portuguese territories of Dadra and Nagar Haveli. The case was
decided in India’s favour in 1960.
2. In 1971, India referred to ICJ the question of jurisdiction of International
Civil Aviation Organisation (ICAO) to decide on Pakistan’s protest against
being right overflight and landing rights by India. ICJ however, ruled against
India in this case.
3. 2013-14, Kishen Ganga project– ruled in favour of India against Pakistan
4. 2014-15, Marshall islands dragged India over obligations concerning
nuclear disarmament- in process

Facts of the Case:

On 11 April 2000, a Belgian Magistrate issued an international arrest warrant against Mr.
Yerodia. At the time, Yerodia was the Foreign Minister of the Congo. The Court issued the
warrant based on universal jurisdiction. It accused Yerodia of inciting racial hatred. These
speeches, allegedly, incited the population to attack Tutsi residents in Rwanda, which
resulted in many deaths. The warrant alleged that Yerodia committed grave breaches of the
Geneva Conventions of 1949 and its Additional Protocols and crimes against humanity.
Belgium sent the arrest warrant to Interpol and circulated it to all States, including to the
Congo. The warrant asked States to arrest, detain, and extradite Yerodia to Belgium. After
Belgium issued the warrant, in November 2000, Yerodia became the Education Minister. At
the time of the ICJ’s judgement, he did not hold a Ministerial post in Congo.

Questions before the Court:

Did Belgium violate principles of customary international law concerning the absolute
inviolability and immunity from criminal process of an incumbent Foreign Minister, when it
issued and internationally circulated the arrest warrant? If yes, did it violate the principle of
sovereign equality amongst States; does this alleged unlawfulness preclude States who
received the warrant from exercising it; should the Court order reparations; and should
Belgium recall and cancel its arrest warrant?

Belgium‘s Objections:

Belgium raised four objections to the jurisdiction of the Court. One argument was that there
was no longer a legal dispute because Yerodia was no longer the Foreign Minister. The Court
rejected all four objections

The Court’s Decision:

The issuance and circulation of the arrest warrant violated Belgium’s international
obligations towards the Congo. Belgium failed to respect, and infringed, Yerodia’s immunity
and the inviolability enjoyed by him under international law.

Relevant Findings of the Court:

1. It is an established principle of international law that Heads of States and Governments,

Foreign Ministers and Diplomatic and Consular agents enjoys immunities from civil and
criminal jurisdictions of other States.

2. In the absence of treaty law, customary international law determines the immunities of
Ministers of Foreign Affairs. These immunities “…are not given for their personal benefit;
but to ensure the effective performance of their functions of behalf of their…States”. The
functions of the Foreign Minister require frequent travel to other countries. International law
recognizes him as a representative of the State solely by virtue of his office. The functions of
a Foreign Minister are such that – during his tenure – he enjoys absolute immunity from
criminal jurisdiction and inviolability when he is abroad.

3. As the incumbent Foreign Minister, Yerodia enjoys immunity (during his tenure) for acts
performed, both, in an official capacity and in a private capacity. The immunity applies
regardless of whether the Minister is on foreign territory in an official or private visit. This
immunity extends not only to his actions during his tenure; but, also to his actions before he
became Foreign Minister.

“Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or
she is thereby prevented from exercising the functions of his or her office. The consequences
of such impediment to the exercise of those official functions are equally serious….
Furthermore, even the mere risk that, by travelling to or transiting another State a Minister for
Foreign Affairs might be exposing himself or herself to legal proceedings could deter the
Minister from travelling internationally when required to do so for the purposes of the
performance of his or her official functions.”

4. The Court rejected Belgium’s argument that the Minister does not enjoy immunity because
he is accused of having committed war crimes or crimes against humanity. (Belgium relied
on the Pinochet Case (decided by the House of Lords, UK), the Qaddafi Case (decided by the
French Court of Cassation) and Statutes of International Criminal Court and Tribunals.) The
Court held that there was no exception in customary international law to the absolute
immunity of an incumbent Foreign Minister.

” It (the Court) has been unable to deduce from this practice that there exists under customary
international law any form of exception to the rule according immunity from criminal
jurisdiction and inviolability to incumbent Ministers of Foreign Affairs, when they are
suspected of having committed war crimes or crimes against humanity…The Court has also
examined the rules concerning the immunity or criminal responsibility of persons having an
official capacity contained in the legal instruments creating international criminal tribunals,
and which are specifically applicable … It finds that these rules likewise do not enable it to
conclude that any such an exception exists in customary international law in regard to
national courts.
5. International Conventions give jurisdiction to national Courts over various crimes and, at
times, requires them to exercise this jurisdiction [for example, the Torture Convention]. This
requirement does not affect the immunities given to Foreign Ministers under international
law. Despite international conventions establishing domestic jurisdiction, Foreign Ministers
are immune before foreign courts.

6. Immunity does not mean impunity. The person continues to be individually responsible for
the crime he committed.

7. The Court set out four situations where an incumbent or former Foreign Minister could be
prosecuted:

a. Prosecution in his own country according to the domestic law (the international law of
immunity is not recognized before a person’s national courts);

b. If his country waives his immunity, then prosecution before a foreign court;

c. Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign
courts for private acts committed during his tenure as Foreign Minister; and for all acts
committed before or after his tenure in office; and

d. Prosecution before an international criminal body, with the necessary jurisdiction (for
example the ICC).

8. The ICJ concluded that the issuance and circulation of the arrest warrant violated
Belgium’s obligations towards Congo, “in that it failed to respect the immunity of that
Minister and, more particularly infringed the immunity from criminal jurisdiction and the
inviolability enjoyed by him under international law.” It did not matter that Yerodia was
never arrested.

“Since Mr. Yerodia was called upon in that capacity to undertake travel in the performance of
his duties, the mere international circulation of the warrant… could have resulted, in
particular, in his arrest while abroad. The Court observes… Mr. Yerodia, “on applying for a
visa to go to two countries, [apparently] learned that he ran the risk of being arrested as a
result of the arrest warrant issued against him by Belgium”… the arrest warrant ‘sometimes
forced Minister Yerodia to travel by roundabout routes”
9. Congo asked the Court to rule that the unlawfulness of the arrest warrant precludes States
who received the warrant from exercising it. The Court refused to indicate what the
judgment’s implications might be for third States. Its determination is limited to Congo and
Belgium. [NB: the Statute of the ICJ requires that its rulings should not create binding
obligations on States who are not parties to the dispute.]

10. On reparation, the Court held that the issuance and circulation of the arrest warrant
engaged Belgium’s international responsibility. “The Court… considers that Belgium must,
by means of its own choosing, cancel the warrant in question and so inform the authorities to
whom it was circulated.” The Court did not order any other reparations.

UNIVERSAL JURISDICTION

The term “universal jurisdiction” refers to the idea that a national court may prosecute
individuals for serious crimes against international law — such as crimes against humanity,
war crimes, genocide, and torture — based on the principle that such crimes harm the
international community or international order itself, which individual States may act to
protect. Generally, universal jurisdiction is invoked when other, traditional bases of criminal
jurisdiction are not available, for example: the defendant is not a national of the State, the
defendant did not commit a crime in that State’s territory or against its nationals, or the
State’s own national interests are not adversely affected.

National courts can exercise universal jurisdiction when the State has adopted legislation
recognizing the relevant crimes and authorizing their prosecution. Sometimes this national
legislation is mandated by international agreements, such as the Convention Against
Torture and Inter-American Convention to Prevent and Punish Torture, which require States
parties to adopt the laws necessary to prosecute or extradite any person accused of torture
who is within the State party’s territorial jurisdiction.

The definition and exercise of universal jurisdiction vary around the world. A national or
international court’s authority to prosecute individuals for international crimes committed in
other territories depends on both the domestic legal framework and the facts of each
particular case.
Domestic Laws Incorporating Universal Jurisdiction

A range of States’ national laws provide for some form of universal jurisdiction. Such
domestic legislation empowers national courts to investigate and prosecute persons suspected
of crimes potentially amounting to violations of international law regardless of where the
crime was committed, the nationality of the suspect, or the nationality of the victim.

Prominent Cases Involving Universal Jurisdiction

 the United Kingdom’s consideration of Spain’s request to extradite former Chilean dictator
Augusto Pinochet (UK House of Lords’ Nov. 25, 1998 judgment and summary from the
International Crimes Database
 U.S. prosecution of the former Liberian president’s son, Chuckie Taylor
 Spanish prosecution of Guatemalan officials in the Guatemalan genocide case
 Spanish prosecution of El Salvadoran officials for the murder of six Jesuit priests
 Spanish prosecution of an Argentine naval officer for crimes against humanity during the
Dirty War

In particular, Spanish courts have made use of universal jurisdiction to try individuals from
around the globe. Recently, however, the Spanish government restricted its courts’ ability to
hear such cases by narrowing the legal basis for exercising universal jurisdiction to those
cases that are not already before another competent jurisdiction and that involve Spanish
victims, perpetrators located in Spain, or Spanish interests. The Center for Justice and
Accountability has provided analysis of how the amendment to Spanish law changes human
rights litigation in Spain.

ITCLOS

The International Tribunal for the Law of the Sea (ITLOS) was established by the
1982 United Nations Convention on the Law of the Sea as a body to settle disputes
between States Parties to the Convention regarding the interpretation or application
of the Convention s provisions, including provisions concerning the exercise of the
powers of States over shipping and the discharge by states of their responsibilities
and obligations in relation to ships.
ITLOS is competent to deal with disputes in which a State is alleged to have
wrongly interfered with or otherwise restrained the operation of a vessel when it is
in a port of the State or within the territorial sea or exclusive economic zone of the
State.In its previous judgments, ITLOS has provided clarifications of some
important areas of the law of the sea concerning the operation and regulation of
shipping by flag States and other states.ITLOS plays a key role in the regime of the
Law of the Sea Convention relating to the prompt release of ships and their crews
that are arrested or detained in a foreign port.

ITLOS also has the possibility to serve as ajudicial organ for the settlement of
disputes under other maritime agreements and contracts, if the parties to the
agreements or contracts agree to confer jurisdiction on it.There are many
advantages to be gained by States and shipping operators from using ITLOS as the
body for the settlement of disputes under agreements. These advantages include
savings in time and expenses.

The International Tribunal for the Law of the Sea is an independent judicial body established
by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of
the interpretation and application of the Convention. The Tribunal is composed of 21
independent members, elected from among persons enjoying the highest reputation for
fairness and integrity and of recognized competence in the field of the law of the sea.

The Tribunal has jurisdiction over any dispute concerning the interpretation or application of
the Convention, and over all matters specifically provided for in any other agreement which
confers jurisdiction on the Tribunal (Statute, article 21). The Tribunal is open to States Parties
to the Convention (i.e. States and international organisations which are parties to the
Convention). It is also open to entities other than States Parties, i.e., States or
intergovernmental organisations which are not parties to the Convention, and to state
enterprises and private entities "in any case expressly provided for in Part XI or in any case
submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is
accepted by all the parties to that case" (Statute, article 20).
The mechanism established by the Convention provides for four alternative means for the
settlement of disputes: the International Tribunal for the Law of the Sea, the International
Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the
Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the
Convention.

The jurisdiction of the Tribunal comprises all disputes submitted to it in accordance with the
Convention. It also extends to all matters specifically provided for in any other agreement
which confers jurisdiction on the Tribunal. To date, twelve multilateral agreements have been
concluded which confer jurisdiction on the Tribunal.

Unless the parties otherwise agree, the jurisdiction of the Tribunal is mandatory in cases
relating to the prompt release of vessels and crews under article 292 of the Convention and to
provisional measures pending the constitution of an arbitral tribunal under article 290,
paragraph 5, of the Convention.

The Seabed Disputes Chamber is competent to give advisory opinions on legal questions
arising within the scope of the activities of the International Seabed Authority. The Tribunal
may also give advisory opinions in certain cases under international agreements related to the
purposes of the Convention.

Disputes before the Tribunal are instituted either by written application or by notification of a
special agreement. The procedure to be followed for the conduct of cases submitted to the
Tribunal is defined in its Statute and Rules.Functions:

Comprehensive legal framework to regulate all ocean space and resources and its usage

 It works to safeguard the various marine resources and protect the different species. 

 It also has provisions related to territorial occupancies of seas, continental shelf, exclusive

economic zones (EEZs). 

 It also helps to promote and leverage scientific research for the development and transfer of
marine technology.
Jurisdiction
The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in
accordance with the Convention. It also includes all matters specifically provided for in any
other agreement which confers jurisdiction on the Tribunal (Statute, article 21). The Tribunal
has jurisdiction to deal with disputes (contentious jurisdiction) and legal questions (advisory
jurisdiction) submitted to it.

Contentious jurisdiction

The Tribunal has jurisdiction over all disputes concerning the interpretation or application of
the Convention, subject to the provisions of article 297 and to the declarations made in
accordance with article 298 of the Convention.

Article 297 and declarations made under article 298 of the Convention do not prevent parties
from agreeing to submit to the Tribunal a dispute otherwise excluded from the Tribunal's
jurisdiction under these provisions (Convention, article 299).

The Tribunal also has jurisdiction over all disputes and all applications submitted to it
pursuant to the provisions of any other agreement conferring jurisdiction on the Tribunal. A
number of multilateral agreements conferring jurisdiction on the Tribunal have been
concluded to date.

Advisory jurisdiction

The Seabed Disputes Chamber is competent to give an advisory opinion on legal questions
arising within the scope of the activities of the Assembly or Council of the International
Seabed Authority (article 191 of the Convention).

The Tribunal may also give an advisory opinion on a legal question if this is provided for by
"an international agreement related to the purposes of the Convention" (Rules of the Tribunal,
article 138).
International Tribunal for the Law of the Sea (ITLOS) & India
India played a constructive role in deliberations leading to UNCLOS’s adoption in 1982 and has been a
party to the convention since 1995. 

 Ms. Neeru Chadha, an eminent lawyer and the first Indian woman to become the chief legal
adviser in the Ministry of External Affairs, won the election to the International Tribunal for the
Law of the Sea (ITLOS) for a nine-year term from 2017 to 2026.

Enrica Lexie Case

Known as the Enrica Lexie incident, it took place in 2012, when the Italian oil tanker Enrica Lexie,
travelling off the coast of Kerala was approached by an Indian fishing vessel. 

 Two Italian marines onboard fired what Italy contends were warning shots at the ship.

 Two Indian fishermen from Kerala were killed.

 After three years, Italy moved the International Tribunal for Law of the Sea (ITLOS) seeking for
the two Italian marines to stay in their own country during the trial process and also to stop India
from going ahead with its criminal prosecution.

INDIVIDUAL RESPONSIBILITY:

Introduction

It dwells on the responsibility of individuals pursuant to international criminal law and compares
the law and the practice of the two UN ad hoc Tribunals, the International Criminal Tribunal for
the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) with
the relevant legal background of the International Criminal Court (ICC). The principle of
individual responsibility for crimes under international law was recognized in the Charter and the
Judgment of the Nuremberg Tribunal. The recognition of this principle has made it possible to
prosecute and punish individuals for serious violations of international law. The Nuremberg
precedent also established a number of other important related principles aimed at ensuring
individual accountability for crimes under international law, such as the exclusion of the official
position of an individual, including a head of State or other high-level official, or the mere
existence of superior orders, as valid grounds for relieving an individual of responsibility for such
crimes. At the request of the General Assembly of the United Nations, the International Law
Commission prepared a formulation of the principles of international law recognized in the
Charter and the Judgment of the Nuremberg Tribunal (Nuremberg Principles).
The Rome Statute contains numerous principles that address the need to
make individuals  accountable for committing serious crimes, and provide
reparation to the crime victims. It establishes a permanent international criminal
court. Netherlands will host the court though its trials may be held elsewhere.

The serious crimes covered by the Rome Statute refer to the:

1. crime of genocide;

2. crimes against humanity;

3. war crimes; and

4. crime of aggression.

With the exception of the crime of aggression, the Rome Statute identifies the acts
that constitute the serious crimes based on existing international treaties and
international customary laws. The definition of the crime of aggression is still
subject to agreement by the State Parties. The Rome Statute will be accompanied
by "collateral documents" on elements of the crimes, rules of procedure and
evidence, and administrative matters. Final drafts of these documents are either
finished or on final stages of drafting. The sixty or so State Parties that ratify or
accede to the Rome Statute will adopt the collateral documents as soon as the
treaty enters into force.

The ICC is independent from the UN. But it will enter into an agreement with the
UN to establish formal relationship.

Several features of the Rome Statute are worth mentioning:

1. As a general rule, the ICC will not take jurisdiction of a case unless
either the accused is from or the crime is committed in the territory of a
State Party or State that consented to the treaty;

2. National remedies are respected and thus only when the national
emedies are unavailable or inadequate that cases may be brought>to the
ICC. An act that has been tried in a national court will not be covered
unless the proceedings of the court violate the due process principles of
international law;
 3. Only crimes committed after  the treaty entered into force are covered;

4. Gender crimes (such as rape) are included in acts constituting the

serious crimes;

5. Complaints maybe filed by governments, victims and NGOs. The

Prosecutor's decision (whether to investigate or not) is subject to review
by a pre-trial chamber (whose decision is not subject to appeal);

6. The accused will not be tried in absentia, will be afforded defense counsel,
and exercise other rights;

7. Death penalty will not be imposed;

8. Children will not be prosecuted as provided for in the Convention on the

Rights of the Child;

9. Victims are entitled to reparation. The court has the power to issue
necessary orders to compensate and rehabilitate the victims.

States that become party to the Rome Statute are obliged to cooperate with the
ICC. They may be asked to provide information on the cases.

I. ARTICLE 7 OF THE ICTY STATUTE (ARTICLE 6 OF THE ICTR STATUTE)

Article 7 of the Statute of the ICTY, as well as Article 6 of the Statute of the ICTR are the
principal provision dealing with individual criminal responsibility. They state as follows: 1. A
person who planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of a crime referred to in articles 2 to 5 of the present
Statute, shall be individually responsible for the crime. 2. The official position of any accused
person, whether as Head of State or Government or as a responsible Government official,
shall not relieve such person of criminal responsibility nor mitigate punishment. 3. The fact
that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a
subordinate does not relieve his superior of criminal responsibility if he knew or had reason to
know that the subordinate was about to commit such acts or had done so and the superior
failed to take the necessary and reasonable measures to prevent such acts or to punish the
perpetrators thereof. 4. The fact that an accused person acted pursuant to an order of a
Government or of a superior shall not relieve him of criminal responsibility, but may be
 considered in mitigation of punishment if the International Tribunal determines that justice so
requires.

II. ICC Article 25 of the ICC Statute regulates in detail the various forms of perpetration and
participation in an international crime (para 3(a)-(e)) and attempts thereof (para 3(f)). It leaves
the responsibility of States unaffected (para 4). It states as follows: 1. The Court shall have
jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime
within the jurisdiction of the Court shall be individually responsible and liable for punishment
in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally
responsible and liable for punishment for a crime within the jurisdiction of the Court if that
person: (a) Commits such a crime, whether as an individual, jointly with another or through
another person, regardless of whether that other person is criminally responsible; (b) Orders,
solicits or induces the commission of such a crime which in fact occurs or is attempted; (c)
For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists
in its commission or its attempted commission, including providing the means for its
commission; (d) In any other way contributes to the commission or attempted commission of
such a crime by a group of persons acting with a common purpose. Such contribution shall be
intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the
group, where such activity or purpose involves the commission of a crime within the
jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the
group to commit the crime; (e) In respect of the crime of genocide, directly and
publicly incites others to commit genocide; (f) Attempts to commit such a crime by
taking action that commences its execution by means of a substantial step, but the
crime does not occur because of circumstances independent of the person's intentions.
However, a person who abandons the effort to commit the crime or otherwise
prevents the completion of the crime shall not be liable for punishment under this
Statute for the attempt to commit that crime if that person completely and voluntarily
gave up the criminal purpose. 4. No provision in this Statute relating to individual
criminal responsibility shall affect the responsibility of States under international law.

JURISDICTION OF ICC

The International Criminal Court’s Jurisdiction Article 12: Preconditions to the Exercise of
Jurisdiction The ICC is a treaty-based court, which means countries can decide whether to become a
party to the Rome Statute. As a result, the Court does not have universal jurisdiction.Instead, the ICC
can only exercise jurisdiction over crimes that were either (1) committed on the territory of a country
that has accepted the ICC’s jurisdiction; (2) committed by nationals of a country that has accepted
jurisdiction; or (3) referred to the ICC by the United Nations Security Council. The only exception to
this rule permits ICC jurisdiction over situations when both (1) a non-State Party has accepted the
exercise of jurisdiction by the ICC with respect to the crime in question; and (2) the alleged crime
either took place in the consenting country’s territory or was committed by a national of that country.
To obtain the Court’s ad hoc jurisdiction, the country seeking it must lodge a declaration with the ICC
Registrar and cooperate with the Court accordingly.

Article 17: Issues of Admissibility Even if the ICC has jurisdiction over a case, it may be precluded
from hearing it if the case is inadmissible under Article 17, Once the jurisdiction of the Court is
triggered, the Court’s interpretation of the applicability of Article 17 to a given case is considered
dispositive, at least so far as States Parties are concerned. Under Article 17, a case is inadmissible if it
concerns conduct that is the subject of genuine legal proceedings brought by a country with
jurisdiction. The ICC’s subordination to the criminal proceedings of sovereign nations is premised
upon the principle of complementarity, which enables the ICC to maintain its role as the court of last
resort and thereby support State justice systems.

On 9 December 2002, the Republic of the Congo filed an Application instituting

proceedings against France, seeking the annulment of the investigation and
prosecution measures taken by the French judicial authorities further to a
complaint concerning crimes against humanity and torture allegedly committed
in the Congo against individuals of Congolese nationality filed by various
human rights associations against the President of the Republic of the Congo,
Mr. Denis Sassou Nguesso, the Congolese Minister of the Interior,
General Pierre Oba, and other individuals including General Norbert Dabira,
Inspector-General of the Congolese armed forces, and General Blaise Adoua,
Commander of the Presidential Guard.

In its Application, the Congo indicated that it sought to found the jurisdiction of
the Court, pursuant to Article 38, paragraph 5, of the Rules of Court, “on the
consent of the French Republic, which [would] certainly be given”. In
accordance with that provision, the Congo’s Application was transmitted to the
French Government and no action was taken in the proceedings. By a letter
dated 8 April 2003, France indicated that it “consent[ed] to the jurisdiction of
the Court to entertain the Application pursuant to Article 38, paragraph 5”, and
the case was thus entered in the Court’s List. It was the first time, since the
adoption of Article 38, paragraph 5, of the Rules of Court in 1978, that a State
thus accepted the invitation of another State to recognize the jurisdiction of the
Court to entertain a case against it.

The Application of the Congo was accompanied by a request for the indication
of a provisional measure seeking “an order for the immediate suspension of the
proceedings being conducted by the investigating judge of the Meaux Tribunal
de grande instance”, and hearings on that request were held on 28 and 29 April
2003. In its Order of 17 June 2003, the Court concluded that no evidence had
been placed before it of any irreparable prejudice to the rights in dispute and
that, consequently, circumstances were not such as to require the exercise of its
power to indicate provisional measures.

Hearings were scheduled to open in the case on 6 December 2010, when, by a

letter dated 5 November 2010, the Agent of the Congo, referring to Article 89 of
the Rules of Court, informed the Court that his Government was “withdraw[ing]
its Application instituting proceedings” and requested the Court “to make an
Order officially recording the discontinuance of the proceedings and directing
the removal of the case from the List”. A copy of that letter was immediately
communicated to the French Government, which responded in a letter dated
8 November 2010 that it had no objection to the discontinuance of the
proceedings by the Congo. Accordingly, by an Order of 16 November 2010, the
Court placed on record the discontinuance of the proceedings by the Congo and
ordered that the case be removed from the List.
One of the key prongs in the Bush administration's campaign to undermine the International
Criminal Court (ICC) is Security Council Resolution 1422. The resolution grants immunity to
personnel from ICC non-states parties involved in United Nations (U.N.) established or
authorized missions for a renewable twelve-month period.

With the date for 1422's renewal fast approaching, Human Rights Watch urges ICC states
parties and signatory parties to take the initiative now. Whether the U.S. attempts to make
renewal a mere formality or tries to go further by obtaining a permanent blanket immunity for
its forces, there are compelling reasons for ICC supporting states to act. If Resolution 1422 is
renewed, it will likely consolidate the exemption obtained last year and codify the immunity
as a permanent "amendment" to the Rome Treaty. Human Rights Watch believes the stakes
are far higher this year than last.

he Security Council adopted Resolution 1422 on July 12, 2002, following an intense debate
on the U.N. Peacekeeping Mission in Bosnia-Herzegovina (UNMIBH). In an extraordinary
step two weeks earlier, United States UN Ambassador John Negroponte vetoed the mission's
renewal. In addition, Bush administration officials threatened to veto the renewal of all
peacekeeping operations, if council members did not agree to the text of Resolution 1422.
Eager to preserve peacekeeping operations, Security Council members adopted the text
despite its serious flaws

While ultimately the decision is in the hands of Security Council members, all ICC states
parties and signatory parties have an important role to play in pressing the council to respect
the Rome Statute. Human Rights Watch recognizes the political difficulties involved. States
that opposed the recent U.S. military actions in Iraq may be reluctant to engage in another
tense wrangle with the Bush administration at the Security Council. Opposing 1422's renewal
is not an easy prospect, but the issues raised by Resolution 1422 are too important to ignore.
The legitimacy of the ICC is at stake.

Human Rights Watch opposes Resolution 1422 for two reasons: (i) it grossly distorts the
meaning of Articles 16 and 27 of the Rome Statute in ways that weaken the independence of
the court; and (ii) by amending a multilateral treaty in this way the Security Council has
overstepped its authority under the United Nations Charter.
We urge states to pursue a principled course and build opposition to renewing Resolution
1422 at all. At the same time, Human Rights Watch realizes that an outright rejection of 1422
may prove to be impossible. If renewal becomes unavoidable, then, at a minimum, states
parties and signatory states (on and off the council) should urge council members to adopt a
resolution consistent with the Rome Statute and the U.N. Charter.

Ultimately, the decision rests with the members of the council. However, last year's debate
demonstrates the important role non-members have to play in pressing the council to respect
the Rome Statute.

II. Human Rights Watch Analysis

Article 16

The terms of Article 16 are clear. It states:

"No investigation or prosecution may be commenced or proceeded with under this Statute for
a period of 12 months after the Security Council, in a resolution adopted under Chapter VII
of the Charter of the United Nations, has requested the Court to that effect; that request may
be renewed by the Council under the same conditions."

The article establishes a mechanism for deferring investigations or prosecutions on a case-by-

case basis, subject to time limitations and a formal renewal process. This interpretation is
derived from reading the article "in good faith in accordance with the ordinary meaning" of
the words, as required by the Vienna Convention on the Law of Treaties. It is also consistent
with the drafting history of Article 16.

The phrase, "no investigation or prosecution may be commenced or proceeded with,"

presupposes the existence of a particular "investigation" or "prosecution" that relates to a
specific incident or the potential culpability of an individual regarding specific conduct.
Article 15 of the Rome Statute spells this out. The Pre-Trial Chamber must authorize the
commencement of a specific "investigation." All prosecutor inquiries up to this point are not
"investigations," but only "preliminary examinations" - see Article 15(6). Only after Pre-Trial
Chamber authorization of an "investigation" is the Security Council entitled to request a
deferral under Article 16.
The structure of the Rome Statute further underscores the requirement that any Security
Council deferral request must respond to a specific case. Article 16 appears after Articles 12 -
15 (dealing with the mechanisms triggering ICC jurisdiction), demonstrating that, as a matter
of logic, an Article 16 deferral request is not meant to be a tool for Security Council
preventive, indiscriminate action, but a response to specific ICC proceedings. Any such
deferral must be temporary, subject to the 12-month limit stipulated in Article 16, so that the
perpetrators of any atrocities would ultimately be brought to account for their crimes - either
via national judicial systems or the ICC.

It is clear, then, that Article 16 does not sanction blanket immunity in relation to unknown,
future events.

The above interpretation of Article 16 is consistent with one of the Rome Statute's key
features: to limit the role of the Security Council vis-à-vis the ICC, and specifically to prevent
the court's investigations and prosecutions from being subject to prior Security Council
approval. But by ignoring the "case-by-case" requirements of Article 16, the current text of
1422 does exactly the opposite, subjugating the ICC to the politics of the Security Council.
Others appear to agree. During the Security Council Open Meeting on July 10, 2002, one
ambassador asserted, "[Resolution 1422] would have the Council, Lewis Carroll-like, stand
Article 16 of the Rome Statute on its head." This same mistake should not be made when the
resolution is renegotiated.

Article 27

Article 27 of the Rome Statue expressly prohibits making distinctions on the basis of official
capacity. It is a crucial provision that encompasses the fundamental object and purpose of the
treaty to ensure that no person is above the law. This includes peacekeepers, as well as
politicians and heads of state. Without strict adherence to this principle, the door to impunity
will remain open. In contrast, Resolution 1422 allows an entire class of individuals to escape
judgment of the ICC, opening the door to impunity if national courts of non-states parties fail
to carry out good faith investigations and prosecutions. It is a clear violation of Article 27 of
the Statute.

Defenders of the resolution argued that, as a matter of practice, 1422 would not damage the
"core" of the ICC's jurisdiction by exempting a class of individuals from ICC jurisdiction
because the risk of U.N. peacekeepers committing Rome Statute crimes was said to be very
low. Even if this is true most of the time, it is still no justification for violating Article 27.
And Human Rights Watch has recently documented crimes of sexual violence, including
rape, allegedly perpetrated by ECOMOG and UNAMSIL peacekeepers in Sierra Leone (see
"We'll Kill You if You Cry" at http://www.hrw.org/reports/2003/sierraleone). These
disturbing allegations highlight the necessity to preserve Article 27 intact.

Resolution 1422, by bestowing blanket immunity from the court's jurisdiction to an entire
class of persons in advance of unknown future events, is in manifest violation of the Rome
Statute. Ultimately, of course, the court has the final word in determining the legal and
practical effect of the resolution; however, all states parties have the obligation now to avoid
renewing a resolution that violates the Rome Statute.

An Additional Reason to Reject Renewal of 1422: Security Council Overreach

Human Rights Watch's chief concerns with Resolution 1422 relate to its interface with the
Rome Statute, as it effectively amends this important multilateral treaty. But renewing
Resolution 1422 should be resisted for another important reason: so that the Security Council
does not overreach its authority and acts within the U.N. Charter.

The powers of the Security Council are subject to important limitations, governed by the
U.N. Charter and customary international law. Before invoking its powers under Chapter VII
of the U.N. Charter, the Security Council is required to make a finding of a threat to peace -
see Article 39 of the U.N. Charter. The Security Council never made this determination in
Resolution 1422. It is beyond the legal authority of the council to have invoked Chapter VII
of the U.N. Charter without clearly identifying the threat to international peace and security.

III. Human Rights Watch's Recommendations

Human Rights Watch believes, for the reasons stated above, that the principled course is for
states to work together to reject any proposed renewal of Resolution 1422 by the Security
Council.

As an alternative, and only if renewal becomes unavoidable, the current text of the resolution
should be changed to reflect the requirements of the Rome Statute. We support a text
requiring the Security Council, before requesting a deferral, to make a case-by-case analysis
of specific situations or incidents when investigations or prosecutions are underway. This text
should also require Security Council renewal every twelve months.

This amendment of 1422 is necessary based on a fair and reasoned analysis of Articles 16 and
27 of the Rome Statute.

The key component of an acceptable solution, along the lines of a proposal circulated by a
state member last year, would be:

The Security Council expresses its readiness, pursuant to Article 16 of the Rome Statute, to
consider on a case-by-case basis requesting the ICC to defer, for a renewable period of 12
months, investigations or prosecutions involving nationals of states not party to the Rome
Statute participating in United Nations Security Council established or authorized operations
only if necessary to maintain or restore international peace and security.

Inclusion of a firm requirement to renew after twelve months is commanded by Article 16,
and cannot be interpreted otherwise. All states should resist any efforts by the United States
to pass a resolution granting permanent immunity from the ICC.

Human Rights Watch urges all states to promote the adoption of provisions similar to this
text with Security Council members over coming weeks and months.

IV. Conclusion

Human Rights Watch believes that the legal and policy arguments calling for a rejection of
1422, or a significant reworking of its operative provisions, are compelling.

States should approach the upcoming Security Council negotiations aware that the Bush
administration's push for a renewal of Resolution 1422 is not based on principled objections
to the court, or out of concern for the future of international peacekeeping. Instead, the U.S.
remains suspicious of international institutions that are not under its control. For this reason,
the Bush administration seeks to undermine and marginalize the ICC, which is poised to
become a truly independent and impartial arbiter of international justice and the rule of law

The Genocide Convention is an important international convention that defines genocide and obligates
State Parties to prevent and punish the crime of genocide. This is a relevant topic for the IAS
exam international relations segment. In this article, you can read all about the Genocide Convention and
related issues.

Genocide Convention
The world was entangled in the complexities of emerging tensions wherein the major power blocks were
embroiled in ideological differences that hit the shores of geopolitical interests giving rise to numerous
conflicts. This ignited the spirit of compassion in the United Nations and led to the recognition of
humanitarian issues that were caused by the Second World War. 

The Background:

 The recognition of atrocities on people as a brutal outcome of the Second World War took a
consolidated form when the United Nations General Assembly adopted a resolution in December
1947 and declared “Genocide” as an international crime that involves the national and
international responsibility of individual persons and states. 

 In 1948, the Convention on the Prevention and Punishment of the Crime of Genocide was adopted
by the UNGA and came into force in 1951. 

 The convention has been widely accepted by the international community with the support of the
majority of States. 

 The lucid definition of the crime of genocide has been defined by the convention and various other
aspects enshrined in its 19 articles. 

 The International Court of Justice (ICJ) has recognised the underlying principles of the Genocide
Convention.

 The Genocide Convention acts as an instrument of international law that led to the codification of
genocide, for the first time, as a crime. 

What is Genocide?
Genocide has been defined under Article II of the Convention on the Prevention and Punishment of the
Crime of Genocide.

 According to the convention, genocide refers to the acts that are committed with the intent to
destroy in whole or partly, a national, ethnical, racial or religious group. These acts include:

 Killing members of the group

 Causing serious bodily or mental harm to members of the group

  Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part.

 Imposing measures to prevent births within the group. 

 Forcibly transferring children of the group to another group. 

 Article I recognises genocide, committed in times of peace or in times of war, as a crime under
international law. As interpreted by the ICJ, Article I refers to an obligation on the states, not to
commit genocide and prevent such events which have an extraterritorial scope. 

 Article III of the genocide convention lists out the acts that shall be punishable. These punishable
acts are:

 Genocide

 Conspiracy to commit genocide

 Direct and public incitement to commit genocide 

 Attempt to commit genocide

 Complicity in genocide

Obligation on the State Parties:

 The State parties, under the convention, shall operate with an obligation to take measures to
prevent and punish the crime of genocide. 

 The obligation under Article IV envisages that persons committing genocide shall be punished by
the member states even if they are constitutionally responsible rulers, public servants, officials or
private individuals. 

 Article V puts an obligation on the states in order to give effect to the provisions of the
Convention through the relevant legislation. This article also offers a provision of ensuring
effective penalties for persons found guilty of criminal conduct as per the Convention. 

 There is an obligation put forth by Article VI of the Convention according to which a person
charged with genocide shall be tried in a competent tribunal of the State in the territory of which
the act was committed or by an international penal tribunal with accepted jurisdiction. 

 Grant of extradition when genocide charges are involved along with laws and treaties in force, is
an obligation under Article VII. This is related to the protection given by the international human
rights law prohibiting refoulement where there is a real risk of human rights violations in the
receiving state.
  This obligation along with the prohibition of not to commit genocide, are considered as norms of
international customary law and are binding on all the states irrespective of the ratification of the
Convention in those states. 

Other important provisions of the Convention:

 Article VIII – Any contracting party may call upon the component organs of the United Nations
to take such action under the Charter of the UN as they consider appropriate for the prevention
and suppression of the events of genocide or any acts mentioned in Article III of the convention.

 Article IX explains the disputes between the Contracting Parties and states that any act of
genocide shall be submitted to the International Court of Justice at the request of any parties to the
dispute. 

Member States:

 There are about 152 member states at present that are engaged with the Genocide Convention. 

 Mauritius is the most recent country that signed the convention in 2019 but has yet to ratify it. 

 The Special Advisor on the Prevention of Genocide calls upon all United Nations Members States
that are not yet party to the Genocide Convention, to ratify or accede to it as a matter of priority so
that the convention transforms as an instrument of universal membership. 

Genocide: Case Studies

1. Russia-Ukraine

 The invasion of Ukraine by Russia and the ongoing crisis between the two countries exemplifies a
classic case of genocide born out of ethnocentric clashes and other disparities.

 Russia supported its military action by expressing its sole intention to protect the Russian speaking
Ukrainians from genocide. 

 As a responsive move, Ukraine approached the Genocide Convention and alleged Russia of
misusing the term genocide to justify its illegal invasion.

 The ICJ issued an interim order directing Russia to immediately withdraw its military operation
from Ukraine. 

2. The United States 

 The Civil Rights Congress submitted a petition in the UN concerning the mistreatment of Black
Americans.
 A paper titled ‘We charge Genocide’ reflected the excerpts of the Genocide Convention and was
presented to the UN at the Paris meeting in 1951. This was written by the Civil Rights Congress
raising the issue of various forms of atrocities against the black community. 

 There were accusations of genocide against the black community leading to their wrongful deaths,
abuses and other discriminatory practices.  

 This petition was supported by several leaders of the black community.

3. Myanmar

 There have been reports on genocide against the Rohingyas who are an ethnic-religious minority
in Myanmar in the Northern Rakhine State.

 Rohingyas are a group of Muslim Indo-Aryan people residing in the Rakhine state of Myanmar. 

 The government of Myanmar considers the Rohingyas as illegal immigrants.

 This resulted in a massive crisis in Myanmar resulting in the persecution of Rohingyas which was
portrayed to the world as an internal armed conflict facilitated by the security threats from the
Rohingyas. 

 The case of mass atrocities on Rohingyas was put forth by the Republic of Gambia in 2019 which
is a Muslim majority country in West Africa. 

 The ICJ directed Myanmar to resolve the crisis within a given time frame by implementing
effective measures to prevent genocide against Rohingyas. 

4. Genocide and India

 Even though India has ratified the Convention, there is no existing law defining Genocide. 

 India has a constitutional obligation under Article 51 to respect international law and treaty
obligations. 

 Article 253 makes it mandatory for Parliament to enact any law pertaining to the implementation
of any treaty, agreement or convention. 

 Experts recommend sooner enactment of legislation to give effect to the norms of the Genocide
Convention. This issue has also been raised in Parliament on many occasions. 

 After the ratification of the Genocide Convention by India in 1959, there were major instances of
genocide. For instance:

 The 1984 Anti-Sikh Riots – In the wake of the assassination of Indira Gandhi by her Sikh
bodyguards, many Sikhs were subjected to a series of planned killings. 

 Bhagalpur Riots of 1989 – A dispute took place between the Hindu and Muslim religious groups
in Bihar during the Ramshala procession that led to mass killings.