Universal jurisdiction

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Universal_jurisdiction

Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation to the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as to the concept of jus cogens – that certain international law obligations are binding on all states.

According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole that states have a logical and moral duty to prosecute an individual responsible; therefore, no place should be a safe haven for those who have committed genocide, crimes against humanity, extrajudicial executions, war crimes, torture, or forced disappearances.

Opponents such as Henry Kissinger, who himself was called to give testimony about the U.S. government's Operation Condor in a Spanish court, argue that universal jurisdiction is a breach of each state's sovereignty: all states being equal in sovereignty, as affirmed by the United Nations Charter, "[w]idespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny – that of judges." According to Kissinger, as a logistical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically driven show trials to attempt to place a quasi-judicial stamp on a state's enemies or opponents.

The United Nations Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "Reaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" and commits the Security Council to action to protect civilians in armed conflict.

History

Title page from the second edition (Amsterdam 1631) of De jure belli ac pacis. First published in 1625, Grotius advances a system of principles of natural law, which are held to be binding on all people and nations regardless of local custom.

Defendants at the Nuremberg trials listening to translated evidence through headphones

The Institutes of Justinian, echoing the Commentaries of Gaius, says that "All nations ... are governed partly by their own particular laws, and partly by those laws which are common to all, [those that] natural Reason appoints for all mankind." Expanding on the classical understanding of universal law accessible by reason, in the seventeenth century, the Dutch jurist Grotius laid the foundations for universal jurisdiction in modern international law, promulgating in his De Jure Praedae (Of the Law of Captures) and later Dē jūre bellī ac pācis (Of the Law of War and Peace) the Enlightenment view that there are universal principles of right and wrong.

According to Henry Kissinger, at about the same time, international law came to recognize the analogous concept of hostēs hūmānī generis ("enemies of the human race") applying to pirates or hijackers whose crimes took place outside of nation-state territories, while universal jurisdiction subjecting senior officials or heads of states as criminal subjects was new.

From these premises, representing the Enlightenment belief in trans-territorial, trans-cultural standards of right and wrong, derives universal jurisdiction.

Perhaps the most notable and influential precedent for universal jurisdiction were the mid-20th century Nuremberg Trials. U.S. Justice Robert H. Jackson then chief prosecutor, famously stated that an International Military Tribunal enforcing universal principles of right and wrong could prosecute acts without a particular geographic location, Nazi "crimes against the peace of the world"—even if the acts were perfectly legal at the time in Fascist Germany. Indeed, one charge was Nazi law itself became a crime, law distorted into a bludgeon of oppression. The Nuremberg trials supposed universal standards by which one nation's laws, and acts of its officials, can be judged; an international rule of law unbound by national borders.

On the other hand, even at the time, the Nuremberg trials were criticized as victor's justice, revenge papered over with legal simulacra. US Supreme Court Chief Justice Harlan Fiske Stone remarked that his colleague Justice Jackson acting as Nuremberg Chief prosecutor was "conducting his high-grade lynching party in Nuremberg. I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas."

Kenneth Roth, the executive director of Human Rights Watch, argues that universal jurisdiction allowed Israel to try Adolf Eichmann in Jerusalem in 1961. Roth also argues that clauses in treaties such as the Geneva Conventions of 1949 and the United Nations Convention Against Torture of 1984, which requires signatory states to pass municipal laws that are based on the concept of universal jurisdiction, indicate widespread international acceptance of the concept.

Theory of universal jurisdiction application

Amongst the vast spread of literature surrounding the theory, application, and history of Universal Jurisdiction, there are two approaches: the "global enforcer" and the "no safe haven". "Global enforcer" refers to the usage of Universal Jurisdiction as an active way of preventing and punishing international crimes committed anywhere while "no safe haven" takes on a more passive tone, referring to the usage of this principle to ensure that the specific country is not a territorial refuge for any suspects of international crimes.

Universal distinct from extraterritorial jurisdiction

Universal jurisdiction differs from a state's prosecuting crimes under its own laws, whether on its own territory (territorial jurisdiction) or abroad (extraterritorial jurisdiction). As an example, the United States asserts jurisdiction over stateless vessels carrying illicit drugs on international waters—but here the US reaches across national borders to enforce its own law, rather than invoking universal jurisdiction and trans-national standards of right and wrong.

States attempting to police acts committed by foreign nationals on foreign territory tends to be more controversial than a state prosecuting its own citizens wherever they may be found. Bases on which a state might exercise jurisdiction in this way include the following:

• A state can exercise jurisdiction over acts that affect the fundamental interests of the state, such as spying, even if the act was committed by foreign nationals on foreign territory. For example, the Indian Information Technology Act 2000 largely supports the extraterritoriality of the said Act. The law states that a contravention of the Act that affects any computer or computer network situated in India will be punishable by India irrespective of the culprit's location and nationality.
• A state may try its own nationals for crimes committed abroad. France and some other nations will refuse to extradite their own citizens as a matter of law, but will instead try them on their own territory for crimes committed abroad.
• More controversial is the exercise of jurisdiction where the victim of the crime is a national of the state exercising jurisdiction. In the past some states have claimed this jurisdiction (e.g., Mexico, Cutting Case (1887)), while others have been strongly opposed to it (e.g., the United States, except in cases in which an American citizen is a victim: US v Yunis (1988)). In more recent years, however, a broad global consensus has emerged in permitting its use in the case of torture, "forced disappearances" or terrorist offences (due in part to it being permitted by the various United Nations conventions on terrorism); but its application in other areas is still highly controversial. For example, former dictator of Chile Augusto Pinochet was arrested in London in 1998, on Spanish judge Baltazar Garzon's demand, on charges of human rights abuses, not on the grounds of universal jurisdiction but rather on the grounds that some of the victims of the abuses committed in Chile were Spanish citizens. Spain then sought his extradition from Britain, again, not on the grounds of universal jurisdiction, but by invoking the law of the European Union regarding extradition; and he was finally released on grounds of health. Argentinian Alfredo Astiz's sentence is part of this juridical frame.

International tribunals invoking universal jurisdiction

States parties to the Rome Statute of the International Criminal Court

Established in The Hague in 2002, the International Criminal Court (ICC) is an international tribunal of general jurisdiction (defined by treaty) to prosecute state-members' citizens for genocide, crimes against humanity, war crimes, and the crime of aggression, as specified by several international agreements, most prominently the Rome Statute of the International Criminal Court signed in 1998. A serious international crime is outlined in Article 7 of the Rome Statute of the International Criminal court as a serious criminal act committed as part of a "widespread or systematic attack directed against any civilian population, with knowledge of the attack", including murder, rape, slavery, persecution, extermination, and torture. Universal jurisdiction over the crimes enumerated in the Rome Statute was rejected by the signing parties, however universal jurisdiction is what allows the United Nations Security Council to refer specific situations to the ICC. This has only happened with Darfur (2005) and Libya (2011).

In addition the United Nations has set up geographically specific courts to investigate and prosecute crimes against humanity under a theory of universal jurisdiction, such as the International Criminal Tribunal for Rwanda (1994), and the International Criminal Tribunal for the Former Yugoslavia (1993).

The International Criminal Tribunal for the Former Yugoslavia investigates war crimes that took place in the Balkans in the 1990s. It convicted former Bosnian Serb leader Radovan Karadžić on 10 charges relating to directing murders, purges and other abuses against civilians, including genocide in connection with the 1995 massacre of 8,000 Muslim men and boys in Srebrenica; he was sentenced to 40 years in prison.

Particular states invoking universal jurisdiction

Universal jurisdiction may be asserted by a particular nation as well as by an international tribunal. The result is the same: individuals become answerable for crimes defined and prosecuted regardless of where they live, or where the conduct occurred; crimes said to be so grievous as to be universally condemned.

Amnesty International argues that since the end of the Second World War over fifteen states have conducted investigations, commenced prosecutions and completed trials based on universal jurisdiction for the crimes or arrested people with a view to extraditing the persons to a state seeking to prosecute them. These states include: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom and the United States. Amnesty writes:

All states parties to the Convention against Torture and the Inter-American Convention are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those that are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law.

Examples of particular states invoking universal jurisdiction are Israel's prosecution of Eichmann in 1961 (see § Israel below) and Spain's prosecution of South American dictators and torturers (see § Spain below). More recently, the Center for Constitutional Rights tried first in Switzerland and then in Canada to prosecute former U.S. President George W. Bush on behalf of persons tortured in US detention camps, invoking the universal jurisdiction doctrine. Bush cancelled his trip to Switzerland after news of the planned prosecution came to light. Bush has traveled to Canada but the Canadian government shut down the prosecution in advance of his arrest. The center has filed a grievance with the United Nations for Canada's failure to invoke universal jurisdiction to enforce the Convention Against Torture, a petition on which action is pending.

Immunity for state officials

On 14 February 2002, the International Court of Justice in the ICJ Arrest Warrant Case concluded that state officials may have immunity under international law while serving in office. The court stated that immunity was not granted to state officials for their own benefit, but instead to ensure the effective performance of their functions on behalf of their respective states. The court also stated that when abroad, state officials may enjoy immunity from arrest in another state on criminal charges, including charges of war crimes or crimes against humanity. But the ICJ qualified its conclusions, saying that state officers "may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda ..., and the future International Criminal Court."

In 2003, Charles Taylor, the former president of Liberia, was served with an arrest warrant by the Special Court for Sierra Leone (SCSL) that was set up under the auspices of a treaty that binds only the United Nations and the Government of Sierra Leone. Taylor contested the Special Court's jurisdiction, claiming immunity, but the Special Court for Sierra Leone concluded in 2004 that "the sovereign equality of states does not prevent a head of state from being prosecuted before an international criminal tribunal or court". The Special Court convicted Taylor in 2012 and sentenced him to fifty years' imprisonment, making him the first head of state since the Nuremberg trials after World War II to be tried and convicted by an international court. In sum, the question whether a former head of state might have immunity depends on which international court or tribunal endeavors to try him, how the court is constituted, and how it interprets its own mandate.

Universal jurisdiction enforcement around the world

Australia

The High Court of Australia confirmed the authority of the Australian Parliament, under the Australian Constitution, to exercise universal jurisdiction over war crimes in the Polyukhovich v Commonwealth case of 1991.

Belgium

In 1993, Belgium's Parliament passed a "law of universal jurisdiction" (sometimes referred to as "Belgium's genocide law"), allowing it to judge people accused of war crimes, crimes against humanity or genocide. In 2001, four Rwandan citizens were convicted and given sentences from 12 to 20 years' imprisonment for their involvement in 1994 Rwandan genocide. There was a rapid succession of cases:

• Prime Minister Ariel Sharon was accused of involvement in the 1982 Sabra and Shatila massacre in Lebanon, conducted by a Christian militia;
• Israelis filed a case against Yasser Arafat on grounds of responsibility for terrorist activity;
• In 2003, Iraqi victims of a 1991 Baghdad bombing pressed charges against George H. W. Bush, Colin Powell, and Dick Cheney.

Confronted with this sharp increase in cases, Belgium established the condition that the accused person must be Belgian or present in Belgium. An arrest warrant issued in 2000 under this law, against the then Minister of Foreign Affairs of the Democratic Republic of the Congo Abdoulaye Yerodia Ndombasi, was challenged before the International Court of Justice in the case entitled ICJ Arrest Warrant Case. The ICJ's decision issued on 14 February 2002 found that it did not have jurisdiction to consider the question of universal jurisdiction, instead deciding the question on the basis of immunity of high-ranking state officials. However, the matter was addressed in separate and dissenting opinions, such as that of President Guillaume who concluded that universal jurisdiction exists only in relation to piracy; and the dissenting opinion of Judge Oda who recognised piracy, hijacking, terrorism and genocide as crimes subject to universal jurisdiction.

On 1 August 2003, Belgium repealed the law on universal jurisdiction, and introduced a new law on extraterritorial jurisdiction similar to or more restrictive than that of most other European countries. However, some cases that had already started continued. These included those concerning the Rwandan genocide, and complaints filed against the Chadian ex-President Hissène Habré (dubbed the "African Pinochet"). In September 2005, Habré was indicted for crimes against humanity, torture, war crimes and other human rights violations by a Belgian court. Arrested in Senegal following requests from Senegalese courts, he was tried and convicted for war crimes by the Special Tribunal in Senegal in 2016 and sentenced to life in prison.

Canada

To implement the Rome Statute, Canada passed the Crimes Against Humanity and War Crimes Act. Michael Byers, a University of British Columbia law professor, has argued that these laws go further than the Rome Statute, providing Canadian courts with jurisdiction over acts pre-dating the ICC and occurring in territories outside of ICC member-states; "as a result, anyone who is present in Canada and alleged to have committed genocide, torture ... anywhere, at any time, can be prosecuted [in Canada]".

Finland

François Bazaramba was sentenced to life imprisonment in Finland in 2010 for participation in the Rwandan genocide of 1994.

In 2021 a trial for Gibril Massaquoi, charged with murder, aggravated war crimes and aggravated crimes against humanity in Liberia, started in Finland, with part of the hearings of witnesses to take place in Liberia and Sierra Leone.

France

The article 689 of the code de procédure pénale states the infractions that can be judged in France when they were committed outside French territory either by French citizens or foreigners. The following infractions may be prosecuted:

• Torture
• Terrorism
• Nuclear smuggling
• Naval piracy
• Airplane hijacking

In February 2019, Abdulhamid Chaban, a former soldier of the Syrian Army was arrested and indicted for complicity in crimes against humanity during the Syrian civil war, whereas Majdi Nema, a former spokesperson for Jaysh al-Islam, was arrested and indicted for war crimes and torture, respectively. In May 2023, the French Court of Cassation ruled that French universal jurisdiction allows for a trial of said individuals, and that it was not obligatory that "the offences of crime against humanity or war crime be identically described by the laws of the foreign country", in this case Syria.

On 15 November 2023, France issued international arrest warrants for Syrian leader Bashar al-Assad and three other Syrian officials for war crimes perpetrated during the 2013 Ghouta chemical attack and the 2018 Douma chemical attack.

Germany

Main article: Völkerstrafgesetzbuch

See also: Nikola Jorgić, Ignace Murwanashyaka, and Anwar Raslan

Under the German legal system, international crimes are offenses that require public prosecution (Offizialdelikte) and are not dependent on the victims' individual criminal complaints to initiate the prosecution.

Nikola Jorgić on 26 September 1997 was convicted of genocide in Germany and sentenced to four terms of life imprisonment for his involvement in the Bosnian genocide. His appeal following his conviction was rejected by the German Federal Court of Justice, Germany's highest court of appeal for criminal matters, on 30 April 1999. The court stated that genocide is a crime which all nations must prosecute.

Since then Germany has implemented the principle of universal jurisdiction for genocide, crimes against humanity and war crimes into its criminal law through the Völkerstrafgesetzbuch or VStGB ("international criminal code", literally "book of the criminal law of peoples"), which implemented the treaty creating the International Criminal Court into domestic law. The law was passed in 2002 and up to 2014. It has been used once, in the trial of Rwandan rebel leader Ignace Murwanashyaka. In 2015 he was found guilty and sentenced to 13 years in prison. Furthermore, section 7(2) of German Criminal Code Strafgesetzbuch (stGB) establishes the principle of aut dedere aut judicare, stating that German criminal law applies to offenses committed abroad by foreign nationals who currently reside in Germany if there is no criminal law jurisdiction in the foreign country or when no extradition request was made.

Ireland

Main article: Extraterritorial jurisdiction in Irish law

Israel

Main article: Nazis and Nazi Collaborators (Punishment) Law

The moral philosopher Peter Singer, along with Kenneth Roth, has cited Israel's prosecution of Adolf Eichmann in 1961 as an assertion of universal jurisdiction. He claims that while Israel did invoke a statute specific to Nazi crimes against Jews, its Supreme Court claimed universal jurisdiction over crimes against humanity.

Eichmann's defense lawyer argued that Israel did not have jurisdiction on account of Israel not having come into existence until 1948. The Genocide Convention also did not come into effect until 1951, and the Genocide Convention does not automatically provide for universal jurisdiction. It is also argued that Israeli agents obtained Eichmann illegally, violating international law when they seized and kidnapped Eichmann, and brought him to Israel to stand trial. The Argentinian government settled the dispute diplomatically with Israel.

Israel argued universal jurisdiction based on the "universal character of the crimes in question" and that the crimes committed by Eichmann were not only in violation of Israel law, but were considered "grave offenses against the law of nations itself". It also asserted that the crime of genocide is covered under international customary law. As a supplemental form of jurisdiction, a further argument is made on the basis of protective jurisdiction. Protective jurisdiction is a principle that "provides that states may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned".

Malaysia

In November 2011, the Kuala Lumpur War Crimes Commission (KLWCC), created in 2007 by former Malaysian prime minister Mahathir Mohamad as a private institution (without the support of any government), exercised what it viewed as universal jurisdiction to try and convict in absentia former US President George W. Bush and former British Prime Minister Tony Blair for the invasion of Iraq. In May 2012, the tribunal again under what it saw as universal jurisdiction took testimony from victims of torture at Abu Ghraib and Guantanamo, and convicted in absentia former President Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Deputy Assistant Attorneys General John Yoo and Jay Bybee, former Attorney General Alberto Gonzales, and former counselors David Addington and William Haynes II for conspiracy to commit war crimes. The tribunal referred its findings to the chief prosecutor at the International Criminal Court in The Hague.

The Malaysian human rights group SUARAM expressed concern about the KLWCC's procedures, and former United Nations Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy, described the KLWCC as having no legal basis, and was sceptical about fair trials taking place in absentia.

Netherlands

In January 2024, Mustafa A., a member of Liwa al-Quds, was convicted in the Netherlands for war crimes and crimes against humanity carried out during the Syrian civil war while fighting on the side of Syrian government forces. He was sentenced to twelve years of imprisonment.

Senegal

A case against the former dictator of Chad, Hissène Habré, started in 2015 in Senegal.

Spain

Spanish law recognizes the principle of universal jurisdiction. Article 23.4 of the Judicial Power Organization Act (LOPJ), enacted on 1 July 1985, establishes that Spanish courts have jurisdiction over crimes committed by Spaniards or foreign citizens outside Spain when such crimes can be described according to Spanish criminal law as genocide, terrorism, or some other, as well as any other crime that, according to international treaties or conventions, must be prosecuted in Spain. On 25 July 2009, the Spanish Congress passed a law that limits the competence of the Audiencia Nacional under Article 23.4 to cases in which Spaniards are victims, there is a relevant link to Spain, or the alleged perpetrators are in Spain. The law still has to pass the Senate, the high chamber, but passage is expected because it is supported by both major parties.

In 1999, Nobel Peace Prize winner Rigoberta Menchú brought a case against the Guatemalan military leadership in a Spanish Court. Six officials, among them Efraín Ríos Montt and Óscar Humberto Mejía, were formally charged on 7 July 2006 to appear in the Spanish National Court after Spain's Constitutional Court ruled in September 2005, the Spanish Constitutional Court declaration that the "principle of universal jurisdiction prevails over the existence of national interests", following the Menchu suit brought against the officials for atrocities committed in the Guatemalan Civil War.

In June 2003, Spanish judge Baltasar Garzón jailed Ricardo Miguel Cavallo, a former Argentine naval officer, who was extradited from Mexico to Spain pending his trial on charges of genocide and terrorism relating to the years of Argentina's military dictatorship.

On 11 January 2006, the Spanish High Court agreed to investigate a case in which seven former Chinese officials, including the former Communist Party General Secretary Jiang Zemin and former Premier Li Peng were alleged to have participated in a genocide in Tibet. This investigation follows a Spanish Constitutional Court (26 September 2005) ruling that Spanish courts could try genocide cases even if they did not involve Spanish nationals. China denounced the investigation as an interference in its internal affairs and dismissed the allegations as "sheer fabrication". The case was shelved in 2010, because of a law passed in 2009 that restricted High Court investigations to those "involving Spanish victims, suspects who are in Spain, or some other obvious link with Spain".

Complaints were lodged against former Israeli Defense Forces chief of General Staff Lt.-Gen. (res.) Dan Halutz and six other senior Israeli political and military officials by pro-Palestinian organizations, who sought to prosecute them in Spain under the principle of universal jurisdiction. On 29 January 2009, Fernando Andreu, a judge of the Audiencia Nacional, opened preliminary investigations into claims that a targeted killing attack in Gaza in 2002 warranted the prosecution of Halutz, the former Israeli defence minister Binyamin Ben-Eliezer, the former defence chief-of-staff Moshe Ya'alon, and four others, for crimes against humanity. Israeli Prime Minister Benjamin Netanyahu strongly criticized the decision, and Israeli officials refused to provide information requested by the Spanish court. The attack killed the founder and leader of the military wing of the Islamic militant organisation Hamas, Salah Shehade, who Israel said was responsible for hundreds of civilian deaths. The attack also killed 14 others (including his wife and 9 children). It had targeted the building where Shahade hid in Gaza City. It also wounded some 150 Palestinians, according to the complaint (or 50, according to other reports). The Israeli chief of operations and prime minister apologized officially, saying they were unaware, due to faulty intelligence, that civilians were in the house. The investigation in the case was halted on 30 June 2009 by a decision of a panel of 18 judges of the Audiencia Nacional. The Spanish Court of Appeals rejected the lower court's decision, and on appeal in April 2010 the Supreme Court of Spain upheld the Court of Appeals decision against conducting an official inquiry into the IDF's targeted killing of Shehadeh.

Sweden

Universal jurisdiction was used in Sweden for the trial of Hamid Nouri for involvement in the 1988 executions of Iranian political prisoners. In 2022, Nouri was sentenced to a life in prison.

In April 2024, a Swedish court started a trial of Syrian Brigadier general Mohammed Hamo for indiscriminate attacks against civilians in Homs during the Syrian civil war.

Switzerland

On 18 June 2021, former ULIMO commander Alieu Kosiah was sentenced to 20 years in prison for committing war crimes in Liberia during the country's first civil war. This was the first time that a Liberian national was tried for war crimes in relation to the Liberian Civil Wars, and the first time that the Swiss Federal Criminal Court held a war crimes trial.

On 18 April 2023, the Swiss Attorney General declared that Ousman Sonko, a former Interior Minister of the Gambia, had been charged with crimes against humanity. He was accused of "having supported, participated in and failed to prevent 'systematic and generalised attacks' as part of a repressive campaign by security forces against Jammeh's opponents".

Turkey

In January 2022, when filing a criminal case in the Istanbul Prosecutor's Office against Chinese officials for torture, rape, crimes against humanity and genocide against Uyghurs, lawyer Gulden Sonmez stated that Turkish legislation recognises universal jurisdiction for these offences.

United Kingdom

See also: Augusto Pinochet's arrest and trial

An offence is generally only triable in the jurisdiction where the offence took place, unless a specific statute enables the UK to exercise extraterritorial jurisdiction. This is the case, inter alia, for:

• Torture (s. 134 of the Criminal Justice Act 1988)
• Sexual offences against children (s. 72 of the Sexual Offences Act 2003, formerly Sexual Offences Act 1956)
• Fraud and dishonesty (Criminal Justice Act 1993 Part 1)
• Terrorism (ss. 59, 62–63 of the Terrorism Act 2000)
• Bribery (was s. 109 of the Anti-terrorism, Crime and Security Act 2001, now s. 12 of the Bribery Act 2010)
• Human trafficking and sexual exploitation (s. 2 of the Modern Slavery Act 2015, ss. 52–54 of the Sexual Offences Act 2003, and several earlier acts)

In December 2009, Westminster Magistrates' Court issued an arrest warrant for Tzipi Livni in connection with accusations of war crimes in the Gaza Strip during Operation Cast Lead (2008–2009). The warrant was issued on 12 December and revoked on 14 December 2009 after it was revealed that Livni had not entered British territory. The warrant was later denounced as "cynical" by the Israeli foreign ministry, while Livni's office said she was "proud of all her decisions in Operation Cast Lead". Livni herself called the arrest warrant "an abuse of the British legal system". Similarly a January visit to Britain by a team of Israel Defense Forces (IDF) was cancelled over concerns that arrest warrants would be sought by pro-Palestinian advocates in connection with allegations of war crimes under laws of universal jurisdiction.

In January 2013, Nepalese Colonel Kumar Lama was charged in the UK with torture under universal jurisdiction. He was acquitted in September 2016, with the jury finding him not guilty on one count, and failing to reach a verdict on the other.

United States

The United States has no formal statute to authorize it. In some cases, however, the federal government has exercised self-help in the apprehension or killing persons who are suspected of conspiring to commit crimes within the United States from outside of the country or committing crimes against American officials outside of the United States. This has occurred even when the suspect is not a United States person, has never been to the United States, and even when the person has never conspired or assisted in the commission of a crime within the United States, there is a functioning government which could try the person for the crime committed there, and notwithstanding the existence of a proper treaty of extradition between that country and the United States, ignoring the provisions of the treaty and capturing or killing the person directly.

In 1985, the Mexican national Humberto Alvarez-Machain allegedly assisted in the torture and murder of a United States Drug Enforcement Administration (DEA) agent in Mexico. Mexico declined to extradite a Mexican national for the alleged crime committed in Mexico, despite having a treaty of extradition. The United States then hired a private citizen and some Mexican nationals as mercenaries to kidnap Alvarez-Machain and take him to the United States for trial. The trial court ruled that his arrest was unlawful because it violated the extradition treaty. On appeal, in United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court held that, notwithstanding the existence of an extradition treaty with Mexico, it was still legal for the federal government of the United States to exercise self-help by forcibly abducting him on a street in Mexico and bringing him to the United States to stand trial. In Alvarez-Machain's subsequent criminal trial, he was acquitted; he later lost a lawsuit against the American government over his wrongful apprehension and imprisonment.

By event

2022 Russian invasion of Ukraine

Main article: Universal jurisdiction investigations of war crimes in Ukraine

Universal jurisdiction investigations of war crimes in the 2022 Russian invasion of Ukraine were started under universal jurisdiction legislation of several individual states. States that started investigations included Germany, Lithuania, Spain and Sweden.

Critiques

Accessibility of witnesses

One of the major logistical issues a court may run into during an application of universal jurisdiction is the accessibility of witnesses. States do not have the legal authority to summon witnesses who currently reside abroad to appear before their national courts, nor do they always have access to the necessary witnesses or evidence needed to implicate a foreign national of crimes against humanity.

International Court of Justice

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/International_Court_of_Justice

 

International Court of Justice
Emblem of the International Court of Justice
The Peace Palace, the seat of the court

The International Court of Justice (ICJ; French: Cour internationale de justice, CIJ) is the only international court that adjudicates general disputes between nations, and gives advisory opinions on international legal issues. It is one of the six organs of the United Nations (UN),^[1] and is located in The Hague, Netherlands.

The ICJ is the successor of the Permanent Court of International Justice (PCIJ), which was established in 1920 by the League of Nations. After the Second World War, the League and the PCIJ were replaced by the United Nations and ICJ, respectively. The Statute of the ICJ, which sets forth its purpose and structure, draws heavily from that of its predecessor, whose decisions remain valid. All member states of the UN are party to the ICJ Statute and may initiate contentious legal cases; however, advisory proceedings may be submitted only by certain UN organs and agencies.

The ICJ consists of a panel of 15 judges elected by the UN General Assembly and Security Council for nine-year terms. No more than one judge of each nationality may be represented on court at the same time, and judges collectively must reflect the principal civilizations and legal systems of the world. Seated in the Peace Palace in The Hague, Netherlands, the ICJ is the only principal UN organ not located in New York City. Its official working languages are English and French.

Since the entry of its first case on 22 May 1947, the ICJ has entertained 191 cases through 13 November 2023. Pursuant to Article 59 of the Statute of the International Court of Justice, the court's rulings and opinions are binding on the parties with respect to the particular case ruled on by the court.

History

The first permanent institution established for the purpose of settling international disputes was the Permanent Court of Arbitration (PCA), which was created by the Hague Peace Conference of 1899. Initiated by the Russian Tsar Nicholas II, the conference involved all the world's major powers, as well as several smaller states, and resulted in the first multilateral treaties concerned with the conduct of warfare. Among these was the Convention for the Pacific Settlement of International Disputes, which set forth the institutional and procedural framework for arbitral proceedings, which would take place in The Hague, Netherlands. Although the proceedings would be supported by a permanent bureau—whose functions would be equivalent to that of a secretariat or court registry—the arbitrators would be appointed by the disputing states from a larger pool provided by each member of the convention. The PCA was established in 1900 and began proceedings in 1902.

A second Hague Peace Conference in 1907, which involved most of the world's sovereign states, revised the convention and enhanced the rules governing arbitral proceedings before the PCA. During this conference, the United States, Great Britain and Germany submitted a joint proposal for a permanent court whose judges would serve full-time. As the delegates could not agree as to how the judges would be selected, the matter was temporarily shelved pending an agreement to be adopted at a later convention.

The Hague Peace Conferences, and the ideas that emerged therefrom, influenced the creation of the Central American Court of Justice, which was established in 1908 as one of the earliest regional judicial bodies. Various plans and proposals were made between 1911 and 1919 for the establishment of an international judicial tribunal, which would not be realized in the formation of a new international system following the First World War.

The Permanent Court of International Justice

Main article: Permanent Court of International Justice

The unprecedented bloodshed of the First World War led to the creation of the League of Nations, established by the Paris Peace Conference of 1919 as the first worldwide intergovernmental organization aimed at maintaining peace and collective security. Article 14 League's Covenant called for the establishment of a Permanent Court of International Justice (PCIJ), which would be responsible for adjudicating any international dispute submitted to it by the contesting parties, as well as to provide an advisory opinion upon any dispute or question referred to it by the League of Nations.

In December 1920, following several drafts and debates, the Assembly of the league unanimously adopted the statute of the PCIJ, which was signed and ratified the following year by a majority of members. Among other things, the new Statute resolved the contentious issues of selecting judges by providing that the judges be elected by both the council and the Assembly of the league concurrently but independently. The makeup of the PCIJ would reflect the "main forms of civilization and the principal legal systems of the world". The PCIJ would be permanently placed at the Peace Palace in The Hague, alongside Permanent Court of Arbitration.

The PCIJ represented a major innovation in international jurisprudence in several ways:

• Unlike previous international arbitral tribunals, it was a permanent body governed by its statutory provisions and rules of procedure
• It had a permanent registry that served as a liaison with governments and international bodies;
• Its proceedings were largely public, including pleadings, oral arguments, and all documentary evidence;
• It was accessible to all states and could be declared by states to have compulsory jurisdiction over disputes;
• The PCIJ Statute was the first to list sources of law it would draw upon, which in turn became sources of international law
• Judges were more representative of the world and its legal systems than any prior international judicial body.
• As a permanent body, the PCIJ would, over time, make a series of decisions and rulings that would develop international law

Unlike the ICJ, the PCIJ was not part of the league, nor were members of the league automatically a party to its Statute. The United States, which played a key role in both the second Hague Peace Conference and the Paris Peace Conference, was notably not a member of the league. However, several of its nationals served as judges of the court.

From its first session in 1922 until 1940, the PCIJ dealt with 29 interstate disputes and issued 27 advisory opinions. The court's widespread acceptance was reflected by the fact that several hundred international treaties and agreements conferred jurisdiction upon it over specified categories of disputes. In addition to helping resolve several serious international disputes, the PCIJ helped clarify several ambiguities in international law that contributed to its development.

The United States played a major role in setting up the World Court but never joined. Presidents Wilson, Harding, Coolidge, Hoover, and Roosevelt all supported membership, but it was impossible to get a two-thirds majority in the Senate for a treaty.

Establishment of the International Court of Justice

Following a peak of activity in 1933, the PCIJ began to decline in its activities due to the growing international tension and isolationism that characterized the era. The Second World War effectively put an end to the court, which held its last public session in December 1939 and issued its last orders in February 1940. In 1942 the United States and United Kingdom jointly declared support for establishing or re-establishing an international court after the war, and in 1943, the U.K. chaired a panel of jurists from around the world, the "Inter-Allied Committee", to discuss the matter. Its 1944 report recommended that:

• The statute of any new international court should be based on that of the PCIJ;
• The new court should retain an advisory jurisdiction;
• Acceptance of the new court's jurisdiction should be voluntary;
• The court should deal only with judicial and not political matters

Several months later, a conference of the major Allied Powers—China, the USSR, the U.K., and the U.S.—issued a joint declaration recognizing the necessity "of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security".^[9]

The following Allied conference at Dumbarton Oaks, in the United States, published a proposal in October 1944 that called for the establishment of an intergovernmental organization that would include an international court. A meeting was subsequently convened in Washington, D.C., in April 1945, involving 44 jurists from around the world to draft a statute for the proposed court. The draft statute was substantially similar to that of the PCIJ, and it was questioned whether a new court should even be created. During the San Francisco Conference, which took place from 25 April to 26 June 1945 and involved 50 countries, it was decided that an entirely new court should be established as a principal organ of the new United Nations. The statute of this court would form an integral part of the United Nations Charter, which, to maintain continuity, expressly held that the Statute of the International Court of Justice (ICJ) was based upon that of the PCIJ.

Consequently, the PCIJ convened for the last time in October 1945 and resolved to transfer its archives to its successor, which would take its place at the Peace Palace. The judges of the PCIJ all resigned on 31 January 1946, with the election of the first members of the ICJ taking place the following February at the First Session of the United Nations General Assembly and Security Council. In April 1946, the PCIJ was formally dissolved, and the ICJ, in its first meeting, was elected President José Gustavo Guerrero of El Salvador, who had served as the last president of the PCIJ. The court also appointed members of its Registry, mainly drawn from that of the PCIJ, and held an inaugural public sitting later that month.

The first case was submitted in May 1947 by the United Kingdom against Albania concerning incidents in the Corfu Channel.

Activities

The Peace Palace in The Hague, Netherlands, seat of the ICJ

Established in 1945 by the UN Charter, the court began work in 1946 as the successor to the Permanent Court of International Justice. The Statute of the International Court of Justice, similar to that of its predecessor, is the main constitutional document constituting and regulating the court.

The court's workload covers a wide range of judicial activity. After the court ruled that the United States's covert war against Nicaragua was in violation of international law (Nicaragua v. United States), the United States withdrew from compulsory jurisdiction in 1986 to accept the court's jurisdiction only on a discretionary basis. Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce Court rulings. However, such enforcement is subject to the veto power of the five permanent members of the council, which the United States used in the Nicaragua case.

Composition

Main article: Judges of the International Court of Justice

The ICJ is composed of fifteen judges elected to nine-year terms by the UN General Assembly and the UN Security Council from a list of people nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4–19 of the ICJ Statute. Elections are staggered, with five judges elected every three years to ensure continuity within the court. Should a judge die in office, the practice has generally been to elect a judge in a special election to complete the term. Historically, deceased judges have been replaced by judges from the same region, though not —as often wrongly asserted— necessarily from the same nationality.

Article 3 states that no two judges may be nationals of the same country. According to Article 9, the membership of the court is supposed to represent the "main forms of civilization and of the principal legal systems of the world". This has been interpreted to include common law, civil law, socialist law, and Islamic law, while the precise meaning of "main forms of civilization" is contested.

There is an informal understanding that the seats will be distributed by geographic regions so that there are five seats for Western countries, three for African states (including one judge of Francophone civil law, one of Anglophone common law and one Arab), two for Eastern European states, three for Asian states and two for Latin American and Caribbean states. For most of the court's history, the five permanent members of the United Nations Security Council (France, USSR, China, the United Kingdom, and the United States) have always had a judge serving, thereby occupying three of the Western seats, one of the Asian seats and one of the Eastern European seats. Exceptions have been China not having a judge on the court from 1967 to 1985, during which time it did not put forward a candidate, and British judge Sir Christopher Greenwood being withdrawn as a candidate for election for a second nine-year term on the bench in 2017, leaving no judges from the United Kingdom on the court. Greenwood had been supported by the UN Security Council but failed to get a majority in the UN General Assembly. Indian judge Dalveer Bhandari took the seat instead.

Article 6 of the Statute provides that all judges should be "elected regardless of their nationality among persons of high moral character" who are either qualified for the highest judicial office in their home states or known as lawyers with sufficient competence in international law. Judicial independence is dealt with specifically in Articles 16–18.

Judges of the International Court of Justice are entitled to the style of His/Her Excellency. Judges are not able to hold any other post or act as counsel. In practice, members of the court have their own interpretation of these rules and many have chosen to remain involved in outside arbitration and hold professional posts as long as there is no conflict of interest. Former judge Bruno Simma and current judge Georg Nolte have acknowledged that moonlighting should be restricted.

A judge can be dismissed only by a unanimous vote of the other members of the court. Despite these provisions, the independence of ICJ judges has been questioned. For example, during the Nicaragua case, the United States issued a communiqué suggesting that it could not present sensitive material to the court because of the presence of judges from the Soviet bloc.

Judges may deliver joint judgments or give their own separate opinions. Decisions and advisory opinions are by majority, and, in the event of an equal division, the president's vote becomes decisive, which occurred in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Opinion requested by WHO), [1996] ICJ Reports 66. Judges may also deliver separate dissenting opinions.

In its 77 years of history, only five women have been elected to the Court, with former UN Special Rapporteur Philip Alston calling for states to take seriously questions of representation in the bench.

In 2023, judges elected to take office from 2024 did not include a Russian member, so for the first time, from 2024 there will be no member from the Commonwealth of Independent States. This is also the first time that Russia would not have a judge on the ICJ, even going back to its predecessor, the Soviet Union.

Ad hoc judges

Article 31 of the statute sets out a procedure whereby ad hoc judges sit on contentious cases before the court. The system allows any party to a contentious case (if it otherwise does not have one of that party's nationals sitting on the court) to select one additional person to sit as a judge on that case only. It is thus possible that as many as seventeen judges may sit on one case.

The system may seem strange when compared with domestic court processes, but its purpose is to encourage states to submit cases. For example, if a state knows that it will have a judicial officer who can participate in deliberation and offer other judges local knowledge and an understanding of the state's perspective, it may be more willing to submit to the jurisdiction of the court. Although this system does not sit well with the judicial nature of the body, it is usually of little practical consequence. Ad hoc judges usually (but not always) vote in favour of the state that appointed them and thus cancel each other out.

Chambers

Generally, the court sits as full bench, but in the last fifteen years, it has on occasion sat as a chamber. Articles 26–29 of the statute allow the court to form smaller chambers, usually 3 or 5 judges, to hear cases. Two types of chambers are contemplated by Article 26: firstly, chambers for special categories of cases, and second, the formation of ad hoc chambers to hear particular disputes. In 1993, a special chamber was established, under Article 26(1) of the ICJ statute, to deal specifically with environmental matters (although it has never been used).

Ad hoc chambers are more frequently convened. For example, chambers were used to hear the Gulf of Maine Case (Canada/US). In that case, the parties made clear they would withdraw the case unless the court appointed judges to the chamber acceptable to the parties. Judgments of chambers may have either less authority than full Court judgments or diminish the proper interpretation of universal international law informed by a variety of cultural and legal perspectives. On the other hand, the use of chambers might encourage greater recourse to the court and thus enhance international dispute resolution.

Current composition

See also: Judges of the International Court of Justice

As of 6 February 2024, the composition of the court is as follows:

Name	Nationality	Position	Term began	Term ends
Nawaf Salam	Lebanon	Presidenta	2018	2027
Julia Sebutinde	Uganda	Vice-presidenta	2012	2030
Peter Tomka	Slovakia	Member	2003	2030
Ronny Abraham	France	Member	2005	2027
Abdulqawi Yusuf	Somalia	Member	2009	2027
Xue Hanqin	China	Member	2010	2030
Dalveer Bhandari	India	Member	2012	2027
Yuji Iwasawa	Japan	Member	2018	2030
Georg Nolte	Germany	Member	2021	2030
Hilary Charlesworth	Australia	Member	2021	2033
Leonardo Nemer Caldeira Brant (Replaced Antônio Augusto Cançado Trindade)	Brazil	Member	2022	2027
Juan Manuel Gómez Robledo Verduzco	Mexico	Member	2024	2033
Sarah Cleveland	United States	Member	2024	2033
Bogdan Aurescu	Romania	Member	2024	2033
Dire Tladi	South Africa	Member	2024	2033
Philippe Gautier	Belgium	Registrar	2019	2026
a For the 2024–2027 term

Presidents

#	President	Start	End	Country
1	José Gustavo Guerrero	1946	1949	El Salvador
2	Jules Basdevant	1949	1952	France
3	Arnold McNair	1952	1955	United Kingdom
4	Green Hackworth	1955	1958	United States
5	Helge Klæstad	1958	1961	Norway
6	Bohdan Winiarski	1961	1964	Poland
7	Percy Spender	1964	1967	Australia
8	José Bustamante y Rivero	1967	1970	Peru
9	Muhammad Zafarullah Khan	1970	1973	Pakistan
10	Manfred Lachs	1973	1976	Poland
11	Eduardo Jiménez de Aréchaga	1976	1979	Uruguay
12	Humphrey Waldock	1979	1981	United Kingdom
13	Taslim Elias	1982	1985	Nigeria
14	Nagendra Singh	1985	1988	India
15	José Ruda	1988	1991	Argentina
16	Robert Jennings	1991	1994	United Kingdom
17	Mohammed Bedjaoui	1994	1997	Algeria
18	Stephen Schwebel	1997	2000	United States
19	Gilbert Guillaume	2000	2003	France
20	Shi Jiuyong	2003	2006	China
21	Rosalyn Higgins	2006	2009	United Kingdom
22	Hisashi Owada	2009	2012	Japan
23	Peter Tomka	2012	2015	Slovakia
24	Ronny Abraham	2015	2018	France
25	Abdulqawi Yusuf	2018	2021	Somalia
26	Joan Donoghue	2021	2024	United States
27	Nawaf Salam	2024	present	Lebanon

Jurisdiction

Main article: Jurisdiction of the International Court of Justice

Parties upon becoming a UN member   Parties prior to joining the UN under Article 93   UN observer states that are not parties

As stated in Article 93 of the UN Charter, all 193 UN members are automatically parties to the court's statute. Non-UN members may also become parties to the court's statute under the Article 93(2) procedure, which was used by Switzerland in 1948 and Nauru in 1988, prior to either joining the UN. Once a state is a party to the court's statute, it is entitled to participate in cases before the court. However, being a party to the statute does not automatically give the court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the three types of ICJ cases: contentious issues, incidental jurisdiction, and advisory opinions.

Contentious issues

In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases; individuals, corporations, component parts of a federal state, NGOs, UN organs, and self-determination groups are excluded from direct participation, although the court may receive information from public international organizations. However, this does not preclude non-state interests from being the subject of proceedings; for example, a state may bring a case on behalf of one of its nationals or corporations, such as in matters concerning diplomatic protection.

Jurisdiction is often a crucial question for the court in contentious cases. The key principle is that the ICJ has jurisdiction only on the basis of consent. Under Article 36, there are four foundations for the court's jurisdiction:

1. Compromis or "special agreement", in which parties provide explicit consent to the court's jurisdiction by referring cases to it. While not true compulsory jurisdiction, this is perhaps the most effective jurisdictional basis, because the parties concerned have a desire for the dispute to be resolved by the court, and are thus more likely to comply with the court's judgment.
2. Compromissory clauses in a binding treaty. Most modern treaties contain such clauses to provide for dispute resolution by the ICJ. Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the court and may refuse to comply with a judgment. For example, during the Iran hostage crisis, Iran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations and did not comply with the judgment. Since the 1970s, the use of such clauses has declined; many modern treaties set out their own dispute resolution regime, often based on forms of arbitration.
3. Optional clause declarations accepting the court's jurisdiction. Also known as Article 36(2) jurisdiction, it is sometimes misleadingly labeled "compulsory", though such declarations are voluntary. Many such declarations contain reservations that exclude from jurisdiction certain types of disputes (ratione materia). The principle of reciprocity may further limit jurisdiction, as Article 36(2) holds that such declaration may be made "in relation to any other State accepting the same obligation...". As of January 2018, seventy-four states had a declaration in force, up from sixty-six in February 2011; of the permanent Security Council members, only the United Kingdom has a declaration. In the court's early years, most declarations were made by industrialized countries. Since the 1986 Nicaragua case, declarations made by developing countries have increased, reflecting a growing confidence in the court. However, even those industrialized countries that have invoked optional declarations have sometimes increased exclusions or rescinded them altogether. Notable examples include the United States in the Nicaragua case, and Australia, which modified its declaration in 2002 to exclude disputes on maritime boundaries, most likely to prevent an impending challenge from East Timor, which gained independence two months later.
4. Article 36(5) provides for jurisdiction on the basis of declarations made under the Statute of the Permanent Court of International Justice. Article 37 similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.

Additionally, the court may have jurisdiction on the basis of tacit consent (forum prorogatum). In the absence of clear jurisdiction under Article 36, jurisdiction is established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. This arose in the 1949 Corfu Channel Case (U.K. v. Albania), in which the court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.

Incidental jurisdiction

Until rendering a final judgment, the court has competence to order interim measures for the protection of the rights of a party to a dispute. One or both parties to a dispute may apply the ICJ for issuing interim measures. In the Frontier Dispute Case, both parties to the dispute, Burkina Faso and Mali, submitted an application to the court to indicate interim measures. Incidental jurisdiction of the court derives from the Article 41 of its Statute. Similar to the final judgment, the order for interim measures of the court are binding on state parties to the dispute. The ICJ has competence to indicate interim measures only if the prima facie jurisdiction is satisfied.

Advisory opinions

Audience of the "Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo"

An advisory opinion is a function of the court open only to specified United Nations bodies and agencies. The UN Charter grants the General Assembly or the Security Council the power to request the court to issue an advisory opinion on any legal question. Organs of the UN other than the General Assembly or the Security Council require the General Assembly's authorization to request an advisory opinion of the ICJ. These organs of the UN only request an advisory opinion regarding the matters that fall within the scope of their activities. On receiving a request, the court decides which states and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory opinions were intended as a means by which UN agencies could seek the court's help in deciding complex legal issues that might fall under their respective mandates.

In principle, the court's advisory opinions are only consultative in character but they are influential and widely respected. Certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, but inherently they are non-binding under the Statute of the court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the court's authoritative views on important issues of international law. In arriving at them, the court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states.

An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.

Advisory opinions have often been controversial because the questions asked are controversial or the case was pursued as an indirect way of bringing what is really a contentious case before the court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such well-known advisory opinion is the Nuclear Weapons Case.

Examples of contentious cases

Main article: List of International Court of Justice cases

South Africa's case alleging Israel's violation of the Genocide Convention in Gaza, the Hague, 12 January 2024

• 1980: A complaint by the United States that Iran was detaining American diplomats in Tehran in violation of international law.
• 1982: A dispute between Tunisia and Libya over the delimitation of the continental shelf between them.
• 1989: A complaint by Iran after the shooting down of Iran Air Flight 655 by a United States Navy guided missile cruiser.
• 1984: A dispute over the course of the maritime boundary dividing the U.S. and Canada in the Gulf of Maine area.
• 1999: A complaint by the Federal Republic of Yugoslavia against the member states of the North Atlantic Treaty Organization regarding their actions in the Kosovo War. This was denied on 15 December 2004 because of lack of jurisdiction, the FRY not being a party to the ICJ statute at the time it made the application.
• 2011: A complaint by the Republic of North Macedonia (former Yugoslav Republic of Macedonia) that Greece's vetoing of its accession to NATO violates the Interim Accord of 13 September 1995 between the two countries. The complaint was decided in favour of North Macedonia on 5 December 2011.
• 2005: A complaint by the Democratic Republic of the Congo that its sovereignty had been violated by Uganda and that the DRC had lost billions of dollars worth of resources was decided in favour of the DRC.
• 2017: A complaint by the Republic of India regarding a death penalty verdict against an Indian citizen, Kulbhushan Jadhav, by a Pakistani military court (based on alleged espionage and subversive activities).
• 2022: A complaint by Ukraine against Russia for violating the 1948 Genocide Convention, to which both Ukraine and Russia are parties, by falsely claiming genocide as a pretext for invading Ukraine. The International Association of Genocide Scholars supported Ukraine, who asked for expedited provisional measures directing Russia to halt its offensive. Russian representatives refused to appear. On 16 March, the ICJ ordered Russia to "immediately suspend the military operations", on a 13–2 vote with the Russian and Chinese judges in opposition. The order is binding on Russia, but the ICJ cannot enforce it.

Relationship with UN Security Council

Article 94 establishes the duty of all UN members to comply with decisions of the court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the five permanent members of the Security Council or its allies, any resolution on enforcement could then be vetoed by that member. That occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the United States' noncompliance with the court's decision before the Security Council. Furthermore, if the Security Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply. Furthermore, the most effective form to take action for the Security Council, coercive action under Chapter VII of the United Nations Charter, can be justified only if international peace and security are at stake. The Security Council has never done that so far.

The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the court in 1992 in the Pan Am case. The court had to consider an application from Libya for the order of provisional measures of protection to safeguard its rights, which, it alleged, were being infringed by the threat of economic sanctions by the United Kingdom and United States. The problem was that these sanctions had been authorized by the Security Council, which resulted in a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the court. The court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the 1971 Montreal Convention, could not be prima facie regarded as appropriate since the action was ordered by the Security Council. In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations. Nevertheless, the court declared the application admissible in 1998. A decision on the merits has not been given since the parties (United Kingdom, United States, and Libya) settled the case out of court in 2003.

There was a marked reluctance on the part of a majority of the court to become involved in a dispute in such a way as to bring it potentially into conflict with the Council. The court stated in the Nicaragua case that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, when there is room for conflict, the balance appears to be in favour of the Security Council.

Should either party fail "to perform the obligations incumbent upon it under a judgment rendered by the Court", the Security Council may be called upon to "make recommendations or decide upon measures" if the Security Council deems such actions necessary. In practice, the court's powers have been limited by the unwillingness of the losing party to abide by the court's ruling and by the Security Council's unwillingness to impose consequences. However, in theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal", and "by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party."

For example, the United States had previously accepted the court's compulsory jurisdiction upon its creation in 1946 but in 1984, after Nicaragua v. United States, withdrew its acceptance following the court's judgment that called on the US to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua. The court ruled (with only the American judge dissenting) that the United States was "in breach of its obligation under the Treaty of Friendship with Nicaragua not to use force against Nicaragua" and ordered the United States to pay war reparations.

Law applied

Main article: Sources of international law

When deciding cases, the court applies international law as summarized in Article 38 of the ICJ Statute, which provides that in arriving at its decisions the court shall apply international conventions, international custom and the "general principles of law recognized by civilized nations." It may also refer to academic writing ("the teachings of the most highly qualified publicists of the various nations") and previous judicial decisions to help interpret the law although the court is not formally bound by its previous decisions under the doctrine of stare decisis. Article 59 makes clear that the common law notion of precedent or stare decisis does not apply to the decisions of the ICJ. The court's decision binds only the parties to that particular controversy. Under 38(1)(d), however, the court may consider its own previous decisions and frequently cites them.

If the parties agree, they may also grant the court the liberty to decide ex aequo et bono ("out of equality, and for the good"), granting the ICJ the freedom to make an equitable decision based on what is fair under the circumstances. That provision has not been used in the court's history. So far, the International Court of Justice has dealt with about 180 cases.

Procedure

The ICJ is vested with the power to make its own rules. Court procedure is set out in the Rules of Court of the International Court of Justice 1978 (as amended on 29 September 2005).

Cases before the ICJ will follow a standard pattern. The case is lodged by the applicant, which files a written memorial setting out the basis of the court's jurisdiction and the merits of its claim. The respondent may accept the court's jurisdiction and file its own memorial on the merits of the case.

Preliminary objections

A respondent that does not wish to submit to the jurisdiction of the court may raise preliminary objections. Any such objections must be ruled upon before the court can address the merits of the applicant's claim. Often, a separate public hearing is held on the preliminary objections and the court will render a judgment. Respondents normally file preliminary objections to the jurisdiction of the court and/or the admissibility of the case. Inadmissibility refers to a range of arguments about factors the court should take into account in deciding jurisdiction, such as the fact that the issue is not justiciable or that it is not a "legal dispute".

In addition, objections may be made because all necessary parties are not before the court. If the case necessarily requires the court to rule on the rights and obligations of a state that has not consented to the court's jurisdiction, the court does not proceed to issue a judgment on the merits.

If the court decides it has jurisdiction and the case is admissible, the respondent then is required to file a Memorial addressing the merits of the applicant's claim. Once all written arguments are filed, the court holds a public hearing on the merits.

Once a case has been filed, any party (usually the applicant) may seek an order from the court to protect the status quo pending the hearing of the case. Such orders are known as Provisional (or Interim) Measures and are analogous to interlocutory injunctions in United States law. Article 41 of the statute allows the court to make such orders. The court must be satisfied to have prima facie jurisdiction to hear the merits of the case before it grants provisional measures.

Applications to intervene

In cases in which a third state's interests are affected, that state may be permitted to intervene in the case and participate as a full party. Under Article 62, a state "with an interest of a legal nature" may apply; however, it is within the court's discretion whether or not to allow the intervention. Intervention applications are rare, and the first successful application occurred only in 1991.

Judgment and remedies

Once deliberation has taken place, the court issues a majority opinion. Individual judges may issue concurring opinions (if they agree with the outcome reached in the judgment of the court but differ in their reasoning) or dissenting opinions (if they disagree with the majority). No appeal is possible, but any party may ask for the court to clarify if there is a dispute as to the meaning or scope of the court's judgment.

Criticisms

The International Court has been criticized with respect to its rulings, its procedures, and its authority. As with criticisms of the United Nations, many critics and opponents of the court refer to the general authority assigned to the body by member states through its Charter, rather than to specific problems with the composition of judges or their rulings. Major criticisms include the following:

• "Compulsory" jurisdiction is limited to cases where both parties have agreed to submit to its decision, and so instances of aggression tend to be automatically escalated to and adjudicated by the Security Council. ICJ rulings are legally binding on states but not enforceable without their approval or compliance.
• The International Court of Justice cannot hear the cases of organizations, private enterprises, and individuals. Furthermore, UN agencies are unable to raise a case except in the circumstance of a non-binding advisory opinion. The national states are the only ones who are able to bring cases for and act as defendants for these individuals. As a result, victims of war crimes, crimes against humanity and minority groups may not have the support of their national state.
• Other existing international thematic courts, such as the ICC, are not under the umbrella of the International Court. Unlike ICJ, international thematic courts like ICC work independently from United Nations. Such dualistic structure between various international courts sometimes makes it hard for the courts to engage in effective and collective jurisdiction.
• The International Court does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound. Because the jurisdiction does not have binding force itself, in many cases, the instances of aggression are adjudicated by Security Council by adopting a resolution, etc. There is, therefore, a likelihood for the permanent member states of Security Council to avoid the legal responsibility brought up by International Court of Justice, as shown in the example of Nicaragua v. United States.
• The court has been accused of judicial parsimony, with its rulings tending to dismiss submissions of parties on jurisdictional grounds and not resolving the underlying dispute between them.