DECEMBER 13 — There are a variety of international courts, two of which are of prominence:
1) International Court of Justice (ICJ)
2) International Criminal Court (ICC)
ICJ
The ICJ is the principal judicial organ of the United Nations (UN). Established in June 1945 by the Charter of the UN, the ICJ began work in April 1946. Its role is to:
(a) settle, in accordance with international law, legal disputes submitted by States (contentious cases); and
(b) give advisory opinions on legal questions referred to it by authorised UN organs and specialized agencies.
The ICJ is competent to entertain a contentious case only if the States concerned have accepted its jurisdiction in one or more of the following ways:
• by entering into a special agreement to submit the dispute to the ICJ;
• by virtue of a jurisdictional clause — that is, when a treaty between parties contains a provision to refer the dispute to the ICJ;
• through the reciprocal effect of declarations made by parties whereby each has accepted the jurisdiction of the ICJ as compulsory in the event of a dispute with another.
Advisory opinions may be requested by the UN General Assembly and the UN Security Council on “any legal question”.
Other United Nations organs and specialised agencies which have been authorised to seek advisory opinions can only do so with respect to “legal questions arising within the scope of their activities”.
When it receives a request for an advisory opinion, the ICJ must assemble all the facts and is thus empowered to hold written and oral proceedings, similar to those in contentious cases.
Advisory opinions are essentially advisory – they are not binding. The requesting organ, agency or organisation remains free to give effect to the opinion as it sees fit, or not to do so at all.
Based on the above, the ICJ is not the international court with competent jurisdiction over genocide.
ICC
The ICC is an independent body whose mission is to try individuals for crimes within its jurisdiction without the need for a special mandate from the UN.
It first investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. It is a court of last resort and founded by an international treaty called the Rome Statute.
The Statute grants the ICC jurisdiction over four main crimes.
First, the crime of genocide, which is characterised by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means: 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 intended to prevent births within the group; or forcibly transferring children of the group to another group.
Second, crimes against humanity, which are serious violations committed as part of a large-scale attack against any civilian population. The Statute lists 15 forms of crimes against humanity which includes offences such as murder, rape, imprisonment, enforced disappearances, enslavement — particularly of women and children, sexual slavery, torture, apartheid and deportation.
Third, war crimes which are grave breaches of the Geneva conventions in the context of armed conflict and include the killing or torture of persons such as civilians or prisoners of war, intentional direct attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes.
Fourth, crimes of aggression, which is the use of armed force by a State against the sovereignty, integrity or independence of another State.
The ICC is an independent body whose mission is to try individuals for crimes within its jurisdiction without the need for a special mandate from the UN.
The ICC may exercise jurisdiction over the above-mentioned crimes where:
• the crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the ICC; or
• the crimes were referred to the ICC Prosecutor by the UN Security Council pursuant to a resolution adopted under chapter VII of the UN Charter. In the case of crimes of aggression, it is irrespective as to whether it involves States Parties or non-States Parties.
Any State Party to the Statute can request the ICC Prosecutor to carry out an investigation.
But Malaysia is not a State Party to the Statute. Should Malaysia rethink on ratifying the Rome Statute?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
