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Coleman, Andrew --- "War crimes and the ICJ's advisory jurisdiction" [2001] AltLawJl 8; (2001) 26(1) Alternative Law Journal 32

War crimes and the ICJ’s advisory jurisdiction

Why the International Court of Justice cannot investigate crimes against humanity. A response to an article published in this journal in August 2000.

Andrew Coleman[*]

In the August 2000 edition of this journal, the article ‘Of War Crimes and Humanitarian Intervention’[1] examined two aspects of international law: first, the possibility of using Advisory Opinions of the International Court of Justice (ICJ) to investigate crimes against humanity in relation to the events in Kosovo and East Timor; and second, humanitarian intervention.

While the authors’ sentiments are noble and humanitarian, there are several difficulties with their suggestion to use the ICJ, such as standing. The purpose of this response is to examine the suitability of the ICJ for investigating crimes against humanity. In particular, it focuses on the claim made by the authors that the advisory jurisdiction of the ICJ provides an exception to the rules of standing.

The ICJ is a court for nation-states not individuals

The authors’ choice of the International Court of Justice, in particular the Court’s advisory jurisdiction to ‘investigate’ the crimes committed in Kosovo and East Timor, is an interesting and a radical one. While it is correct that the ICJ was created to be the principal judicial organ of the United Nations (UN), it must be remembered that the ICJ was created to be a court for nation-states, not individuals. After the Four Nations Declaration on General Security issued on 30 October 1943, an Informal Inter-Allied Committee of Experts formed to consider the role of the planned new international court. The Committee concluded that the court’s ultimate objective was to maintain peace and security between nation-states.[2] Thus standing was restricted to nation-states (Article 34(1) ICJ Statute).

To consider that only nation-states have standing before the ICJ is not simply a ‘traditional interpretation’ or an application of the ‘classic doctrine’ as the authors state, it is the only interpretation of Article 34. Article 34(1) of the ICJ Statute states quite clearly that only nation- states may be parties in cases before the Court.

It is true that Article 34(1) has come under a great deal of criticism, mostly for being outdated.[3] The wording used in Article 34(1) was taken directly from Article 34 of the Statute of the Permanent Court of International Justice (PCIJ), itself taken from Article 24 of the Convention for the Pacific Settlement of Disputes signed at the First Hague Peace Conference in 1899.[4] Janis believes that the wording of Article 34 is a direct result of the influence of 18th century positivists such as Bentham, who developed their theories when only nation-states existed.[5] As such the rules relating to standing for the ICJ, were developed in a world where the only ‘players’ at an international level were nation-states. Now it is recognised that international organisations such as the UN and the World Health Organisation do retain some characteristics of international legal personality (entering into treaties for example) and so there have been consistent calls for international organisations to be granted the required international legal personality.[6] More importantly for the authors, there has been a radical suggestion that standing before the ICJ be granted to individuals.[7]

Amending the Statute — the obstacles

The likelihood that such changes will be made soon, thus enabling an investigation into East Timor and Kosovo, is very slim. His Honour Nagenrda Singh, an ex-president of the ICJ, in his recommendations to increase the use of the ICJ has rejected attempting to amend its Statute.

The political obstacles to amendment of the Charter are well-known, and they equally obstruct amendment to the Statute. Thus, if a practical approach is to be made, all Statute amendments as such have to be ruled out.[8]

Amending the Statute is difficult since it must be amended in the same manner as the UN Charter, namely, adopted by a two-thirds majority of the UN General Assembly and then ratified by two-thirds of the members of the UN including all the permanent members of the UN Security Council (Article 69 ICJ Statute and Article 108 UN Charter). As a result it is very unlikely to be changed in a way that challenges or jeopardises nation-states.

Given the increasing importance and the role that international organisations play in international affairs — their ability to enter into treaties for example — there is a high probability that one day they will be granted standing. After all, it could be argued that granting international organisations standing is merely recognising an existing fact. Also it would ensure that they then can be held accountable for their actions by being brought before the ICJ, thus incurring the responsibilities of international legal personality in addition to the benefits which they presently enjoy. Therefore granting standing to them would be in the interests of nation-states.

The authors seek to avoid these problems by arguing that Article 65 creates an exception to Article 34(1). The Security Council or the General Assembly ‘would use Article 96 (UN Charter) and request the ICJ to make inquiries about individual participation in the atrocities committed in both Kosovo and East Timor’.[9] However, they do not explain how this ‘exception’ works.

Advisory opinions; an exception?

Article 65(1) states that the Court can provide an advisory opinion on any ‘legal’ question. This would, theoretically include war crimes or crimes against humanity, since the ICJ has adopted a very broad interpretation for determining when to exercise its advisory jurisdiction. For example, when considering whether to exercise its advisory jurisdiction in the International Labour Organization Administrative Tribunal Case (1956) ICJ Rep. 77 (ILO case), the ICJ placed emphasis on whether the request concerned a ‘legal’ question, rather than what type of legal question (p.84). For the ICJ to provide an advisory opinion per se, there must be a request from an authorised requesting body, normally the Security Council or the General Assembly, but this can include any body authorised by the UN Charter. Assuming that a resolution will be successful, the Court then has the discretion to comply with the request. The Court has indicated that it will not refuse to comply unless there are compelling reasons to do so; in fact the Court has said that in the absence of compelling reasons, it has a legal duty to comply with requests (ILO case). (However, it must be remembered that the ICJ did reject the request for an advisory opinion made by the WHO, an international organisation, in the Nuclear Weapons Case.[10]) And what would be a compelling reason?

There are two: the first is where complying with the request would breach what is known as the principle of equality. The principle of equality refers to the relative ability of both parties to put forward their views.

The judicial character of the Court requires that both sides directly affected by these proceedings should be in a position to submit their views and their arguments to the Court … The principle of equality of the parties follows from the requirements of the good administration of justice.[11]

The second ‘compelling reason’ is where the ICJ would not be able to access all the appropriate evidence and material (Article 66(2) ICJ Statute) while preparing an advisory opinion. Article 66(2) lists the two means by which the Court obtains information: through oral proceedings, and the submission of documents. The inability to appear before the Court (because one party as an individual does not have standing) breaches the principle of equality since only the party with standing can present evidence, participate in oral proceedings or reply to any argument presented by the opposing party. So does the overriding need to comply with the principle of equality allow an individual standing to appear in advisory opinions?

Both the PCIJ and the ICJ have considered this specific question. In the Danzig Legislative Decrees Case (A/B 65), the PCIJ did not allow individuals representing Opposition Parties from Danzig’s Senate to appear, and only allowed them to communicate with the Court through the Secretary- General of the League.[12] They could not comment on any evidence placed before the PCIJ and so were at a distinct disadvantage. Of particular importance is the individual opinion of Judge Anzilotti who concluded that the PCIJ should not have provided the opinion because allowing the Opposition Parties to appear meant setting aside the Rules of the Court and not allowing them to appear meant casting aside the rule of equality (p.66).

The ICJ considered the matter in United Nations Administrative Tribunal Case (1954) ICJ Rep. 47[13] and the ILO case. Once again the individuals involved, former officials of the UN and UNESCO respectively, were refused permission to appear before the Court. In the United Nations Administrative Tribunal case, the Counsel for the individuals in a letter to the Court raised the argument that their lack of appearance would breach the principle of equality. The Registrar reported that the Court under Article 66(2) would be supplied with full documentation sufficient to fully complete the advisory opinion.[14] In the aftermath of the Court’s opinion, the Statute of the UN’s Administrative Tribunal was changed, so that under Article 11 a committee can, at the request of member nation-states, the Secretary-General or the person affected by the decision, request an advisory opinion.[15] In other words the ICJ would be fulfilling the role of an appeals court, reviewing the decision of the UN Administrative Tribunal. This is what occurred in the ILO case.

Art XII of the ILO Administrative Tribunal’s Statute made provision for a decision of the Tribunal to be what amounted to a review by the ICJ using an advisory opinion. The Registrar and Counsel acting for the individual officers, prior to the Court accepting the request, discussed the lack of equality between the disputants. Again in spite of the obvious inequality that would be created by the absence of the former officials before the Court, the Registrar held that the individual officers were not permitted to submit evidence directly to the ICJ or appear before the ICJ and further, that only nation-states and international organisations were permitted to supply information and evidence under Article 66(2) of the ICJ Statute.[16]

However, the Court found no compelling reason to refuse to provide an advisory opinion.

Finally, although no oral proceedings were held, the Court is satisfied that adequate information has been made available to it. In view of this there would appear to be no compelling reason why the Court should not lend its assistance in the solution of a problem confronting a specialized agency of the united Nations authorized to ask for an Advisory Opinion of the Court.[17]

So how was Article 66(2) satisfied? Information, documents and the views of the former officials were submitted to the Court through the other party, for example UNESCO in the ILO Case. Further, the Court stated: ‘Any seeming or nominal absence of equality ought not to be allowed to obscure or to defeat that primary object’, that is, to assist the Administrative Tribunal.[18]

So what does the existing jurisprudence reveal about the Court’s attitude towards the authors’ claimed ‘exception’?

At first glance, it would appear that the above cases appear to confirm that Article 65 does provide an exception of sorts. Since, both the PCIJ and the ICJ did comply with the requests for an advisory opinion where a disputant was an individual. However, this does not mean that the individual has standing, since in all these cases oral proceedings were not allowed.

In such a case [where an individual is a disputant] it is now well settled that the individual has no direct access under Article 66(2) of the Statute in either the written or oral stages of the proceedings.[19]

More importantly, what these decisions indicate — and this includes the majority of the respective judges as well as the separate opinions — is that the Court will not comply with a request where it is not satisfied that there is equality between the parties.[20]

Both the PCIJ and the ICJ appear to have defined inequality in very ‘practical’ terms, that is, where the Court is reassured that there is sufficient access to the necessary documentary evidence to allow the Court to achieve its juridical function, it appears this will create the necessary equality between the disputants. However, the documentary evidence on behalf of the former officers, the individuals, was submitted to the Court through the other party, UNESCO for example. In other words the ability of the individual to put forward their version of events, to dispute facts and arguments presented by the other party is entirely dependent on the good graces of the other disputant. This may be of little relevance when determining equality in matters which essentially are a judicial review of tribunal decisions, which is what these decisions were. But in a contentious, criminal hearing determining one of the most serious and heinous ‘international crimes’ — namely ethnic cleansing and mass murder — it would be crucial in determining whether there is equality.[21] Further, the importance of oral proceedings would be unquestionable. Therefore such an ‘exception’ as created by Article 65, would not apply to a request for an advisory opinion concerning the events that occurred in Kosovo and East Timor.

So in a request for an ‘investigation’ worded as the authors suggest, it is unlikely that the Court would be as assured that Article 66(2) would be satisfied as they were in the above cases. And so the ICJ would most likely refuse to grant an advisory opinion. If there is a substantial risk that the ICJ would refuse to provide an advisory opinion for the above reasons, could the authors’ objective be obtained through the request being reworded more broadly, for example, that the Court was to ‘investigate’ whether any war crimes had been committed in Kosovo or East Timor respectively?

The wording of the request

In an investigation into the allegations that war crimes have been committed, what is going to be the content of the request? Given that if justice is to be achieved, the principle of equality requires that there must be a defendant, what are the ‘alternative’ defendants? In the absence of an individual, for the reasons given above, the ‘other party’ would have to be the nation state where the alleged war crimes took place, or perhaps the nation state to which the individuals belonged. This would imply that the nation state, its leaders, government — its people — bear criminal responsibility for an individual’s actions.

That this would be acceptable to the Court is highly unlikely. The prosecution of war crimes and crimes against humanity has traditionally been conducted against individuals rather than their nation-states, for example, the Nuremberg Trials, the ad hoc tribunals mentioned in the authors’ article, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda. It is also why the International Criminal Court was created.

More importantly how will the advisory opinion be worded? That there is a sufficient amount of evidence justifying a subsequent legal trial in a manner similar to the criminal pre-hearing in domestic jurisdictions? What would be the effect of an advisory opinion if such an ‘investigation’ took place? That an ad hoc tribunal, like the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda be created to prosecute the individuals? Such tribunals do not require an advisory opinion, but rather a resolution passed by the appropriate bodies of the UN. It would appear to be a waste of valuable time in seeking an advisory opinion to confirm what the relevant tribunal will ultimately consider. In other words, the authors do not explain the effect of these ‘inquiries’: would they result in the prosecution of the individuals investigated?

The effectiveness of advisory opinions

Even if it could be proven that an individual committed war crimes in the name of a particular nation state, the jurisdiction of the ICJ is consensual (Article 36(2) ICJ Statute). In the words of his Honour Singh, nation-states do not liked to be: ‘… dragged to any forum against their will’.[22] nation-states could simply refuse to appear on the grounds that the acts were those of an individual acting without authority. Even if it is argued that political pressure will force nation-states to consent in order to prove their innocence, this argument is weakened by the fact that nation-states can act in ways in spite of the possible effects they may have to their ‘reputation’. One example of this was the absence of the USA during the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v The United States of America) ICJ Reports 1986 (Merits Phase), p.14.

Also while the requesting bodies may be willing to accept an advisory opinion, there is no guarantee that the relevant nation state would be willing to do so. There are many national delegates within the General Assembly who would oppose any resolution adopting an advisory opinion where it contradicts that national’s foreign or domestic policy,[23] although this should not of itself prevent or bar the ICJ from providing the advisory opinion.[24] The ‘track record’ of compliance by nation-states is not high. In the six opinions of the ICJ, where individual nation-states requested and indeed were expected to follow the decision and take the appropriate action, none, with the exception of those involved in the Reparations case, have done so.[25] Why? Because the opinions are not binding. ‘Enforceability’ in the international legal system is a thorny issue. B. Ojo in his discussion of human rights said:

There is no independent international legal system, capable of enforcing agreements and international law. The system is defective because it depend [sic] so much on the behaviour and attitude of those it is suppose to regulate.[26]

In relation to receiving an advisory opinion, the relevant nation-states could simply refuse to prosecute the individuals involved or surrender them to enable them to be prosecuted by another tribunal.

One final point: in their article, McConvill and Smith state that any panel of the ICJ providing an advisory opinion would be compelled to ensure that it includes a representative of the same nationality as those ‘accused’ or being investigated. Here, the authors are referring to the appointment of ad hoc judges under Article 31(2) ICJ Statute. The authors state that this would be a ‘disadvantage’ and imply that it could jeopardise the outcome of the advice of the Court. Rather than being a disadvantage, this requirement promotes the parties’ confidence that any potential misunderstanding caused by the diversity of national legal systems does not needlessly jeopardise the parties’ claims and therefore encourages nation-states to consent to the matter being heard or complying with an advisory opinion.[27]

Conclusion

As mentioned in the introduction, the authors’ sentiments are noble. However, until the ICJ Statute is amended, the ICJ remains a court for nation-states, a state of affairs that is unlikely to change. The authors’ suggestion that Article 65 creates an exception allowing the ICJ to investigate crimes committed against humanity is incorrect, since the ‘exception’ created by Article 65 is extremely limited. And such a request could not guarantee that the ICJ could comply with its obligations under Article 66 of the Statute and also its commitment to the principle of equality. The ICJ is an important judicial body, a Court of Justice and not a prosecuting body accumulating evidence against one side in an alleged war crime.

It is highly likely given the limited ability to achieve equality between the parties, particularly individuals accused of committing crimes against humanity, that the ICJ would refuse to provide an advisory opinion, or at the very least provide an opinion that does not condemn an individual, which is not what the authors want. The importance of oral proceedings in a criminal investigation reinforces such a conclusion. Put simply, the ICJ as exists at present is not intended to be used and cannot be used in the manner the authors suggest.

It would be more appropriate therefore for a specialist ad hoc tribunal to be created to investigate the events in East Timor and for the existing tribunal investigating the events that occurred in the former Yugoslavia to examine the atrocities alleged to have been committed in Kosovo.

References


[*] Andrew Coleman teaches in Business Law & Taxation at Monash University.© 2001 Andrew Coleman

[1] McConvill, James and Smith, Darryl, (2000) 25(4) Alternative Law Journal 177

[2] See Nagendra Singh, The Role and Record of the International Court of Justice, Kluwers Academic Publishers incorporating Martinus Nijhoff Publishers, Dordrecht, 1989, p.10

[3] Ambassador Shabbai Roseanne in 1965, described Article 34(1) as being ‘commonly regarded as the most out of tune with the requirements of modern law. As cited in Janis, M., ‘Individuals and the International Court’, in A.S. Muller et al (eds), The International Court of Justice Its Future Role after Fifty Years, Kluwer Law International, The Hague, 1997 at p.207. For further discussion see, Janis, M., ‘The International Court’, in M. Janis, (ed.), International Courts for the Twenty-First Century, Kluwer Academic Publishers incorporating Martinus Nijhoff Publishers, The Hague, 1992, p.31

[4] Janis, M., ‘Individuals and the International Court’, in Muller et al, above, pp.206-8

[5] Janis, M., ‘Individuals and the International Court’ in Muller et al, above, p.206

[6] See the series of articles in A.S. Muller et al, above. For example Szasz, ‘Granting International Organisations Ius Standi in the International Court of Justice’, pp.169-88

[7] Janis, Mark, ‘Individuals and the International Court’, in Muller et al (eds), above, at pp.205-16

[8] Singh, above, p.5

[9] McConvill and Smith, above, p.177

[10] Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Rep. 1996, p.66. See the series of articles in Laurence Boisson de Chazournes & Philippe Sands International Law the International Court of Justice and Nuclear Weapons, Cambridge University Press, 1999, for example, Virginia Leary’s article, ‘The WHO Case: Implications for Specialised Agencies’ pp.112–27

[11] International Labour Organization Administrative Tribunal Case (1956) ICJ Rep. 77, p.86

[12] The Council of the League of Nations was the guarantor of the constitution for the Free State of Danzig under Art 103 of the Versailles Treaty, and so was authorised to deal with disputes over the legality of decrees made by the Senate of Danzig

[13] This matter involved whether and on what basis, the UN General Assembly could refuse to give effect to the awards of the UN Administrative Tribunal

[14] Under the instruction of the President of the Permanent Court, Keith, K., The Extent of the Advisory Jurisdiction of the International Court of Justice, AW Sijthoff, Leyden, 1971, p.169

[15] Keith, above, p.169

[16] Keith, above, pp.168-72

[17] ILO case, ref 11, above, p.86, as cited in Keith, above

[18] ILO case p.86

[19] Keith, above, p.180

[20] Keith, above, p.180

[21] Judge Winiarski in his separate opinion made this point very clearly. And further argued that this dependency on its own would breach the principle of equality and therefore the Court should not have complied with the request for the advisory opinion. See (1956) ICJ Rep. 77, at p.107

[22] Singh, above, p.29

[23] The example of the USSR delegate asserting that the advisory opinion in the Expenses Case was beyond the UNC. See Pratap, The Advisory Jurisdiction of the International Court, Oxford University Press, 1972, p.245

[24] See the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania ICJ Rep. (1950) 65, at p.71

[25] Bulgaria, Hungry and Rumania in the Peace Treaties case; South Africa in the series of opinions of the South West Africa cases, refused to accept all three opinions; the former USSR and France in the Expenses case. Also while no nation state argued against the UN’s right to its claim and so accepted the ICJ’s opinion, only Israel has paid any damages. See Pratap, above, pp.246-7

[26] Ojo, B., Human Rights and the New World Order: Universality, Acceptability and Human Diversity, Nova Science Publishers Inc., New York, 1997, p.53

[27] Singh, above, p.195


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