International courts

Question 1

What is a “internationally wrongful act”?

Answer 1

Two conditions: the act/omission must constitute a breach of an international obligation, and the act/omission must be attributable to the State
Attributable to the State if: done by State organs, individuals acting on the instructions of the State, individuals performing necessary government functions, or if State failed to prevent wrongful acts of individuals (if it was an int’l obligation)
Have to stop and make reparations

Question 2

What is the legal basis for the peaceful resolution of disputes?

Answer 2

Chapter 1 (article 2) of UN Charter, “All Members shall settle their international disputes by peaceful means”
Jus cogens
Chapter 6 of UN Charter: UN Security Council can investigate a dispute and make recommendations

Question 3

What is the ICJ, and what are its major roles?

Answer 3

International Court of Justice is an institution based in the Netherlands, composed of 15 judges elected for 9 years by UNGA and UNSC (they do not represent their countries)
Two majors roles: Settle legal disputes between States (only States!) on the basis of international law, and give advisory opinions if requested

Question 4

What are the conditions to request an Advisory Opinion from the ICJ?

Answer 4

3 conditions:

• Organization authorized to request an advisory opinion (UNGA, UNSC)
• Opinion requested on a legal question
• Question on a subject arising within the scope of activities of the requesting agency

Question 5

Who is under the ICJ’s jurisdiction?

Answer 5

States must accept the jurisdiction of the Court to be a party to a case
3 ways:
- entering into a special agreement to submit a specific dispute to the Court
- by virtue of a jurisdictional clause (treaty provision that dispute will be referred to ICJ)
- by means of a general declaration by the State under the Stature of the ICJ

Decisions of the ICJ are binding, if a party doesn’t comply it can brought in front of the UNSC, which is competent to recommend or decide measures

Question 6

Does the ICJ have a role to play in the protection of health?

Answer 6

• It defends the respect of the Rule of Law, and the SDG’s goal of peace and security (16)
• Court has opportunities to contribute to the international law of human rights
• Court has also had cases with an impact on the protection of the environment

Question 7

What powers does the UNSC have under Chapter 7 of the UN Charter?

Answer 7

the UNSC can determine the existence of a threat or breach of the peace
In this case, it can adopt binding resolutions
under Article 41: measures without armed forces, including the creation of ad hoc criminal courts (to try individuals
under Article 42: measures using military forces

Question 8

When can individuals be accused of international crimes?

Answer 8

When they commit the gravest crimes:

• War crimes (acts that violate Geneva convention)
• Crimes against humanity (widespread or systematic attack directed against a civilian population)
• Aggression (use of force against a State’s territorial integrity)
• Genocide (acts committed with the intent to destroy a national, ethnical racial or religious group)

Question 9

What is the International Criminal Court (ICC)?

Answer 9

Created through a treaty, the 1998 Rome Statute
18 Judges elected for 9 years by the Assembly of State Parties to the Rome Statute
Its mandate is to investigate and try individuals (only individuals!) charged of the gravest crimes

Question 10

What are the preconditions to the exercise of the ICC’s jurisdiction? When can prosecution be initiated?

Answer 10

Acceptance of the jurisdiction through:

• ratification of the Rome Statute
• on an ad hoc basis
• referral by the UNSC (rare and controversial)

Prosecution can be initiated if:

• the crime was committed on the territory of a State party
• the person accused of the crime is a national from a State party

Question 11

Who can initiate an ICC prosecution?

Answer 11

• Any State party of the Rome Statute may request the Prosecutor to carry out an investigation
• UNSC can also refer a situation to the Prosecutor, UNSC referrals can give the Court jurisdiction over States not party to the Rome Statute (Darfur 2005, Lybia 2011)
• On the initiative of the Prosecutor
• States can accept jurisdiction on an ad hoc basis