International Court of Justice - Assignment Example

Issue Regarding legality of intervention, Abrocanto wants to demonstrate that the International Court of Justice has a right of review. The UN Charter, Article 27 specifies that a draft resolution on matters that are non-procedural be only adopted when at least nine out of the fifteen council members reach a resolution by voting for it. The voting should not be voted by any of the five permanent members (Schweigman, 42). The ICJ has been endorsed with the same jurisdictions enjoyed by national constitutional courts. However, hardly any express authorizations are stipulated within the UN Charter to give the ICJ the authority of examining the legality of the decisions passed by the Security Council. The Security Council can only seek the ICJ’s opinion regarding a certain case or decision (Angehr, 1017). This means that Abrocanto’s idea of demonstrating that the ICJ has a right of review is nullified. Ralivia is right since the Security Council has already passed the required resolutions on the matter. ICJ has the same rights as the Security Council and can only provide possible opinions, but only if the opinion is requested by the Security Council (Schweigman). Concerning the review over the Security Council’s actions in general, the role of ICJ in exercising review over the actions of the Security Council has remained unclear for many years. The has been initiated by the need of ICJ to rule according to international law on those disputes treated in the political process of the General Assembly and Security Council (Matheson). Essentially, the ICJ should hardly the roles of the other UN political organs in the course of maintaining international security. Being the principle organ of the UN according to article 92 does not make it to have absolute right over the other organs. The actions of the Security Council are thus independent of the ICJ (Schweigman, 31). Regarding matters of international peace and security in particular, the ICJ has the right to review the actions of the Security Council. The question of ICJ review of the Security Council regarding international matters can be established through the Lockerbie case 1, which was before the International Court of Justice for more than a decade (Angehr, 1007). The case dismissal in 2003 without any decision raised questions about judicial review regarding the UN major political organs and the decisions made. The review of the Security Council by the ICJ was the main agenda. The Security Council had sought a resolution urging Libya to turn over the required suspects. Libya alleged that the UK and the US had denied the African country the right to investigate and prosecute the suspects itself. Libya’s allegations were based on the Convention providing that a State in which committers of aircraft sabotage crime are found have the obligation to prosecute the suspects. Typically, the ICJ pronounces on all legal questions submitted by the Security Council through the advisory jurisdiction, but the UN Charter requires that the ICJ should not cede control over the judicial determinations to the other political organs that are guided by the member states’ national interests (Angehr, 1008). The ICJ thus has the right to reclaim its judicial independence through the rehabilitation of its fact-finding capabilities as well as scrutinizing all legal determinations of the Security Council and the other political organs. Issue 2: Sometimes other nations need to intervene in the internal security matters of other countries if they are not able to find a meaningful resolution. Nevertheless, the decision to intervene need not be forceful, but rather, the interventions should be covered by the international law. In a foreseen crisis like the case of Abrocanto, Ralivia’s OPC intervention may not readily be seen as a violation of international law. The horrifying events of 9/11/2001 change the way the international community responds to terrorism and other crises that threaten the lives of people of a particular country. Nevertheless, there exist issues regarding the right of intervention of a country by another country. When nations send military forces, the main objective of such nations is not in line with humanitarian purposes. Most developed nations initiate intervention measures within their former colonies to gain geo-strategic advantage and probably take control over the natural resources. This case can be assumed for the case of Ralivia and Abrocanto. Since the government of Abrocanto is not for the idea of receiving security aid from Ralivia, the intervention is a violation of international law. The UN Charter asserts that nothing within the present Charter shall provided authority to the United Nations to intervene in the matters that are within the domestic jurisdiction of member states. However, when it comes to a threat to peace or act of aggression, the international community may intervene. Regarding the use of force, the principle has no ruling against the application of enforcement actions when there is a breach of peace. Ralivia’s forceful intervention was thus against of international law because the international community is only allowed to act through the UN. Essentially, there is a right to humanitarian intervention/ responsibility to protect. State sovereignty means responsibility(Bodansky and Crook, 81). The primary responsibility of protecting the citizens of a particular state is based on the state itself. Whenever the citizens are suffering a serious harm due to internal wars or clashes, and the state is not willing or is unable to contain the problem, international responsibility is given the power to take over by assuming the protecting responsibility (Crawford, 23). The foundation of such responsibility lies in the responsibility of the Security Council. The Security Council is granted this opportunity under Article 24 of the United Nations Charter. It is required to maintain international peace and security. According to the World Summit Outcome, every state has the responsibility of protecting its citizens from genocide, crime, war, ethnic clashes, as well as crime against humanity (The General Assembly). The international community is given the right to assist in this responsibility. The GS’s report and the SC Resolutions 1674, 1706, 1973 also supports the idea of shared responsibility among members of the international community (International Coalition for the Responsibility to Protect). The right of humanitarian intervention exists. It can however not be exercised by individual states like the case of Ralivia. Instead, Ralivia should have acted through the UN rather than as individual states. There are however some limits to the rights of humanitarian intervention. The main restrictions exist when the state affected is able to contain the problem and when the problem is not intensified enough to require external help. Issue 3: Essentially, companies and other countries gain the right to air news through radio waves if only there is a successful negotiation between the two parties. For the radio broadcasts during UNMOR, it was against international law especially assuming that no specific status of forces agreement was concluded between Abrocanto and the Secretary-General within 30 days (Rosenfeld, 287). Ralivia should have waited for the Secretary-General’s resolution before the radio broadcasts. The terms of SOFA, operation requires that it clarify the terms of the foreign military activities (Hardwick, 31). Location of bases as well as facilities access is covered separately. In most of the contemporary zones faced by conflict like Abrocanto, international peacekeepers are known to distribute much aid along their peacekeeping efforts. Despite their important in peacekeeping, soldiers are often accused of rape acts and other forms of sexual violence. The most affected individuals are women and children (Save the Children). Under such circumstances, the governments sending these peacekeepers are held responsible for their actions (Shotton, 103). Ralivia in this case is thus held responsible for the conduct of its troops during UNMOR. It is often required that when found guilty, the offenders of the rate crime should face disciplinary actions based on the offenders employee statute (Pike). Since they are military personnel, the offenders are subject to jurisdictions of their sending government, which in this case is Ralivia. Typically, offending soldiers are repatriated and prosecuted within their home countries. Possible punishment measures are taken by the government. These include demotion or even dishonorable dismissal (Save the Children). Article 6 of the ILCs Draft Rules on Responsibility of International Organizations holds that a state is accountable for the breach of national responsibility by its subjects. The rules governing state responsibilities determine when the breach of obligation has occurred as well as the legal consequences of the respective violations. This further supports the idea that Ralivia is responsible for the rape acts committed by its soldiers during the peacekeeping process (Csáky, 37). The act of sexual exploitation is not only a violation of the international law but also to almost any other national law in the world. Sexual exploitation implies to any actual or even attempted abuse of an individual for sexual purpose. The abuse is associated with various unethical courses such as profiting monetarily, politically, or socially from the sexual abuse of another person. Sexual exploitation could be accompanied by sexual abuse that could involve physical intrusion sexually. This could be by force or under unequal circumstances. The action is typically unethical and is a violation local and international laws. Sexual exploitation is mainly covered by international laws against gender-based violence. The acts of sexual exploitation by Ralivian troops therefore violated international law. Ralivian troops were sent to Abrocanto by the state government. The international statute requiring every state to take responsibility over a breach of responsibility by its subject clarify that Ralivia has an international law obligation to prevent and prosecute its troops’ misconduct (Crawford, 39). The major problem is that the affected individuals hardly report crime and thus it becomes difficult for the country to be liable. This is because there is no evidence to prosecute the offenders. Issue 4: The case against Donato should be prosecuted in either an international court or the Abrocantan court of law. The suspect is a citizen of Abrocanto. This means that Ralivia has no authority over his prosecution. Besides, the decision to take Donato to Ralivia was not legally binding. Abrocantan police had to spend many resources looking for the criminal. After great effort aimed at finding Donato by the local police, the chief of police reported that, the police could not find the accused. Under the new provisions of the Abrocantan law, the prosecution had to begin in absentia. Donato was supposed to be represented by the local public defender. Donato’s case was actually true as witnessed by three people who were ready to testify against him. He had been heard plotting to demonstrate the Dalu solidarity. It was hardly clear about where Donato had disappeared. Conducting the trial in the absence of Donato was not a good decision, but it was confirmed that the trial went on well and in accordance to human rights procedural requirements (University of Minnesota: Human Rights Library). The trial governed international norms and besides, a defender was present to represent the accused. Given that the accused was not present to defend himself or to hear out the sentence passed on his crimes, the court should have ordered Ralivia to hand over Donato to Abrocanto. Abrocanto however did not violate the international law by trial Donato in his absence. The fact in this case holds especially given that a highly experienced and qualified defender was used to present Donato. Again, international norms were keenly observed throughout the trial. The court could have as well asked Ralivia to hand over the accused to them. The major violation was in the case where the penalty applied to Donato was hasher than the maximum allowable at the time when the crime was committed. Furthermore, capital punishment is against international law. According to the Universal Declaration of Human Rights, every person has the right to life (University of Minnesota: Human Rights Library). The Declaration requires no person should be subjected to cruelty, torture, or inhuman treatment. According to the international law, the death penalty violates such human rights (Amnesty International). Still on the Declaration of Human rights, Ralivia should provide Donato with protection from the harsh laws and prosecution process in Abrocanto. The international law requires that no one should be tortured or mistreated, and more seriously, the death penalty should not be applied to Donato. The international law provides the right of foreign countries or other institutions to rescue people from cruel practices of the local laws (Chetail, 117). The legality of Donato’s presence in Abrocanto affects this determination. Even with such effects, Ralivia has an obligation under the human rights law to protect Donato. Ralivia however has an obligation not to extradite an individual from his control even when there is a risk of violations to the person’s human right. The contractual dimension is that any state being obligated to all other State Parties has to comply with its undertaking under the treaty. Works Cited Amnesty International. Death penalty in international law. 2014 . Web . 24 Apr 2014. Angehr, Mark. "THE INTERNATIONAL COURT OF JUSTICE’S ADVISORY JURISDICTION AND THE REVIEW OF SECURITY COUNCIL AND GENERAL ASSEMBLY RESOLUTIONS." The International Court of Justice’s Advisory Jurisdiction, Vol. 103, No. 2 (2009): 1007-1035. Print. Bodansky, Daniel and John R. Crook. "Symposium: The ILCs State Responsibility Articles." 96 American Journal of International Law 773 (2002). Print. Chetail, Vincent. "Helène Lambert, Francesco Messineo, and Paul Tiedemann, COMPARATIVE PERSPECTIVES OF CONSTITUTIONAL ASYLUM IN FRANCE, ITALY, AND GERMANY: REQUIESCAT IN PACE?" Refugee Survey Quarterly, Vol. 27, No. 3 (2008). Print. Crawford, James. The International Law Commissions Articles on State Responsibility. Introduction, Text and Commentaries. 2002. Print. Csáky, Corinna. No One to Turn To: The under-reporting of child sexual. London: Save the Children, 2008. Print. Hardwick, Nicola-Ann. Can the Doctrine of the R2P Make the World More Secure? 15 Aug 2012. Web . 24 Apr 2014. International Coalition for the Responsibility to Protect. Paragraphs 138-139 of the World Summit Outcome Document. 2014. Web . 24 Apr 2014. Library, University of Minnesota: Human Rights. Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 . 2004. Web . 24 Apr 2014. Matheson, Michael J. "Icj Review of Security Council Decisions." The George Washington International Law Review , Vol. 36, No. 3 (1997). Print. Pike, John. Status of Forces Agreement. 2005. Web . 24 Apr 2014. Rosenfeld, Erik. "APPLICATION OF U.S. STATUS OF FORCES AGREEMENTS TO ARTICLE 98 OF THE ROME STATUTE." WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW, VOL. 2 (2003): 273-293. Print. Save the Children. Sexual Exploitation and Abuse. 2008. Web . 24 Apr 2014. Schweigman, David. The authority of the Security Council under Chapter VII of the UN Charter. The Hague: Martinus Nijhoff Publishers, 2001. Print. Shotton, Anna. "Strategy to Address Sexual Exploitation by U.N. Peacekeeping Personnel, 39 CORNELL L." REV.Vol. 97 (2006): 103. Print. The General Assembly. "60/1. 2005 World Summit Outcome: Resolution adopted by the General Assembly." A/RES/60/1 Sixtieth session (2005): 1-38. Print. Read More