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The ICJ on Trial

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The ICJ on Trial

The International Court of Justice (ICJ) is not a constitutional court. Its seeming inability to practice its powers of judicial review to the fullest extent has rendered Charter provisions meaningless to the extent that the legitimacy of the provisions of the UN Charter flows not from the Charter itself but from the goodwill of the permanent members of the Security Council.

In a landmark decision on the suits brought before it by Lybia against both the United Kingdom and United States, known as the Lockerbie case, the ICJ held, ignoring the Montreal Convention and other relevant provisions of the UN Charter, that Security Council Resolutions were binding upon member states as per Article 25 of the Charter.

Article 24 of the UN Charter charges the Security Council with the primary responsibility for the maintenance of international peace and security. Article 25 further states to the effect that the Council’s decisions were to be binding upon all states. Hence regardless of what provisions exist in the UN Charter to counter or prevent the abuse of power by certain influential members of the UN Security Council, the ICJ has ruled the Security Council to be wholly autonomous from it.

In turning a blind-eye, as it would seem, the ICJ has decided that the rule of law, by way of the observance of customary international law as enshrined in the doctrine of pacta sunt servanda does not apply to certain privileged members of the UN Security Council and that the UN Security Council could set and alter international law at will so long as it falls under the scope of “international peace and security”.

Never mind that the UN is deficient from a democratic standpoint. There is, as it were, an over representation of Europe and an under-representation of the Third World in the Security Council which is made worse by the willingness of Russia and China to bargain away an independent international voice because of their domestic troubles.

Never mind that the possibility of economic arm twisting by the permanent members of other nations nominated to the council remains a dangerous one. Never mind that no matter how justifiable a motion tabled to the council may be, the dictates of national or geopolitical interests of powerful nations would take precedence as resembled by the veto powers held by the five permanent members on the council.

Following Judge El-Kosheri’s dissenting opinion in the Lockerbie case, Resolutions 731 and 748 were not only illegal under customary international law, they were also ultra vires the UN Charter.

Resolution 731 endorsed the demands of the United States and the United Kingdom dated November 27, 1991 that Libya, inter alia, surrender for trial to either the United States or the United Kingdom two of its nationals charged with the bombing of Pan Am Flight 103 on December 21, 1988 over Lockerbie, Scotland; accept responsibility for the actions of those designated as “Libyan officials”; and pay appropriate compensation. And Resolution 748 provided that all states were to adopt, under Article 41, certain coercive measures against Libya if it did not comply with Resolution 731.

Judge El-Khosheri held that such resolutions were contrary to Libya’s sovereign rights as expressed in Articles 1(2) and 55 on “equal rights and self-determination of the people” as well as Article 2(7) on the principle of domestic jurisdiction. Indeed the essence of the intended retribution was aimed primarily at the State of Lybia and not the accused individuals. However Resolution 748 required the forced “extradition” of individuals which is illegal under international law.

Even so, the ICJ held by majority decision that the UN Security Council had full autonomy to do a it pleased. It did not matter that the fear of the so-called “Islamic terrorism” was on the rise culminating in Huntington’s socially deterministic theory of the “Clash of Civilizations” that specifically and unfairly singled out Islam as having “bloody borders.”

It did not seem to matter that the endorsement of Resolution 748 may have been equivalent to the endorsement of a latter-day “witch hunt” for “Islamic terrorists” launched by a Security Council which is known more for its partiality in geopolitics, especially when it came to Israel or Zionism in the Middle East and oil which is the lifeblood of Western industries. Where is, then, the justice in all this?

Justice must always be served even to those who are least deserving of it. That is why the rule of law exists. And with “national” or vested interests of powerful nations weighing heavily in matters that concern “threats to international peace and security”, the procedures set under the terms and agreements of the Montreal Convention could have been one of the few instruments for counterbalancing this. If there were indeed Libyan State involvement, it would have to be proven through the means provided by the Convention which are meant for shielding the fundamental liberties of the individual against the crushing weight of the “national” interests of foreign States.

Recently, though, in another Lockerbie case, the ICJ ruled on Feb 27 that it had jurisdiction to hear Libya’s complaints against Britain and the United States. It held, by way of majority opinion that it has jurisdiction to deal with the merits of the case brought by Libya against the United Kingdom concerning the aerial incident at Lockerbie.

The United Kingdom contended that there was no legal dispute with Libya with regard to the Convention because the question to be resolved had to do with the reaction of the international community to the situation arising from Libya’s supposed failure to respond effectively to the most serious accusations of State involvement in acts of terrorism.

It also contended that, even if the Montreal Convention did confer on Libya the rights it claims, they could not be exercised in this case because they were superseded by Security Council resolutions 748 (1992) and 883 (1993) which, by virtue of Articles 25 and 103 of the United Nations Charter, have priority over all rights and obligations arising out of the Montreal Convention.

Rejecting these contentions, the Court held that the Parties differ on the question whether the destruction of the Pan Am aircraft over Lockerbie was governed by the Montreal Convention specifically concerning the interpretation and application of Article 7 of the Convention (relating to the place of prosecution) and Article 11 (relating to assistance in connection with criminal proceedings).

And Security Council resolutions 748 and 883 were in fact adopted after the filing of the Application on 3 March 1992. In accordance with its established jurisprudence, if the Court had jurisdiction on that date, it continues to do so.

As to the resolution 731 (1992), adopted before the filing of the Application, it could not form a legal impediment to the admissibility of the latter because it was a mere recommendation without binding effect.

Some commentators have remarked that the ICJ decision on the preliminary objections was a blow to London and Washington (see D. Muller, “International Court Rules in Favour of Libya,” in South News, Fe. 28 1998). Perhaps. Perhaps not.

The strongest objection made by the United Kingdom was that “the intervening resolutions of the Security Council have rendered the Libyan claims without object.” Although the Court has rejected this preliminary objection by ten votes to six, there is no indication that the Court will not rule as such when it actually considers the merits of the case.

In fact, the most telling judgment that the Court would not upset the status quo, that Security Council resolutions would remain wholly independent of any judicial review by the ICJ, was the separate opinion of Judge Kooijmans who voted in favour of the operational part of the Judgment.

Although the Court’s finding in the Northern Cameroons case was such that its decisions “must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations” (see I.C.J. Reports 1963, p. 34.), Judge Kooijmans held that resolutions of the Security Council taken under Chapter VII of the Charter may have far-reaching legal effects, but they are not irrevocable or unalterable. In the exercise of its function the Security Council is free to confirm, revoke or amend them and consequently they cannot be called “final” even if during their lifetime they may be dispositive of the rights and obligations of member States, overriding rights and obligations these States may have under other treaties.

This is not the same as saying that the Court will be bringing into question the competence of the Security Council under Chapter VII of the UN Charter to determine or modify international law when applying it to a particular set of facts related to international peace and security.

Ahmad Faiz bin Abdul Rahman

21 March 1998.

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[Currently, he is a Researcher with the Institute of Islamic Understanding, Malaysia (IKIM) and a Pro-temp Committee Member of the International Movement for a Just World (JUST).]

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