WHEN JUSTICE DOESN’T TUNE IN WITH JUSTICE: ICJ’S BIASES AND PREJUDICES

Introduction:

Observing Marshall McLuhan’s views from a legal perspective that “world is a global village”[i] you come to realize that surviving in this world as an isolated nation is almost impossible, because it also denotes the complexities of a village. Just as in village there are peasants as well as landlords bifurcated on the basis of power same is at global level. Countries are bifurcated into first world and third world on the basis of power. If you are from first world you may use power to win, but if you are from third world you may not be able to even earn what is fair. It is because you do not have the prerequisite power to demand it. So, you may need help of a mechanism which may aptly deliver what you deserve no matter if you belong from third world. This mechanism in the present day world is the judicial body we have at international level i.e. International Court of Justice which abides by “Ubi Jus Ibi Remedium” to provide justice to such nations who have a right but cannot on their own win justice for themselves.

The very first expectation from any such judicial institution will be to stand for what is fair and to be able to make others abide by it. However, this compliance is difficult to achieve demanding especially in international domain where the parties are independent sovereign nations. The same has been depicted by the functioning of the ICJ where it could not make countries like USA to obey its orders. This very point that ICJ’s working is somewhat biased is based on two arguments. The first one highlights the bias in the Judgements of ICJ and the second one revolves around the bias in voting patterns by judges of ICJ.


Bias reflected in the Judicial Decisions of ICJ:

In the LaGrande Case, Germany filed a case against United States of America for violation of Vienna Convention on Consular Relations (VCCR), 1969 when two German Nationals were detained in USA and Germany was not informed.[ii]USA had already executed one national and before the execution of the second one, Germany approached ICJ and in pursuance ICJ passed order of 3 March, 1999 and ordered USA to “take all measures at its disposal to ensure that [the German national] [was] not executed pending the final decision in [the] proceedings”.[iii] However, USA executed him and surprisingly ICJ did not take any action for this contempt of court by USA. What makes this case strong as a case of bias towards USA is that it was not the first time any such proceedings had been instituted against it. Back in 1998, Paraguay filed a similar case ( Breard Case) for violation of VCCR, 1969 and ICJ in the very same manner issued a provisional order to USA not to execute Breard, however, USA violated the order and executed him.[iv] What was ideal at this point was that some penalty had been fixed on USA for violation of the order. If it was not feasible because Paraguay took back its case after the execution, the second time similar situation came, the approach of ICJ should have been sterner. More shockingly even when in LaGrande case USA agreed to its mistake and accepted violating VCCR, ICJ let it go with a warning in spite of the fact that USA was not a first time offender. Moreover, ICJ left open the question of what would be the consequences of such offences if committed again. This case hence, highlights certain shortcomings in the approach of ICJ. First, there was no strong action taken against a party for defiance of its provisional order (Article 41 of the ICJ Statute)[v]. Secondly, there seems to be a bias of ICJ towards USA. In the dissenting opinion of the case, they brought forward the point that Germany did not institute its proceedings earlier.[vi]What is peculiar over here is that the bench was quick enough to notice the delay in filing of complaint by Germany, but could not question USA who had twice been held liable for the same offence.


Bias Reflected in the Voting Patterns of ICJ:

Another bias which is clearly visible is in the voting patterns by the judges of the ICJ.A study conducted by the Chicago University revolved around whether the ICJ judges were biased towards the home state which elected them while delivering judgements or not.[vii]The revelations were startling and begin by the very fact that in almost 90% cases, judges have voted for their home states. Another fact that clearly highlights the biases in the decisions of ICJ is that if parties do not involve their home states, judges have preferred parties with status similar to those of their home state in political, economic dimensions.[viii]

Maxim “Nemo in propria causa judex, esse debet” which means no one should be a made a judge in own cause and popularly known as Rule against Bias[ix]seems to be violated by the ICJ at this point of time. The significance of this general principle of Natural Justice which requires that the authority giving the decision must be impartial seems to be forgotten.


So, what can be done:

I strongly agree with the view of Lord Hewart CJ (R v. Sussex) that “justice should not only be done, but also manifestly and undoubtedly seen to be done.”[x] Taking this idea forward, the very step that needs to be taken is to ensure “Judicial Independence” at international level. There should be no fear in the minds of the judges in case they wish to deliver their judgement against a powerful nation. Though not in evident terms, there exists implied influence on the judges of their native lands, of the P5 nations which has to be done away with. Also, when we look at the bigger picture this has stems in the overtly strong veto powers vested with the P5 nations where there have been instances that nations like USA have used it in case where judgement was delivered against it[xi]. Moreover this issue of judicial bias needs to be taken seriously by UN and some more powers should be vested with ICJ where it can take action in case of non-compliance of orders.


Conclusion:

Hence, in the end I would like to conclude that though these biases and shortcomings exist, in the overall sphere ICJ in various instances has proved to be efficacious as well. It has strengthened its hold as the “Maseeha” in international domain by standing for justice. Needless to say, that if it overcomes these shortcomings its purpose of serving justice will be fulfilled more aptly. ICJ, as prime judicial organ of UN, would be able to justify more relevantly why it houses in the Peace Palace in Hague.


ENDNOTES

[i] Violet K. Dixon, Understanding the Implications of a Global Village, Inquiries Journal Vol. 1 No. 11, 2009, https://www.google.co.in/amp/www.inquiriesjournal.com/amp/1681/understanding-the-implications-of-a-global-village.

[ii] LaGrande Case (Germany v. United States of America), 2001 ICJ 466, @https://www.icj-cij.org/en/case/104

[iii] LaGrande Case (Germany v USA) 2001 ICJ 466, Order of 3rd March, 1999,, @https://www.icj-cij.org/files/case-related/104/104-19990303-ORD-01-00-EN.pdf

[iv] Howard S. Schiffman, The LaGrande decision: The evolving Legal landscape of the Vienna Convention on Consular Relations in the U.S. Death Penalty Cases, Santa Clara Law Review, Vol 42, No. 4, Article 4, @https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1293&context=lawreview

[v] Statute of International Court of Justice. Art. 41, @http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf

[vi] LaGrande Case (Germany v. United States of America), 2001 ICJ 466, Dissenting Opinion of Judge Oda, @https://www.icj-cij.org/files/case-related/104/104-20010627-JUD-01-03-EN.pdf

[vii] Eric A. Posner & Miguel F.P. Figueiredo, Is the International Court of Justice Biased?, University of Chicago, 2004, @https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1289&context=law_and_economics

[viii] Ibid

[ix] Nemo in Propia Causa Judex/ Rule against Bias, Legal Service India, @http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-esse-debet-THE-RULE-AGAINST-BIAS.html

[x] Ibid.

[xi] Supra Note 4


Thoughts of

Seerat Gill,

2nd year, B.A.LL.B. (Hons.)

Rajiv Gandhi National University of Law, Punjab.


(Image used for representative purpose only. Image Courtesy: https://www.incontextinternational.org/2018/06/01/week-1-everyone-deserves-justice/)

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