TAG: GS 2: INTERNATIONAL RELATIONS

THE CONTEXT: India recently voted in favour of a United Nations General Assembly (UNGA) resolution that called on Israel for an immediate ceasefire and the protection of civilians in accordance with international law and the release of all hostages.

EXPLANATION:

• The United Nations General Assembly voted overwhelmingly for ceasefire and for the release of hostages and for the observance of international law.
• India was among 153 countries that made up a massive 4/5th majority in the Assembly who voted in favour of the resolution. Only 10 countries, including the U.S. and Israel, voted against the resolution, and 23 countries, mainly from Europe abstained.

ISRAEL AND PALESTINE REMARKS:

• Despite being “unsatisfied” with the UNGA resolution, Israel said it appreciated India’s support and votes in favour of two proposed amendments of both U.S. and Austria that were not adopted by the UNGA.
• The Palestinian Ambassador thanked India for support and said that all countries must say “enough is enough”.

INDIA’S STAND:

• Earlier India has not supported the resolution as the resolution did not include any specific reference to the October 7 terror attacks in Israel by
• In the explanation of vote (EoV), India did not clarify the reason for India’s shift but said that India “welcomes” the fact that the international community had been able to find a “common ground” to address the situation in West Asia.
• ‘Two-state solution’: India mentioned the October 7 “terrorist attack” without naming Hamas, the “humanitarian crisis and large-scale loss of civilian lives”. There is a need to observe the international humanitarian law “in all circumstances”, and the effort to find a lasting “two-state solution” to the question of Palestine.

THE UNGA RESOLUTION

• The UNGA resolution “Protection of civilians and upholding legal and humanitarian obligations”, was introduced by Egypt and co-sponsored by 21 countries.
• It was followed by the U.S.’s decision to veto a similar resolution calling for an immediate ceasefire in the N. Security Council.
• The U.S. decision was unusual as it came despite an explicit invocation of “Article 99” by U.N. Secretary General that the situation in Gaza “threatens the maintenance of international peace and security,”. Article 99 has not been invoked by UNSG since 1989 and the war in Lebanon.
• “The gravity and complexity of what the international community faces is underlined by the Secretary General invoking Article 99 of the Charter of the United Nations.

IMPLICATION OF THE RESOLUTION:

• While the UNGA does not have the power to enforce its resolutions as the UNSC does, it carries the sentiment of the global community against the Israeli bombardment of Gaza that has rendered more than a million people homeless.

RESOLUTION BY USA AND AUSTRIA:

• At the UNGA the U.S. also proposed an amendment that would insert a specific mention of “heinous terrorist attacks by Hamas that took place in Israel starting 7 October 2023 and the taking of hostages”.
• Austria proposed an amendment to name Hamas and other groups that are holding Israeli hostages.
• India voted in favour of them, but both amendments were dropped as they did not receive the votes required.

CONCLUSION:

Both Palestinian and Israeli civilian populations must be protected in accordance with international humanitarian law. The challenge in this extraordinarily difficult time is to strike the right balance.

SOURCE: https://www.thehindu.com/news/international/india-and-152-other-members-vote-overwhelmingly-at-un-general-assembly-to-demand-a-humanitarian-ceasefire-in-gaza/article67632382.ece

THE CONTEXT: Two months after Israel’s bombardment of Gaza residents in retaliation for the terror attacks by Hamas, India joined the global call to stop the bombing. It voted in favour of a resolution at the UN General Assembly (UNGA) along with 152 other nations.

BACKGROUND:

• The United Nations Secretary-General invoked Article 99 of the UN Charter, urging the UN Security Council to act on the war in Gaza.
• Article 99 allows the secretary-general to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”.

UN RESOLUTION:

• The 193-member UN General Assembly overwhelmingly adopted the draft resolution ‘Protection of civilians and upholding legal and humanitarian obligations’.
• It was initiated by Egypt, at an Emergency Special Session of UNGA with 153 nations voting in favour, 10 against and 23 abstentions. .
• Those voting against included Austria, Israel and the US while Germany, Hungary, Italy, Ukraine and the UK were among those who abstained.
• The resolution demanded

1. An immediate humanitarian ceasefire in Gaza
2. An observance of international humanitarian law
3. The unconditional release of all hostages by ensuring humanitarian access

• The 193-member United Nations General Assembly (UNGA) expressed grave concern over the catastrophic humanitarian situation in the Gaza Strip and the suffering of the Palestinian civilian population.
• While the UNGA does not have the power to enforce its resolutions as the UNSC does, it carries the sentiment of the global community against the Israeli bombardment of Gaza that has rendered more than a million people homeless.

INDIA’S STAND:

• India’s vote was a shift from its previous vote at the UNGA resolution on October 27, when India had decided to abstain from voting for a resolution that called for a ceasefire.
• The government explained this to be a matter of principle, as part of India’s “zero-tolerance” approach towards terrorism, as the earlier resolution did not contain an “explicit condemnation” of the October 7 attacks.
• However, while the UNGA resolution passed recently bears no direct mention of the terror attacks, India has voted in favour.
• Although the government has yet to detail the rationale, there could be several reasons:

1. High casualty: There is high casualty with 18,000 dead and the highest such toll of nearly 90 journalists.
2. Hostages: More than 80% of the entire population is homeless. More than 100 Israeli hostages remain in Hamas custody.
3. Indiscriminate use of missiles: Israeli defence forces have gone far beyond their original mandate of eliminating Hamas capacity and freeing the hostages and led to forced occupation of more territory. Even the U.S., Israel’s biggest ally, estimates that nearly half of the 29,000 air-to-ground munitions deployed by Israel thus far are “unguided” or indiscriminate missiles.
4. Global opinion: Global opinion, including Indian public opinion, has moved from sympathy with Israel, to horror at the unfolding aftermath. India could not have been immune to entreaties by Palestine and the Gulf States to take a relook at its vote.

IMPLICATIONS:

• It may be too early to see India’s UNGA vote as a reversal of its earlier position and a reversion to its original position in the conflict, where it has traditionally called for peace.
• Much will depend on the role India chooses for itself in ensuring the ceasefire is effected and holds, given that Israel has already rejected the UNGA

WAY FORWARD:

• India’s Principled Stand: India should reiterate its support for a negotiated two-state solution to the Israel-Palestine issue and call for diplomacy and dialogue to resolve the conflict.
• Balanced Approach: India has always shown a balanced approach and it should continue doing this. For example, even with closer ties to Israel, India continued supporting Palestine. India’s External Affairs Ministry voiced support for direct negotiations towards a sovereign Palestinian state, showing a balance in its stance.
• More vocal position: India must take a more vocal position on Gaza with Israel. India will need to mobilise its diplomatic skills and goodwill with the main actors to negotiate in the coming times.
• India role for peace in west Asia: India’s role in multilateral organizations requires constant efforts in cooperation with all related parties to achieve security and stability in the Middle East and West Asia”.

THE CONCLUSION:

India’s recent vote in UN General Assembly reflects its balanced approach to international conflicts.  It underscores India’s commitment to principles of diplomacy and its focus on a negotiated resolution to complex global issues.

PREVIOUS YEAR QUESTIONS

Q.1 “India’s relations with Israel have, of late, acquired a depth and diversity, which cannot be rolled back.” Discuss. (2018)

Q.2 ‘Too little cash, too much politics, leave UNESCO fighting for life.’ Discuss the statement in the light of the US’ withdrawal and its accusation of the cultural body as being ‘anti-Israel bias’.(2019)

MAINS PRACTICE QUESTION

Q.1 India is currently facing dilemma with respect to ongoing Israel Palestine conflict. Suggest the diplomatic and political efforts that can help India protect its geopolitical interests.

SOURCE: https://www.thehindu.com/opinion/editorial/principled-shift-the-hindu-editorial-on-indias-stand-on-gaza/article67638569.ece

THE CONTEXT:  India has explained its decision to abstain at last week’s vote at the UN General Assembly (UNGA) for a ceasefire in the Israel-Palestine conflict as its way of protesting the omission of any “explicit condemnation” of the heinous October 7 terror attack by Hamas militants on Israel.

MORE ON THE NEWS:

• India abstained on a resolution adopted by the UN General Assembly calling for a humanitarian truce, choosing not to back the international community’s demand that there be an immediate halt to the violence.
• Israel has launched a massive counter-offensive against Hamas after unprecedented attacks by the militant group on October 7 killed more than 1,400 people.
• 193 members of the UN General Assembly (UNGA), which met in a resumed 10th Emergency Special Session, voted on the draft resolution submitted by Jordan and co-sponsored by more than 40 nations including Bangladesh, Maldives, Pakistan, Russia and South Africa.
• The resolution garnered 120 affirmative votes, while only 14 countries, including Israel, the United States, Hungary and five Pacific island states, voted against. India was among the 45 countries that chose to abstain in the vote at an emergency session of the UNGA in New York.

ABOUT UNGA:

It was established in 1945 under the Charter of the United Nations. It Comprised of all 193 Members of the United Nations. The United Nations General Assembly (UNGA)  is the main deliberative, policymaking and representative organ of the UN.

The functions and powers of the UNGA:

• Elect the non-permanent members of the Security Council and the members of other United Nations councils and organs and, on the recommendation of the Security Council, appoint the Secretary-General.
• Consider and make recommendations on the general principles of cooperation for maintaining international peace and security, including disarmament.
• Discuss any question relating to international peace and security and, except where a dispute or situation is currently being discussed by the Security Council, make recommendations on it.
• Initiate studies and make recommendations to promote international political cooperation, codification of international law, the realization of human rights and fundamental freedoms, etc.
• Make recommendations for the peaceful settlement of any situation that might impair friendly relations among countries.
• Consider reports from the Security Council and other United Nations organs.

INDIA’S STAND:

• India said that the resolution did not mention Hamas and that the UN needs to send a clear message against terror.
• India is concerned about the security situation and  called for all parties to exercise
• India referred to the need for an “early solution” to the humanitarian and security situation.
• India has always supported a negotiated Two-State solution to the Israel-Palestine issue leading to the establishment of a sovereign, independent and viable State of Palestine living within secure and recognized borders, side-by-side in peace with Israel.

HISTORY:

• Emergence of Hamas (1987): In 1987, amidst the First Intifada (Palestinian uprising). Hamas was founded by Sheikh Ahmed Yassin. This political and military organisation emerged as a counterforce to the secular Palestine Liberation Organisation (PLO), seeking to establish as Islamic state.
• Impact of Intifadas and peace Efforts: The two Palestinian uprisings, known as’ intifadas (1987-1993 and 2000-2005), profoundly influenced Israeli-Palestinian relations. The second intifada effectively ended the peace process initiated in the 1990, leading to the renewed era of conflict.

THE MAJOR POINTS OF CONFLICT:

• Two-state solution: An agreement that would create a state for the Palestinians in the West Bank and Gaza Strip alongside Israel. Israel has said that a Palestinian state must be demilitarized so as not to threaten its security.
• Settlements:Most countries deem Jewish settlements built on land Israel occupied in 1967 as illegal. Continued settlement expansion is among the most contentious issues between Israel, the Palestinians and international community.
• Jerusalem: Palestinians want East Jerusalem, which includes the walled Old City’s sites sacred to Muslims, Jews and Christians alike, to be the capital of their state. Israel says Jerusalem should remain its “indivisible and eternal” capital.
• Refugees: Today about 5.6 million Palestinian refugees – mainly descendants of those who fled in 1948 – live in Jordan, Lebanon, Syria, the Israeli-occupied West Bank and Gaza. About half of registered refugees remain stateless.

THE WAY FORWARD:

• The two-state solution calls for establishing an independent state for Palestinians alongside. that of Israel.

• The issue of equal rights for both Palestinians and Israelis can no longer be ignored. We need a new paradigm that emphasizes a rights-based approach, regardless of solution.

• India could have explored other options to register reservations regarding the UNGA resolution than abstention like France which used the “Explanation of Vote (EoV)” method.

THE CONCLUSION:

India’s abstention in the recent UN General Assembly vote reflects its balanced and nuanced approach to international conflicts. While it has drawn criticism from some quarters, it underscores India’s commitment to principles of diplomacy and its focus on a negotiated resolution to complex global issues.

PREVIOUS YEAR QUESTION:

Q) “India’s relations with Israel have, of late, acquired a depth and diversity, which cannot be rolled ” Discuss. (2018)

MAINS PRACTICE QUESTION:

Q) “The government lost an opportunity to make India’s voice heard in the growing geopolitical conflict”. Discuss in the context of India’s abstention from the recent UNGA resolution related to Israel -Palestine conflict.

SOURCE: https://www.thehindu.com/opinion/editorial/lost-voice-on-indias-abstention-on-the-gaza-vote-at-the-un/article67477119.ece

THE CONTEXT: United Nations General Assembly (UNGA) on 07 April 2022 suspended Russia from the UN Human Rights Council over reports of gross and systematic violations and abuses of human rights by invading Russian troops in Ukraine. This article analyses the issue in detail.

AN ANALYSIS OF THE DEVELOPMENT

REASONS BEHIND THE SUSPENSION:

• Russia was suspended from the UN Human Rights Council after the 193-member General Assembly voted to adopt a resolution moved by the United States over allegations that Russian troops killed civilians while pulling back from towns around the Ukrainian capital of Kyiv.
• In the 193-member UNGA, 93 nations voted in favour of the resolution, while 24 were against it. Fifty-eight countries, including India, abstained from the process.
• This met the two-thirds majority benchmark in which only the voting members, not abstentions, are counted from the 193-member General Assembly.

THE PROCEDURE AND HISTORY:

• As per the rules, the United Nations General Assembly (UNGA) can suspend the rights and privileges of any Council member that it decides has persistently committed gross and systematic violations of human rights during its term of membership.
• To suspend a member, one needs a two-thirds majority vote by the General Assembly.
• This is only the second time the UNGA has suspended a country from the 47-member UN Human Rights Council after its formation in 2006. In 2011, Libya was thrown out through a resolution adopted by UNGA through consensus.
• But for the first time, one of the permanent members has lost its membership rights in a UN body.

INDIA’S STAND:

• India chose to abstain from the vote, saying that any such decision must follow the “due process” of investigation first. However, India also sharpened its criticism of Russia by reiterating the need to respect the three red lines in international relations:
• “Respect for the sovereignty and territorial integrity of states”,
• “UN Charter” and
• “International law”

AN ANALYSIS OF THE VOTE:

• Less than half the members of the UNGA voted in favour of the resolution, but it was enough to pass the resolution. The Russian permanent mission to the UN voiced its opinion on the social media platform that the adoption of the resolution was an “illegal and politically motivated step” to punish a country that pursues an independent foreign policy and also announced that Russia was voluntarily “terminating” its membership in UNHRC with immediate effect.
• Some countries even voted against the resolution for the reasons being:
• Heavier pressure from Russia for outright opposition to the resolution, rather than abstentions especially the countries having close ties with Moscow.
• The precedent of removing a country from the UNHRC because of human rights violations – while it may seem like an obvious step – would be controversial for a number of countries such as Kazakhstan and Uzbekistan both have faced criticisms for violations of human rights at home (both are members of UNHRC currently).
• Though Russia was in its second year of a three-year term on the Geneva-based council, which cannot make legally binding decisions. However, the council’s decisions send important political messages and can authorise investigations.
• Furthermore, India abstained from the resolution albeit reiterating the condemnation of the civilian killings in Bucha and supported the call for an independent investigation.

THE UNITED NATIONS HUMAN RIGHTS COUNCIL

ABOUT: The Human Rights Council is an inter-governmental body within the United Nations system responsible for strengthening the promotion and protection of human rights around the world.

FORMATION:

• The Council was created by the United Nations General Assembly in 2006. It replaced the former United Nations Commission on Human Rights.
• The Office of the High Commissioner for Human Rights (OHCHR) serves as the Secretariat of the Human Rights Council.
• Headquartered in Geneva, Switzerland.
  

MEMBERS:

• It is made up of 47 United Nations Member States which are elected by the UN General Assembly (UNGA).
• The Council’s Membership is based on equitable geographical distribution. Seats are distributed as follows:
• African States: 13 seats
• Asia-Pacific States: 13 seats
• Latin American and the Caribbean States: 8 seats
• Western European and other States: 7 seats
• Eastern European States: 6 seats
• The UNGA takes into account the candidate States’ contribution to the promotion and protection of human rights, as well as their voluntary pledges and commitments in this regard.

MECHANISMS:

• Universal Periodic Review: UPR serves to assess the human rights situations in all United Nations Member States. Currently, no other universal mechanism of this kind exists.
• Advisory Committee: It serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues.
• Complaint Procedure: The complaint procedure addresses communications submitted by individuals, groups, or non-governmental organizations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations.
• The Council also established various subsidiary expert mechanisms to provide the Council with thematic expertise and forums providing a platform for dialogue and cooperation. These bodies focus mainly on studies, research-based advice, or best practices.

THE SIGNIFICANCE OF THE UNHRC

UNHRC has played the role of a political platform that aims to ensure that human rights remain a top priority within the UN.

GLOBAL REACH: UNHRC has a wide mandate which facilitates it to respond to human rights cases across the globe. In doing so, it also brings the members of civil society together for voicing concerns related to human rights in their respective local regions.

SPECIAL PROCEDURES:

• The Human Rights Council’s Special Procedures mandate-holders are made up of special rapporteurs, independent experts, or working groups composed of five members who are appointed by the Council and who serve in their personal capacity. Special procedures undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States and other actors bringing alleged violations or abuses to their attention
• These independent experts report at least once a year to the Council on their findings and recommendations, as well as to the UN General Assembly. At times they are the only mechanism alerting the international community to certain human rights issues.
• There are two types of Special Procedures mandates: the thematic mandates, such as water and sanitation, arbitrary detention, the rights of migrants, violence against women, torture, and human trafficking, and the country-specific mandates.

UNIVERSAL PERIODIC REVIEW:

• The Universal Periodic Review motivates nation-level dialogues on human rights and also mandates that every UN member state examines human rights on a regular basis. It ensures transparency and accountability in the functioning of UNHCR.
• i.e. the Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all UN Member States. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations.

CONDEMNING THE VIOLATIONS: In the recent past, the resolutions adopted by the UNHRC have highlighted and condemned distinctive violations despite the efforts to the contrary by some members of the HRC. For example, in the midst of the Arab Spring, the Human Rights Council voted unanimously to suspend Libya’s membership. More recently, the Council did not permit Syria to bid for a seat on grounds of human rights violations and appointed an investigation there.

ISSUE-BASED COALITIONS: There are an increasing number of countries from all parts of the world which have started working together to further human rights, irrespective of their shared history and regional politics. The regional bloc voting practices have become a matter of the past and considered discussion along with collective action is becoming possible.

DEBATE ON CONTROVERSIAL SUBJECT AREAS: Controversial subject areas have also been addressed at the HRC, including LGBTIQ rights and religious discrimination. South Africa’s efforts to acknowledge the rights of LGBTIQ faced strong opposition from neighbouring countries but it was supported by far-away countries like Brazil, Colombia, the United States, and many others.

THE CRITICISM OF THE UNHRC

BIASED FOCUS ON THE ISRAEL-PALESTINE CONFLICT CESSPOOL OF POLITICAL BIAS: The UNHRC is accused of an anti-Israel bias as it passes resolutions that focus on alleged Israeli human rights violations while ignoring similar allegations against the Palestinian side. Most recently the 49^th session of UNHRC that ended on 01 April 2022 passed a total of 35 resolutions and 3 of them were concerned with the Israel-Palestine issue (All 3 of them were in favour of Palestine).

MEMBERS WITH QUESTIONABLE HUMAN RIGHTS RECORDS: Just like the UN Commission on Humans Rights, the UN Human Rights Council also elects members like China, Pakistan, and Russia who have poor or questionable track records on Human rights. It raises questions on how effective or unbiased the organisation is.

IGNORANCE OF OTHER HUMAN RIGHTS ISSUES: It was reported in 2008 that the UNHRC was being controlled by a few Middle-East and African nations with support from China and Russia, in order to shield each other from criticism.

LACK OF STANDARDS: The USA withdrew from the council during the Trump regime but again joined the present regime. The powerful member nations taking such steps also undermine the credibility of the global body.

GLOBAL REPRESENTATION: Although the geographical quota system addresses the disparities in global representation, it is also the Council’s most serious flaw. With a few honourable exceptions, the overwhelming majority of countries outside Western Europe and other groupings have flawed-to-abysmal human-rights records and policies. Many are not democracies. Few have representative governments. Fewer still have an incentive to pursue and commit to universal human rights.

INDIA AND THE UNHRC

• India was elected for the sixth time to the Council for a three-year term with an overwhelming majority that began on January 1, 2022.
• As part of the third stage of the Universal Periodic Review (UPR) process, India’s National Human Rights Commission delivered its mid-term report to the Council in 2020.
• A number of UN Special Rapporteurs have also written to the Indian government, voicing their concerns about the draft Environment Impact Assessment (EIA) notification 2020. Though there are several concerns with the draft, a few of which are related to human rights are mentioned below:
• Opens the Floodgates of Violations: The environmental lawyers have argued that the Post-Facto Clearance of the Projects is likely to encourage industries to commence operations without bothering clearance and eventually get regularized by paying the penalty amount and thus opening the floodgates of violations.
• Strengthens the Government but Weakens the Public: The draft offers no remedy for the political and bureaucratic stronghold on the EIA process, and thereby on industries. Instead, it proposes to bolster the government’s discretionary power while limiting public engagement in safeguarding the environment. Also, the draft, by limiting public consultation, is not in consonance with protecting the rights of tribals, among others.
• Reduced Time means Reduced Awareness: The reduced notice period for a public hearing from 30 days to 20 days will only make it difficult to study the draft EIA report, more so when it is not widely available or provided in the regional language. Moreover, the reduction of time would particularly pose a problem in those areas where information is not easily accessible or areas in which people are not that well aware of the process itself.
• UNHRC Chief also voiced concerns and criticisms against India on various occasions such as:
• The impact of actions by the government of India on the human rights of the Kashmiri people, including restrictions on internet communications and peaceful assembly, and the detention of local political leaders and activists.
• Arbitrary use of the Unlawful Activities (Prevention) Act throughout India.
• The National Register of Citizens verification process in the northeast Indian state of Assam, caused great uncertainty and anxiety among the people.
• The unprecedented farmers’ agitation at the borders of the national capital over the three farm laws also drew the attention of the UN human rights chief.
• India was quick and firm to present counter statements in defence of India’s stand on such issues and stated that:
• The UNHRC needs to be uniform, consistent, and even-handed when it comes to human rights abuse or denial of civil rights to people across the world and should not resort to a selective approach to seeking accountability for civil rights from different member states.
• India is also of the view that human rights shall be implemented in a non-selective manner and with due respect to non-interference in internal affairs.

THE RECENT DEVELOPMENTS

• India recently abstained from a vote at the United Nations Human Rights Council in Geneva. The Council passed a resolution calling for the formation of an international commission to investigate Russia’s conduct in Ukraine.
• India abstained from voting on resolutions concerning the Russia – Ukraine crisis, on as many as six occasions including the International Atomic Energy Agency (IAEA) resolution concerning the safety of four nuclear power plants and a number of nuclear waste sites, including Chernobyl, because the Russians had taken control of them.

 THE WAY FORWARD – IMPROVING THE WORKING OF UNHRC

• The impact of the crisis had been felt beyond the region, with increasing food and energy costs, especially for developing countries, and it is in everyone’s collective interest to work constructively, within the UN and outside, towards seeking an early resolution to the conflict.
• No solution can be arrived at, by shedding blood and at the cost of innocent lives and it is peremptory to choose the side of peace and collectively work towards an immediate end to violence.
• UNHRC does not have a separate Secretariat. Though UNHRC and OHCHR function in tandem, both the bodies should have separate specialized secretariat staffs which will further enhance their functioning.
• The decisions on resolutions of the UNHCR are taken, based on the voting of the member nations. Consensus building might prove to be a more feasible approach in a multilateral body.
• To strengthen the global trust in the organisation it is imperative not to have a nation with a bad human rights record as a member of UNHRC.

THE CONCLUSION: Over a decade ago, when the UNHRC recommended the suspension of Libya to the General Assembly, there had been no vote since the resolution was adopted by consensus. The resolution against Russia is passed with 93 votes in favour, 24 against, and 58 abstentions i.e with consensus. A hasty move at the General Assembly, which forces countries to choose sides, will aggravate the division among member states, intensify the confrontation between the parties concerned, and could be adding fuel to the fire. The move to expel Russia may not contribute to reaching a peaceful resolution of the Ukraine war and could further escalate the polarisation in the international community. The credibility and legitimacy of the multilateral platforms will be enhanced with concrete steps to end the conflict, merely ousting a member would not be sufficient. The response/retaliation from Russia is yet to be seen which will further define the course of history.

Mains Practice Questions:

1. “The human rights record of some of the member-states in the council has not been in line with the aims and mission of the UNHRC, which has led to critics questioning its relevance.” In the light of the given statement critically examine the relevance of UNHRC in contemporary times.
2. “Despite the continued participation of several western countries in the UNHRC, they continue to harbour misgivings on the understanding of Human rights.” Elaborate.

THE CONTEXT: On 26 February 2022 Ukraine lodged a case against Russia at the ICJ which was centered on the interpretation of a 1948 treaty on the prevention of genocide, signed by both Russia and Ukraine. The court is named in the treaty itself as the forum for resolving disputes related to genocide and Ukraine’s suit argues that Russia has misinterpreted the treaty in several ways. This article explains the whole issue in detail and analyses the efficacy of ICJ in the present times.

WHAT IS THE INTERNATIONAL COURT OF JUSTICE (ICJ)

ABOUT ICJ:

• The ICJ is the principal judicial organ of the United Nations (UN). The International Court of Justice is also known as the World Court. It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
• The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, ICJ is the only one not located in New York (United States of America).
• Its official working languages are English and French
• All members of the UN are ipso facto parties to the statute, but this does not automatically give ICJ jurisdiction over disputes involving them. The ICJ gets jurisdiction only on the basis of the consent of both parties. The Charter of the United Nations was signed on 26 June 1945, in San Francisco, at the conclusion of the United Nations Conference on International Organisation and came into force on 24 October 1945. The Statute of the International Court of Justice is an integral part of the Charter.

Figure 1 Charter of the United Nations

ITS ORIGIN:

• The court is the successor to the Permanent Court of International Justice (PCIJ), which was brought into being by the League of Nations, and which held its inaugural sitting at the Peace Palace in The Hague, Netherlands, in February 1922.
• After World War II, the League of Nations and PCIJ were replaced by the United Nations and ICJ respectively.
• The PCIJ was formally dissolved in April 1946, and its last president, Judge José Gustavo Guerrero of El Salvador, became the first president of the ICJ.

ITS COMPOSITION:

• The ICJ consists of a panel of 15 judges elected by the United Nations General Assembly (UNGA) and United Nations Security Council (UNSC) for nine-year terms. These organs vote simultaneously but separately. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies. The Court does not include more than one national of the same State. Moreover, the Court as a whole represents the main forms of civilization and the principal legal systems of the world.
• One-third of the Court is elected every three years; Judges are eligible for re-election.
• The 15 judges of the Court are distributed in the following regions:
• Three from Africa.
• Two from Latin America and the Caribbean.
• Three from Asia.
• Five from Western Europe and other states.

ROLES AND RESPONSIBILITIES:

• The Court settles legal disputes submitted to it by States, in accordance with international law. It also gives advisory opinions on legal questions referred by authorised UN organs and specialised agencies. Judgments in disputes between States are binding.
• The Court decides disputes between countries, based on the voluntary participation of the States concerned. If a State agrees to participate in a proceeding, it is obligated to comply with the Court’s decision.

WORKING OF THE COURT:

• States have no permanent representatives accredited to the Court. They normally communicate with the Registrar through their Minister for Foreign Affairs or their ambassador accredited to the Netherlands.
• The sources of law that the Court must apply are international treaties and conventions in force; international custom; the general principles of law; judicial decisions; and the teachings of the most highly qualified publicists*. Moreover, if the parties agree, the Court can decide a case ex aequo et Bono, i.e., without confining itself to existing rules of international law.

A *publicist is an international law scholar or a scholarly organization (e.g., American Law Institute). However, Article 38 of the ICJ Statute indicates that only teachings (writings) of “the most highly qualified publicists” are considered to be a source of international law. Thus, not every article or book about an international law topic would be considered a source of international law.

A CRITICAL ANALYSIS OF THE FUNCTION AND RESPONSIBILITIES OF ICJ

• The International Court of Justice (ICJ) is the international community’s legal guardian. The ICJ is frequently called upon to defuse crisis situations, help normalize relations between states, and reactivate stalled negotiation processes. It resolves legal disputes submitted to it by States in accordance with international law, as well as provides advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. Within its limited jurisdiction, the ICJ has resolved significant international disputes, thereby contributing to international peace and security.
• In carrying out its mandate, the Court not only contributes to the strengthening of international law’s role in international relations but also to its development and is increasingly being used as a forum for the resolution of environmental disputes, particularly those involving transboundary
• harm, as well as other disagreements affecting the conservation of living resources, environmental protection, or potentially adverse effects on human health.
• Albeit the court cannot enact new laws in the same way that a regulator can, the Court can clarify, refine, and interpret international law rules. In the present scenario of Russia’s military action on Ukraine ICJ’s decision is binding on Russia and constitutes part of its international legal obligations. If Russia continues its military actions, it will be a brazen violation of international law.

DISCOURSE ON UKRAINE’S CASE AGAINST RUSSIA AT ICJ

UKRAINE’S APPLICATION AGAINST RUSSIAN FEDERATION:

• Ukraine contends that Russian Federation has falsely claimed that acts of genocide have been committed in the Luhansk and Donetsk oblasts of Ukraine and based on such claims Russia initiated a special military action and recognized the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’.
• Ukraine “emphatically denies” that such genocide has occurred and states that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.
• Ukraine used the clause of the Genocide Convention of (1948) to get the ICJ to hear the case. The top court of the United Nations has ordered Russia to “immediately suspend” its military operations in Ukraine.
• It is a “provisional measures” order – an emergency ruling made before the court hears the whole case. Provisional measures are binding. It means even if Russia maintains incorrectly that the invasion is legal, it is now breaching international law anyway by failing to comply with the ICJ’s order. However, a binding ruling is not the same as an enforceable one. Just as there is no global government to give the ICJ more power, there is no global police to enforce its decisions.

Article I of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 1948 as interpreted by the ICJ in the past makes it an obligation for any state not to commit genocide and also gives an extraterritorial scope to signatory states to prevent genocide. (This became the basis for Russia to initiate a special military action against Ukraine.) Ukraine also contends this interpretation and says that no rule in international law automatically gives one state a right to invade another state to stop genocide.

Article VIII states that any contracting party can unilaterally approach the competent organs of the United Nations in matters related to the acts of genocide.

Article IX states that “Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” (This became the basis for Ukraine to unilaterally approach ICJ as both Ukraine and Russia are parties to the Genocide Convention.)

Russia has rejected the order by the ICJ to immediately suspend its military operations in Ukraine by saying that:

• Both sides had to agree to end the hostilities for the ruling to be implemented.
• The ruling was not valid as no consent from both sides can be obtained in this case.
• Though Russia boycotted a hearing on the case but argued in a written filing that the court didn’t have jurisdiction and also said it was acting in self-defense with the invasion.

STANCE OF JUSTICE DALVEER BHANDARI ON THE ISSUE:

• Bhandari was one of the two judges at the world court whose vote is contrary to their respective countries’ stance at the United Nations General Assembly (UNGA).
• At the United Nations (UN), India’s stand has been that diplomacy and dialogue are the solutions to the conflict between Russia and Ukraine. At the UN General Assembly on 2 March 2022, India urged both sides to focus on diplomacy to end the war and abstained from voting on the matter.
• Unlike in the UN, in the ICJ, there is no option of abstention, and ICJ judges vote in their individual capacities, and they vote on the merits of that. A judge’s opinion at the world court is in his or her individual capacity and does not reflect their respective countries’ stand on the issue.

INDIA AND ICJ

ACCEPTING THE JURISDICTION OF ICJ:

• In September 2019 India declared the matters over which it accepts the jurisdiction of the ICJ. This declaration was revoked and replaced the previous declaration made in September 1974 and September 1959.
• Among the matters over which India does not accept ICJ jurisdiction are: “disputes with the government of any State which is or has been a Member of the Commonwealth of Nations”, and “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defense…”
• The declaration, which includes other exceptions as well, has been ratified by Parliament.

PARTY TO A CASE AT ICJ: India has been a party to a case at the ICJ on six occasions, four of which have involved Pakistan. They are:

• Right of Passage over Indian Territory (Portugal v. India, culminated in 1960) – Ruling in India’s favour.
• Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan, culminated 1972) – ICJ rejected Pakistan’s objection.
• Trial of Pakistani Prisoners of War (Pakistan v. India, culminated 1973) – Pakistan choose not to move ahead with the proceedings.
• Aerial Incident of 10 August 1999 (Pakistan v. India, culminated in 2000) – ICJ rejected Pakistan’s contention.
• Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India, culminated 2016) – The court ruled that it does not have any jurisdiction on the issue in the absence of a dispute between the two countries
• Kulbhushan Jadhav (India v. Pakistan, culminated 2019) – The ICJ held that Pakistan was in clear violation of the rights and obligations described under the Vienna Convention on Consular relations 1963 and ruled in favour of India. Jadhav still remains in Pakistan Jail.

INDIANS AS MEMBERS OF ICJ: Four Indians have been members of the ICJ so far:

• Justice Dalveer Bhandari, former judge of the Supreme Court, has been serving at the ICJ since 2012.
• Former Chief Justice of India R S Pathak served from 1989-to 91.
• Former Chief Election Commissioner of India Nagendra Singh from 1973-88. Singh was also president of the court from 1985-to 88 and vice-president from 1976-to 79.
• Sir Benegal Rau, who was an advisor to the Constituent Assembly, was a member of the ICJ from 1952-to 53.

LIMITATIONS ON THE FUNCTIONING OF ICJ

ICJ suffers from certain limitations, these are mainly structural, circumstantial, and related to the material resources made available to the Court.

JURISDICTION TO TRY INDIVIDUALS:

• It has no jurisdiction to try individuals accused of war crimes or crimes against humanity.
• As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.

HUMAN RIGHTS VIOLATION ALLEGATIONS FROM INDIVIDUALS: The International Court of Justice differs from other courts such as:

• The Court of Justice of the European Union (Luxembourg), whose role is to interpret European Community legislation uniformly and rule on its validity,
• The European Court of Human Rights (France) and the Inter-American Court of Human Rights (Costa Rica), which deal with allegations of violations of the human rights conventions under which they were set up.
• These three courts can entertain applications from individuals as well as from States which is not possible for the International Court of Justice.

NOT A SPECIALIST COURT:

• The jurisdiction of the International Court of Justice in general thereby differs from that of specialist international tribunals, such as the International Tribunal for the Law of the Sea (ITLOS).
• ITLOS is an independent judicial body established by UNCLOS to adjudicate disputes arising out of the convention.
• United Nations Convention on the Laws of the Sea (UNCLOS) was adopted in 1982 to establish jurisdictional limits over the ocean areas and regulate activities in international waters, including sea-bed mining and cable laying, etc.

NOT A SUPREME COURT:

• The Court is not a Supreme Court to which national courts can turn; it does not act as a court of last resort for individuals nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards.

CANNOT INITIATE PROCEEDING SUO MOTO:

• The Court can only hear a dispute when requested to do so by one or more States.
• It cannot deal with a dispute on its own initiative.
• Neither is it permitted, under its Statute, to investigate and rule on acts of sovereign States as it chooses.

DO NOT HAVE A COMPULSORY JURISDICTION:

• The ICJ only has jurisdiction based on consent, not compulsory jurisdiction.

DO NOT ENJOY FULL POWERS:

• It does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound.

ABOUT GENOCIDE CONVENTION

• The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) is an instrument of international law that codified for the first time the crime of genocide. It was the first human rights treaty adopted by the General Assembly of the UN on 9 December 1948.
• It signified the international community’s commitment to ‘never again’ after the atrocities committed during the Second World War and its adoption marked a crucial step towards the development of international human rights and international criminal law as we know it today.
• According to the Genocide Convention, genocide is a crime that can take place both in times of war as well as in the time of peace. The definition of the crime of genocide, as set out in the Convention, has been widely adopted at both national and international levels, including in the 1998 Rome Statute of the International Criminal Court (ICC).
• Importantly, the Convention establishes on State Parties the obligation to take measures to prevent and punish the crime of genocide, including by enacting relevant legislation and punishing perpetrators, “whether they are constitutionally responsible rulers, public officials or private individuals” (Article IV). Those obligations, in addition to the prohibition not to commit genocide, have been considered norms of international customary law and therefore, binding on all States, whether or not they have ratified the Genocide Convention.
• India is a signatory to this convention.

THE WAY FORWARD

• The ICJ can only hear a dispute when requested to do so by one or more States and cannot deal with a dispute on its own initiative. The power of the court shall be expanded regarding international laws to take Suo moto cognizance and initiate proceedings to maintain international peace and order.
• ICJ shall also be given the power to hear the matters which have already been decided by other international tribunals.
• Though the ICJ can only hear cases by the states it shall also accept applications from individuals as well as international organizations.
• The rulings of the court are binding but not enforceable on states and the onus lies on other UN organs for their implementation. This leads to a lack of confidence in the efficacy of the court. The court shall be given some institutional powers to make it more efficient.

THE CONCLUSION: While the court did not decide on whether Russia has breached the Genocide Convention, as this is a question of merits, it did express doubt over whether a country can unilaterally use force against another country for punishing or preventing an alleged act of genocide. This indicates that Russia’s use of force is difficult to justify under the Genocide Convention. Just because authoritarian populist leaders don’t care for international law does not diminish its significance. International law, even if not sufficient, is necessary to maintain global order. The ICJ decision is an impactful step in that direction.

MAINS PRACTICE QUESTION:

1. “India has accepted the jurisdiction of International Court of Justice on various issues barring a few such as connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defense.” In the context of changing geopolitical situations elaborate on the given statement.
2. The International Court of Justice (ICJ) suffers from structural, circumstantial, and material limitations. How can the court be made more effective to help in redressing interstate disputes and in maintaining global peace?

ADD TO YOUR KNOWLEDGE

Difference between the International Court of Justice (ICJ) and the International Criminal Court(ICC)