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  • Jun 07, 2019
    One of the main objectives of the United Nations is to bring about peaceful means and conformity with principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of peace. In order to achieve this purpose it was essential to establish a judicial organ of the United Nations. According to Article 92 of the UN Charter, the International Court of Justice is the principle judicial organ of the United Nations. The court carries out its functions according to the Statute which is an integral part of the Charter. International Court of Justice consists of 15 judges who are elected by the General Assembly and Security Council separately. The judges of the court are required to be independent. The Court elects its President and Vice President for a period of 3 years. They may be re-elected after the expiry of the time. The Court may from time to time form chambers composed of three or more judges as the Court may determine for dealing with particular categories of cases. The Statute of ICJ also lays down the provisions regarding the appointment of ad hoc judges. The judges are elected for a term of 9 years and can also be re-elected after the expiry of their term.   Who can refer the dispute to the Court? Article 34 of the Statute lays down that only states may be the parties in cases before the Court. It implies that it is not necessary that state should be sovereign and independent in order to become parties to the Court. India was a party to the Statute before it became independent. Article 93 (1) provides that all members of United Nations are ipso facto parties to the Statute of the Court and hence they all have automatic access to the Court. Article 92 Para 2 of the Charter provides that non-members of the United Nations may also become parties to the Statute. They could do so only on conditions determined in each case by the General Assembly on the recommendation of the Security Council. Other international organizations may seek advisory opinion of the Court under Article 34 on any legal questions. According to Article 59 of Statute of I.C.J its decisions are binding only on parties to the dispute in respect of particular dispute and not on any members.   The jurisdiction of the court is broadly of 2 types: 1. Contentious JurisdictionIt is one of the fundamental principles of International Law that no state can without its consent be compelled to submit its disputes with other states either to mediation or to an arbitration or to any kind of pacific settlement. Consent is the basis of jurisdiction of an International Tribunal. The Court cannot proceed to adjudicate a dispute merely because one state files a case against another, the other party too, the defendant states, has to agree that the Court should try the case. When the Court decides the case on the basis of the consent of disputant parties, the jurisdiction of the Court is called “contentious jurisdiction”. If the parties to a treaty or convention stipulate in that document that dispute under it shall be referred to the Court, the jurisdiction of the Court is established. In such cases the consent of the parties to the jurisdiction of the Court is given in advance. In voluntary jurisdiction the consent is given before the occurrence of the dispute. 2. Advisory JurisdictionAccording to Article 65 of the Statute the Court may give an advisory opinion on any legal question to anybody which has been authorized in accordance with the Charter of United Nations or in accordance with the Statute. The Charter under Article 96 Para 1 lays down that the Security Council and General Assembly may request to the Court to give an advisory opinion on any legal questions. In addition to them, other organs of the United Nations and specialized agency may also request for an advisory opinion. ICJ has discretionary power to give advisory opinion. The opinion of ICJ is also not binding on the organs seeking the opinion.   All the members of the United Nations are required to comply with the decision of the Court in accordance with Article 94 Para1 of the Charter. If any party to a case before the Court fails to perform its obligations under a judgement of the Court, the other party may bring the matter before the Security Council in accordance with Article 94 para 2 of the Charter. The Security Council is empowered by the Charter to make recommendation or decide upon measures to be taken to give effect to the judgement. In case the Security Council decides upon measures to be taken to give effect to the judgement of the Court, it has again a choice between two kinds of actions i.e measures which may be taken either under Article 41 or 42 of the Charter.
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  • Jun 01, 2019
    Witnesses play a crucial part in international criminal proceedings. Unlike the Nüremberg trials which relied primarily on documentary evidence, modern day international criminal trials rely on witnesses to provide the majority of the information. A testimony not only enables the judges to render a fair judgement, it also helps the people of the region and the international community to learn the truth about the crimes committed and to deter persons from committing these crimes again. By testifying, witnesses make a necessary and valuable contribution to the restoration of justice and reconciliation in the region. In addition to that, testifying at the Tribunal also provides an opportunity for victims to describe what happened to them.   When it comes to testifying, one must differentiate between two segments: the “investigation stage” and the “trial stage”. During the former, investigators will speak to numerous witnesses in an attempt to establish what happened. However, not all individuals interviewed during the preparation of a case will be called to testify in the courtroom. The prosecution and the defence will determine the most appropriate witnesses to appear before the judges.   There are several types of witnesses who can testify before the Court.  Fact witnesses have knowledge and testify about what happened. They can be crimes-based witnesses when they have suffered harm and testify as witnesses about what happened to them. Some of these witnesses can also hold the status ofparticipating victims before the Court; they are called dual-status witnesses.  Insider witnesses have a direct connection with the accused. Expert witnesses testify about matters within the field of their expertise, for example, ballistic or forensic experts. Overview witnesses help establish facts about the context in which a conflict occurred, and can include, for example, professors or NGO representatives. These witnesses can be called, or asked to give testimony, by the Office of the Prosecutor, the Defence, the Legal Representative of Victims, or the Judges themselves. Oral testimony The witness is physically present in court and will tell the court what he or she saw or heard, or what he or she knows of the accused or other events upon which he or she is being questioned. In exceptional circumstances, if for example a witness cannot travel, he or she may give evidence away from the seat of the Tribunal by way of live video-conference link. DepositionIn exceptional circumstances, a witness may be asked by the court to give evidence by way of deposition. A deposition can either be taken in The Hague or elsewhere by a representative of the court in the presence of the prosecution and the defence. The party who has not requested the deposition shall have the right to cross-examine the person whose deposition is being taken. The proceedings will be recorded, at least on audio tape. Evidence in the form of a written declarationThe court may, in certain circumstances, admit evidence in the form of a written declaration. An official authorised to witness such a declaration shall be present. The court may nevertheless decide whether the witness is required to appear in court for further questioning. The side that brought the witness (either the prosecution or the defence) begins by asking the witness questions. This is referred to as “direct examination”. When the prosecution or defence is finished with the direct examination, the other side is allowed to question the witness. This is called the “cross-examination”. Afterwards, the side that brought the witness to the stand may ask him or her some more questions related to issues raised in the cross-examination. This is known as “re-direct examination”. According to the Rules of Procedure and Evidence, the judges may also ask questions at any time during the witness testimony.   The Court has a number of protective measures that can be granted to witnesses, victims who appear before the Court and other persons at risk on account of testimony given by a witness. The Court's protection system is based on best practices which are aimed at concealing the witness's interaction with the Court from their community and from the public in general.   Protective measures where witnesses reside aim to limit the witness's exposure to threats or provide an appropriate response to an identified threat. Measures must be proportional to the risk. When there are multiple suitable and available options for protective measures, the Court will choose those that are the least intrusive on the witness's well-being. These measures could include local protection measures, an assisted move or various security arrangements aimed at addressing the identified threat. Witness relocation is only used as a last resort, due to the immense burden this puts on the witnesses and their families.   One particular form of support for witnesses who come to the ICC to testify in Court is the process of "Courtroom familiarization", during which, the Registry staff members show them the Courtroom in advance, before the hearing starts, to allow them to sit in the witness stand for the first time and become familiar with the Courtroom. The staff members explain where the Defence, the Prosecution, Legal Representatives of Victims (where applicable) and Judges will sit during the hearing. They also test out the computer screens and microphones together with the witness, and answer any practical questions the witness might have. They do not discuss with them any element of their testimonies. The Registry will also see if any particular measures would be needed to ensure that the witness can testify in a secure manner and also takes into consideration their privacy, dignity and well-being.
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