ICJ & ICC

Two distinct courts at The Hague

The most common error in answer-writing is conflating the International Court of Justice (ICJ) with the International Criminal Court (ICC). They share a city—The Hague—and little else.

The ICJ is the principal judicial organ of the United Nations, established by Article 92 of the UN Charter and governed by the Statute of the ICJ, which is annexed to and forms an integral part of the Charter. Every UN member is automatically a party to the Statute (Article 93). It succeeded the Permanent Court of International Justice (PCIJ, 1922–1946) of the League era. The ICJ adjudicates disputes between states only (Article 34 of its Statute) and renders advisory opinions to authorised UN organs. It sits with 15 judges elected for nine-year terms by the General Assembly and Security Council voting separately and concurrently (Articles 4 and 8). No two judges may be nationals of the same state.

The ICC, by contrast, is a treaty-based court created by the Rome Statute of 1998, which entered into force on 1 July 2002 after 60 ratifications. It is not a UN organ. It prosecutes individuals—not states—for the gravest crimes: genocide, crimes against humanity, war crimes (Articles 6, 7, 8) and, since the Kampala amendments adopted in 2010 and activated in 2017, the crime of aggression (Article 8 bis). The ICC is a court of complementarity (Article 17): it acts only where a state is unwilling or genuinely unable to prosecute. It has 18 judges and a Prosecutor as an independent organ.

Jurisdiction rests on consent

Neither court has compulsory universal jurisdiction. The ICJ's contentious jurisdiction depends on state consent, expressed through (a) a special agreement (compromis), (b) a compromissory clause in a treaty, or (c) the optional clause declaration under Article 36(2) of the Statute. India filed such a declaration but with wide reservations; the United States withdrew its declaration in 1985 after the Nicaragua v. United States judgment (1986), which found the US in breach of customary law for mining Nicaraguan harbours.

The ICC's jurisdiction (Article 12) is triggered when the accused is a national of a state party, or the crime occurred on a state party's territory, or the Security Council refers a situation under Chapter VII (Article 13(b))—as it did for Darfur (Resolution 1593, 2005) and Libya (Resolution 1970, 2011). The Council may also defer an investigation for 12 months under Article 16. The United States, Russia, China and India are not parties to the Rome Statute—a recurring high-yield fact.

Landmark instances to retain

For the ICJ, the candidate must know: Corfu Channel (United Kingdom v. Albania, 1949), the Court's first case, establishing state responsibility for harm emanating from one's territory; the Nicaragua judgment (1986) on the use of force and non-intervention; the Reparation for Injuries advisory opinion (1949) confirming the UN's international legal personality; the Legality of the Threat or Use of Nuclear Weapons advisory opinion (1996); and, most testable for South Asian aspirants, Jadhav (India v. Pakistan, judgment 17 July 2019), where the Court found Pakistan in breach of Article 36 of the Vienna Convention on Consular Relations (1963) for denying Kulbhushan Jadhav consular access and ordered effective review of his conviction. India invoked the VCCR's Optional Protocol as the jurisdictional basis—an illustration of the compromissory-clause route.

More recently, South Africa v. Israel (provisional measures order, 26 January 2024) under the Genocide Convention (1948), and Ukraine's cases against Russia, show the ICJ's contemporary relevance. The Chagos advisory opinion (2019) held the UK's separation of the archipelago from Mauritius unlawful.

For the ICC: the first conviction was Thomas Lubanga Dyilo (DR Congo, 2012) for conscripting child soldiers. The Court has issued arrest warrants against sitting heads of state—Omar al-Bashir of Sudan (2009) and, in March 2023, Vladimir Putin over the unlawful deportation of Ukrainian children—exposing the enforcement gap: the ICC has no police force and depends wholly on state cooperation (Rome Statute Part 9).

Why this matters for the exam

This topic spans GS Paper II (international institutions, India and the world) in the UPSC framework, the FSOT's international-law segment, and the international-relations papers in CSS and BCS. Examiners test it three ways. First, factual discrimination: distinguishing the ICJ (states, UN organ, Charter Article 92) from the ICC (individuals, treaty body, Rome Statute 2002)—a classic prelims/MCQ trap. Second, the consent and enforcement debate: why neither court can compel a permanent member, and how the Security Council both empowers (referral) and shields (Article 16 deferral, the veto). Third, India's stance: India is party to the ICJ Statute but has neither signed nor ratified the Rome Statute, citing the Security Council's referral power, the inclusion of aggression, and sovereignty concerns. The PYQ angle favours analytical questions—'examine the limitations on the ICJ's effectiveness' or 'should India join the ICC?'—so marshal the Jadhav, Nicaragua and Bashir/Putin examples as evidence. Retain dates precisely; vague answers lose marks.