The writer is a former chief justice of Pakistan and an adhoc judge at the International Court of Justice in The Hague. The article is abridged from a speech delivered by Justice Tassaduq Hussain Jillani at the Jessop International Law Competition in Islamabad on December 19, 2017
The consensual basis of the jurisdiction of the ICJ is a negation of the principle of rule of law. The court takes cognisance of cases only when both the state parties agree. Besides, only 65 out 192 UN member states have accepted the compulsory jurisdiction of the ICJ which means that the majority of the member states have not accepted it.
Third, there is absence of an effective mechanism to try crimes against humanity. One mode could have been conferral of universal jurisdiction on domestic courts but there is no consensus in this regard. By universal jurisdiction is meant, the jurisdiction of a national court to try a person, irrespective of his nationality or place of occurrence, who is accused of an international crime. Some of those crimes are war crimes, genocide, and torture, forcible disappearance of a person or crimes against humanity.
There is need to protect the world order and the values which underpin it. To maintain a world governed by the rule of law, countries need to take two basic steps; firstly, and it may sound a little idealistic at this stage of international relations to suggest, but the countries seriously need to consider conferring compulsory jurisdiction to the ICJ over all disputes between states and providing it with an effective enforcement mechanism. Secondly, all the members of the United Nations need to ratify the Rome Statute. That’s the only way to protect universal human rights and to prevent impunity which is the antithesis of democracy.
For a lasting peace, however, mere reliance on the UN charter may not be enough. We have to develop a culture to nurture peace and sustain it. Because “peace does not rest in the charters and covenants alone. It lies in the hearts and minds of all people. So let us not rest all our hopes on parchment and on paper, let us strive to build peace, a desire for peace, a willingness to work for peace in the hearts and minds of all of our people.” In the ultimate end the abolition of war, the maintenance of peace, the adjustment of international questions by peaceful means will come through the force of public opinions which control nations.
A special curricula has to be framed which would equip the children with the knowledge to come to terms with the world — a world inhabited by people having different religions and ethnic identities. They have to be taught literature, history and social sciences. They have to be taught compassion and empathy with people of different denominations. One of the fundamental aims of education should be to encourage thoughts and traits, which inspire feelings of common humanity and a sense of history. Such an education would produce global citizens capable and competent to heal global wounds. Without promotion of such virtues it would be difficult to achieve understanding among nations. This would help in evolving an international civil society, which would not only be supportive of enacting a global law but would also nurture and sustain it. We need to appreciate that the law is respected and complied within a country because there is a social consensus and unity. Unless that understanding and consensus is evolved at the international level, it would neither be possible to create world law nor have it enforced. This change would call for a socio-political revolution to happen.
(Concluded)
Published in The Express Tribune, February 24th, 2018.
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