This paper will examine, briefly, the structure of the Islamic International Court of Justice and the different stages leading to its creation.

I. A Brief History

Among the measures adopted by the 3rd Islamic Summit in 1981 was Resolution n°11/3-P (IS), which dealt with the creation of a statute for the Islamic International Court of Justice (I.I.C.J.). The general Secretary of the I.C.O.created a committee in 1981 to deal with this statute. The statute underwent a series of revisions during 1981, 1982, and 1983. The 14th conference of Ministers of Foreign Affairs of Islamic States adopted a resolution to create the actual Court in 1984. Further revisions of this statute caused the adoption of the statute of Islamic International Court of Justice to be postponed until the 5th Islamic Summit in 1987.

II. Structure of the Islamic International Court of Justice

1. Organization and Composition of the Court

The I.I.C.J. is composed of a group of seven judges, each elected to a four-year term, renewable once. No two members of the Court may be of the same nationality. A President and Vice-President shall be elected from this group by their peers.

The members of the I.I.C.J. shall be chosen from among the Muslims from the Member States of the I.C.O. who meet the standards established in article 4 of the Statute of the Court.

The Judges of the I.I.C.J. are elected through secret ballot by the Conference of Ministers of Foreign Affairs of the I.C.O. Candidates must obtain an absolute majority of votes from all Member States in order to be elected. A judge may be discharged only by the unanimous vote of other members of the Court (article 6§b). Justices shall not be involved in any activates which may lead to conflicts of interest with the work of the Court. Judges will be granted the same privileges and immunities granted to other representatives to the I.C.O.

2. Functioning of the Court

The I.I.C.J. convenes normally in Kuwait. At least five members must be present to rule on the law. The Court may form subsidiary chambers with three judges to examine cases or to expedite urgent affairs (article 15§ a and c).
All parties before the Court have the right to be represented by a judge of the Court, who may participate in the final ruling with the same degree of influence as the other judges. Parties may appoint ad-hoc judges in the absence of appropriate representation (article 16§a and b).

3. Jurisdiction of the Court

The Court has two functions, a contentious function and to offer advisory opinion.

a) Matter of contentious: only Members States have the right to present themselves as parties before the I.I.C.J. The conditions under which other States may present themselves to the Court are detailed in article 21§a.

The Court’s power resides in all parties’ consent to recognize the decisions of the Court (article 21§b).

A State may intervene in a dispute before the Court only if the State has a judicial interest in the matter. A non-member State may intervene if neither party objects nor if the Non-member State agrees to respect the decision rendered by the Court (article 23).

The Court may address matters referred by Member States of the Organization and affairs relevant to other Court decisions; interpret bi- or multi-lateral treaties; examine questions of international law; rule upon the existence of any fact which, if established, would constitute a breach of international obligation; determine the nature or extent of the reparation to be made for such a breach of obligation; and resolve all disputes between Member States that do not constitute a simple demand of advice.

The Member States must recognize the Court’s rulings as binding, such that its interpretation of the commandments of the Islamic Shar’ia, of treaties, and of international law prevails. The I.I.C.J.’s usage of Muslim law will permit the Court to help to a create a jurisprudence which will benefit the Islamic community and the international community as a whole.

b) Advisory opinion: Article 42 provides for the Court to offer advisory opinion to organizations if authorized by the Conference of Ministers of Foreign Affaires of Islamic States.

Article 42 raises several key points. How will these Organizations be defended, and if international, are they part of the I.C.O. or may they be any international Organization? In addition, the Court’s counsel may not be requested if the Court has previously addressed the question. Lastly, we believe that if the Conference of Ministers of Foreign Affairs could authorize all Organizations to seek the Court’s advice, it could seek that counsel, as well. From our point of view, these considerations point to the need for several essential precisions in article 42.

4. Applicable Laws and Languages of the Court

The Islamic Shar’ia is the fundamental law of the Court (article 27§A§a), and the I.I.C.J. the first international judiciary body to adopt the Shar’ia as its fundamental law. The I.I.C.J. usage of the Shar’ia illustrates the capacity and flexibility of Muslim law to respond to diverse social and cultural needs now and in coming eras.

Court decisions are rendered in Arabic, the primary language of the I.I.C.J., and French and English, the Court’s two other languages. The Court may authorize usage of other languages besides one of these three official languages as long as the party requesting the additional language supports the costs of its translation and interpretation.

5. Rulings of the I.I.C.J.

The Court’s rulings are based upon the majority vote of the justices present, with the President’s vote breaking a tie. In the case of a split decision, any judge shall be entitled to write a separate opinion.

The decisions of the Court are binding, final, and without appeal. Should any party not heed the judgment of the Court, the affair will be presented to the Islamic Conference of Ministers of Foreign Affairs (article 39).

The Islamic States seek to develop an original and specific means to regulate conflict, based upon the character of Muslim law and sensitive to other practices adopted by the international community for regulating disputes between subjects of international public law.

But we wait now the installation of the I.I.I.C.J. created since 1987!

Notes

Mohammed Amin AL-MIDANI is the President of Arab Center for International Humanitarian Law and Human Rights Education, Strasbourg, France.

[1] See this Charter: www.oic-oci.org