ICJ- “alleged a legal interest and or harm which in this case are insufficient to participate in the case of alleged ‘genocide’ against the State of Israel and its actions for defending the existence of the people of the State of Israel…”
Press release. Notice. AICAC-HR Court-Washington DC. General Human Rights Commission. President. Dr. HUMPHREY H. PACHECKER. “The fact that a plaintiff, as per the International Court of Justice Hague, may have active standing does not mean that it has legal standing; it does not mean that it will win the case; It simply means that it has alleged a legal interest and or harm which in this case are insufficient to participate in the case of alleged ‘genocide’ against the State of Israel and its actions for defending the existence of the people of the State of Israel…”
Jurisdiction: Inter-American Court of Human Rights:
The right of defense as a procedural guarantee is closely linked to the notion of due process, both in Article 8, American Convention on Human Rights (ACHR), as in the jurisprudence of the Inter-American Court of Human Rights. I present in this paper a selection of relevant pronouncements of this Court as well of other jurisdictions- which show the contents of Article 8, et al, and also the basics concepts that are seen as constitutive of the right of defense. Inter-American Court of Human Rights. American Convention on Human Rights. Right of defense. Due process. Procedural guarantee.
“Due Process called by the Inter-American Court of Human Rights, […], “right of procedural defense”, consists of “…the right of every person to be heard with due guarantees and within a reasonable period of time by a judge or competent, independent and impartial court, previously established by law in the substantiation of any criminal accusation against him or for the determination of his rights of a civil, labor, fiscal or any other nature. This right is identifying due process with the content of Article 8 of the American Convention, which must be interpreted broadly. That is, its interpretation must be based on both the literal text of the norm and its spirit, and with the exclusion of other rights and guarantees inherent to human beings or that derive from the representative democratic form of government. For the Court, due process encompasses the “conditions that must be met to ensure the adequate defense of those whose rights or obligations are under judicial consideration”; for the purposes of “that people are in a position to adequately defend their rights in the face of any type of State act that may affect them”; constituting an insurmountable limit to the discretion of public power, in any matter.1 2. Right of defense and due process. From what has already been explained, there is undoubtedly a link between due process and respect for the right to defense, in any type of procedure, mainly from the perspective of the criminal process and its interpretation in the jurisprudence of the Inter-American Court of Human Rights (hereinafter Court HDI). Initially, it should be noted that this connection immediately refers to the consideration of the express judicial guarantees in Article 82 of the American Convention on Human Rights (hereinafter ACHR). The above is because due process could not be conceived without compliance with them and consequently without respect for the right of defense. The Inter-American Court of Human Rights has already stated that “(…) when referring to the judicial or procedural guarantees enshrined in Article 8 of the Convention, this Court has stated that in the process all formalities that “serve to protect, ensure or enforce the ownership or exercise of a right”, that is, the “conditions that must be met to ensure the adequate defense of those whose rights or obligations are under judicial consideration.”
Procedural guarantees. Next, we will proceed to refer to some of these guarantees whose interpretation allows at the same time to establish a compilation of considerations that will allow us to glimpse the profile of the right of defense in the jurisprudence of the Inter-American Court.
In the jurisprudence of the Inter-American Court, in the case of Aptiz Barbera vs. Venezuela, we find the issue of independence developed in paragraph 131, which indicates the freedom of expression that public officials enjoy and what are the characteristics that their statements must have, for example, they must try to verify in a reasonable manner the facts that provide foundation to their statements, as well as, due to their status as guarantor of human rights, they must be respectful of those rights in their statements. Specifically regarding the issue of independence, it is noted that “… public officials, especially the highest government authorities, must be particularly careful so that their public statements do not constitute a form of interference or pressure that is harmful to judicial independence.” or may induce or suggest actions by other authorities that violate the independence or affect the freedom of the judge.”7 The same ruling in paragraph 138 indicates that one of the ways to guarantee the independence of judges is an adequate appointment process. as well as the establishment of an established duration in the position.”
Jurisdiction: United Nations.
“Defend international law. In 2012, Uruguayan MONUSCO peacekeepers whose mission was to protect commercial shipping against piracy and armed groups carrying out attacks practicing a boarding exercise on Lake Tanganyika near Uvira, South Kivu, Democratic Republic of Congo. The Convention on the Sustainable Management of Lake Tanganyika (an agreement between the Republic of Burundi, the Democratic Republic of the Congo, the United Republic of Tanzania and the Republic of Zambia) established the Lake Tanganyika Authority, which has legal personality and international legal capacity and was created to protect and conserve the biological diversity and sustainable use of the natural resources of Lake Tanganyika.
Jurisdiction The Hague, December 2, 2022. With the aim of participating in the public hearings that will be held from December 5 to 9 at the International Court of Justice, the Colombian legal team arrived in The Hague that will defend, in the oral stage, the arguments of our country in the case of the delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast.
At this stage, the Court will address the points that still separate the parties without re-explaining everything that was already discussed in the written arguments, nor repeating the facts and arguments already invoked therein.
The Colombian team is led by the Agent, Eduardo Valencia – Ospina; co-agents Carolina Olarte and Elizabeth Taylor; the advisor, Gabriel Cifuentes; the Special Coordinator, Andrés Villegas Jaramillo…”
Charter of the United Nations, Chapter VII:
Action in case of threats to the peace, breaches of the peace or acts of aggression.
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security.
Article 40
In order to prevent the situation from worsening, the Security Council, before making recommendations or deciding on the measures referred to in Article 39, may urge the parties concerned to comply with such provisional measures as it deems necessary or advisable. Such provisional measures shall not prejudice the rights, claims or position of the interested parties. The Security Council will take due note of non-compliance with said provisional measures.
Article 41
The Security Council may decide what measures that do not involve the use of armed force are to be used to give effect to its decisions…
Article 42
If the Security Council considers that the measures referred to in Article 41 may be inadequate or have proven to be inadequate, it may take, through air, naval or land forces, any action necessary to maintain or restore peace and security. international…
Article 43
- All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, when requested, and in accordance with a special agreement or with special agreements, armed forces, aid and facilities, including the right of passage, that are necessary for the purpose of maintaining international peace and security.
- Said agreement or agreements will establish the number and type of forces, their degree of preparation and their general publication, as well as the nature of the facilities and aid that will be given.
- The agreement or agreements will be negotiated at the initiative of the Security Council as soon as possible; They will be concluded between the Security Council and individual Members or between the Security Council and groups of Members, and will be subject to ratification by the signatory States in accordance with their respective constitutional procedures.
Article 44
When the Security Council has decided to use force, before requiring a Member not represented on it to provide armed forces in compliance with its obligations under Article 43, it shall invite such Member, if it so wishes, to wish, to participate in the decisions of the Security Council regarding the employment of contingents of armed forces of said Member.
Article 45
In order to enable the Organization to take urgent military measures, its Members shall maintain contingents of national air forces immediately available for the combined execution of international coercive action. The strength and degree of preparation of these contingents and the plans for their combined action will be determined, within the limits established in the special agreement or agreements referred to in Article 43, by the Security Council with the assistance of the State Committee Elderly.
Article 46
Plans for the use of armed force will be made by the Security Council with the assistance of the General Staff Committee.
Article 47
- A General Staff Committee shall be established to advise and assist the Security Council in all matters relating to the military needs of the Council for the maintenance of international peace and security, the employment and command of the forces placed at its disposal. , to the regulation of armaments and possible disarmament.
- The General Staff Committee will be made up of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations that is not permanently represented on the Committee will be invited by it to associate itself in its work when the efficient performance of the functions of the Committee requires the participation of said Member.
- The General Staff Committee will be in charge, under the authority of the Security Council, of the strategic direction of all the armed forces placed at the disposal of the Council. Questions relating to the command of these forces will be resolved later.
- The General Staff Committee, with authorization of the Security Council and after consultation with the appropriate regional bodies, may establish regional subcommittees.
Article 48
- The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be exercised by all or certain Members of the United Nations, as determined by the Security Council.
- Said decisions will be carried out by the Members of the United Nations directly and through their action in the appropriate international organizations of which they are a part.
Article 49
The Members of the United Nations must provide mutual assistance to carry out the measures ordered by the Security Council.
Article 50
If the Security Council takes preventive or coercive measures against a State, any other State, whether or not a Member of the United Nations, which faces special economic problems arising from the execution of such measures, shall have the right to consult the Security Council regarding of the solution to those problems.
Article 51
Nothing in this Charter shall impair the inherent right of self-defense, individual or collective, in the event of an armed attack against a Member of the United Nations, until the Security Council has taken the necessary measures to maintain international peace and security. . Measures taken by Members in exercise of the right of self-defense shall be immediately communicated to the Security Council, and shall in no way affect the authority and responsibility of the Council under the present Charter to take at any time such action as it deems necessary with the purpose of maintaining or restoring international peace and security.
Article 38.
The International Court of Justice Hague, whose function is to decide in accordance with international law the controversies submitted to it, must apply: a). international conventions, whether general or particular, that establish rules expressly recognized by the litigating States; b. international custom as evidence of a practice generally accepted as law;
- the general principles of law recognized by civilized nations;
- the judicial decisions and the doctrines of the most competent publicists of the different nations, as an auxiliary means for determining the rules of law, without prejudice to the provisions of Article 59-
Jurisdiction: The International Court of Justice [“ICJ”] the Hague cannot review a dispute or sanction a state if the dispute is ex-parte between states unless each state involved has recognized its jurisdiction. ICJ decisions are final, binding and generally not subject to appeal, meaning they permanently affect the legal rights and obligations of the states involved in the dispute.
Currently, a total of 28 member states of the United Nations do not recognize the State of Israel: 15 of the 22 members of the Arab League: Algeria, Comoros, Djibouti, Iraq, Kuwait, Lebanon, Libya, Mauritania, Oman, Qatar , Saudi Arabia, Somalia, Syria, Tunisia and Yemen; 10 other members of the Organization of Islamic Cooperation: Afghanistan, Bangladesh, Brunei, Indonesia, Iran, Malaysia, Maldives, Mali, Niger and Pakistan. Other countries that do not recognize Israel include Cuba, North Korea and Venezuela. In 2002, the Arab League proposed recognition of Israel by Arab countries in exchange for Israeli withdrawal from all territories occupied in 1967, in what passed to be known as the Arab Peace Initiative.
Some countries that do not recognize Israel have also questioned Israel’s legitimacy. Some do not accept Israeli passports and some do not accept passports from other countries whose holder has an Israeli visa endorsed on it.
International recognition of Israel refers to the diplomatic recognition of Israel, which was established by the declaration of independence on May 14, 1948. Currently 164 of the 193 UN member states (85.4%) recognize Israel.
Therefore. None of these countries and jurisdictions which do not recognize the State of Israel have active standing and cannot be a suitable party to appear before this tribunal of the International Court of Justice in The Hague. Therefore, these states cannot carry out its accusations against the State of Israel for “genocide” to achieve sentence against Israel for its right to legitimate defense of the people of Israel, the same will be in international, criminal and civil human rights jurisdictions.
The fact that a plaintiff, as per the International Court of Justice the Hague, may have active standing does not mean that it has legal standing; it does not mean that it will win the case; It simply means that it has alleged a legal interest and or harm which in this case are insufficient to participate in the case of alleged genocide against the State of Israel and its actions against HAMAS defending the existence of the people of the State of Israel.
By: HUMPHREY H. PACHECKER- JD- LLM. EMAIL: nafa@nafalaw.com