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98I.C.J. Reports 1949, 35. 99I.C.J. Reports 1980, 138–139. 100I.C.J. Reports 1980, 140. 101I.C.J. Reports 1980, 155–156.
to each other, each performing a special role assigned to it. The Court was however, unlike most courts that were vested with domestic jurisdictions, not enabled to sit in review of the executive (which in this context was the Security Council). The dichotomy arose, in Judge Weeramantry’s mind, when the principal judicial organ of the United Nations was restrained by decisions of its executive arm when deciding, according to the principles of international law, disputes that are submitted to it. The conclusions reached by judge Weeramantry were based on the Kelsenian observation that the Security Council and the General Assembly were only quasi-judicial organs of the United Nations and that the Security Council was by no means a judicial organ since its members were not independent;102
and the Court ought to collaborate (emphasis added) with the Security Council if the circumstances so require.103
Judge Weeramantry therefore emphasised that the Court must at all times preserve its independence, particularly in view of the fact that Article 24(2) of the Charter provides that the Security Council Shall act in accordance with the purposes and principles of the United Nations, which are set out in Article 1(1) of the Charter as being those aims to settle international disputes and situations that might lead to breaches of the peace, according to the principles of justice and international law.
The essence of these views of the learned judges of the ICJ is that the compli-mentary roles played by the United Nations Security Council and the ICJ would devolve responsibility on States to respect both these organs on the subject of extradition of private offenders who unlawfully interfere with civil aviation.
IV. The Condonation Theory
The emergence of the Condonation Theory was almost concurrent with the Jane case104
decided in 1925 which emerged through the opinions of scholars who belonged to a school of thought that believed that States became responsible for private acts of violence not through complicity as such but more so because their refusal or failure to bring offenders to justice, which was tantamount to rati.cation of the acts in question or their condonation.105
The theory was based on the fact that it is not illogical or arbitrary to suggest that a State must be held liable for its failure to take appropriate steps to punish persons who cause injury or harm to others for the reason that such States can be considered guilty of condoning the criminal acts and therefore become responsible for them.106
Another reason attributed by
102Kelsen (1951, pp. 476–477). See I.C.J. Reports 1957 supra note 14, 167.
103I.C.J. Reports 1959, Id., 168.
104Laura M.B. Janes (USA) v. United Mexican States (1925) 4 R Intl Arb Awards 82.
105Black’s Law Dictionary de.nes condonation as “pardon of offense, voluntary overlooking
implied forgiveness by treating offender as if offense had not been committed”.
106Laura M.B. Janes (USA) v. United Mexican States (1925) 4 R Intl Arb Awards 82, at 92.
A. State Responsibility
scholars in support of the theory is that during that time, arbitral tribunals were ordering States to award pecuniary damages to claimants harmed by private offenders, on the basis that the States were being considered responsible for the offences.107
The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against terrorist acts, in particular with regard to the .nancing of terrorist acts. The United Nations General Assembly, on 9 December 1999, adopted the International Convention for the Suppression of the Financing of Terrorism,108
aimed at enhancing international co-operation among States in devising and adopt-ing effective measures for the prevention of the .nancing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators.
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