Abstract
The function of the International Court of Justice (ICJ) is to decide in accordance with international law such disputes or advisory opinions that are submitted to it. Although the ICJ has consistently applied and contributed to the development of general public international law, in certain areas such as international humanitarian law (IHL), the Court has gone back and forth between authentic contributions and judicial constraint. In other words, while on certain occasions the ICJ has grounded its decisions on IHL, in other cases it deliberately refrained from doing so, arguably due to the subject matter under consideration or to justify a departure from its previous case law. Instead of describing the decisions rendered by the ICJ regarding IHL issues, this chapter portrays how the Court has selectively applied (and refrained from applying) this legal framework. In doing so, the chapter considers certain factors that may explain this behavior and analyzes them in light of its dual role: as a crucial actor in the pacific settlement of international disputes; and in applying international law.
International lawyers have habitually paused to reexamine their subject. It is a good habit. At this juncture reexamination is essential … ‘Is International Law used?’ One may tread some old paths of international law and find them at times quite overgrown and little traveled…
Jessup 1988
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Notes
- 1.
Shahabuddeen 1996, p 11.
- 2.
Tomka 2013, p 215.
- 3.
- 4.
Galeano 2012.
- 5.
Joyner 2009, p 198.
- 6.
Kreß 2013, p 263.
- 7.
ICJ, Corfu Channel case (United Kingdom v. Albania), Judgment, 9 April 1949, I.C.J. Reports 1949, pp 4, 22.
- 8.
Ibid. (emphasis added).
- 9.
ICJ, Case concerning Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, I.C.J. Reports 1986, p 14 (Nicaragua), para 15.
- 10.
A further development of this test, and its relationship with a different test will be presented below, when referring to the Genocide case.
- 11.
D’Amato 1986, pp 331–332. See also Simon P (1985) Reagan's World-Court Error, New York Times, 16 October 1985. https://www.nytimes.com/1985/10/16/opinion/reagan-s-world-court-error.html. Accessed 28 July 2018.
- 12.
Nicaragua, above n. 9, para 128.
- 13.
Ibid., paras 177–178.
- 14.
Ibid., para 198.
- 15.
- 16.
Greenwood 2015, p 265.
- 17.
Nicaragua, above n. 9, para 219.
- 18.
Although today it is considered that most of the obligations applicable to an international armed conflict (IAC) are applicable to a non-international armed conflict (NIAC) through customary IHL, this is not the case regarding treaty-based obligations. In this sense, in the case of an IAC, the full extent of the four Geneva Conventions (1949) and the First Additional Protocol (1977) can be applicable. In the case of a NIAC, only Common Article 3 to the Geneva Conventions (CA3) (1949) applies and the Second Additional Protocol to the Geneva Conventions (1977) can be applicable. See Henckaerts and Doswald-Beck 2005, p XXXV; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978, Article 1.3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978, Article 1.
- 19.
Nicaragua, above n. 9, para 219.
- 20.
Bianchi and Naqvi 2011, p 135.
- 21.
In the jurisdiction phase of the proceedings, the United States highlighted a reservation to the ICJ’s jurisdiction when ‘disputes arising under a multilateral treaty, unless all parties to the treaty affected by the decision are also parties to the case before the Court…’. The Court postponed the discussion to merits and then elaborated on the possibility of having third States as ‘affected’, which would prevent its jurisdiction. The ICJ considered the invocation by Nicaragua of several multilateral treaties, and said that although the Applicant did not invoke the Geneva Conventions, the Court could do it and it focused on CA3.
- 22.
Nicaragua, above n. 9, para 218.
- 23.
Ibid.; Zyberi 2008, pp 286–287.
- 24.
ICTY Appeal Chamber, Prosecutor vs. Duško Tadić, Judgment, 15 July 1999, IT-94-1-A (Tadić), para 70.
- 25.
Nicaragua, above n. 9, para 218. See also Chetail 2003, p 261.
- 26.
- 27.
1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31, entered into force 21 October 1950; 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), opened for signature 12 August 1949, 75 UNTS 85, entered into force 21 October 1950; 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (1949), opened for signature 12 August 1949, 75 UNTS 135, entered into force 21 October 1950; 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949), opened for signature 12 August 1949, 75 UNTS 287, entered into force 21 October 1950, Common Article 1.
- 28.
Nicaragua, above n. 9, para 220 (emphasis added), reaffirmed in para 255.
- 29.
- 30.
Nicaragua, above n. 9, para 242.
- 31.
Ibid.
- 32.
Ibid., para 243.
- 33.
- 34.
- 35.
UN General Assembly 2003.
- 36.
Zyberi 2008, p 309.
- 37.
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, p 136 (Wall), paras 24–28.
- 38.
Wall, above n. 37, paras 36–40.
- 39.
Ibid., para 41.
- 40.
Zyberi 2008, p 213.
- 41.
Wall, above n. 37, paras 46–50.
- 42.
Ibid., paras 51–54.
- 43.
Ibid., paras 56–58.
- 44.
Ibid., para 13.
- 45.
Ibid., para 121.
- 46.
Ibid., para 87.
- 47.
- 48.
Ibid., para 118, 122. See also Zyberi 2008, pp 131–134.
- 49.
The issue of belligerent occupation was further developed by the Court in ICJ, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, I.C.J. Reports 2005, p 168. There, the Court determined the characteristics of the occupation and focused on crimes related to it, such as looting, plundering and the exploitation of natural resources, including the attribution of those actions to Uganda as Occupying Power. Its contribution to IHL rests on the elaboration of those precise violations of IHL, and on reiterating, once again, the customary character of the rules and the relationship between this branch of international law and the use of force and human rights. See also Zyberi 2008, pp 312–313, 324–326; Greenwood 2015, pp 272–273, 277–279; Kreß 2013, p 288.
- 50.
Wall, above n. 37, paras 125–126. As Greenwood has pointed out, this was a novel interpretation, since it was considered that in case of occupation, the entire Fourth Geneva Convention (1949) would result applicable. See Greenwood 2015, p 274.
- 51.
- 52.
Kreß 2013, p 287.
- 53.
- 54.
Ibid., para 106.
- 55.
- 56.
In the Advisory Opinion, the ICJ mentioned violations of rights such as liberty and security of the person, privacy, family life, liberty of movement, work, protection and assistance accorded to the family and to children and young persons, the right to an adequate standard of living, including adequate food, clothing and housing, and the right ‘to be free from hunger’, the right to health, the right to education, and similar provisions in the Convention on the Rights of the Child. Wall, above n. 37, paras 127–137. See also Zyberi 2008, pp 212, 214.
- 57.
- 58.
Kreß 2013, p 288.
- 59.
- 60.
Wall, above n. 37, para 157.
- 61.
Ibid.
- 62.
Greenwood 2015, p 287.
- 63.
Wall, above n. 37, para 159. In this respect, Kreß points out that this progressive interpretation of CA1 by the ICJ is surprising, since it did not seem to have been the intention of states back in 1949. As he explains, the “Court appeared thirsty for adventure when it embraced such an interpretation without any regard for the contrary point of view – notwithstanding the fact that it refrained from elaborating too much on the precise contours of the duty of third states to react”. Kreß 2013, p 281.
- 64.
- 65.
Ibid., para 159.
- 66.
Ibid., para 160. See also Zyberi 2008, p 222 (emphasis added).
- 67.
In this respect Zyberi opined that ‘[t]he Court’s decision which indicated not only the obligations incumbent upon Israel, but also those of other States and the UN was rather unprecedented, attracting the opposition of a few members of the Court itself’ and that ‘[i]t is only logical that the Court, as a vital part of the UN and indicating the legal consequences for the UN, drew the attention of the GA to taking further steps to achieve a solution to this long-standing crisis in the Middle East’. Zyberi 2008, pp 221, 320. This seemed to be in line with what the ICJ had previously affirmed when it said that the rendering of advisory opinions requested by UN organs ‘represents its participation in the activities of the Organization [i.e. the UN]’. ICJ, Western Sahara, Advisory Opinion, 16 October 1975, I.C.J. Reports 1975, p 12 (Western Sahara), para 23.
- 68.
Wall, above n. 37, Dissenting Opinion Judge Buergenthal, para 1.
- 69.
Ibid.
- 70.
Western Sahara, above n. 67, para 46.
- 71.
Wall, above n. 37, Dissenting Opinion Judge Buergenthal, para 5.
- 72.
Wall, above n. 37, Dissenting Opinion Judge Buergenthal, para 6.
- 73.
Ibid., para 7.
- 74.
Kreß 2013, p 292.
- 75.
Ibid., p 291.
- 76.
Ibid., p 292.
- 77.
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C.J. Reports, p 226, (Nuclear Weapons), para 1.
- 78.
Ibid., Dissenting Opinion of Vice-President Schwebel, p 311.
- 79.
Ibid., para 59.
- 80.
Ibid., paras 60–61.
- 81.
Ibid., para 62.
- 82.
Ibid., paras 85–86.
- 83.
- 84.
Nuclear Weapons, above n. 77, para 95.
- 85.
Ibid., para 79.
- 86.
Ibid., para 25. See also Chetail 2003, p 241.
- 87.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, 26 February 2007, p 43 (Genocide 2007).
- 88.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, 11 July 1996, I.C.J. Reports 1996, p 595.
- 89.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, 8 April 1993, I.C.J. Reports 1993, p 3; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, 13 September 1993, I.C.J. Reports 1993, p 325.
- 90.
Genocide 2007, above n. 87, para 66.
- 91.
Ibid.
- 92.
- 93.
Genocide 2007, above n. 87, paras 403–404. See also Zyberi 2008, p 290.
- 94.
- 95.
In this regard, Judge Cassese said ‘The contention can respectfully be made that the ICJ missed a good opportunity to elaborate upon and improve the Nicaragua test. The Court, it is submitted, did not do justice to Tadić either. The ICTY had held the view that the “overall control” test was also applicable to state responsibility. To prove the ICTY wrong, the Court should not have simply dismissed that test as solely applicable to the question of classification of armed conflict; it should have proved its alleged inconsistency with state practice and judicial precedent, a judicial exercise it declined to undertake, or at any rate preferred not to engage in … It is warranted to hope that in future the Court, when it returns to this matter, will pay attention to state practice and case law instead of confining itself to uncritically restating its previous views’, in Cassese 2007, pp 667–668.
- 96.
Greenwood 2015, pp 281–282.
- 97.
- 98.
ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 11 November 2013, I.C.J. Reports 2013, p 281 (Preah Vihear 2013). For a review of the original 1962 ICJ judgment in light of the 2013 decision, see generally Kattan 2015.
- 99.
ICJ, Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 15 June 1962, I.C.J. Reports 1962, pp 6, 37.
- 100.
ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, 18 July 2011, I.C.J. Reports 2011, p 537 (Preah Vihear 2011), paras 12, 34.
- 101.
Ibid., para 36.
- 102.
Ibid., para 48.
- 103.
Preah Vihear 2013, above n. 98, paras 19–27.
- 104.
Regarding the definition of International Armed Conflict, see, among others, International Committee of the Red Cross 2008.
- 105.
Preah Vihear 2013, above n. 98, para 106 (internal references omitted).
- 106.
See O’Keefe 2006, pp 316–343.
- 107.
Specifically, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, opened for signature 14 May 1954, 249 UNTS 240, entered into forced 7 August 1956, to which both States involved are parties to.
- 108.
Chechi 2015, p 360.
- 109.
See Preah Vihear 2011, above n. 100, para 71; Chechi 2015, pp 359–360.
- 110.
Chechi 2015, p 370.
- 111.
Nuclear Weapons, above n. 77, paras 85–86.
- 112.
Ibid., para 95.
- 113.
Ibid., dispositif 2.E (emphasis added).
- 114.
Greenwood 2015, p 270. In this regard, Franck points out in precise terms that ‘[t]he result, uncannily, was almost universally welcomed. It tended to be welcomed as Solomonic by Governments with and without nuclear weapons and by the NGOs that had sparked the request. That, in the end, so many contradictory interests seem to have been satisfied, and that all could quote text to back that assertion, may tell us that the opinion lacks the finely tuned specificity that is an important aspect of legal fairness.’ See Franck 1999, p 519.
- 115.
Kreß 2013, p 293.
- 116.
Nuclear Weapons, above n. 77, Dissenting Opinion of Judge Weeramantry, pp 249–250 (brackets omitted).
- 117.
Ibid., Dissenting Opinion of Judge Koroma, p 334.
- 118.
Ibid., Dissenting Opinion of Judge Koroma, p 336. President Bedjaoui fought against such consideration and dedicated a section of his declaration to explain why he considered that there was no non liquet. Nuclear Weapons, above n. 77, Declaration of President Bedjaoui, pp 167–168.
- 119.
Ibid., Dissenting Opinion of Judge Higgins, para 29.
- 120.
Ibid., Dissenting Opinion of Vice-President Schwebel, pp 99–100.
- 121.
Ibid., Dissenting Opinion of Judge Guillaume, para 7.
- 122.
In this respect, Joyner points out that ‘[t]his refusal to give a legal determination notwithstanding the existence of developed law on point was perceived by a number of dissenting judges as an abrogation by the Court of its fundamental role as the principal judicial organ of the U.N.’. Joyner 2009, pp 213–214.
- 123.
Ibid., p 210.
- 124.
Ibid., pp 209–210. See also Müllerson 1999, p 267.
- 125.
Nuclear Weapons, above n. 77, para 99.
- 126.
Ibid., dispositif 2.F.
- 127.
Ibid., Dissenting Opinion of Judge Guillaume, para 14. See also Thirlway 1999, p 431.
- 128.
Judge Schwebel expressed his doubts as to whether this obligation could extend to States that were not Parties to the NPT. Ibid., Dissenting Opinion of Vice-President Schwebel, p 107.
- 129.
- 130.
ICJ, Obligations Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Decision on Jurisdiction and Admissibility, 5 October 2016, General List No. 158 (Marshall Islands v. India); ICJ, Obligations Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Decision on Jurisdiction and Admissibility, 5 October 2016, General List No. 159 (Marshall Islands v. Pakistan); ICJ, Obligations Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Decision on Preliminary Objections, 5 October 2016, General List No. 160 (Marshall Islands v. United Kingdom). It is worth mentioning that Marshall Islands v. United Kingdom was decided with the casting vote of the President of the ICJ.
- 131.
Shahabuddeen 1996, p 11 (emphasis added – footnotes omitted).
- 132.
Lauterpacht 1982, pp 9–11.
- 133.
Marshall Islands v. India, above n. 130, para 56.1; Marshall Islands v. Pakistan, above n. 130, para 56.1; Marshall Islands v. United Kingdom, above n. 130, para 59.1.
- 134.
PCIJ, Mavrommatis Palestine Concession, (Greece v United Kingdom), Judgment, objection to the jurisdiction of the court, Judgment No. 2, 30 August 1924, PCIJ Series A No. 2. See also Uerpmann-Wittzack 2013.
- 135.
Marshall Islands v. United Kingdom, above n. 130, para 41.
- 136.
Ibid., Dissenting Opinion of Judge Crawford, para 3.
- 137.
Ibid.
- 138.
Ibid., Dissenting Opinion of Judge Crawford, para 5.
- 139.
Ibid., Separate Opinion of Judge Tomka, para 1.
- 140.
Joyner 2009, p 199.
- 141.
Ibid., p 201.
- 142.
Kreß 2013, pp 284–285.
- 143.
- 144.
Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945 (UN Charter), Article 92; Statute of the International Court of Justice, opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945 (ICJ Statute), Article 1.
- 145.
Pellet 2012, p 734. The exact wording of Pellet’s description is that ‘it was certainly not a bad idea, in 1920, to define and link together, in a general provision, the function of the Court, its means and its limits. Article 38 performs this triple duty with elegance, flexibility, and conciseness’.
- 146.
ICJ Statute, above n. 144, Article 38.
- 147.
Mónica Pinto has called these two tasks (i) ‘the adjudication of claims’, i.e. ‘the valuation of the arguments of the parties under the light of the applicable law, in this case, international law’ and (ii) ‘the peaceful settlement of disputes’, i.e. ‘to decide the dispute in such a way as to leave the parties involved more or less satisfied with the result’. For her, ‘[t]he two aspects cannot be conflated, even if both can be useful tools for the purposes of maintaining international peace and security’. Pinto 2007, p 143.
- 148.
Lauterpacht 1958, p. 3. However, for Lauterpacht, the Court was substantially incapacitated in this function given the lack of compulsory jurisdiction. As he wrote earlier, in 1933: ‘The reign of law, represented by the incorporation of obligatory arbitration as a rule of positive international law, is not the only means for securing and preserving peace among nations. Nevertheless, it is an essential condition of peace’. Lauterpacht 1933, p 437.
- 149.
Kelsen 1944, p 16.
- 150.
Abi-Saab 1996, p 14.
- 151.
Ibid., p 7.
- 152.
PCIJ, Case concerning the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p 13. See also ICJ, Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment, 22 December 1986, I.C.J. Reports 1986, p 577, para 46, and ICJ, Case concerning the Passage through the Great Belt (Finland v. Denmark), Request for the indication of provisional measures, 29 July 1991, I.C.J. Reports 1991, p 20.
- 153.
Collier 1996, p 368.
- 154.
ICJ, United States Consular and Diplomatic Staff in Tehran (United States v Iran), Judgment, 24 May 1980, I.C.J. Reports 1980, pp 3, 22.
- 155.
- 156.
See O’Connell and VanderZee 2013, pp 47–58.
- 157.
Tomuschat 2012, p 1081.
- 158.
UN Charter, above n. 144, Article 36(3).
- 159.
UN Charter, above n. 144, Article 1(1).
- 160.
Giegerich 2012, pp 1137–1138.
- 161.
Zyberi 2008, p 336.
- 162.
ICJ Statute, above n. 144, Article 38 (emphasis added).
- 163.
Hernández 2014, pp 47–50.
- 164.
Indeed, the Court seems to be aware of its unique ‘judicial function’ pursuant to which the ICJ must privilege certain values and/or consequences before rendering a judgment. This is evident from the Court’s pronouncement in the Northern Cameroons case that it does not consider itself —when invested with jurisdiction—as necessarily bound to render a judgment when the circumstances may demand silence on a particular subject. See ICJ, Northern Cameroons (Cameroon v United Kingdom), Judgment, 2 December 1963, I.C.J. Reports 1963, pp 15, 37: ‘[t]hat the Court may, in an appropriate case, make a declaratory judgment is indisputable. The Court has, however, already indicated that even if, when seised of an Application, the Court finds that it has jurisdiction, it is not obliged to exercise it in all cases. If the Court is satisfied, whatever the nature of the relief claimed, that to adjudicate on the merits of an Application would be inconsistent with its judicial function, it should refuse to do so’.
- 165.
Dupuy and Viñuales 2013.
- 166.
Martti Koskenniemi and Päivi Leino have diagnosed the ‘postmodern anxieties’ suffered by ICJ judges as a result of the proliferation of international tribunals and of the institutional fragmentation of international law. See Koskenniemi and Leino 2002.
- 167.
See e.g. Ulfstein 2009 on the constitutionalization of international law, and the increased due process expectations regarding the decisions of international courts and tribunals.
- 168.
‘The international law that it applies and interprets is defined by that compromise, and it is for this reason that one cannot properly understand the Court without moving away from the viewpoint that evaluates its work with a pre-conceived notion of its ideal purpose’. Hernández 2014, p 7.
- 169.
Thirlway 2006, p 23.
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Frenkel, B.E., Green Martínez, S.A., Maisley, N. (2020). Uses of IHL by the International Court of Justice: A Critical Approach Towards Its Role in the International Legal Arena. In: Heffes, E., Kotlik, M., Ventura, M. (eds) International Humanitarian Law and Non-State Actors. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-339-9_10
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