1. Disputes between States

All UN Member States are automatically Parties to the Statute of the ICJ (art. 93(1) of the UN Charter). However, acceptance of the jurisdiction of the ICJ remains optional. States must expressly agree to submit to the ICJ questions of law or fact over which they are in dispute with other States. Once States accept the jurisdiction of the ICJ in a particular case or in general, they are automatically bound by its decision.

States can accept the jurisdiction of the ICJ in three different ways:

•A State may at any time make a formal declaration that it recognises the general jurisdiction of the ICJ as being compulsory, in respect of any dispute which may arise with any other States which has made the same declaration. (art. 36(2) of the Statute of the ICJ). The State may also waive this condition of reciprocity. The ICJ then has jurisdiction to decide on any legal question concerning the interpretation of a treaty, any point of international law, as well as the existence of any fact which, if established, would constitute a violation of an international obligation, and the nature or extent of reparation to be made for such a violation.

• States involved in a particular legal dispute, may decide by mutual agreement to submit that particular case to the jurisdiction of the ICJ (art. 36(1) of the Statute of the ICJ).

•States may also be party to one of the more than 300 international conventions and treaties which refer questions of interpretation or disputes between States to the ICJ. In this case, a State Party to such an international treaty may trigger the automatic jurisdiction of the ICJ with respect to that international treaty. This third option is often chosen by States in order to trigger the automatic jurisdiction of the Court. For example, many disputes relating to situations of armed conflict are brought before the ICJ on the basis of the Convention on the Elimination of all Forms of Racial Discrimination or the Genocide Convention.

2. Referrals and Advisory Opinions

Referrals to the ICJ may be proposed by the UNSC when the Council is involved in the peaceful settlement of a dispute between States, the nature of which is essentially of a legal nature (arts. 33 and 36(3) of the UN Charter).

An advisory opinion on any legal question may also be requested by the UNGA and the UNSC, on their own behalf. Other organs and institutions of the UN family may also be authorised by the UNGA to request advisory opinions from the ICJ on questions relating to the mandate and activities of that organ (art. 96 of the UN Charter, art. 65(1) of the Statute of the ICJ).

3. Provisional Measures

In view of the long duration of ICJ cases and the slow pace of proceedings, the ICJ may, if the nature of the case so warrants, take a decision imposing provisional measures on one of the parties to the case (art. 41 of the Statute of the ICJ). A provisional measure protects the rights of a party to the case before the ICJ reaches a final decision and prevents serious and irreversible damage that might otherwise occur during the time required for the examination of the merits of the case. These measures are mandatory and without prejudice to the final decision. Failure to comply with these interim measures constitutes a violation of the international obligations of the State concerned and entails legal liability for that State. The final judgment of the ICJ will take full account of compliance or non-compliance with the provisional measures adopted during the examination.

A number of ICJ judgments have clarified its power to order provisional measures as a matter of urgency, without waiting for the final decision of the case. The Court defines urgency in terms of a real and imminent risk of irreparable harm. It considers that this condition of urgency is met, in particular, where:

• irreparable damage may be caused to rights which are the subject of legal proceedings;
• the alleged failure to respect those rights may have irreparable consequences;
• there is a real and imminent risk of irreparable damage being caused;
• the acts likely to cause irreparable damage may occur at any moment.

See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures , Order of 23 January 2020, I.C.J. Reports 2020, p. 3, paras. 64 and 65; Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures , Order of 3 October 2018, I.C.J. Reports 2018, p. 645, para. 77; Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures , Order of 16 March 2022, I.C.J. Reports 2022, p. 211, paras. 65, 66, 74, 75 and 77.

• the situation is unstable, and the affected population remains vulnerable to violations and violence that could lead to loss of life and bodily harm;

See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures , Order of 15 October 2008, I.C.J. Reports 2008, p. 353, paras. 142 and 143.

• to ensure that no irreparable damage is caused to persons or property as a result of armed clashes leading to fatalities, injuries, and the displacement of the local population, as well as damage to a UNESCO World Heritage site;

See Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures , Order of 18 July 2011, I.C.J. Reports 2011, p. 537, paras. 53 and 61. See also, e.g., Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures , Order of 15 December 1979, I.C.J. Reports 1979, p. 20, para. 42; Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures , Order of 10 January 1986, I.C.J. Reports 1986, p. 3, para. 21; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures , Order of 8 March 2011, I.C.J. Reports 2011, p. 6, para. 75.

• grave and repeated violations of human rights and IHL have been committed, and assets and resources in the conflict area remain vulnerable;

See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures , Order of 1 July 2000, I.C.J. Reports 2000, p. 111, paras. 42 and 43.

• to protect prisoners or other detainees from the risk of being harmed;

See Jadhav (India v. Pakistan), Provisional Measures , Order of 18 May 2017, I.C.J. Reports 2017, p. 231, para. 61; Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 77, paras. 55 and 59; LaGrand (Germany v. United States of America), Provisional Measures , Order of 3 March 1999, I.C.J. Reports 1999, p. 9, paras. 24-29; Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures , Order of 9 April 1998, I.C.J. Reports 1998, p. 248, paras. 37, 39 and 41; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures , Order of 7 December 2021, I.C.J. Reports 2021, p. 361, para. 98.

• actions could result in the destruction of material evidence needed by the Court.

(See Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures , Order of 10 January 1986, I.C.J. Reports 1986, p. 3, para. 20. See also, e.g., Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996, p. 13, para. 43.

4. Reparation

The ICJ has jurisdiction to rule on any dispute referred to it by States concerning the nature or extent of the reparation to be made for the violation of an international obligation (art. 36 of the Statute of the ICJ). International jurisprudence confirmed by the ICJ has established that the State that is responsible for an internationally wrongful act is obliged to make full reparation for the damage caused by that act. ( Case concerning The Factory at Chorzow, Claim for indemnity (Jurisdiction) , 26 July 1927, Series A, No. 9, p. 21; Application of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v. Yugoslavia], Counter-claims , Order of 17 December 1997, ICJ Collection 1997, p. 243, para. 152; and the Case of Avena and Other Mexican Nationals [Mexico v. United States of America], Judgment, I.C.J. reports 2004, p. 12, para. 119). However, as explained above, the ICJ does not directly decide on the amount and nature of reparations. Its first ruling establishes the existence of a wrongful act by the State and refers the question of reparations back to the States in the framework of a second phase of negotiations. The ICJ oversees these negotiations by stating that “in the phase of the proceedings devoted to reparation, neither Party may question the conclusions of its judgment, as they have become res judicata ”. ( Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. United States of America], Merits , Judgment, ICJ Reports 1986, p. 14, para. 284). The ICJ limits its role in this area by stating that “it is not for the Court to determine the final result of these negotiations to be conducted by the Parties. In such negotiations, the Parties should, in good faith, seek an agreed solution based upon the findings of the present judgment” ( Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168, para. 261). According to the ICJ, the fact that the parties to a dispute cannot agree on the issue of reparations is not sufficient to justify its jurisdiction. In a number of cases, the ICJ has suggested that the disagreement must be of a legal nature and not merely financial in nature in order for the parties to be able to bring the case back before the Court. It has also ruled in some cases that, in the absence of agreement between the parties, the question of reparations due should be determined by the Court. On this basis, the ICJ has identified and decided on appropriate reparations in several cases, such as with the Costa Rica/Nicaragua and the Democratic Republic of the Congo and Uganda cases. (See C ertain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 665 and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Judgment, I.C.J. Reports 2005, p. 168, para. 345 and Reparations, Judgment, I.C.J Reports, 2022, p.13, para. 409).

➔ Reparation (Compensation) </content/article/3/reparation-compensation>__

1. The ICJ’s work on Armed Conflicts and international crimes

The ICJ’s involvement in various situations of armed conflict illustrates its role as a judicial organ of international dispute settlement between States, complementing the UNSC’s role in the field of peacekeeping and the activities of the International Criminal Tribunals and the ICC. In particular, the ICJ has been involved in the management of disputes submitted by States in the following situations of armed conflict: a) Nicaragua; b) former Yugoslavia; c) DRC; d) Ukraine and Russia; e) Armenia and Azerbaijan; as well as f) Myanmar. In various decisions, the ICJ has reaffirmed its competence to act in parallel with the UNSC when requested to do so by other organs of the UN in order to give an advisory opinion on situations of armed conflict already being dealt with by the UNSC such as, g) Palestine and h) Kosovo.

1. In 1984, Nicaragua requested the ICJ to condemn the military intervention of the United States in Nicaragua which was carried out through the support of armed groups operating in the territory of Nicaragua and against Nicaragua ( Nicaragua v. United States of America , (see supra , Section I.4)). In this case, the ICJ addressed the criteria for distinguishing (1) humanitarian action from unlawful interference in the internal affairs of a State, (2) the customary nature and responsibility of the State with respect to armed groups acting under its effective control, and (3) the definition of aggression and the right of self-defence (see infra , Section III.2).
2. From 1993 to 2015, the ICJ was called upon to deal with issues related to the armed conflict in the territory of the former Yugoslavia, in parallel with the UN military intervention and the action of the ad hoc ICTY (both established by the UNSC). Three different cases were submitted to the ICJ by the various parties to the armed conflict in the former Yugoslavia. The conduct of the proceedings reflected a perfect parallel between the development of the armed conflict in the former Yugoslavia and its simultaneous translation into a legal dispute. (See the cases of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) which started on 20 March 1993 and Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Yugoslavia ) which began on 24 April 2001).

On 20 March 1993, Bosnia and Herzegovina applied to the ICJ under the Genocide convention. The application concerned acts of genocide committed during the conflict between Bosnia and Serbia from 1991 to 1995 and later in 1999 and 2000. The ICJ was asked to determine whether the State of Serbia could be held responsible for the alleged acts of genocide committed by the Serb militias from Bosnia by virtue of its support for and control over these armed groups on the territory of Bosnia and Herzegovina. On 8 April 1993, the ICJ issued an order for provisional measures before proceeding to consider the preliminary objections raised by Serbia and Montenegro regarding the ICJ’s jurisdiction over genocide. On 11 July 1996, the ICJ rendered its judgment on the preliminary objections and began its examination of the merits of the case. Serbia and Montenegro requested a review of the 11 July 1996 decision, which was denied by the Court on 3 July 2003. The judgment on the merits was finally delivered on 26 February 2007, 16 years after the events occurred and 12 years after the end of the armed conflict. (A pplication of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v. Serbia and Montenegro] , Judgment, ICJ Reports 2007, p. 43) The ICJ judgment clarifies two main elements: it recognised that, of the crimes committed during the armed conflict, only those committed in Srebrenica amounted to genocide (para. 297). The other crimes lacked the specific intent required by the Genocide convention and are more akin to ethnic cleansing and other crimes against humanity (para. 376). The Court ruled that what was commonly referred to as “ethnic cleansing” does not in itself constitute a form of genocide. Genocide presupposes the intent to physically destroy a group of persons as such, in whole or in part, and not merely the desire to expel them from a particular territory. Acts of “ethnic cleansing” may indeed be elements in the implementation of a genocidal plan, but only if there is an intent to physically destroy the targeted group and not merely to secure its forcible transfer (para. 190). The Court held that the specific intent to destroy the group in whole or in part, must be convincingly established by reference to particular circumstances, unless there is compelling evidence of the existence of a general plan to that end; and to consider a pattern of behaviour as proof of such intent, it would have to be such that it could only point to the existence of such an intent (para. 373). Thus, the Court accepted the possibility of proving genocidal intent indirectly by inference. However, in order to infer the existence of dolus specialis from a pattern of conduct, it is necessary that this be the only inference that can reasonably be drawn from the acts in question.

The ICJ also ruled that Serbia could not be held responsible for the acts of genocide committed in Srebrenica in July 1995 because it had not been established that these acts were committed either by its own agents or by foreign individuals or entities wholly dependent on Serbia (paras. 395, 415 and 471). However, the ICJ judgment found that Serbia had violated its obligation under article I of the Genocide convention by failing to use its influence over the Bosnian Serb militia to prevent the genocide (paras. 428-438). Serbia had also violated its obligation under article VI of the Genocide convention to punish the perpetrators of genocide, including by failing to fully cooperate with the ICTY in the surrender for trial of General Ratko Mladić (paras. 439-450). Finally, the Court found that Serbia had also violated the Court provisional measures ordered on 8 April 1993 (paras. 52.A.1 and 52.A.2) which required it to “take all measures within its power to prevent commission of the crime of genocide” and to “ensure that any […] organizations and persons which may be subject to its […] influence […] do not commit any acts of genocide” (para. 456). This decision extended the responsibility of States for acts committed by foreign non-State armed groups over which they have some degree of influence and control. ( Bosnia and Herzegovina v. Serbia and Montenegro , Judgment, 26 February 2007).

On 2 July 1999, Croatia also filed a complaint against Serbia and Montenegro for acts of genocide committed during the 1991 and 1995 war ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) ) which started on 2 July 1999 and concluded on 3 February 2015. Serbia raised the same preliminary objections to the Court’s jurisdiction as in the Bosnia case. By judgment of 18 November 2008, the ICJ declared its jurisdiction over the case. (Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Croatia v. Serbia and Montenegro), Preliminary Objections , Judgment, I.C.J. Reports 2008, p. 412). On 4 January 2010, the Republic of Serbia filed a counter-memorial containing a counterclaim for genocide committed by Croatia against Serbia. The final judgment in this case was delivered by the Court on 3 February 2015 in which the ICJ confirmed its jurisdiction under the Genocide convention to rule on the merits of the case. However, the ICJ dismissed Croatia’s claim and Serbia’s counterclaim for genocide. The Court found that despite the reality of killings of Croatian nationals or ethnic groups, it had not been sufficiently established that the acts in question reflected a genocidal intent. With regard to the killings of Croatian Serbs as a national or ethnic group, the Court considers that they were not committed on such a scale as to indicate the existence of a genocidal intent (paras. 148, 440, 441, 510 and 515) ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Croatia v. Serbia , Judgment, I.C.J. Reports 2015, p. 3).

On 29 April 1999, following the NATO bombing of Serbia and Kosovo, the countries of Serbia and Montenegro referred 10 similar cases to the ICJ by concerning the legality of the use of force by Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States. In two (Spain and United States) of these 10 cases, the Court, by order of 2 June 1999, held that it manifestly lacked jurisdiction and ordered that these two cases be removed from the list. ( Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures , Order of 2 June 1999, I. C. J. Reports 1999, p. 76 and Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures , Order of 2 June 1999, I.C.J. Reports 1999, p. 916) Then, on 23 December 2003, the ICJ joined the remaining eight cases. On 15 December 2004, the ICJ issued a judgment declaring that it had no jurisdiction over this joint case and did not reach the merits of the case (See Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections , Judgment, I.C.J. Reports 2004, p. 279; Legality of Use of Force (Serbia and Montenegro v. Canada), Preliminary Objections , Judgment, I.C.J. Reports 2004, p. 429; Legality of Use of Force (Serbia and Montenegro v. France), Preliminary Objections , Judgment, I.C.J. Reports 2004, p. 575; Legality of Use of Force (Serbia and Montenegro v. Germany), Preliminary Objections , Judgment, I.C.J. Reports 2004, p. 720; Legality of Use of Force (Serbia and Montenegro v. Italy), Preliminary Objections , Judgment, I.C.J. Reports 2004, p. 865; Legality of Use of Force (Serbia and Montenegro v. Netherlands), Preliminary Objections , Judgment, I.C.J. Reports 2004, p. 1011; Legality of Use of Force (Serbia and Montenegro v. Portugal), Preliminary Objections , Judgment, I.C.J. Reports 2004, p. 1160; and Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Preliminary Objections , Judgment, I.C.J. Reports 2004, p. 1307).

3. From 1999 to 2022, the ICJ examined four complaints lodged by the Democratic Republic of the Congo (DRC) concerning acts of armed aggression committed on its territory by Uganda, Rwanda and Burundi. On 31 January 2001, the DRC suspended its proceedings against Rwanda and Burundi maintaining only the complaint against Uganda ( Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) , Judgment, I.C.J. Reports 2005, p. 168). This complaint was lodged in the context of a regional war, for which the UNSC had, since 1996, been leading one of its largest peacekeeping missions, the MONUSCO (formerly MONUC). In 2001, following a request for interim measures by the DRC in June 2000, the Court ordered both parties to prevent and refrain from any armed action. In 2001, Uganda also filed three counterclaims against the DRC. Two of these counterclaims were found admissible by the ICJ and were included in the proceedings. In its November 2001 order on the Ugandan counterclaims, the Court ruled that the DRC’s alleged political and military support for anti-Uganda rebel groups operating in Uganda territory had not been proven. However, it agreed that the attack on the Ugandan embassy located in Ndili commune in the DRC and the violence against the diplomat constituted a violation by the DRC of its obligations under the Vienna Convention on Diplomatic Relations.

On 28 May 2002, the DRC filed a new application against Rwanda for “massive, serious and flagrant violations of human rights and international humanitarian law” resulting “from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant breach of the sovereignty and territorial integrity [of the DRC], as guaranteed by the United Nations Charter and the Charter of the Organization of African Unity”. The DRC added that the Court’s jurisdiction stemmed from the supremacy of peremptory norms ( jus cogens ) in the field of human rights, as reflected in certain international treaties and conventions as well in the “compromissory clauses” of many international legal instruments. The ICJ ruled in its 3 February 2006 judgment that it did not have jurisdiction to deal with the DRC’s application. It found that the international instruments invoked by the DRC could not be relied upon, either because (1) Rwanda was not a party to them, or (2) it had made reservations to them, or (3) other conditions for the Court’s jurisdiction were not met. ( Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility , Judgment, I.C.J. Reports 2006, p. 6).

The ICJ proceedings in the Ugandan case lasted for several years and resulted in a judgment on 19 December 2005 ( Democratic Republic of the Congo v. Uganda ). In this judgment, the ICJ established facts and clarified several concepts of IHL. The Court ruled that Uganda’s invasion of the DRC was an unlawful military intervention. It clarified that the conditions for self-defence were not met in this case. The Court also clarified the international responsibility of the State with regard to the law of occupation.

The Court held that Uganda was the occupying power in the region and was therefore responsible for violations of IHL and human rights law committed by its own armed forces, but also for the same violations committed by non-State armed groups operating in the territory under its control and occupation (paras. 345(1) and 345(3)). On the issue of the illegal exploitation of Congolese natural resources, the Court also ruled that Uganda, as an occupying power, was responsible for the looting, pillaging and illegal exploitation of natural resources committed by members of the Ugandan armed forces in the territory of the DRC. It also concluded that it was responsible for its failure to fulfil its obligation as an occupying power to prevent acts of looting, pillaging and exploitation of Congolese natural resources by other actors (para. 345(4)). The Court clarified that Uganda’s State responsibility was implicated because it had not taken any measures to put an end to these acts. In its 2005 judgment, the ICJ provided that the nature, form and amount of reparations would only be submitted to the Court if the Parties were unable to reach an agreement on the basis of the judgment. After 10 years of unsuccessful negotiations on this compensation, the DRC requested the Court on 13 May 2015 to settle the matter. The Court dealt with the matter between 1 July 2015 and 9 February 2022, when it delivered its final judgment on the issue of reparations. This judgment awarded the DRC 225,000,000 US dollars for damage to persons, 40,000,000 US dollars for damage to property and 60,000,000 US dollars for damage to natural resources. This was to be paid by Uganda in annual instalments of 65,000,000 US dollar from 1 September 2022. (see infra , Section III.2).

4. Two different cases have been submitted to the ICJ in connection with the armed conflict between Ukraine and Russia, which began in 2014 and escalated into a full blown international armed conflict in February 2022:

On 16 January 2017, Ukraine filed an application against Russia based on the ICJ’s jurisdiction to apply the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). On 19 April 2017, the ICJ ordered provisional measures based solely on the CERD regarding the situation in Crimea, ordering Russia to respect the rights and institutions of the Tatar community in Crimea and to provide education in the Ukrainian language. On 18 September 2018, Russia’s submission challenged the ICJ’s jurisdiction under both under the ICSFT and the CERD. By judgment of 8 November 2019, the ICJ confirmed its jurisdiction under both of these treaties (See Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections , Judgment, I.C.J. Reports 2019, p. 558, para. 134). It concluded that even if a State’s financing of terrorist acts falls outside the scope of the ICSFT, this does not mean that it is lawful under international law. Therefore, the violation of the international obligation to prevent and suppress the financing of terrorism triggers State responsibility ( Ukraine v. Russian Federation , Judgment, 8 November 2009, paras. 60 and 61). The dissenting opinion of Judge Xue rejected the ICJ’s jurisdiction in this case on the basis of the CIFRT or of the CERD. He argued that the dispute between Ukraine and the Russian Federation arose out of the non-international armed conflict in eastern Ukraine. He considered it almost impossible to distinguish between a serious violation of IHL and an alleged act of terrorism. As a result, the Court’s choice to label the military and financial assistance given to a State (in this instance, Russia) as terrorism financing, brought it into the realm of legal considerations related to defining the character of an armed conflict, a matter that fell outside of the ICJ’s jurisdiction according to the ICSFT. ( Ukraine v. Russian Federation , Judgment, 8 November 2009, para. 5). The deadline for final written submissions was on 10 March 2023 and this case remains pending for judgment, while another case was submitted by Ukraine following the Russian military invasion of Ukraine on 24 February 2022.

On 27 February 2022, following the armed invasion of its territory by the Russian army on 24 February 2022, Ukraine applied to the ICJ against Russia on the basis of a question of interpretation of the Genocide convention. On the same day, Ukraine also requested provisional measures. Ukraine argues that the dispute between the parties concerns the question whether, as a consequence of the Russian Federation’s unilateral assertion that genocide is occurring, the Russian Federation has a lawful basis to take military action in and against Ukraine to prevent and punish genocide pursuant to article I of the Genocide convention. On 16 March 2022, the ICJ declared itself competent on the basis of the Genocide convention. ( Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures , Order of 16 March 2022, I.C.J. Reports 2022, p. 211). The Court considered that the Genocide convention could not be interpreted as a justification for unilateral military intervention by Russia. It affirmed that Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine (para. 60). Considering the risk of irreparable damage and the urgency of the situation, the Court issued provisional measures requesting the Federation of Russia to immediately cease the military operation on the territory of Ukraine that began on 24 February 2022 and to ensure that any military or irregular armed units which may be directed or supported by it, as well as any organisations and persons that may be under its control or direction, take no steps in furtherance of the said military operations. (Ukraine v. Russian Federation , Order of 16 March 2022, paras. 65-78 and 86). On 3 October 2022, Russia contested the competence of the ICJ. The ICJ ordered the final submission of the parties’ written submissions by 3 February 2023 before rendering a final judgment on the question of the ICJ jurisdiction in this case based on the Genocide convention. Between 21 July 2022 and 15 December 2022, 33 States filed declarations of intervention in the case, pursuant to article 63, paragraph 2, of the Statute of the Court which the ICJ found admissible at the preliminary objection stage of the proceedings. 32 intervening States filed written observations on the subject-matter of the interventions within the time-limit date set by the ICJ for 3 July 2023. The public hearings on the preliminary objections raised by the Russian Federation took place from 18 to 27 September 2023 and the Court’s deliberations are now underway.

5. On 11 November 2019, The Gambia requested the ICJ to initiate proceedings against Myanmar for allegedly violating the Genocide convention in relation to the fate of the Rohingyas minority group. It argued the existence of an act and intent to commit genocide in the persecution of the Rohingyas by Myanmar State organs and agents including military and security forces. In the same proceedings, it requested provisional measures ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application instituting proceedings and Request for Provisional Measures , 11 November 2019, para. 132). In particular, it requested that Myanmar take all measures within its power to prevent all acts amounting to genocide, to ensure that any military, paramilitary or irregular armed forces it may direct, or support do not commit acts of genocide, and that Myanmar does not destroy or render inaccessible any evidence relating to the events in this case. On 20 January 2021, Myanmar filed a preliminary objection challenging the ICJ’s jurisdiction over the case on a number of grounds. In its judgment of 22 July 2022, the ICJ rejected Myanmar’s preliminary objections and found that the application was admissible and that the ICJ had jurisdiction over the case on the basis of article IX of the Genocide convention. ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) , Preliminary objections, Judgment, 22 July 2022, para. 115(5)). The Chinese judge was the only one to dissent, based on various legal arguments. These included the fact that the ICJ is supposed to settle disputes between States and not situations where a State that is not a party to a particular dispute (a non-injured State) asks the Court to protect the common interests in accordance with a convention. It was also argued that the Gambia’s application in fact reflected the position of the Organisation of the Islamic State, whereas the ICJ’s jurisdiction is limited to State applications excluding international organisations. ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary objections, Dissenting opinion of Judge Xue, 22 July 2022, paras. 4-7, 12-14, 16, 17 and 29). By order of 12 May 2023, the ICJ set 24 August 2023 as the deadline for the parties to submit briefs before a final decision on the merits of the case under the Genocide convention. Then on 16 October 2023, it authorised The Gambia to file a reply by the 16 May 2024 deadline and Myanmar to submit a rejoinder by 16 December 2024.
6. In the context of the armed conflict between Armenia and Azerbaijan over the Nagorno Karabagh region, which resumed with armed hostilities between September and November 2020, two separate cases were submitted to the ICJ. However, in order to trigger the Court’s automatic jurisdiction, the cases related to violations of the CERD and not directly to the territorial dispute between the two States.

On 16 September 2021, the Republic of Armenia submitted to the ICJ a case concerning alleged violations by Azerbaijan of the CERD directed at individuals of Armenian ethnic or national origin (“Armenians”), irrespective of their actual nationality. The application was accompanied by an urgent request for provisional measures to be ordered by the ICJ, in particular to refrain from practices of ethnic cleansing against Armenians. ( Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Application instituting Proceedings containing a Request for Provisional Measures , 16 September 2021, paras. 2 and 131). On 7 December 2021, the ICJ recognised the existence of a proacted armed conflict between the two parties over the status of the Nagorno-Karabagh region, which was an autonomous region before the independence of the two republics of Armenia and Azerbaijan in 1991. The ICJ confirmed its jurisdiction under the limited framework of the CERD and ordered provisional measures to protect people and cultural heritage from further attacks. (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures , Order of 7 December 2021, I.C.J. Reports 2021, p. 361). On 22 February 2023, pending its final judgment on the merits of the case, the ICJ issued additional provisional measures ordering the Republic of Azerbaijan to take all measures at its disposal to ensure the unhindered movement of persons, vehicles and goods within the Lachin corridor in both directions. ( Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) , Order of 22 February 2023, para. 67). On 21 April 2023, Azerbaijan raised preliminary objections to the jurisdiction of the Court and proceedings on the merits were therefore suspended, pending a decision on this preliminary objection. The time-limit within which Armenia could submit a written statement of its observations and submissions on the preliminary objections was set to 21 August 2023. Then on 15 May and 29 September 2023, Armenia requested the ICJ to modify its Order of 22 February 2023. The 15 May 2023 request was denied by the Court and public hearings were held on 12 October 2023 regarding the 29 September 2023 request of Armenia. The decisions on the jurisdiction issue and the request to modify the 22 February 2023 Order are currently under deliberations before the Court.

Azerbaijan countered the Armenia’s application to the ICJ with a similar application on 23 September 2021, referring to a legal dispute between Azerbaijan and Armenia concerning Armenia’s policy of ethnic cleansing and systematic violations of the CERD against Azerbaijanis. ( Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia) , Application instituting Proceedings, 23 September 2021). On 7 December 2021, the ICJ ordered interim measures requiring Armenia to take all necessary measures to prevent the incitement and promotion of racial hatred, including by organisations and private individuals on its territory, against persons of Azerbaijani national or ethnic origin. The Court also ordered both parties to refrain from any action which might aggravate or prolong the dispute before the Court or make its settlement more difficult. ( Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia) , Provisional Measures, Order of 7 December 2021, I.C.J. Reports 2021, p. 405, paras. 76(1) and (2)). Pending a final judgment on the merits of the case, Azerbaijan requested additional provisional measures on 4 January 2023, which were rejected by an ICJ’s order of 22 February 2023. ( Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia), Request for the indication of provisional measures , Order of 22 February 2023, paras. 25 and 27). On 21 April 2023, Armenia raised preliminary objections to the jurisdiction of the Court and proceedings on the merits were therefore suspended, pending a decision on this preliminary objection. The time-limit within which Azerbaijan could submit a written statement of its observations and submissions on the preliminary objections was set to 21 August 2023. The decision on the jurisdiction issue is pending before the ICJ.

The UNGA also requested advisory opinions from the ICJ in two complex situations concerning the Occupied Palestinian Territory and the independence of Kosovo. The UNGA did so on the basis of its complementary competence to that of the UNSC in matters of peacekeeping and international security (art. 24 of the UN Charter).

7. The UNGA has requested advisory opinions from the ICJ in two separate cases relating to Occupied Palestinian Territory

On 9 July 2004, the ICJ issued an advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian territory ( Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, paras. 24-25, 47, 50 and 96). This advisory opinion responded to a request made in Resolution ES-10/14 adopted by the UNGA on 8 December 2003 under article 65 of the Statute of the ICJ. The ICJ opinion examined the question of the law applicable in occupied territories and the responsibility of the occupying power under general international law, and in particular under IHL. It also stated that there should be extraterritorial application of the human rights conventions by the occupying power in the foreign territories or persons placed under its control (see infra , Section III.2). In this case, the ICJ also ruled on the interpretation of the provisions of the UN Charter concerning the separate responsibilities of the UNGA and the UNSC in the field of peacekeeping. The ICJ asserted its competence to issue an advisory opinion at the request of the UNGA on a situation in which the UNSC was already involved (paras. 25-28). It ruled that the construction of the wall by the occupying power in the Occupied Palestinian Territory is contrary to international law, that the State of Israel is responsible for this unlawful practice, that the occupying power must stop this work and dismantle the wall and pay compensation for all damage caused by the construction of the wall. (paras. 147 and 163)

On 30 December 2022, the UNGA adopted resolution A/RES/77/247 submitting to the ICJ a request for an advisory opinion on the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory including East Jerusalem. ( Legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Request for advisory opinion , 30 December 2022.) This request builds on the ICJ’s advisory opinion issued on 9 July 2004 on the legal consequences of the construction of the wall in the Occupied Palestinian Territory and asks the ICJ to rule on the following questions, particularly in relation to the violations of IHL and human rights law in the context of a military occupation: What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures? How do the policies and practices of Israel referred to in paragraph 18(a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status? By order dated 3 February 2023, the Court set the 25 July 2023 as time limit to receive written information by UN agencies, including the UNSC and written statements from States. 57 written statements from States had been filed during this time frame. These States will have until 25 October 2023, to provide written comment on submission done by other States and organisations. The Court also authorized, at their request, the League of Arab States, the Organisation of Islamic Cooperation and the African Union to participate in the proceedings. On 23 October 2023, the Court further announced its decision to hold public hearings on the request for this advisory opinion starting on 19 February 2024.

8. On 8 October 2008, the UNGA resolution 63/3 requested the ICJ to provide an advisory opinion on the legality of Kosovo’s unilateral declaration of independence. (A ccordance with international law of the unilateral declaration of independence by the provisional institutions of self-government of Kosovo, Request for advisory opinion , 8 October 2008.) On 22 July 2010, the ICJ delivered its advisory opinion, finding that the adoption by Kosovo of the declaration of independence of 17 February 2008 did not violate general international law nor the UNSC resolution 1244 (1999) or the Constitutional Framework and that it therefore did not violate any applicable rule of international law. ( Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion , I.C.J. Reports 2010, p. 403, para.122). The Court noted that one of the major developments in international law in the second half of the 20th century was the development of the right to self-determination (para. 82). The Court therefore considers that general international law does not contain a prohibition of the declaration of independence (para. 84). It also confirms its competence to give an advisory opinion at the request of the UNGA despite the fact that the UNSC was dealing with the same matter, arguing that such an advisory opinion does not in itself constitute a recommendation by the UNGA with regard to a dispute or situation. (paras. 24, 39-48).

2. Contribution to the Interpretation of International Humanitarian Law

The decisions of the ICJ (judgments and advisory opinions) have provided clarification and precision on several concepts of international law related to IHL, including human rights, but also on the responsibility of the State and its international responsibility, in particular in matters of security, self-defence, aggression, occupation of territory and international crimes.