The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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International Court of Justice (ICJ)

The International Court of Justice (ICJ) is the judicial organ established by the UN Charter to settle disputes between States. Its Statute is part of the Charter and constitutes its fifteenth and final chapter. The Court does not judge individuals but States. The ICJ should not be confused with the International Criminal Court, which judges individuals on the basis of their individual penal responsibility with regard to crimes under international law, whereas the ICJ concentrates on international duty and responsibility of States. Even if the ICJ is an organ provided for by the Charter, its competence is not compulsory for the UN Member States, who remain free to accept its jurisdiction on either a permanent or an ad hoc basis.

Only States may refer matters to the ICJ against other States that have also accepted its jurisdiction.

The jurisdiction of the Court applies to all disputes that comprise a legal component such as the interpretation of a treaty; any point of international law; the existence of any fact which, if established, would constitute a breach by a State of its international obligations; and the nature or extent of the reparation to be made for the breach of such an obligation (Art. 36 of the Statute).

In its rulings, the ICJ applies the existing rules of international law such as international conventions, customary law, the jurisprudence, general principles of law, and the doctrine. The ICJ may also, if the parties concerned agree, base its judgment on broader notions of “fairness” (Art. 38 of the Statute). In this case, its ruling will then resemble arbitration more than a judgment.

The decisions of the ICJ are binding and final for the States and cannot be appealed against (Art. 94.1 of the Charter, Art. 60 of the Statute). The Security Council has the authority, at the request of the injured State, to implement special measures to enforce a judgment rendered by the ICJ (Art. 94.2 of Charter).

The judgments and rulings of the Court can establish the facts and the applicable law and determine whether a State is responsible for an act that violates its international commitments. An act is considered internationally unlawful if it can be attributed to the behavior of the State, of its agents, or by individuals acting on its behalf or under its control. Such an act entails international responsibility of the State and gives rise to compensation. In this case, the State in question is obliged to fully redress the damage caused by its internationally illicit behavior, in accordance with the general principles of international public law relating to the responsibility of the State. The ICJ does not itself primarily fix the amount of the reparations in its judgments. The question of reparation is referred back to direct negotiation between States. In the case of disagreement between States on the amount of reparation, they can decide to submit this specific dispute to the ICJ.

In addition to rulings on disputes submitted by States, Article 65 of the Statue provides that the ICJ may render advisory opinions upon the request of any organ or international (intergovernmental) organization authorized by the Charter. Article 96 of the Charter confers this power to the UN General Assembly and to the Security Council as well as to all United Nations organs or specialized institutions particularly authorized with this objective by a decision of the General Assembly. Although without binding effect, advisory opinions of the Court contribute to the clarification and development of international law. They also carry a legal and moral authority that may play a role in preventive diplomacy. In fact, the Charter promotes the ICJ among the non-military means available to the Security Council for managing peaceful settlement of disputes and threats to international peace and security (Arts. 36–41 of the Charter).

Individuals and non-state organizations cannot refer matters to the ICJ.

  • For States, the jurisdiction of the ICJ is not mandatory. They must formally accept it either on a general basis or on an ad hoc basis on the occasion of a particular dispute (Art. 36 of the Statute). As soon as they accept the submission of a case to the Court, its decisions become legally binding
  • The Court may also, outside of any litigation, give advisory opinions on the interpretation of international law and international treaties at the request of certain UN organs (Art. 96 of the Charter, Arts. 65–68 of the ICJ Statute).

Composition

The ICJ is composed of fifteen judges elected for nine years by the General Assembly and the Security Council of the UN (Art. 3 of the ICJ Statute). The choice of the judges must allow a fair representation of the principal legal systems of the world (Art. 22 of the ICJ Statute). The seat of the Court is in The Hague, Netherlands.

Jurisdiction

Disputes between States

All UN Member States are ipso facto parties to the Statute of the ICJ (Art. 93.1 of UN Charter). However, acceptance of the ICJ’s jurisdiction remains optional. States must specifically agree to refer to the Court questions of law or facts over which they are in dispute with other States. Once States accept the jurisdiction of the ICJ over a case, they will automatically be bound by its decision.

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

  • They may at any time make a formal declaration that they recognize, with regard to all disputes and without reference to any dispute in particular, the obligatory jurisdiction of the Court (Art. 36.2 of ICJ Statute). In so doing, they agree to submit to the Court all legal disputes with any other State that has also made the same declaration. The Court then has jurisdiction to rule on all legal matters concerning the interpretation of a treaty, any point of international law, as well as the existence of any fact that, if established, would constitute a breach of an international obligation, and the nature or extent of reparations to be made for such a breach.
  • In the case of a dispute, the States concerned may also choose by mutual agreement to submit that particular case to the jurisdiction of the Court (Art. 36.1 of the Statute).
  • More than three hundred international conventions and treaties also refer to the ICJ for questions of interpretation or disputes between States.

Referrals and Advisory Opinions

Referral to the Court may also be suggested by the Security Council when it is involved in the peaceful settlement of a dispute between States, the nature of which is essentially legal (Arts. 33 and 36.3 of the Charter).

The General Assembly and the Security Council of the UN may also request on their own behalf an advisory opinion on any legal question. Other organs and institutions of the United Nations family may equally be authorized by the General Assembly of the UN to request consultative opinions from the ICJ on questions related to their mandate and activities (Art. 96 of the Charter, Art. 65.1 of the ICJ Statute).

Provisional Measures

Given the duration and slow pace of procedures, the ICJ may, when the nature of the case warrants it, take a decision imposing precautionary measures on any of the parties to the litigation (Art. 41 of the Statute). What is at stake here is to protect the rights of any of the parties and to prevent serious and irreversible acts being committed during the time required by the investigation into the merits of the case. These measures, without prejudice to the final decision, are obligatory in nature. Non-respect of these precautionary measures constitutes a breach of the international obligations of the State concerned and entails its legal liability. The final judgment of the Court gives full account of respect or breaches of the precautionary measures passed during examination.

Reparation

The Court has jurisdiction to rule on all disputes referred to it by States concerning the nature or extent of the reparation to be made for the breach of an international obligation (Art. 36 of the ICJ Statute). The jurisprudence of the Court states that it is well established that the State that is responsible for an internationally wrongful act is obliged to make full reparation for the harm caused by that act ( Factory at Chorzow , Jurisdiction 1927, PCIJ, 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 ], Counterclaims, Ordinance of 17 December 1997, ICJ Collection 1997, p. 243, para. 152; and the Case of Avenae and Other Mexican Nationals [ Mexico v. United States of America ], Judgment of 31 March 2004, para. 119). However, the ICJ does not decide directly on the amount and nature of reparations. It first decides on the existence of a wrongful act by the State and refers the issue of reparations back to the States in the framework of a second phase of negotiations after the delivery of its judgments. However, the Court oversees this negotiation by asserting 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 Court 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). The fact that the parties to the litigation cannot reach an agreement on the issue of reparations is not, according to the Court, enough to justify its jurisdiction. In this instance, the ICJ suggests that the disagreement must bear a legal nature and not only a financial one, so the parties may resubmit the case to the Court.

Reparation (Compensation)

Judgments and Advisory Opinions of Interest to Humanitarian Law

As part of its judgment and opinion, the ICJ has received several questions relating to situations of armed conflict, some of which were also considered by the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda (hereafter referred to as “the International Criminal Tribunals”). The work of the ICJ defines and establishes the various aspects of State responsibility in these situations. It complements the work of the International Criminal Tribunals, which is limited to the consideration of individual criminal responsibility.

The decisions of the ICJ therefore specify, in the light of general international law, some notions of humanitarian law examined under international criminal law by the International Criminal Tribunals as well as by the International Criminal Court (ICC). The judgments and opinions of the Court provide an additional understanding and interpretation of numerous notions of international and humanitarian law.

The Action of the ICJ Relating to Armed Conflicts

The involvement of the ICJ in different situations of armed conflict illustrates its role as a judicial organ of international conflict management between States in addition to the action of the UN Security Council in the field of peacekeeping and the action of the International Criminal Tribunals. In different decisions, the ICJ has reiterated its jurisdiction to act in parallel to the action of the Security Council when it is requested by other organs of the United Nations in order to provide an advisory opinion on situations already submitted to the Council.

In 1984, the ICJ was requested by Nicaragua to obtain a condemnation of the military intervention by the United States through the support of armed groups operating on the territory of and against Nicaragua ( Nicaragua v. United States of America , see above). In this case, the Court expressed an opinion on the criteria distinguishing (1) humanitarian action from illicit intrusion into the internal affairs of a State, (2) the customary character and responsibility of the State in respect of armed groups acting under its effective control, and (3) the definition of aggression and the right to self-defense (infra Section 2).

As to the conflict in the former Yugoslavia, the ICJ was intensely active in parallel with the UN military intervention and the action of the ad hoc International Criminal Tribunal, both established by the UN Security Council. In all, eight different cases were submitted to the ICJ. The handling of the procedure reflects a perfect parallel between the development of the armed conflict in former Yugoslavia and its simultaneous translation into a legal battle. On 20 March 1993, Bosnia and Herzegovina solicited the Court under the application of the Convention on the prevention and punishment of the crime of genocide. The complaint concerned acts of genocide committed during the conflict between Bosnia on the one hand and Serbia and Montenegro on the other hand between 1991 and 1995 and later between 1999 and 2000. The ICJ had notably to determine whether the State of Serbia could be held responsible for the acts committed by the Serbian militia from Bosnia due to its support and control of these armed groups on the territory of Bosnia and Herzegovina. The ICJ issued an order of precautionary measures on 8 April 1993 before proceeding to the examination of the preliminary objections raised by Serbia and Montenegro with regard to the jurisdiction of the ICJ on the matter of genocide. On 11 July 1996, the ICJ issued its judgment on the preliminary objections and started the examination of the merits of the case. Serbia and Montenegro requested a review of the 11 July 1996 decision, which was rejected by the Court on 3 July 2003. The ruling on the merits was finally issued on 26 February 2007, sixteen years after the events took place and twelve years after the end of the conflict ( Application 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). In this decision, the ICJ ruled that Serbia could not be held accountable for the acts of genocide committed in Srebrenica in July 1995 as it had not been established that they were committed either by its own agents or by foreign individuals or entities entirely dependent upon Serbia (para. 395). This ruling incorporated and expanded upon the rules concerning the attribution of responsibility to a State for the acts of foreign armed groups. On 2 July 1999, Croatia also submitted a complaint against Serbia and Montenegro for acts of genocide committed during the war between 1991 and 1995 ( Croatia v. Serbia and Montenegro ). Following the same preliminary objections raised by Serbia with regard to its jurisdiction, the Court issued its judgment declaring the case admissible on 18 November 2008 ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide [ Croatia v. Serbia and Montenegro ] Preliminary Objections, Decision, ICJ Collection 2008, p. 412). In the meantime, on 29 April 1999, following the NATO bombing of Serbia and Kosovo, eight similar cases were submitted to the Court by Serbia and Montenegro concerning the legality of the use of force by Germany, Belgium, Canada, France, Italy, the Netherlands, Portugal, the United Kingdom, and the United States. On 23 December 2003, the Court joined the eight cases. On 15 December 2004, the Court issued a judgment ruling that it had no jurisdiction on this case without adjudicating on the merits ( Legality of Use of Force [ Serbia and Montenegro v. Belgium ], Preliminary Objections, Judgment, ICJ Reports 2004, p. 279).

In 1999, the Court examined three complaints submitted by the Democratic Republic of Congo (DRC) relating to accusations of armed actions carried out on its territory by Uganda, Rwanda, and Burundi. This complaint concerned a context of regional war for which the Security Council has managed since 1996 one of its largest peacekeeping missions, the MONUSCO (previously MONUC). Complaints have also been submitted to the ICJ by the governments of DRC and Uganda since 2004 for the criminal activities of armed rebel groups. The ICJ procedure lasted for several years and resulted in a decision in 2005 ( Armed Activities on the Territory of the Congo [ Democratic Republic of the Congo v. Uganda ], Judgment, ICJ Reports 2005, p. 168)*.* In this case, the Court clarified several notions of the law of armed conflict relating to the definition of occupation and the specific responsibility of the State in its capacity as an occupying force, but also the responsibility of the State as a consequence of its effective control or tolerance of the activities of non-state armed groups, and the consideration of the action of these armed groups in the definition of aggression and recourse to legitimate armed defense (infra Section 2).

The UN General Assembly applied to the ICJ in two complex situations concerning the Palestinian territories and the independence of Kosovo on the basis of its complementary jurisdiction to that of the Security Council on issues relating to peacekeeping and international security (Art. 24 of the Charter). On 9 July 2004, the ICJ rendered 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, ICJ Reports 2004, p. 136, paras. 24, 25, 47, 50, and 96). This opinion examined the question of the law applicable in occupied territories and the responsibility of the occupying power in general international law and particularly in humanitarian law. It also stated that there should be extraterritorial application of the human rights conventions by the occupying force in the foreign territories or individuals placed under its control (infra Section 2). In this case, the Court also ruled on the interpretation of the provisions of the Charter concerning the additional responsibilities of the General Assembly and the Security Council in the matter of peacekeeping. The Court asserted its jurisdiction to issue an advisory opinion at the request of the General Assembly on a situation in which the Security Council is itself invoked.

It also rendered an advisory opinion on 22 July 2010 on the compliance with international law of the unilateral declaration of independence of Kosovo ( Compliance with International Law of the Unilateral Declaration of Independence of Kosovo , Advisory Opinion, ICJ Report 2010, p. 403).

Contribution to the Interpretation of International Humanitarian Law

The ICJ decisions (judgments and advisory opinions) have provided clarification and precision on several notions of international law connected to international humanitarian law, of human rights but also of responsibility of the State and its international responsibilities, notably in matters of security, self-defense, aggression, and occupation of territory.

Humanitarian Action and Interference in the Internal Affairs of a State

In the case Nicaragua v. United States of America (paras. 202–3, 242–43), the Court specified the conditions that humanitarian aid from a State must meet in order not to be considered as interference in the internal affairs of a State. The Court held that

in order not to bear the character of a condemnable action in the internal affairs of another State, not only “humanitarian assistance” must be limited to the purposes established by the practice of the Red Cross, namely “to prevent and alleviate human suffering” and “to protect the life and health [and] to respect the human person”: it must also, and above all, be given without discrimination to all in need in Nicaragua, and not only to the contras and their relatives. (para. 243)

Humanitarian principlesIntervention

Customary Law

In the case Nicaragua v. United States of America (supra), the ICJ pointed out that the non-respect by a State of a customary rule is not equivalent to its disappearance (para. 186).

Customary international humanitarian law

SelfDefense and Aggression

The International Court of Justice has, in several rulings, specified the definition of aggression and the legal conditions to recourse to armed force by the States under legitimate defense as foreseen by the Charter of the United Nations and international customary law ( Nicaragua v. United States of America , paras. 35, 74, 176, 194, 195, 199, 200, 211, and 247; Democratic Republic of Congo v. Uganda, paras. 143–48). It specifies the legal link existing between legitimate defense and aggression ( Nicaragua v. United States of America , paras. 74, 211; Democratic Republic of Congo v. Uganda , paras. 143–48). The Court distinguishes aggression from other threats to the internal security of a State that do not allow the invoking of legitimate defense and legitimizes the use of force ( Nicaragua v. United States of America , para. 224).

AggressionSelf-defense

Responsibility of the State Due to Its Agents and Bodies

In several cases, the International Court of Justice has specified that the behavior of a State agent or body always engages the responsibility of that State without the necessity for proving that this agent or body acted upon orders or went beyond them (see Dispute Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights , Advisory Opinion, ICJ Reports 1999 [I], p. 87, para. 6, and Democratic Republic of Congo v. Uganda , paras. 213–14).

Responsibility

Responsibility of the State Due to Its Control of Nonstate Armed Groups

The responsibility of the State for actions committed by non-state armed groups acting under its more or less strict control was specified in three major cases by the International Court of Justice. The Court clarified the notion of “effective control,” allowing the attribution of the acts of these non-state groups to the State that assures this control ( Nicaragua v. United States of American , paras. 109–16; Bosnia and Herzegovina v. Serbia and Montenegro , paras. 391–406; Democratic Republic of Congo v. Uganda , paras. 161–65, 213–14, 220, 245, 248–50, 277, and 300–301).

International armed conflictResponsibility

Occupation

The question of the definition of occupation and the obligations of the occupying force has been examined by the ICJ in the framework of two important cases ( Democratic Republic of Congo v. Uganda , paras. 172–80 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , paras. 78, 89, 90, and 95). The ICJ recognized that the definition of occupation and the obligations related thereto are included in both the Hague rules of 1907 and in the Fourth 1949 Geneva Convention. It stated the customary character of one part of this law, which is therefore not subjected to the formality of ratification by the occupying State ( Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory paras. 78, 79, and Democratic Republic of Congo v. Uganda , para. 172). The ICJ specified the definition and the obligations of the occupying force ( Democratic Republic of Congo v. Uganda , paras. 172. 178, 179, and 180). In the particular case of occupation, the Court also affirmed the extraterritorial application of the conventions relating to human rights by the occupying power to people and territories placed under its control.

Human rightsOccupied territory

Simultaneous Application of Human Rights and International Humanitarian Law

The International Court of Justice has established the principle of the simultaneous and extraterritorial application of human rights and international humanitarian law. It states that the application of human rights does not desist during armed conflicts, with the exception of existing derogation clauses and in keeping with the existing procedures designed for this purpose. The Court further adds that the conventions relating to human rights are extraterritorial in particular in situations of occupation or detention, due to the fact that control is exercised by a State on certain individuals or foreign territories ( Legality of the Threat or the Use of Nuclear Weapons , Consultative Opinion, ICJ Collection 1996, p. 226, para. 24; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , paras. 102–9, 111–113; and Democratic Republic of Congo v. Uganda , paras. 216–17).

Human rightsInternational humanitarian law

Interpretation of the Law

The ICJ specified the rules of interpretation of international law as contained in the Vienna Convention on the Law of Treaties (1969) and denied the validity of State interpretations of the international humanitarian law that lead to clearly absurd and unreasonable results ( Petrol Platforms [ Islamic Republic of Iran v. the United States of America ], Preliminary Exception, Judgment, ICJ Reports 1996 [II], p. 812, para. 23; Island of Kasikili/Sedudu [ Botswana v. Namibia ], Judgment, ICJ Reports 1999 [II], p. 1059, para. 18; Sovereignty over Palau Ligitan and Palau Spidan [ Indonesia v. Malaysia ], Decision, ICJ Reports 2002, p. 645, para. 37; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , para. 94).

International conventionsInternational Law

Reparations and Jurisdictional Immunity of the States

In several judgments, the ICJ recalled the existence of an obligation for States to compensate another State for the consequences of their illegal acts ( Factory at Chorzow , Competence, 1927, Series A No. 9, p. 21; Gabčíkovo-Nagymaros Project [ Hungary v. Slovakia ], Decision, ICJ Reports 1997, p. 81, para. 152; Avena and Other Mexican Nationals [ Mexico v. the United States of America ], ICJ Reports 2004, p. 59, para. 119; and Democratic Republic of Congo v. Uganda , paras. 259–61).

However, the ICJ distinguished this State obligation from the individual right to reparation for victims of human rights or humanitarian law violations and restated the jurisdictional immunity of the States in respect of requests for reparation coming directly from individual victims of Nazi war crimes. The Court restated that customary international humanitarian law always imposes the recognition of the immunity of the State whose armed forces or other bodies are accused of having committed harmful acts on the territory of a foreign State during an armed conflict. It also confirms that this immunity is not dependent upon the seriousness of the alleged acts ( Case on the Jurisdictional Immunities of the State [ Germany v. Italy; Greece Intervening ], Judgment, 3 February 2012, paras. 78–93, 100–101).

The ICJ confirmed in another case the existence of the jurisdictional immunity enjoyed by heads of States, governments, and foreign ministers in office. The Court underlined however that this immunity is not applicable for war crimes or crimes against humanity they could have perpetrated. Indeed, the ICJ considers that immunity from criminal jurisdiction and individual criminal responsibility are distinct notions. Jurisdictional immunity is not permanent and only prevents criminal prosecution for a limited period. In addition, jurisdictional immunity remains before national courts but cannot be invoked before the ICJ ( Arrest Warrant of 11 April 2000 [ Democratic Republic of Congo v. Belgium ], Judgment, ICJ Reports 2000, p. 3, paras. 58, 60).

AggressionArbitrationEuropean Court of Human RightsGeneral Assembly of the UNHierarchy of normsImmunityIndividual recourseInter-American Court of, and Commission on, Human RightsInternational armed conflictInternational conventionsInternational Criminal CourtInternational Criminal TribunalsInternational humanitarian lawNon-international armed conflictReparation (Compensation)ResponsibilitySecurity Council of the UNUnited NationsWar crimes/Crimes against humanity

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@ www.icj-cij.org

For Additional Information: Abi-Saab, Rosemary. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Some Preliminary Thoughts on the Advisory Opinion of the International Court of Justice.” International Review of the Red Cross 855 (September 2004): 633–57.

Apostolidis, Charalambos. The Judgments of the International Court of Justice . Dijon: University of Dijon, 2005.

Chetail, Vincent. “The Contribution of the International Court of Justice to International Humanitarian Law.” International Review of the Red Cross 850 (June 2003): 235–69.

Dinh, Nguyen Quoc, Patrick Daillier, and Alain Pellet. International Public Law . Paris: LGDJ, 2002, esp. 889–911.

Guillaume, Gilbert. The International Court of Justice, at the Dawn of the Twenty-first Century: Through the Eyes of a Judge . Paris: Pédone, 2003.

Labrecque, Georges. Strength and Law: Jurisprudence of the International Court of Justice . Bruylant: Editions Yvon Blais Canada, 2008.