THE CONTRIBUTION OF THE INTERNATIONAL COURT OF JUSTICE TO THE DEVELOPMENT OF INTERNATIONAL HUMANITARIAN RULES AND PRINCIPLES

Öz

In spite of the fact that the International Court of Justice (hereinafter ‘the Court’ or the

‘ICJ’), the principal judicial organ of the United Nations1 might not be the first international

court to come to mind concerning International Humanitarian Law (IHL)2, it is argued in

this study that its judgments and advisory opinions serve as a base both for the development3

of this field of law (IHL), and for the process called “humanization of international law” Grounded on such a point, the purpose of this article is instantiated as to address the relevant

jurisprudence of the ICJ regarding IHL such as -contentious cases and advisory opinions

of- Corfu Channel Case5, Military and Paramilitary Activities in and against Nicaragua6,

Legality of the Threat or Use of Nuclear Weapons7, Legal Consequences of the Construction

of a Wall in the Occupied Palestinian Territory8 and Armed Activities on the Territory

of Congo9 and to examine these cases for identifying how the Court has approached to the

basic general principles of IHL and then to investigate whether it has -through the findings

of these cases submitted and the requests of advisory opinions transmitted-, really made

any noteworthy and/or original contribution to it, as assumed in the article.

To that end, first of all, a general introduction of the subject will be sketched out by focusing

spesifically on the (positive) influence of the increase in the rhetoric of the notion of

“humanitarian” in international law on the norms of IHL. Following the Introduction,

an overview of the significance and the role of international courts and tribunals in international

law in general will be given place and discussed briefly. As the underlying

aspect of the study, this part is also planned so as to constitute the primary legal theoretical

framework of the research. In order to achieve our main purpose, starting with

the reasons of the ICJ’s distinguishing role and importance for the matter at hand, next

section of the article will be devoted to analyzing the case law mentioned above. Lastly

in the Conclusion part, in the light of all these cases, the contribution of the ICJ to IHL

will be attempted to be assessed.

Anahtar Kelimeler

• Public International Law,International Court of Justice,International Humanitarian Law,Case Law of International Law,Humanization of International Law

Kaynakça

1. A/RES/ES-10/14, 12 December 2003, “Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory”
2. ABI-SAAB, Rosemary; The ‘General Principles’ of Humanitarian Law According to the International Court of Justice, International Review of the Red Cross, No.259, July-August 1987, Geneva, p.367-375
3. Annual Report of Secretary-General to General Assembly, SG/SM/7136 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p.168.
4. Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p.32, para.33.
5. BEDI, Shiv R.S.; The Development of Human Rights Law by the Judges of the International Court of Justice, Hart Publishing, North America, 2007.
6. BOYLE, Alan, CHINKIN, Christine; The Making of International Law, Oxford University Press, New York, 2007.
7. CHETAIL, Vincent; The contribution of the International Court of Justice to International Humanitarian Law, IRRC, Vol. 85 No. 850, June 2003, p. 235-269.
8. Corfu Channel Case, Judgment of April 9th, 1949: ICJ Reports, p. 4.

9. ECHR, Lopez Ostra v. Spain, Judgment of 9 December 1994, App 16798/90 Series A no. 303-C, (1995) 20 EHRR 277.
10. ESCORIHUELA, Alejandro Lorite; Humanitarian Law and Human Rights Law, Michigan State Journal of International Law, Vol.19, Issue. 2, 2011, p. 300-406.
11. Factory at Chorzow, Merits, Judgment No 13, 1928, P. C. I.J., Series A, No. 17, p. 47.
12. GREPPI, Edoardo; The Evolution of Individual Criminal Responsibility Under International Law, International Review of the Red Cross, No. 835, 1999, Çevrimiçi: https://www.icrc.org/eng/ resources/documents/ article/other/57jq2x.htm
13. HIGGINS, Rosalyn; Problems and Process: Intermational Law and How We Use It, Oxford University Press, Oxford, 2004.
14. JENNINGS, Robert; The Role of the International Court of Justice in the Development of International Environment Protection Law, Review of European Community and International Environmental Law, Vol.1, Issue. 3, 1992, p.240-244.
15. Judgment, Furundzija; IT-95-17/1-T, Trial Chamber, 10 December 1998, p.72.
16. LAUTERPACHT, Hersch; The Development of International Law by the International Court, Reprinted Edition by Cambridge University Press, Cambridge, 1982.
17. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136.
18. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226.
19. LUBAN, David ; Human Rights Thinking and the Laws of War, Georgetown University Law Center, 2015, Çevrimiçi: http://ssrn.com/abstract= 2589082).
20. MERON, Theodor; The Humanization of Humanitarian Law, American Journal of International Law, Vol.94, No.2, p.239-278.
21. MERON, Theodor; The Martens Clause, Principles of Humanity, and Dictates of Public Coscience, American Journal of International Law, Vol.94, No.1, 2000, p.78-89.
22. MERON, Theodor; Human Rights and Humanitarian Norms as Customary Law, Oxford Unversity Press, Oxford, 1989.
23. MERON, Theodor; The Humanization of International Law, Martinus Nijhoff Publishers, The Netherlands, 2006. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14. North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3.
24. PAULSON, Colter; Compliance with Final Judgments of the International Court of Justice since 1987, American Journal of International Law, Vol.98, 2004, p.434-461.
25. NIETO-NAVIA, Rafael; International Peremptory Norms (Jus Cogens) and International Humanitarian Law, Man’s Inhumantiy to Man: Essays on International Law in Honour of Antonio Cassese, Ed. by Lal Chand Vohrah et al., Kluwer Law International, The Netherlands, 2003, p. 595-640.
26. RAIMONDO, Fabian; The International Court of Justice as a Guardian of the Unity of Humanitarian Law, Leiden Journal of International Law, Vol.20, Issue.3, 2007, p. 593-611. United Nations General Assembly Resolution 2625(XXV) entitled ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.