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

Yıl 2016, Cilt: 36 Sayı: 2, 83 - 130, 30.12.2016

Merve Özkan Borsa

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

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• 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.
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