International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons

1997 ◽  
Vol 37 (316) ◽  
pp. 35-55 ◽  
Author(s):  
Louise Doswald-Beck

The Advisory Opinion of the International Court of Justice represents the first time that the Court's judges have been called upon to analyse in some detail rules of international humanitarian law. Other instances, for example, the Nicaragua case, involved nowhere near such an extensive analysis. The Advisory Opinion is therefore of particular interest in that it contains important findings on the customary nature of a number of humanitarian law rules and interesting pronouncements on the interpretation of these rules and their relationship with other rules. Most judges based their final decision on the legality of the threat or use of nuclear weapons on teleological interpretations of the law, choosing either the right of self-defence as being the most fundamental value, or the survival of civilization and the planet as a whole as paramount. Unfortunately, space does not permit a comment on these highly important analyses of the underpinnings of humanitarian law and its purpose in the international order. Therefore, rather than focusing primarily on the Court's conclusion as to the legality of the threat or use of nuclear weapons, this short comment will concentrate on the various pronouncements made on humanitarian law rules. Reference to the Court's finding on the legality of the use of nuclear weapons will only be made from the point of view of how it has contributed to the interpretation of those rules. For this purpose, reference will be made not only to the Advisory Opinion as such (hereafter referred to as the “Opinion”), but also to the various Separate and Dissenting Opinions.

1997 ◽  
Vol 37 (316) ◽  
pp. 56-64
Author(s):  
Hisakazu Fujita

The Advisory Opinion handed down by the International Court of Justice (ICJ) on 8 July 1996 concerning the legality of the threat or use of nuclear weapons contains many elements that are of fundamental interest from the standpoint of international humanitarian law. Indeed, humanitarian law, which has developed to a remarkable extent since the Second World War, has always lacked an express ruling on nuclear weapons.


1996 ◽  
Vol 36 (313) ◽  
pp. 500-502
Author(s):  
The Review

On 8 July 1996, the International Court of Justice gave its advisory opinion in response to two enquiries as to the legality of the threat or use of nuclear weapons. Whilst the Court did not examine in detail the request put forward by the World Health Organization, it did give very close attention to the question presented by the General Assembly:“Is the threat or use of nuclear weapons in any circumstance permitted under international law?”


1997 ◽  
Vol 37 (316) ◽  
pp. 118-119

The debate in the First Committee of the United Nations General Assembly (51st Session, 1996) on agenda items 71 and 75 (disarmament and the 1980 Conventional Weapons Convention) gave the ICRC the opportunity to make the following brief comment on the Advisory Opinion of the International Court of Justice relating to the legality of the threat or use of nuclear weapons:This was the first time that the International Court of Justice analysed at some length international humanitarian law governing the use of weapons. We were pleased to see the reaffirmation of certain rules which the Court defined as “intransgressible”, in particular the absolute prohibition of the use of weapons that are by their nature indiscriminate as well as the prohibition of the use of weapons that cause unnecessary suffering. We also welcome the Court's emphasis that humanitarian law applies to all weapons without exception, including new ones. In this context we would like to underline that there is no exception to the application of these rules, whatever the circumstances. International humanitarian law is itself the last barrier against the kind of barbarity and horror that can all too easily occur in wartime, and it applies equally to all parties to a conflict at all times.


1997 ◽  
Vol 37 (316) ◽  
pp. 76-91 ◽  
Author(s):  
Timothy L.H. McCormack

The Advisory Opinion delivered by the International Court of Justice (ICJ) on the legality of the Threat or Use of Nuclear Weapons was a somewhat disappointing if not entirely unexpected decision. After the final paragraph, which constitutes the dispositif, all fourteen judges appended either personal declarations, separate opinions or dissenting opinions to indicate the extent to which they agreed or disagreed with specific findings and particular aspects of the reasoning behind the Opinion.


Author(s):  
Esam Elden Mohammed Ibrahim

The International Court of Justice had the opportunity to establish the principles of international humanitarian law and restrict the use or threat of nuclear weapons, on the occasion of its fatwa, on the legality of the threat or use of nuclear weapons at the request of the United Nations General Assembly, after realizing that the continued development of nuclear weapons exposes humanity to great risks, and its request It states, "Is the threat or use of nuclear weapons in any circumstance permissible under the rules of international law" (Atalm, 1996), (Shahab, 2000), Therefore, the comment seeks to answer the question: What is the legality of possession, production and development of nuclear weapons? What is the extent of the legality of the threat to use it in light of the advisory opinion of the International Court of Justice in this regard? Was the decision of the International Court of Justice in favor of documenting the principles of international humanitarian law and international human rights law? Or was it biased in its decision to the interests of a particular class itself? The researcher used in that descriptive, descriptive and critical analytical method, and the results that lead to criticism of the work of the International Court of Justice in this regard were reached on the premise that they tended towards tipping the political nature of the issue presented to it under the pressures and directions of the major nuclear states and this strengthens my criticism to the United Nations that I see It only works for the benefit of the major powers under the auspices of the Security Council by veto (right to veto) at a time when the Security Council itself is responsible for maintaining international peace and security, just as it can be said that the United Nations does not work for the benefit of mankind but works for the five major countries Even with regard to nuclear weapons Regardless of whether or not there was a threat to international peace and security. From this standpoint, the researcher reached several recommendations, the most important of which is the necessity of the independence of the International Court of Justice in its work from the political considerations of member states, especially the major countries, as a step to establish and support international peace and security in a practical way in practice. The United Nations should also reconsider what is known as a veto, which is and it is rightly one of the most important and most important measures that truly threaten international peace and security.


2001 ◽  
Vol 14 (2) ◽  
pp. 349-365 ◽  
Author(s):  
Judith Gardam

This article considers the contribution of the International Court of Justice (‘ICJ’) to the development of the rules and principles of international humanitarian law (‘IHL’). In recent times, the contribution of the Court to this body of the law has been overshadowed by the work of the two ad hoc international criminal tribunals, the ICTY and the ICTR, established by the Security Council to punish those responsible for serious breaches of IHL. Nevertheless, the ICJ, in both its contentious and advisory jurisdictions, has considered the provisions of IHL on a number of occasions, and in the process has clarified many areas of IHL. This article is concerned with one particular issue: how does the Court perceive the fundamental nature of IHL? The analysis adopts two themes. First, an assessment is made of the part played by the Court in the process of bringing IHL into conformity with the changing emphasis of general international law. In both the Nicaragua case and the Nuclear Weapons Advisory Opinion the Court continued the process of what has been referred to as the “humanization of international law.” Second, the approach of the Court to the vexed issue of the relationship between ius ad bellum and IHL is considered. The conclusion is reached that the approach of the Court to this latter issue has undermined its contribution to infusing the humanitarian ethos into IHL.


2006 ◽  
Vol 100 (4) ◽  
pp. 895-901
Author(s):  
Daniel Bodansky ◽  
Geoffrey R. Watson

Mara'Abe v. Prime Minister of Israel. Case No. HCJ 7957/04. At <http://elyonl.court.gov.il/eng/home/index.html> (English translation).Supreme Court of Israel, sitting as the High Court of Justice, September 15, 2005.In Mara ‘abe v. Prime Minister of Israel, the Israeli Supreme Court held that the routing of a portion of Israel's “security fence” in the northern West Bank violated international humanitarian law. The Supreme Court, sitting as the High Court of Justice, ordered the Israeli government to consider alternative paths for the barrier. The Mara'abe decision expanded on the Court's earlier ruling in Beit Sourik Village Council v. Israel, in which the Court ordered the rerouting of another segment of the obstacle. Mara ’abe also revealed some of the Israeli Court's views on Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory— the 2004 advisory opinion of the International Court of Justice (ICJ) holding that construction of the barrier anywhere in occupied territory violates international law.


Sign in / Sign up

Export Citation Format

Share Document