8. The International Court of Justice

The International Court of Justice (ICJ) at The Hague has long had certain limited roles in respect of implementation of the laws of war. There are specific references to the ICJ in the 1948 Genocide Convention; and the 1954 Hague Cultural Property Convention. However, the Court's Statute, with its built-in limitations on what type of cases may be brought to it and by whom, is likely to mean that it will only have to look at a minority of issues concerning the laws of war.

Many cases brought before it have involved key laws of war matters: for example, the Corfu Channel case in 1949; and Nicaragua v. USA in 1986.79 Both these cases involved the principle that a state laying mines at sea is obliged to give notification of their location in order to protect the security of peaceful shipping. The Court now has the politically more sensitive and intellectually more complex issue of the legality of nuclear weapons to consider in the case brought by the World Health Organization and the UN General Assembly.

Many cases have involved issues analogous to, and potentially relevant to, laws of war problems. The United States Diplomatic and Consular Staff in Teheran case concerned the treatment of individuals under the protection of international law in an emergency situation. The Frontier Dispute (Burkina Faso/Mali) case raised the question of interim measures of protection. The 1971 Advisory Opinion on Namibia involved several germane matters, including the use of a sanction: termination of a League/UN mandate as a response to failures to observe certain rules of restraint.

In cases concerning the former Yugoslavia, the ICJ has been asked to answer very complex political questions touching on the laws of war. This is most notably so with the case brought by Bosnia and Herzegovina against the Federal Republic of Yugoslavia, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. This case is currently proceeding slowly.

In many of these cases on which it has reached decisions, the ICJ has performed a useful service by clarifying the content of the laws of war and their application to particular and often complex circumstances; and by publicizing fundamental principles which should inform the policymaking of states in matters relating to the use of force. However, there are limits to what the ICJ can achieve. Many states are reluctant to let cases concerning their own survival be settled by a distant conclave in The Hague. They may also worry about the slowness of some (but certainly not all) of its proceedings. When it is asked to comment in a general way on complex issues which are bones of contention among statesmen and lawyers - as in the nuclear weapons case currently before it - the Court's decision, whatever it is, may not be found universally persuasive, let alone decisive. The ICJ may look weak if it tries to avoid certain difficult issues because they are not justiciable, or because they are not quite the types of matter with which the Court is charged to deal. However, it may look even weaker if it reaches a decision which is then not fully implemented. In some cases it could be very difficult to secure implementation of the Court's decisions.