The Development and Interpretation of International Human Rights and Humanitarian Law Rules and Principles through the Case-Law of the International Court of Justice

Abstract

The contribution of the International Court of Justice (ICJ) to the interpretation and development of international human rights and humanitarian law rules and principles is a topic of growing interest and importance. Claims of breaches of norms of both these branches of law have been raised in a considerable number of cases brought before the ICJ in the last two decades. By clarifying the complementary application of international human rights and humanitarian law and by awarding natural and legal persons a right to reparations vis-à-vis the State the ICJ has rendered a valuable contribution to a better protection of individual rights under the general framework of international law. This contribution of the Court is illustrated by focusing mainly on the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and the Armed Activities on the Territory of the Congo case. That not only for reasons of space constraints, but also because of the considerable leaps forward made through these cases.

Practice, evolution and protection of human rights through the International Court of Justice jurisprudence

“…A further support of this path is also the protection of human rights in the armed conflicts and military occupation case, the position that has been taken by the ICJ in the case of the lawfulness of the threat or use of nuclear weapons in the opinion of 8 July 1996 (Gardam, 2001;Zyberi, 2007;Lucak, 2012;Cançado Trindade, 2020) 8 and in the legal consequences of the 7Par. 65.…”

Qui tacet consentire videtur si loqui debuisset ac potuisset v. quo tacet neque negat neque utique fatetur (he who remains silent is considered to consent, if he must and can speak v. he who remains silent neither rejects nor accepts-affirms)

“…In Nuclear Weapons Opinion case the ICJ affirms that: " (…) the absence of precedents on the use of an atomic weapon did not reflect the conviction of the international community that the latter should be considered absolutely forbidden. Moreover, it would be at least naive to think that none of the States in possession of this type of weapon has ever launched a nuclear attack because they are convinced that such a weapon should not be used for any reason (...) more probable that no State has ever launched a nuclear attack simply for fear of being, in turn, hit by the attacked State or by one of its allies (...) it would not have pronounced itself on the so-called "deterrent policy", limiting itself to noting that " (…) it is a fact that a number of States adhered to that practice (…) and continue to adhere to it (…)" (Gardam, 2001;Zyberi, 2007;Cançado Trindade, 2020) 6 .…”

International Court of Justice and Provisional Measures under the Genocide Convention: Curious Case of Ukraine v. Russian Federation

“…Subsequently, in the Barcelona Traction case, it was clearly pointed out that the duty to respect fundamental human rights constitutes erga omnes obligation, which are obligations owed by States to the international community as a whole, and in the court's opinion, Genocide constitutes one such obligation. As Gentian Zyberi opines in the context of the ICJ, '…recognition of many principles of human rights such as the prohibition of genocide… as part of customary international law or even jus cogens finds support in the case-law of the Court (Zyberi, 2007).' Apart from the 1951 Advisory opinion and the Barcelona Traction dictum, until the 1990s, the ICJ was not presented with cases pertaining to the Genocide Convention.…”