The International Court of justice: Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2012 ◽  
Vol 51 (3) ◽  
pp. 563-605
Author(s):  
Ben Love
Keyword(s):  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
German State ◽  
Commercial Property ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
German Reich

On February 3, 2012, the International Court of Justice (‘‘ICJ’’ or ‘‘Court’’) issued a widely-anticipated judgment in a dispute over state immunity between Italy and Germany. The Court found that Italy violated its international law obligation to respect the jurisdictional immunity of the German state by: (i) allowing individuals to bring civil claims against Germany in Italian courts for violations of international humanitarian law committed by the German Reich between 1943 and 1945; (ii) declaring Greek judgments finding similar international law violations by Germany enforceable in Italy; and (iii) taking measures of constraint against public and non-commercial property owned by Germany in Italy. The Court accordingly found that Italy must ensure that the decisions of its courts infringing upon Germany’s immunity cease to have effect.

The International Court of Justice as a Guardian of the Unity of Humanitarian Law

2007 ◽  
Vol 20 (3) ◽  
pp. 593-611 ◽  
Author(s):  
FABIÁN O. RAIMONDO
Keyword(s):  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
International Courts ◽  
Court Of Justice ◽  
International Court

This article seeks to examine whether the International Court of Justicehas developed jurisprudence on international humanitarian law and whether this has exerted any influence on the decisions adopted by other international courts and tribunals. In so doing, it revisits the issue of the value ofjudicial decisions under international law. Finally, it reveals that despite the non-operation of the rule of stare decisis in international law, the Court's jurisprudence on international humanitarian law has been a persuasive precedent for other international courts and tribunals.

International humanitarian law and nuclear weapons

1996 ◽  
Vol 36 (313) ◽  
pp. 500-502
Author(s):  
The Review
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
World Health ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Health Organization

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?”

scholarly journals The Use of PMSCs by the United Nations in Times of Armed Conflict, Application of IHL and Responsibility Matters

2017 ◽  
Author(s):  
Javier Gamarro González
Keyword(s):  
United Nations ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Peace Operations ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The United Nations

The companies dealing with military and security matters are on the rise, and today they provide services to a very wide client list, which includes states and international organizations (IOs). It is well known that these companies have been deployed in a large number of armed conflicts, and indeed, some of them have become prominent in the sector not only for their military results but also for their abuses of international humanitarian law and human rights. Surprisingly, it is lesser known that the United Nations (UN) has also had recourse to private military and security companies in the context of United Nations military operations with regard to the maintenance of international peace and security.The engagement of private military security companies in UN peace operations entails multiple legal questions. This dissertation is especially intended to shed some light over the extent to which PMSCs deployment in UN peace operations is compatible with international humanitarian law and how the law of institutional responsibility deals with the violations of international humanitarian law committed by such companies when providing services to the UN. For that purpose and to that extent due recourse has been made to the most relevant international law sources on the matter, such as the Geneva Conventions, their Additional Protocols, and other relevant instruments such as the ILC Articles on State and IO responsibility, and the Montreux Document. Jus cogens and international custom, including the practice of international organizations and states, and opinion juris as ascertained by legal scholars and the International Court of Justice, play an essential role in this dissertation, since the United Nations has not become yet a party to any IHL treaty, thus employing an inductive methodology. A comparative approach was adopted in regard to the observations of the most eminent institutions and jurists, and domestic and international courts, including the International Court of Justice and the European Court of Human Rights for the purpose of ascertaining the different rules of attribution of conduct existing in international law. Besides, certain decisions of the latter Court were analysed in order to clarify by analogy whether the application of international humanitarian law and the imputation of acts can function under the same degree of control test.

State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice inJurisdictional Immunities of the State

2012 ◽  
Vol 13 (6) ◽  
pp. 773-782 ◽  
Author(s):  
Paul Christoph Bornkamm
Keyword(s):  
Human Rights ◽  
The State ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Legal Proceedings ◽  
State Immunity ◽  
Court Of Justice ◽  
European Court ◽  
International Court

The recent judgment of the International Court of Justice (ICJ) in theCase Concerning Jurisdictional Immunities of the State(Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.

Comments on the ICRC Study on Customary International Humanitarian Law

2007 ◽  
Vol 44 ◽  
pp. 437-449
Author(s):  
Claude C. Emanuelli
Keyword(s):  
International Law ◽  
International Committee ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court

SummaryThis comment takes a critical look at the method used by the International Committee of the Red Cross (ICRC) in its study of customary humanitarian law. It argues that the ICRC study reduces the concept of international custom to its definition under Article 38 of the Statute of the International Court of Justice. It also argues that the study overlooks some of the problems raised by the application of Article 38. It contends that the positions taken by the ICRC to identify customary rules of humanitarian law are somewhat ambiguous and even slanted. Finally, this comment suggests that, beyond questioning the ICRC study, it is the role of custom as a source of international law that is in question.

scholarly journals The Contribution of the International Court of Justice to International Humanitarian Law

2001 ◽  
Vol 14 (2) ◽  
pp. 349-365 ◽  
Author(s):  
Judith Gardam
Keyword(s):  
International Law ◽  
Ad Hoc ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Criminal Tribunals ◽  
Court Of Justice ◽  
International Court ◽  
Rules And Principles

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.

Identifying Conflicts of Norms: The ICJ Approach in the Case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2012 ◽  
Vol 25 (4) ◽  
pp. 1003-1012 ◽  
Author(s):  
FRANÇOIS BOUDREAULT
Keyword(s):  
International Law ◽  
The State ◽  
Humanitarian Law ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
Jus Cogens ◽  
German Reich

AbstractThe potential for conflicts of norms is particularly great in modern international law. Yet until now, the International Court of Justice has said very little as to what it considers a conflict of norms. The opportunity to do so arose in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). There, it was argued that granting Germany sovereign immunity in proceedings before Italian courts involving civil claims for violations of international humanitarian law (IHL) committed by the German Reich between 1943 and 1945 would come in conflict with prevailing peremptory (jus cogens) norms of international law. In its 3 February 2012 Judgment, the ICJ rejected this argument. In the present article, the author argues that the conceptions of conflict of norms underlying the Court's judgment and the dissent of Judge Cançado Trindade both have weaknesses. The author suggests an alternative framework to ascertain conflicts of norms. He then applies this framework to the rules of state immunity and the IHL rules breached by Germany, agreeing in the end with the conclusion reached by the majority of the ICJ that these rules did not conflict.

scholarly journals Ius in Bello under Islamic International Law

2013 ◽  
Vol 13 (3) ◽  
pp. 593-625 ◽  
Author(s):  
Mohamed Elewa Badar
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Eighth Century ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Court ◽  
Hugo Grotius ◽  
Law Of Nations

In 1966, Judge Jessup of the International Court of Justice pointed out that the appearance of an English translation of the teaching on the ‘Islamic law of nations’ of an eighth-century Islamic jurist (Shaybānī) is particularly timely and of so much interest because of the debate over the question whether the international law, of which Hugo Grotius is often called the father, is so completely Western-European in inspiration and outlook as to make it unsuitable for universal application in the context of a much wider and more varied international community of States. However, there has been little analysis of the role of Islam in shaping the modern European law of war and its progeny, international humanitarian law. This article argues that there is a room for the contribution of the Islamic civilisation within international humanitarian law and a conversation between different civilisations is needed in developing and applying international humanitarian law norms.

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