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

30-06-2003 Article, International Review of the Red Cross, No. 850, by Vincent Chetail

This article appraises the contribution of the International Court of Justice to international humanitarian law. In its judgments and opinions, the Court has helped to clarify the relationship between the law of armed conflict with general international law, customary norms, and jus cogens and to identify fundamental principles of international humanitarian law.

   

Vincent Chetail,
The author is a teaching and research assistant at the Graduate Institute of International Studies (Geneva) and at the Centre of European and Comparative Law (Lausanne). He was also a consultant for the United Nations High Commissioner for Refugees. The author is grateful to Professors Vera Gowlland-Debbas and Andrew Clapham for their helpful comments. He also wishes to thank his colleagues Mariano Garcia Rubio and Jeremy Allouche for their revision of the final draft of this article. 
   
Abstract 
The paper appraises the contribution of the International Court of Justice to international humanitarian law. As the principal judicial organ of public international law, the International Court of Justice contributes to highlight the fundamental values of the international community expressed in international humanitarian law. Its case law represents a major contribution from the twofold perspective of clarifying the relationship between international humanitarian law and general international law on the one hand, and identifying the content of the fundamental principles of international humanitarian law on the other. The article reviews the Court's judgments and advisory opinions and assesses the perception of the Court on the complex relationships between treaties of humanitarian law, customary norms and jus cogens. Another major contribution of the International Court of Justice is to have identified and specified fundamental principles of international humanitarian law, which may be regrouped in three different categories: the fundamentals principles relating to the conduct of hostilities, those governing the treatment of persons in the power of the adverse party, and those relating to the implementation of international humanitarian law. These rules provide a condensed synthesis of the law of armed conflicts and constitute the normative quintessence of this traditional branch of international law.  
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