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The “General Principles” of humanitarian law according to the International Court of Justice

Published online by Cambridge University Press:  13 January 2010

Rosemary Abi-Saab
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Extract

In its Judgment of 27 June 1986 in the case concerning “Military and Paramilitary Activities in and against Nicaragua”, the International Court of Justice dealt at length with some of the most vexed questions in humanitarian law. Although the Court had previously touched upon certain problems in this legal field, for example in the Corfu Channel case and that of the Pakistani Prisoners, this was the first time it expressed itself in detail on more general issues, notably on the customary nature of the “general principles” of humanitarian law.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 27 , Issue 259 , August 1987 , pp. 367 - 375
Copyright
Copyright © International Committee of the Red Cross 1987

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, I.C.J. Reports 1986, p. 14.Google Scholar

2 Corfu Channel case, Merits, I.C.J. Reports 1948, p. 4.Google Scholar

3 Trial of Pakistani Prisoners of War, I.C.J. Reports 1973, p. 344.Google Scholar

4 Military and Paramilitary Activities…, para. 42. At the time this reservation was made, the original English text gave rise to numerous difficulties of interpretation; see Bertrand, Maus, Les réserves dans les déclarations d'acceptation de la juridiction obligatoire de la Cow Internationale de Justice, Geneva, Droz, 1959.Google Scholar

5 Military and Paramilitary Activities…, para. 174.

6 Ibid. para. 177.

7 The Court speaks in this connection of the Geneva Conventions applicable to the settlement of the dispute (para. 217), whereas the Conventions are concerned with the protection of the victims and the conduct of belligerents.

8 Military and Paramilitary Activities…, para. 218.

9 Ibid., para. 215.

10 Ibid., para. 216.

11 Ibid., para. 215.

12 Ibid.

13 Ibid., para. 218.

14 Ibid. para. 219: “Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict.”

15 Ibid., para. 218.

16 Ibid., Dissenting opinion of Judge Jennings, p. 537.

17 Ibid. Individual opinion of Judge Ago, para. 6.

18 Ibid., Judgment, para. 117.

19 Ibid., para. 118.

20 Ibid., para. 220.

21 Ibid., para. 200.

22 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of May 28th, 1951, I.C.J. Reports, 1951, p. 23.Google Scholar