Uses of International Humanitarian Law by the International Court of Justice: A Critical approach towards its role in the International Legal arena

NAHUEL MAISLEY; SEBASTIÁN AXEL GREEN MARTÍNEZ; BRIAN FRENKEL

International Humanitarian Law and Non- State Actors: Debates, Law and Practice

T.M.C. Asser Instituut

Lugar: La Haya; Año: 2020; p. 265 - 295

The function of the International Court of Justice (ICJ) is to decide in accordance with international law such disputes or advisory opinions that are submitted to it. Although the ICJ has consistently applied and contributed to the development of general public international law, in certain areas such as international humanitarian law (IHL), the Court has gone back and forth between authentic contributions and judicial constraint. In other words, while on certain occasions the ICJ has grounded its decisions on IHL, in other cases it deliberately refrained from doing so, arguably due to the subject matter under consideration or to justify a departure from its previous case law. Instead of describing the decisions rendered by the ICJ regarding IHL issues, this chapter portrays how the Court has selectively applied (and refrained from applying) this legal framework. In doing so, the chapter considers certain factors that may explain this behavior and analyzes them in light of its dual role: as a crucial actor in the pacific settlement of international disputes; and in applying international law.