II. ICJ Cases relating to Self-Defense and other matters related to the Use of Force (1984 – 2017)

This is the third in a series of blog posts, categorizing ICJ decisions as it relates to a particular theme, using the summaries provided in the ICJ website. Other themes will include, decisions on maritime time and territorial boundaries, on treaty interpretation, cases where the ICJ refused to exercise its jurisdiction, or where proceedings were discontinued by parties. These summaries are not intended to be comprehensive. It is intended to give an overview on the ICJ’s deliberations in that case, as it relates to the topic. The list, itself, is not yet comprehensive, and other cases will continue to be added.

1. Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment, 6 November 2003

The following is an adaptation of the full summary is provided in the ICJ website. 

“On 2 November 1992, the Islamic Republic of Iran filed in the Registry of the Court an Application instituting proceedings against the United States of America with respect to the destruction of Iranian oil platforms. The Islamic Republic founded the jurisdiction of the Court upon a provision of the Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States, signed at Tehran on 15 August 1955. In its Application, Iran alleged that the destruction caused by several warships of the United States Navy, in October 1987 and April 1988, to three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, constituted a fundamental breach of various provisions of the Treaty of Amity and of international law (…)”

To uphold the claim of Iran, the Court held that it must be satisfied both that (1) the actions of the United States, complained of by Iran, infringed the freedom of commerce and navigation between the territories of the Parties guaranteed by Article X (1), and (2) that such actions were not justified to protect the essential security interests of the United States as contemplated by Article XX (1) 1 (d). NB: Article XX (1) (d) states: “The present Treaty shall not preclude the application of measures: necessary to fulfill the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.”

The Court noted that the contention of the United States that its attacks on the oil platforms were justified “as acts of self-defence, in response to what it regarded as armed attacks by Iran, and on that basis it gave notice of its action to the Security Council under Article 51 of the United Nations Charter.” The United States contended that, “even if the Court were to find that its actions do not fall within the scope of Article XX, paragraph 1 (d), those actions were not wrongful since they were necessary and appropriate actions in self-defence.”

The Court concluded that “the United States was only entitled to have recourse to force under the provision in question if it was acting in self-defence. The United States could exercise such a right of self-defence only if it had been the victim of an armed attack by Iran and the United States actions must have been necessary and proportional to the armed attack against it.”

“After carrying out a detailed examination of the evidence provided by the Parties, the Court found that the United States had not succeeded in showing that these various conditions were satisfied, and concluded that the United States was therefore not entitled to rely on the provisions of Article XX, paragraph 1 (d), of the 1955 Treaty.”

2. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Judgment, 27 June 1986

Also in this blog: See here on the use of force and self defense, here on the jurisprudence relating to customary international law, and here for reading material related to this case.

See here, for the summary provided in the ICJ website.

For some reactions following the Court’s decision to exercise jurisdiction in this case, see here.

3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 9 July 2004. 

Excerpts of the summary provided in the ICJ website:

“(…) (T)he General Assembly decided to request the Court for an advisory opinion on the following question: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions ?” (…)

Turning to the question of the legality under international law of the construction of the wall by Israel in the Occupied Palestinian Territory, the Court first determined the rules and principles of international law relevant to the question posed by the General Assembly. After recalling the customary principles laid down in Article 2, paragraph 4, of the United Nations Charter and in General Assembly resolution 2625 (XXV), which prohibit the threat or use of force and emphasize the illegality of any territorial acquisition by such means, the Court further cited the principle of self-determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625 (XXV).

The Court then sought to ascertain whether the construction of the wall had violated the above-mentioned rules and principles (…)

… (T) he Court concluded that Israel could not rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall, and that such construction and its associated régime were accordingly contrary to international law (…)

It further stated that it was for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination be brought to an end.

NB: only those aspects of the judgement relating to self-defense is highlighted in this post.

4. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Judgment, 3 February 2006.

See here for more.

 

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