International Civil Tribunals and Armed Conflict

Overview

This book explores the greatly increased involvement of the International Court of Justice and other international civil tribunals in conflict situations during the past three decades, and assesses their impact on the law relating to armed conflict.

At various times in modern history, the international community has turned to international litigation as a hoped-for means of avoiding, ending, or dealing with the consequences of armed conflict; but until the past three decades, ...

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Overview

This book explores the greatly increased involvement of the International Court of Justice and other international civil tribunals in conflict situations during the past three decades, and assesses their impact on the law relating to armed conflict.

At various times in modern history, the international community has turned to international litigation as a hoped-for means of avoiding, ending, or dealing with the consequences of armed conflict; but until the past three decades, such litigation rarely had a significant impact. However, since the 1980s, international civil tribunals have become increasingly involved in armed conflicts, sometimes with important results. This book explores the recent cases in which the International Court of Justice and other tribunals have dealt with such situations. It assesses the manner in which these cases have been decided, the degree to which they have affected the resolution of the conflicts in question, and their contribution to the development of the applicable substantive law.

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Editorial Reviews

From the Publisher
“This book is a remarkable analysis of the decisions of international civil tribunals – notably the International Court of Justice (ICJ) and arbitral tribunals – with respect to both the legality of recent armed conflicts and the legality of actions during those conflicts…This timely book presents a fine summary and analysis of the decisions and awards of these international civil tribunals. It should be of high value to all who want to keep current with developments in the international law relevant to armed conflict.” – George H. Aldrich, American Journal of International Law
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Product Details

  • ISBN-13: 9789004226036
  • Publisher: Brill Academic Publishers, Inc.
  • Publication date: 2/17/2012
  • Series: International Litigation in Practice Series
  • Edition description: xx, 384 pp.
  • Pages: 384
  • Product dimensions: 6.50 (w) x 9.60 (h) x 1.00 (d)

Meet the Author

Michael J. Matheson, LLB (1968), Stanford Law School, teaches at George Washington University Law School. He was a senior lawyer and diplomat in the U.S. State Department, has taught at several universities, and has published extensively on international law topics.
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Table of Contents

Table of Cases ix

Preface xiii

Part 1 The Involvement of International Civil Tribunals in Armed Conflict

Chapter 1 The Role of International Civil Tribunals 3

1.1 Purposes Served 5

1.2 Difficulties Encountered 9

Chapter 2 Prior Cases Concerning Armed Conflict 13

2.1 Arbitrations during the 19th Century 13

2.2 The Hague Peace Conferences 16

2.3 The Post-World War I System 19

2.4 The Post-World War II System 23

2.5 Initial ICJ Cases Involving Armed Conflict 28

2.6 Assessment 30

Chapter 3 Involvement of Civil Tribunals in the Current Period 33

3.1 The Central American Conflict 33

3.2 The Iran-Iraq War 36

3.3 The GulfWar 39

3.4 The Conflict in Yugoslavia 41

3.5 Territorial Disputes 48

3.6 The Conflict in the Congo 50

3.7 The Eritrea-Ethiopia Conflict 53

3.8 The Arab-Israeli Conflict 55

3.9 The Conflict in Sudan 57

3.10 The Conflict in Georgia 58

3.11 Italian Suits against Germany 59

3.12 Use of Nuclear Weapons 60

3.13 Assessment 61

Part 2 The Process of Deciding Cases Involving Armed Conflict

Chapter 4 Jurisdiction 65

4.1 The International Court of Justice 66

4.1.1 Declarations under Article 36(2) 67

4.1.2 Treaty Provisions Consenting Generally to the Court's Jurisdiction 73

4.1.3 Treaty Provisions Consenting to Jurisdiction over Disputes under That Treaty 74

4.1.4 Cases Brought with the Specific Consent of the Parties to the Dispute 83

4.1.5 Advisory Cases 84

4.2 Other Tribunals 87

4.2.1 The Un Compensation Commission 87

4.2.2 The Eritrea-Ethiopia Claims Commission 88

4.3 Assessment 91

Chapter 5 Admissibility 95

5.1 Objections to Claims 96

5.2 Objections to Counter-Claims 104

5.3 Advisory Cases 108

5.4 Assessment 114

Chapter 6 Provisional Measures 117

6.1 The Framework for Provisional Measures 118

6.2 Types of Provisional Measures 126

6.3 Relationship to Political Processes 136

6.4 Assessment 145

Chapter 7 Determining the Facts on the Merits 149

7.1 The Burden and Standard of Proof 151

7.2 Forms of Evidence 159

7.3 Reliance on Other Fact-Finders 173

7.4 Independent Tribunal Fact-Finding 179

7.5 Assessment 182

Chapter 8 Adjundicating the Law on the Merits 185

8.1 Contentious Cases 186

8.2 Advisory Cases 194

8.3 Articulation of the Law 197

8.4 What Substantive Issues the Tribunal Addresses 198

8.5 Interaction among Tribunals 201

8.6 Interaction with Non-Judicial Organs 204

8.7 Assessment 209

Chapter 9 Determining Relief 211

9.1 Legal Findings 213

9.2 Remedical Actions 218

9.3 Compensation 224

9.4 Assessment 244

Part 3 Substantive Law Concerning Armed Conflict

Chapter 10 Resort to Force 249

10.1 Response to Attacks by the Forces of Another State 251

10.2 Support or Tolerance of Non-State Groups 256

10.3 Collective Response to Attacks 262

10.4 Necessity and Proportionality in the Use of Force 264

10.5 Involvement of the Security Council 271

10.6 Issues Not Decided 273

10.7 Assessment 279

Chapter 11 Law of Armed Conflict 281

11.1 Applicability of Agreements 282

11.2 Conduct of Military Operations 289

11.3 Treatment of Persons 295

11.4 Responsibility for the Actions of Others 306

11.5 Assessment 310

Chapter 12 Application of Other Legal Norms 313

12.1 Genocide 314

12.2 Human Rights Obligations 323

12.3 Protection of Diplomats 332

12.4 Commercial Agreements 336

12.5 Assessment 339

Chapter 13 Territorial Status 341

13.1 Secession 341

13.2 Territorial Claims 345

13.3 Occupied Territory 350

13.4 Assessment 362

Conclusion 363

Selected Bibliography 371

Index 381

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