CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

There is a second, related, point that emerges from consideration of this case: the
danger, either in reality or perception, of the politicization of international bodies. In
its rejection of the ICJ’s jurisdiction in the Nicaragua case, the US argued that the
proceedings were a ‘misuse of the Court for political purposes’ and that the issue was
‘not a narrow legal dispute’ but
an inherently political problem that is not appropriate for judicial resolution. The
conflict will be solved only by political and diplomatic means – not through a
judicial tribunal. The International Court of Justice was never intended to
resolve issues of collective security and self-defence and is patently unsuited for
such a role. 90
In the context of such a view, the legalist paradigm begins to look a little hollow. Yet it
is a view that the United States’ detractors also throw at the ICJ. James Pione 91 points
out that Judge Schwebel, one for the 15 ICJ judges who heard the Nicaragua Case and
who almost unswervingly voted in the United States’ favour, was an American and had
held a string of appointments in the US State Department before his election to the ICJ.
Pione 92 also argues that ICJ is institutionally biased:
Do the rules of the ICJ make it an unbiased forum for international law? Not if
you look at the way that judges are elected to the ICJ: through a vote in the
United Nations, with special weight to the Security Council. Taken at face
value, this could seem fair, but it actually isn’t. The United States, United
Kingdom, and France are permanent members of the Security Council, which
gives three of the most powerful NATO nations a lot of power. Also the
Netherlands and Canada are members of the Security Council. * This amount of
power for NATO countries gives them the ability to heavily influence the
outcome of an election of judges to the ICJ.
Politicization of the ICJ was raised again more recently over the issue of the legitimacy
of Israel’s building of a 400-mile long security barrier separating Israeli centres of
population from Palestinian areas of the West Bank. On 8 December 2003, the UN
General Assembly passed a resolution 93 by 90 votes to 8 (with 74 abstentions) deciding
to request of the ICJ 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,
* At the time of the initiation (1999) in the ICJ of the Cases of Yugoslavia vs United States, United
Kingdom, Belgium, Canada, France, Germany, Italy, Greece, Netherlands and Portugal.
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