This paper briefly explains the concept of International Humanitarian Law (IHL), majorly explaining the double standard of the International Court of Justice regarding the IHL issues. 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, but in certain areas such as international humanitarian law (IHL), 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 paper portrays how the Court has selectively applied (and refrained from applying) this legal framework of IHL.

Double Standard- International Legal Discourse
Introduction
International humanitarian Law (IHL) is a set of rules that seeks, for humanitarian reasons, to limit the effects of armed conflict. It protects the civilians, persons who are not, or are no longer, directly or actively participating in hostilities (war activities), and imposes limits on the means and methods of warfare, IHL is also known as LOW (Law of war)/ LOAC (Law of armed conflict). IHL does not stipulate whether the commencement of an armed conflict was legitimate or not, but rather seeks to regulate the behaviour of parties once it has started1 .

Some of its basic principles are; distinction between combatants (army men) and civilians, prohibition of unnecessary suffering, principles of necessity, proportionality, and humanity. It has its root in Customary International Law & Treaty Law2 .

The International Court of Justice (ICJ) is the judicial organ established by the Charter of the United Nations (UN) in 1945 for the settlement of disputes between States.

Although there is no formal judicial hierarchy among international courts and tribunals, the ICJ has a special place in the legal discourse of international law, and its decisions are commonly considered as conclusive and authoritative on the legal questions they address. Therefore, due to the value placed upon them, the ICJ's methods and legal conclusions usually guide not only the decisions of other international tribunals but also every discussion related to international law.

This paper shall present a critical assessment of the role of the Court in the development of IHL. We will focus not only on the Court's explicit statements on these matters, but also on its silences- those occasions in which it could have referred to IHL, but did not. As the Uruguayan poet, Eduardo Galeano, once said: "Only the fools think that silence is a vacuum. Silence is never empty. And, sometimes, the best way to communicate something is to remain silent".3

Literature Review
In this section, we shall review two cases which have been influenced by humanitarian obligations, by ICJ in its advisory opinion. In this sequence, The Corfu Channel case4 marked the first time, the International Court of Justice (ICJ) addressed international humanitarian law (IHL). The dispute involved the United Kingdom and Albania over responsibility for naval mines in the Corfu Strait that damaged British ships. The UK argued that Albania was responsible, while Albania claimed the UK had acted without permission by clearing mines.

This case became notable for establishing early procedural guidelines for the ICJ and influencing the law of the sea. Crucially, it introduced the ICJ's acknowledgment of "elementary considerations of humanity," as per the Hague Convention of 1907, suggesting that these principles apply universally, not only during wartime. The Court linked these humanitarian principles to general international norms rather than specific treaties, setting a precedent for future judgments in IHL by affirming the duty to prevent harm even in peacetime.

This principle has since influenced many ICJ decisions regarding humanitarian obligations. Another case of 2004, the International Court of Justice (ICJ) issued an Advisory Opinion on the legal consequences of Israel's construction of a wall in the Occupied Palestinian Territory5 , including East Jerusalem. The UN General Assembly requested the ICJ's opinion, focusing on international law, the Fourth Geneva Convention, and relevant UN resolutions. Israel and some other states argued the ICJ lacked jurisdiction and warned that its involvement might hinder political solutions.

However, the ICJ asserted its authority, examining issues of occupation, potential annexation, and human rights violations. It found Israel responsible for breaching international humanitarian law, highlighting issues such as population transfer, property destruction, and the prohibition of annexation by force. The ICJ also emphasized that international humanitarian and human rights laws continue to apply during conflicts6 . The Court declared Israel's actions illegal and urged all nations to avoid recognizing or supporting the wall, calling for international efforts to uphold humanitarian law.


CRITICAL ANALYSIS
Continuing the series of cases, this section deals with five more, wherein the ICJ chose not to interpret the principles of IHL; while giving an opinion in these cases, clearly showing the silence of the court & selective application of International Humanitarian Law.

The ICJ, in The Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion of 19 July 20247, concerns Israel's prolonged occupation of the Palestinian territories since 1967, including East Jerusalem. The UN General Assembly posed questions regarding-

1. Legal consequences of Israel's violations of the Palestinian right to self-determination.
2. The status of Israel's prolonged occupation and annexation policies.
3. Obligations of states and international organizations regarding these violations.

The ICJ could have explicitly addressed how Israel's policies, particularly settlements and resource exploitation, violate the Fourth Geneva Convention, the prohibition against transferring an occupier's population into occupied territories (Article 49)8 is clear but was treated in a somewhat abstract manner, lacking robust implications for enforcement. While the Court cited customary IHL principles like the prohibition of annexation, it avoided addressing whether Israel's actions constitute war crimes under Article 8 of the Rome Statute. 9

This selective engagement creates ambiguity in IHL's application. The Court selectively acknowledged IHL principles, sidelining critical aspects of proportionality and necessity, particularly in relation to Israel's military and administrative actions. For instance, house demolitions and forced displacement, were not analysed as violations of Articles 5310 and 14711 of the Fourth Geneva Convention.

Another most recent case was The Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)12 which centres on South Africa's claim (under the principle of Erga omnes partes) 13 , that Israel's actions in Gaza constitute genocide against the Palestinian population. Following the October 2023 Hamas attack, Israel launched extensive military operations, resulting in mass civilian casualties, widespread destruction, and displacement.

South Africa alleged violations of the Genocide Convention14, asserting that Israel's actions demonstrated intent to destroy the Palestinian population in Gaza. The ICJ affirmed its jurisdiction under Article 9 15 of the Genocide Convention, finding that South Africa had standing to bring the case as a party to the Convention.

The ICJ ordered several provisional measures, through its two orders, including:

1. Israel must prevent acts under Article 2 of the Genocide Convention, such as killings and conditions leading to physical destruction.
2. Israel must take immediate steps to allow humanitarian access and ensure the preservation of evidence related to alleged genocidal acts.
3. Both parties must refrain from actions that could intensify the dispute.

The March16 & the January orders
The March order revisits and modifies the January order based on updated reports and conditions, such as famine and increasing fatalities. The latter order incorporates new data, such as the IPC Global Initiative's findings18 on acute food insecurity and malnutrition in Gaza, which were not available in January, explicitly highlighting the increased fatalities and suffering, emphasizing an urgent need for enhanced measures. By focusing solely on the Genocide Convention19, the ICJ avoided addressing broader violations under IHL, such as indiscriminate attacks and starvation as a weapon of war.

The ICJ did not engage deeply with customary IHL. For instance, the prohibition against targeting civilians under Article 51 of Additional Protocol I20 was not explicitly analysed, leaving ambiguity around the legal consequences of Israel's extensive civilian casualties. The ICJ could have considered how Israel's actions align with the Martens Clause21 , emphasizing humanitarian principles in conflicts where specific legal provisions may lack clarity

▪ In the Request for Interpretation of the Judgment of 15 June 1962 concerning the Temple of Preah Vihear22, the ICJ revisited its earlier decision directing Thailand to withdraw forces from the temple area. Cambodia claimed that, after the temple's inscription as a UNESCO World Heritage Site, clashes with Thailand's military escalated, affecting areas around the temple. Cambodia requested a broader interpretation of the ICJ's 1962 ruling, arguing that Thailand's withdrawal should extend beyond the immediate temple boundary.

The ICJ recognized the temple's cultural significance and emphasized the duty of both countries to cooperate under the 1972 World Heritage Convention (WHC) to protect the temple. However, the ICJ's response drew criticism. While referencing the WHC, the Court avoided discussing international humanitarian law (IHL), which mandates protection of cultural heritage in conflict. Scholars argue this omission weakened the Court's position, as a comprehensive reminder about IHL obligations would have been appropriate given the military hostilities. By not addressing IHL, the ICJ missed an opportunity to reinforce cultural property protections during armed conflict, which some view as a shortfall in the Court's role as an advocate for international legal principles23

Coming to its 1996 nuclear weapons Advisory Opinion24, the ICJ acknowledged that international humanitarian law (IHL) principles apply to nuclear weapons, advancing IHL jurisprudence. However, it avoided a definitive (conclusive) stance, stating it lacked sufficient grounds to conclude whether nuclear weapons use would universally contravene IHL principles in all scenarios, especially in extreme cases of self-defence where state survival is at risk.

This equivocal or vague position generated notable dissent. Judge Weeramantry25 emphasized nuclear weapon's severe humanitarian impact, arguing they inherently violate IHL. Judges Koroma26 and Higgins27 criticized the ambiguity, suggesting that any allowance for nuclear weapon legality undermines humanitarian principles.

The Court's decision gave birth to significant controversy, as every judge, both in majority and dissent, issued opinions expressing discomfort with its conclusion. Some majority judges, like Schwebel28 and Guillaume29, felt nuclear weapons might be lawful in "extreme cases,". The Court's cautious approach left unresolved issues, and its advisory opinion remains a focal point of ICJ criticism for its limited stance on nuclear weapon legality.

The Marshall Islands filed cases in 2014 against nuclear-armed states, including India, Pakistan, and the UK, these three cases, altogether known as the cases Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands Cases)30 , claiming they breached Article VI of the Nuclear Non-Proliferation Treaty (NPT) by not negotiating nuclear disarmament in good faith.

The International Court of Justice (ICJ) dismissed these cases, citing a lack of "dispute" between the parties, as required for jurisdiction. The ICJ referenced its precedent from the Mavrommatis case31, defining a dispute as a "conflict of legal views or interests." However, the ICJ also emphasized that the parties' views must be "clearly opposite," which Judge Crawford criticized as an unnecessarily rigid "objective awareness" requirement, complicating the previously low threshold for establishing a dispute32 .

The ICJ's reluctance to examine the merits suggests a broader unwillingness to confront issues deeply tied to international humanitarian law (IHL) and nuclear disarmament. Critics argue that, given the political sensitivity of nuclear arms issues, diplomatic rather than judicial mechanisms might be more suitable33 .

This inconsistency raises questions about the ICJ's priorities and the factors influencing its decisions. One explanation may be the ICJ's dual responsibility, outlined in Article 3834 of its Statute: to peacefully resolve disputes and to apply international law. This dual mandate positions the Court as both an arbiter of disputes and a promoter of international peace. Legal scholars such as Hersch Lauterpacht35 and Hans Kelsen36 argue that the ICJ's function is fundamentally peace-oriented, using international law as a means to this end.

More recent perspectives, like those of Georges Abi-Saab37, contend that upholding international legal norms should be the priority, although peace remains a goal in the background, in his words "its first and foremost role is to uphold the global values of [the international community] rather than to act as a mere mediator between two disputing parties". This dual purpose creates a nuanced dynamic where the ICJ must balance maintaining legal integrity with broader peacekeeping aims. The Court also operates within certain institutional constraints. It lacks compulsory jurisdiction, relying on state consent to function, which can temper its judgments38

Additionally, the world is no longer what it was in 1919 or 1945 when there was no competition: States now have a plethora of options to choose from, and the judges at the ICJ have this in mind- ICJ's public exposure. In the age of the internet, the Court is no longer only accountable to governments, as it may have been in its first years. Increasingly informed citizens from around the world pay attention to ICJ decisions that affect them, and demand that it satisfies some minimum standards of judicial independence and due process 39. Thus, sticking to international law, rather than being creative to maintain international peace when deciding upon a case, may be a way of avoiding this possible bad publicity, in particular in those cases where public attention focuses on its decisions. 40

Conclusion
The International Court of Justice (ICJ) plays a complex role in applying and developing International Humanitarian Law (IHL), marked by variability in its approach to interpreting and enforcing IHL principles. The ICJ's work includes adjudicating disputes and crafting legal precedents, but its responses vary significantly. For instance, the Court took a more assertive & powerful stance in the Corfu Channel case, pushing forward legal standards, yet it took a cautious, non-committal position in the Marshall Island cases, reflecting a less definitive approach to IHL matters.

In conclusion, the ICJ's role in IHL development is a delicate balancing yet strategic act. While it strives to set minimum humanitarian standards, it often avoids deeper interpretation of rules that might spark controversy, showing its double standards.

39 Martti Koskenniemi and Päivi Leino have diagnosed the 'postmodern anxieties' suffered by ICJ judges as a result of the proliferation of international tribunals and of the institutional fragmentation of international law. 40 Ibid., p.12.

References:

• Shany Y (2012). Assessing the Effectiveness of International Courts: A Goal-Based Approach.
  American Journal of International Law.
• Lauterpacht H (1958). The Development of International Law by the International Court.
  Stevens and Sons Ltd, London.
• Kelsen H (1944). Peace Through Law.
  University of North Carolina Press, Chapel Hill.
• Abi-Saab G (1996). The International Court as a World Court.
  In: Lowe V, Fitzmaurice M (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings.
  Cambridge University Press, Cambridge.
• Ulfstein G (2009). The International Judiciary.
  In: Klabbers J et al. (eds), The Constitutionalizing of International Law.
  Oxford University Press.

End Notes:

1. Fact sheet of the International Committee of the Red Cross, https://www.icrc.org/en/document/what-international-humanitarian-law-are, Accessed 24 October 2024.
2. Fact sheet of the International Committee of the Red Cross, https://www.icrc.org/en/document/what-international-humanitarian-law-are, Accessed 24 October 2024.
3. Galeano E (2012) Los días de Galeano, entrevista, http://server.encuentro.gov.ar/programas/serie/8174/5752. Accessed 24 October 2024.
4. ICJ, Corfu Channel case (United Kingdom v. Albania), Judgment, 9 April 1949, I.C.J. Reports 1949, p 4, 22.
5. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, p 136 (Wall), paras 24-28.
6. In the Advisory Opinion, the ICJ mentioned violations of rights such as liberty and security of the person, privacy, family life, liberty of movement, work, protection and assistance accorded to the family and to children and young persons, the right to an adequate standard of living, including adequate food, clothing and housing, and the right 'to be free from hunger', the right to health, the right to education, and similar provisions in the Convention on the Rights of the Child. Wall, above n. 37, paras 127-137.
7. ICJ, Case concerning the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Summary of the Advisory Opinion of 19 July 2024, https://www.icj-cij.org/case/186.
8. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Article 49 "Deportations, transfers, evacuations", https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-49.
9. Rome Statute of the International Criminal Court, 17 July 1998, Article 8 "War Crimes", https://ihl-databases.icrc.org/en/ihl-treaties/icc-statute-1998/article-8.
10. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Art. 53 "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations", https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf.
11. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Art. 147 "Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly", https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf.
12. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), https://www.icj-cij.org/case/192.
13. Erga omnes (towards all) nature of obligations under the Genocide Convention, which allows any state party to invoke another's responsibility for violations.
14. Convention on the Prevention and Punishment of the Crime of Genocide, https://ihl-databases.icrc.org/pt/ihl-treaties/genocide-conv-1948.
15. Convention on the Prevention and Punishment of the Crime of Genocide, Art 9 "Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute", https://ihl-databases.icrc.org/pt/ihl-treaties/genocide-conv-1948.
16. https://www.icj-cij.org/sites/default/files/case-related/192/192-20240328-ord-01-00-en.pdf, 28 March 2024.
17. https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf, 26 January 2024.
18. Gaza Strip: Acute Food Insecurity Situation for September - October 2024 and Projection for November 2024 - April 2025, https://www.ipcinfo.org/ipc-country-analysis/details-map/en/c/1157985/.
19. Ibid.
20. Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 51 "Protection of the civilian population", https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51.
21. Customary rule of international humanitarian law (IHL) that protects people affected by armed conflicts, https://casebook.icrc.org/a_to_z/glossary/martens-clause.
22. ICJ, Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 15 June 1962, I.C.J. Reports 1962, p 6, 37.
23. ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 11 November 2013, I.C.J. Reports 2013, p 281 (Preah Vihear 2013). For a review of the original 1962 ICJ judgment in light of the 2013 decision, Kattan V (2015) The Ghosts of the Temple of Preah Vihear/Phra Viharn in the 2013 Judgment. Asian Journal of International Law 5(1):16-25.
24. ICJ advisory opinion on the Legality of the Threat or Use of nuclear weapons.
25. Ibid., Dissenting Opinion of Judge Weeramantry, p 249-250.
26. Ibid., Dissenting Opinion of Judge Koroma, p 334.
27. Ibid., Dissenting Opinion of Judge Higgins, para 29.
28. Ibid., Dissenting Opinion of Vice-President Schwebel, pp 99-100.
29. Ibid., Dissenting Opinion of Judge Guillaume, para 7.
30. Marshall Islands v. India, above n. 130, para 56.1; Marshall Islands v. Pakistan, above n. 130, para 56.1; Marshall Islands v. United Kingdom, above n. 130, para 59.1.
31. PCIJ, Mavrommatis Palestine Concession, (Greece v United Kingdom), Judgment, objection to the jurisdiction of the court, Judgment No. 2, 30 August 1924, PCIJ Series A No. 2.
32. Ibid., Dissenting Opinion of Judge Crawford, para 3.
33. Shany Y (2012). Assessing the Effectiveness of International Courts: A Goal-Based Approach. American Journal of International Law 106:225-270.
34. https://www.icj-cij.org/statute ICJ Statute, Article 38. Accessed 24 October 2024.
35. Lauterpacht H (1958) The Development of International Law by the International Court. Stevens and Sons Ltd, London.
36. Kelsen H (1944) Peace Through Law. University of North Carolina Press, Chapel Hill.
37. Abi-Saab G (1996) The International Court as a world court. In: Lowe V, Fitzmaurice M (eds) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings. Cambridge University Press, Cambridge, pp 3-16.
38. Ulfstein G (2009) The International Judiciary. In: Klabbers J et al. (eds) The Constitutionalizing of International Law. Oxford University Press, Oxford, p 126-152