She is also a PhD candidate at Northwestern University and the University of Copenhagen.] Intervention in ICJ Cases Article 62 of the ICJ Statute provides that a State may request to intervene in a contentious case if it “consider [s] that it has an interest of a legal nature which may be affected by the decision in the case”. The International Court of Justice reflects this standard in ICJ Statute, Article 38 by reflecting that the custom to be applied must be “accepted as law”. As the ICJ stated in the North Sea Continental Shelf cases of 1969, "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. v. On the other hand, a state would almost certainly expect some form of legal repercussions if it were to prosecute a foreign ambassador without the consent of his or her home state, and in this sense opinio juris does exist for the international law rule of diplomatic immunity. (Ser. Notably, PTC III also broadened the geographical scope of the investigation, allowing investigation into crimes related to the Bangladesh/Myanmar situation committed in the territory of any state party to the ICC Rome Statute. Some states had pointed out that a series of U.N. resolutions had been issued "that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons," and argued that this signified “the existence of a rule of international customary law which prohibits recourse to those weapons.”[8] Nonetheless, the ICJ wrote that states possessing nuclear weapons had almost always objected to these resolutions, which strongly suggests that those states did not believe that a customary law prohibiting their use existed. France argued that this absence of prosecutions points to a positive rule in customary law on collisions. Sorry, the comment form is closed at this time. Because opinio juris refers to the psychological state of the state actor—asking why the state behaved as it did—it can be difficult to identify and to prove. Training Armed Forces in IHL: Just a Matter of Law? 4, 232-33 (Feb. 20) (dissenting opinion of Judge Lachs). For this reason, the necessity of demonstrating that a behavior was prompted by a sense of legal obligation makes it particularly difficult for customary international law to develop around the prohibition of a practice. That said, it will undoubtedly be a significant legal event if the ICJ finds that the term genocide fits the crimes committed against the Rohingya by Myanmar. These problematic interpretations of Article II(d) of the Convention relating to rape may be relevant the Rohingya case, as rape has been a ubiquitous part of the campaign of violence against the Rohingya. In this final stage, as more States become aware of the conduct and actively participate or at least passively acquiesce to the practice, the States' actions begin to be undergirded by a belief that they are complying with an emerging customary rule. In practice, a variety of sources tend to be used to demonstrate the existence of opinio juris, including evidence such as diplomatic correspondence, press releases and other government statements of policy, opinions of legal advisers, official manuals on legal questions, legislation, national and international judicial decisions, legal briefs endorsed by the state, a pattern of treaties ratified by the state that all include the same obligation(s), resolutions and declarations by the United Nations, and other sources. AI Partnership for Defense is a Step in the Right Direction – But Will Face Challenges. This logical framework makes sense for existing norms of customary international law, but it becomes problematic in the context of new or emerging customary rules. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true”. For example, the ICJ held in 2007 that rape charged as a ‘measure intended to prevent births within the group’ must be specifically committed in order to prevent births (para. What these concepts entails has been subject of judicial The Court does not explicitly say, however, whether this subjective element or belief refers to the positions of each state individually, on its own, or to the subjective stance of the community as a whole. Using Article 30 of the ICC Statute, it could be argued that the Tatmadaw’s intent included forcing Rohingya across the border into a situation which would entail a high degree of risk that the Rohingya would end up in unsafe and unhealthy conditions in an over-crowded camp, experiencing at least bodily and mental harm. Maternal healthcare is significantly lacking, creating high risk for pregnant women, including malnutrition and birth complications. 68. [Lena Trabucco is a Research Assistant at the Centre for Military Studies at the University of Copenhagen. In relation to Opinion Juris, the ICJ stated in the North Sea Continental Shelf cases, that “ [t]he states concerned must therefore feel that they are conforming to what amounts to a legal obligation.” The problem, however, is how to demonstrate what a state believe … In the Lotus Case, France alleged that jurisdictional questions on collision cases are rarely heard in criminal cases because States tend to prosecute only before the flag state. In other words, they have been destroyed, at least partially, as a group. The other element is state practice, which is more objective as it is readily discernible. This proposal does not accuse the host states of any crime, but rather allocates responsibility for the conditions experienced by genocide refugees to the Burmese perpetrators. Therefore, there is a strong argument here that the Prosecutor could make for charging genocide through the territorial jurisdiction of Bangladesh. Reports 1969, pp. While the Prosecutor initially limited her request to the crime against humanity of deportation, the ICC has left it open for the Prosecutor to proffer charges beyond this crime. While it is the essence of the arguments before the ICJ, it is an argument that has been made elsewhere in many sources, including NGO reports, UN reports, journalism, scholarly writing, and academic research centres; thus, I will not here delve into the details of the facts on the ground. "Legality of the Threat or Use of Nuclear Weapons" - Advisory Opinion of 8 July 1996 - General List No. Survivors will already be in poor states of health (one Rohingya survivor told me how her feet were ripped to shreds and her legs were swollen after she walked from her village in Rakhine state to the Cox’s Bazar area in Bangladesh), arriving in need of healthcare that simply is not available. 77. political expediency, economic gain, courtesy, etc. Opinio juris is reflected in acts of states (Nicaragua Case) or in omissions (Lotus Case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. "[4] Nonetheless, a state's motives can change over time, and that it is not necessary that opinio juris be a significant impetus for each instance of action. © 2020 Opinio Juris | Design by Minute Works | In association with the International Commission of Jurists. Finally, the context, circumstances, and manner in which the state practice is carried out can also be used to infer the existence of opinio juris. France presented a number of historical examples to demonstrate that the state of nationality or the state whose flag the ship had flown had exclusive jurisdiction in cases such as this. The need for such belief, the subjective element, is implicit in the very notion of opinio juris sive necessitatis”. 78. The Court held that this “would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. In practice, a variety of sources tend to be used to demonstrate the existence of opinio juris, including evidence such as diplomatic correspondence, press releases and other government statements of policy, opinions of legal advisers, official manuals on legal questions, legislation, national and international judicial decisions, legal briefs endorsed by the state, a pattern of treaties ratified by the state that all include the same obligation(s), resolutions and declarations by the United Nations, and other sources. The ICJ, in its jurisprudence, has relied on, and interpreted, Article 38 to include two elements that assist the Court to determine the existence of an alleged customary international law – state practice and opinio juris (also known as opinio juris sive necessitates). In the Paquete Habana case (decided by the United States Supreme Court in 1900 on the question of whether small coastal fishing boats are immune from capture during wartime under customary international law), evidence of opinio juris included medieval English royal ordinances, agreements between European nations, orders issued to the U.S. Navy in earlier conflicts, and the opinions of legal treatise writers. As Judge Lachs wrote in a dissenting opinion in the North Sea Continental Shelf cases, "At successive stages in the development of the [customary] rule the motives which have prompted States to accept it have varied from case to case. Tur.). A situation where opinio juris would be feasible is a case concerning self-defense. If a practice is not currently governed by customary international law, then it is illogical to inquire into a state's beliefs about the legality of engaging in or abstaining from that practice, i.e., to ask whether it believed that its practice was in compliance with a law that does not yet exist. As campsites become over-crowded with thousands of refugees, health issues increase, with chronic illnesses and diseases such as diphtheria, tuberculosis, diarrhoea and respiratory diseases spreading, fuelled in part due to a lack of sanitation and healthcare. 3, 45, para. Through its opinions and rulings, it serves as a source of international law. Rohingya Symposium: The Rohingya Cases before International Courts and the Crime of Genocide, International Association of Genocide Scholars, unclear but with potentially significant limitations, extraordinary reach in a country like Myanmar, inadequate post-rape healthcare facilities, ‘Grading’ the Nominees for the International Criminal Court Judges Election 2021-2030: The Report of the Advisory Committee on Nomination of Judges—Part I. Access to food and water is also near impossible, with hunger rampant, starvation and infant malnutrition becoming serious issues. Given the experience of genocide refugees throughout history, it would be clear to the perpetrators that the harm caused by life in refugee camps is a consequence that ‘will occur in the ordinary course of events’ of the crimes of genocide (Art.30(2)(b)), more than a mere possibility or probability. Further in this apparently psychological vein, the Court held that states “must feel that they are conforming to what amounts to a legal obligation”. The article 38 of ICJ statutes states among other sources of international law, the customary international law which results from states practices followed from a sense of legal obligation. Opinio juris is reflected in acts of states (Nicaragua Case) or in omissions (Lotus Case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. North Sea Continental Shelf, 1969 I.C.J. In international law, opinio juris is the subjective element used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act. The ICJ also applied the requirement that rape and sexual violence committed under Article II(d) of the Convention must be systematic; a requirement the ICJ did not impose on any of the other genocide crimes.