The story of the ICJ’s Reparation for Injuries Advisory to one of its agens in the performance of its duties?
s duties? The required to enable those functions to be effectively
Opinion is made up of three parts, although the Court’s
opinion concentrates on only one. This is the story of a
Swedish diplomat and his death in 1948; a lost opportunity
for Israeli-Arab relations; and the rise of the United Nations
as a pivotal international organization. Count Folke
Bernadotte’s murder was a tragedy because of his previous
heroics. But the case before the ICJ as a consequence of that
murder provided a critical link for the further development of
international law.
REPARATIONS FOR INJURIES: COUNT BERNADOTTE
Count Folke Bernadotte of Wisburg, a relative of King Gustaf
of Sweden, had rescued more than 30000 prisoners from
German concentration camps in World War II through
mediation. As vice-chairman of the Swedish Red Cross, he
freed many Jews, but Bernadotte’s status of a hero among
the Jewish people was short-lived. The newly formed United
Nations had appointed Bernadotte as the mediator in the
first Israeli-Arab conflict, with Israel fighting for
independence. With his first partition plan, Bernadotte
angered many extremist forces within Israel. He came to be
seen as an enemy of Israel, and was assassinated in Jeruzalem
at point blank range by the Jewish group LEHI. This group
included Yitzhak Shamir, who would become Prime Minister
of Israel in the 1980s. Count Bernadotte is now an icon in
Swedish and diplomatic history.
CAPACITY TO MAKE A CLAIM
Because Bernadotte was in the service of the United Nations,
the new organization sought to improve security for its
agents like Bernadotte. One avenue is the ability to hold
someone or something responsible for injuries suffered by
the organization or its agents, and extract reparations. Bu
whether the UN was able to do so, like states, was unclear.
The UN General Assembly (UNGA) asked the International
Court of Justice for an advisory opinion on the issue. Did the
UN have the capacity to make an international claim to
demand reparations when a state is responsible for injuries
question was asked in the abstract, but in essence, the UNGA discharged.”
asked whether the UN could make an international claim
So, in order for the UN to be effective, the UN’s founders
against Israel as the responsible government for the death of
must have ’clothed it’ with legal personality, and so it such
Count Bernadotte.
legal personality. You can question whether the Court means
THE REQUIREMENTS OF INTERNATIONAL LIFE to say that legal personality must be assumed in order to be
effective, or that it must be assumed because the founder’s
In order to answer the question, the Court had to basically
must have found it necessary to be effective. In any case, the
determine the status of the UN in he international legal
Court was being pragmatic and idealistic at the same
system in 1948? Is it on the same level as sovereign states?
time.This principle of effectiveness has been with the law of
Does the UN have the international legal personality? Only if
international organizations ever since.
it does, can the UN make a claim. The court first determined
that the subjects of law ’are not necessarily identical in nature AFTERMATH
or in the extent of their rights (…).’ That was the first opening.
Count Bernadotte is not mentioned once in the Reparation
Besides states, other entities can be subjects of international
for Injuries Opinion. But ultimately, Israel agreed to pay the
law. The extent of their rights depends on the nature of those
United Nation 19.500 pounds, and did so in 1950. The family
other entities, and ’their nature depends on the international
of Count Bernadotte did not file a claim against Israel, the
community’. Legal pragmatism at its finest. And it gets better:
assassins were never caught, and the Israeli-Arab conflict
”Throughout its history, the development of international law continues to this day. And the United Nations and
has been influenced by the requirements of international life, international organizations in general became a permanent
and the progressive increase in the collective activities of fixture in the international legal and political arenas
States has already given rise to instances of action upon the
international plane by certain entities which are not States.”
EFFECTIVENESS
But that still didn’t answer the question. The next step was an
examination of the nature of the UN. First, the Court
determined that the UN is a general organization with broad
tasks and powers. What it concluded on that basis is worth
quoting in full:
”In the opinion of the Court, the Organization was intended to
exercise and enjoy, and is in fact exercising and enjoying,
functions and rights which can only be explained on the basis
of the possession of a large measure of international
personality and the capacity to operate upon an international
plane. (…) It must be acknowledged that its Members, by
entrusting certain functions to it, with the attendant duties
and responsibilities, have clothed it with the competence