The story of the ICJ’s Reparation for Injuries Advisory 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 to one of its agens in the performance of its duties? The question was asked in the abstract, but in essence, the UNGA asked whether the UN could make an international claim against Israel as the responsible government for the death of Count Bernadotte.
The requirements of international life
In order to answer the question, the Court had to basically determine the status of the UN in he international legal system in 1948? Is it on the same level as sovereign states? Does the UN have the international legal personality? Only if it does, can the UN make a claim. The court first determined that the subjects of law ’are not necessarily identical in nature or in the extent of their rights (…).’ That was the first opening. Besides states, other entities can be subjects of international law. The extent of their rights depends on the nature of those other entities, and ’their nature depends on the international community’. Legal pragmatism at its finest. And it gets better:
”Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.”
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 required to enable those functions to be effectively discharged.”
So, in order for the UN to be effective, the UN’s founders must have ’clothed it’ with legal personality, and so it has such legal personality. You can question whether the Court means to say that legal personality must be assumed in order to be effective, or that it must be assumed because the founder’s must have found it necessary to be effective. In any case, the Court was being pragmatic and idealistic at the same time.This principle of effectiveness has been with the law of international organizations ever since.
Count Bernadotte is not mentioned once in the Reparation for Injuries Opinion. But ultimately, Israel agreed to pay the United Nation 19.500 pounds, and did so in 1950. The family of Count Bernadotte did not file a claim against Israel, the assassins were never caught, and the Israeli-Arab conflict continues to this day. And the United Nations and international organizations in general became a permanent fixture in the international legal and political arenas.