One intersection between scholarship and practice in international humanitarian law (IHL) is observable in international litigation concerning violations of the law of war. An interesting example in this regard recently arose in the case before the International Court of Justice (ICJ) by the Democratic Republic of the Congo against Uganda for war-related claims. At the reparations phase, the Court decided not to rely solely on the submissions of the Parties, but to task certain scholars and other experts to answer evidentiary questions. Yet, when the Court’s judgment was issued in February 2022, the role of these experts turned out to be almost negligible, with one significant exception.
There are various lessons one might extract from the Court’s use of experts in the DRC v. Uganda case, such as the optimal time for introducing experts into an ICJ proceeding; the value of transparency in the use of experts; and whether the Court might benefit from the experience of other international courts or tribunals in this regard. Yet the overall lesson may be that such assistance when applying IHL has its limits. While often the work of scholars is extremely important for understanding the rules of IHL and for gathering up prior practice in relation to it, it may be asking too much for any single scholar or practitioner to be able to resolve certain matters, including the very thorny issues that arise in proving and quantifying mass civil injury resulting from an armed conflict.
GW Paper Series
Murphy, Sean D. and Parkhomenko, Yuri, Now You See Them, Now You Don’t: International Court-Appointed Experts, Wartime Reparations, and the DRC v. Uganda Case, Journal of International Humanitarian Legal Studies, vol. 14 (forthcoming 2023).