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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.”
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 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 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.

AFTERMATH
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.