International Court of Justice
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GLOBAL: ‘Only through adherence to humanitarian principles and the rule of law can we shift away from armed conflict’
CIVICUS speaks with Neshan Gunasekera, an international lawyer from Sri Lanka, about the role of the International Court of Justice (ICJ) in the context of the case brought by South Africa against Israel under the 1948 Genocide Convention.Neshan is a Visiting Research Fellow at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lead Counsel on Peace, Justice and Governance at the Centre for International Sustainable Development Law, Council member at the World Future Council and director of the International Association of Lawyers against Nuclear Arms.
What’s the ICJ and why is it important?
The ICJ is the main judicial organ of the United Nations (UN) and its role is to help peacefully settle disputes between member states and provide advice on matters relating to international law. Its creation was the result of a long journey to find peaceful ways to solve international disputes.
In 2024, we will be commemorating 125 years since the founding of the ICJ’s earliest predecessor, the Permanent Court of Arbitration. This was one of the biggest achievements of the 1899 Peace Conference held at The Hague in the Netherlands. The extensive bloodshed that marked the 19th century prompted world leaders to gather and discuss how to transition from the outdated notion of war as a way to resolve disputes and towards preventive diplomacy, and the result was the Permanent Court of Arbitration, a forum for member states to bring their cases for resolution rather than resorting to armed conflict, violence or aggression as tools of diplomacy.
World leaders at The Hague also discussed how armed conflict should be conducted, and how it could be limited. The outcomes of these discussions are referred to as the Hague Law and, taken together with the Geneva Law, resulting from the Geneva Conference of 1864, are collectively known as the 1949 Geneva Conventions that are the basis of international humanitarian law.
Unfortunately, these notions took a backseat as the First World War erupted in 1914, and only resurged with the founding of the League of Nations in 1919. Three years later, the closest predecessor to the ICJ, the Permanent Court of International Justice (PCIJ), was formed. While it heard some interesting cases, the PCIJ was also short-lived, as the League of Nations shut down as the world prepared for another world war.
In 1945, when the UN was founded, the ICJ assumed its position as the highest judicial institution within the system and the Statute of the International Court of Justice became an integral part of the Charter of the UN. As it took forward PCIJ precedents, the ICJ has now accumulated over 100 years of jurisprudence.
The ICJ is one of the most important tools ever established for peacefully resolving disputes between states. Its 15 judges are meant to represent all UN geographic regions, civilisations and legal systems worldwide, including Indigenous and traditional legal systems. This entails a huge responsibility, particularly when it comes to representing voices that are still marginalised or underrepresented, such as those of Indigenous peoples.
The ICJ is now more relevant than ever because we are a critical time in history when we need urgently to correct our course. The danger of nuclear weapons going off becomes more real every day. And this is no longer the time of Hiroshima and Nagasaki: today’s nuclear arsenal can obliterate life as we know it.
Why has South Africa brought a case against Israel before the ICJ?
This case is intriguing because South Africa didn’t appear to be in direct conflict with Israel. But it didn’t need to: South Africa came to the Court alleging that Israel was violating the Genocide Convention, a treaty signed by most UN member states, including both Israel and South Africa. This convention grants all its signatories the right to bring a case before the ICJ against another if it’s suspected of committing, inciting or continuing to commit genocide.
The ICJ has jurisdiction to hear contentious cases, including those where parties have entered into an agreement and to provide advisory opinions on matters pertaining to international law. It also has compulsory jurisdiction, although this is limited to states that accept it, and authority to provide interpretations of international treaties This means it can make binding rulings in legal disputes submitted to it by states and give advisory opinions on legal questions at the request of UN bodies, specialised agencies or member states. The South Africa v. Israel case is a contentious case, which means it will eventually produce a binding court ruling.
What are the challenges of bringing genocide cases before the ICJ?
Genocide is possibly one of the worst crimes recognised as such by the international community. The Genocide Convention was the very first human rights convention the UN agreed on in the aftermath of the Second World War.
While there is considerable consensus on what constitutes genocide, it often takes decades to gather the necessary evidence to prove that genocide has been committed. Following the Second World War, a wealth of documentation was submitted as evidence of genocide, but the burden of proof was quite high to demonstrate the systematic and intentional engagement of individuals and states in genocidal practices. For individuals, this was dealt with under international criminal law and for states under international law.
However, in recent years several cases of genocide have been presented before the Court and the burden of proof has been increasingly scrutinised.
In 2019 The Gambia, also a state not directly involved in the conflict, brought a case against the state of Myanmar, alleging that Myanmar’s military and other security forces perpetrated genocide against its Rohingya Muslim minority in Rakhine province. It could do so because both were signatories of the Genocide Convention. In 2022, the ICJ decided it had jurisdiction under the Genocide Convention to hear the application filed by The Gambia.
The case is ongoing, and in November 2023 several additional states joined The Gambia’s genocide case against Myanmar. This was subsequent to the provisional measures the ICJ issued in January 2020 requesting Myanmar to prevent genocidal acts against Rohingya people while the case continued, and to report regularly on its implementation of the order. Developments in this case, as well as earlier cases relating to genocide, are most relevant to current proceedings.
Notably, unlike Myanmar, Israel did not contest South Africa’s jurisdiction to bring the case before the court; that seemed like a settled issue. Still, proving genocide can be a long and arduous process, particularly when people are afraid to bring evidence before the Court, although in this age of information and technology there’s a lot of video evidence to support these cases. But when it comes to genocide cases, what’s most challenging is proving criminal intent.
Why’s it so hard to prove genocidal intent?
The ICJ faces the daunting task of proving the deliberate attempt to eradicate an ethnic, political or religious group. This isn’t only about the amount of violence or the number of deaths, but about the intent to eliminate a specific group, including through means other than murder, such as taking away children.
This is why the interim measures requested by South Africa are so crucial. South Africa requested the immediate suspension of all hostilities by the Israeli military and for entry of humanitarian aid into Gaza to be allowed. While it did not order Israel to cease hostilities as had been requested, the ICJ’s interim measures requested Israel to take all necessary steps to prevent the commission of any acts of genocide. Further, it requested it take all necessary measures to prevent and punish the direct and public incitement to commit genocide of Palestinians in Gaza, an order on which the respected judge appointed by Israel also agreed with the majority decision.
This is key because in international relations statements made by prime ministers, presidents and other high officials, including military officers, are interpreted as reflections of a state’s intentions. What they say is weighed against their actions and could serve as a way of proving intent.
What are the consequences of the ICJ’s interim measures?
All ICJ rulings and orders are binding, so the interim measures impose an obligation on Israel to comply. Additionally, when the ICJ issues a judgment, opinion or interim measure on a topic, its application extends beyond the specific case that originated it. This is why we are starting to see a wider impact of the case South Africa brought to the ICJ.
For instance, in the Netherlands, civil society groups have filed several cases against their government to prevent it entering into military agreements that could incite or support the violation of human rights and humanitarian law in Gaza.
In other words, the ICJ case is enabling deeper discussions on how member states should respond to armed conflicts and how citizens can hold their governments accountable and ensure that tax money is not used to fuel armed conflict.
The case also underscores the ICJ’s vital role and its accumulated work over the years. States are increasingly resorting to the ICJ. Between 1947 and 2000, the ICJ issued interim measures on nine to 10 instances, while from 2001 to 2023 it has done so almost a dozen times, and most of these measures have been complied with. Overall, between 1947 and 2023, the ICJ has heard close to 200 cases and its opinions have been mostly respected. As of October 2023, there were 20 cases before the ICJ, including 18 contentious cases and two requests for advisory opinions. The two cases seeking advisory opinions are important: one is about the ‘Legal consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem’, filed by 53 UN member states with proceedings currently underway at the Hague. The other one is about the obligations of states regarding climate change, with a deadline of 22 March 2024 for UN member states to submit written statements.
This demonstrates the growing influence of the ICJ in interpreting international law and its adherence across the world. It also underscores the significance of international law. It is only through adherence to humanitarian principles and the rule of law that we can shift away from armed conflict. It is our collective responsibility to prevent future generations experiencing prolonged cycles of violence in which human rights and basic humanity are compromised. It is our collective duty towards all species on our planet.
What challenges does the ICJ face?
The ICJ is an integral component of the UN Charter, and its rulings should guide the actions of every member state. Unfortunately, out of the 196 UN members, only 74 have so far accepted the ICJ’s compulsory jurisdiction. To address this issue, a broad global civil society coalition supported by a group of likeminded UN member states has started the ‘LAW not War’ campaign to encourage other states to sign up and agree to its compulsory jurisdiction, so as to commit to go before the ICJ before resorting to the use of force.
It’s also important to highlight that the ICJ does not operate in isolation. It is part of a broader network of international tribunals, such as the International Tribunal for the Law of the Sea and the International Criminal Court, as well as regional institutions like the European Court of Human Rights and the Inter-American Court of Human Rights. Further, national-level courts and tribunals also play a role. Understanding the interconnectedness of these systems is essential in assessing the international system of adjudication and to achieving an international rules-based order.
In terms of impact on foreign and domestic policies, there is a discrepancy between what countries sign up to in the international arena and what they end up implementing domestically. The primary reason for this gap is that, although the ICJ’s rulings are binding, the Court lacks its own enforcement mechanism to ensure compliance and depends on principles of international law such as good faith and respecting promises made through treaties, also referred to as the ‘pacta sunt servanda’ principle. As a result, universal human rights principles are unevenly implemented at the domestic level.
There is still clearly much to be achieved and we must come together, urgently and with agency, to work towards a peaceful and sustainable planet, based on the principles of international law.
Get in touch with Neshan through LinkedIn.
This interview was conducted as part of the ENSURED Horizon research project funded by the European Union. Views and opinions expressed in this interview are those of the interviewee only and do not necessarily reflect those of the European Union or any of the institutions the interviewee is a member of. Neither the European Union nor the granting authority can be held responsible for them.
