This article is written in conjunction with the IEU Law Society.By Adam Paska
Countries tend to translate all international conflicts or disputes into legal language to better justify their actions before the international community. There exist myriad institutions capable of hearing such disputes and resolving them, one of which is The International Court of Justice (ICJ). The ICJ is the judicial organ established by the Charter of the United Nations (UN) in 1945 for the settlement of disputes between States. It is probably the institution that has attracted the most attention in the recent past, notably due to the historic case presented before it; South Africa v Israel. This article will scrape the surface of the ongoing case, discussing the effectiveness of the organ and the implications for the future.
Jurisdiction
Although the ICJ is an organ provided for in the UN Charter, submission to its jurisdiction is not compulsory for UN Member States. Today, only 70 states have accepted compulsory jurisdiction, Israel falling outside this category. This poses great limitations, as a case can only be presented to the ICJ against a state that has accepted its jurisdiction. However, a number of international treaties contain explicit provisions referring disputes concerning their interpretation to the ICJ, serving as a basis for the automatic jurisdiction of the ICJ over States Parties to these international conventions. In the context of the ongoing case, South Africa has argued that Israel violated the 1948 Genocide Convention, which provides such a basis in article IX, subjecting all matters to the ICJ, enabling the ICJ to hear the case.
Enforcement
Despite the expansion of jurisdiction, another issue remains, the lack of an enforcement mechanism. It is indeed a great concern to the international community as the absence of such enforcement can potentially undermine any judgment issued by the ICJ. A prime example being the order to halt assault issued against Russia just last year.
However, and maybe surprisingly, this situation remains an exception, and ICJ judgments are often abided by. Unlike the General Assembly and the Security Council, whose resolutions are often ignored, even despite the binding nature of Security Council decisions, the vast majority of the rulings of the ICJ are implemented by the parties to the dispute and even recognized by third States.
The main reason is the element of reputation, both on the side of the judgment issued by an internationally respected independent institution, and the international backlash countries would subject themselves to if deciding to ignore or defy the judgment. Additionally, respecting the ICJ judgements creates a virtuous circle of states entrusting and subjecting their international disputes to the ICJ, empowering the institution and enhancing its effectiveness.
South Africa v Israel
South Africa has, within their 84 page application document, used evidence from top UN officials to depict and argue that Israel has violated the 1948 Genocide Convention. It is not arguing that acts of Genocide were committed, but rather that Israel has created an environment or conditions capable of resulting in Genocide.
Israel, on the other hand, is appealing to public opinion. It is relying on the political influence of the ICJ bench, composed of 15 permanent judges that are elected by countries through the United Nations General Assembly and the Security Council. To illustrate, one of the arguments used was that the Genocide Convention, created after the Holocaust, is now being targeted against a Jewish state.
Although a final ruling on the case will take years, we can expect an interim measure in the following weeks, and it will surely be interesting to monitor Israel’s response.
In Conclusion
Despite the apparent shortcomings of the ICJ, it remains the most effective international institution and one must not undermine the importance of a final ruling for the years to come. This case provides a step in the right direction, setting a standard for the international community and acting on the mutual obligations of the states to prevent such atrocious crimes as is genocide.
