International Court of Justice delivers an own goal in ‘genocide’ case
This much can be predicted with certainty about the International Court of Justice’s decision in the case South Africa brought against Israel: Hamas will completely ignore the court’s call for the “immediate and unconditional release” of the hostages it illegally holds captive. But while the court’s call is commendable, its decision is troubling.
To say that is not to overstate the significance of the provisional measures the court has ordered. Whatever the decision’s defects, those measures primarily require Israel to abide by its obligations under the Genocide Convention, which it insists it already does.
Moreover, what the court didn’t do is as significant as what it did. The court, South Africa demanded, should order Israel to “desist” from genocidal acts, implying Israel was committing genocide. Instead, the ICJ carefully restricted itself to saying Israel has an obligation to “prevent” genocidal acts from occurring, leaving the factual issue open.
Nor did the court accept South Africa’s central request, which was for an immediate ceasefire. In Ukraine v Russia (2022), the ICJ ordered Russia to “immediately suspend military operations in Ukraine”. This order makes it emphatically clear that the only military action it enjoins is that carried out with genocidal intent.
That leaves Israel free to continue its current campaign, knowing that, as the Convention’s drafters noted, “even heavy civilian losses in the course of operations of war do not as a rule constitute genocide”.
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When it was established in 1945, the ICJ was the only international body of its kind. Since then, nearly 30 international judicial bodies have been created, along with dozens that are quasi-judicial.
That trend, which is at least partly due to the ICJ’s flaws – including the lack of an appellate mechanism to discipline decisions and constrain judges who often come from authoritarian, low-quality legal systems – has been accompanied by a massive flight from its jurisdiction.
The share of states accepting the court’s mandatory jurisdiction has halved since 1950, with even the UK, which was the only one of the founding great powers that still accepted it, recently imposing stringent reservations on that jurisdiction’s scope. Meanwhile, the number of new treaties that grant the ICJ jurisdiction has collapsed.
The ICJ has responded by trying to make its jurisdiction more attractive, notably to the “global South”. In particular, since its Namibia opinion in 1971 and its Nicaragua decision in 1984, it has shown a greater willingness to involve itself in quintessentially political disputes and assess them in terms of “fairness”.
At the same time, it has made it easier for applicants to obtain preliminary measures, giving the impression every applicant gets something, while controversially deciding in 2001 that those measures, which were previously exhortatory, are binding.
The result is that provisional measures have proliferated: in the past decade alone, they have been imposed in 12 cases, as against 10 in the entire period from 1945 to 1995.
Last week’s decision simply accentuates that trend by yet again lowering the thresholds for asserting jurisdiction, establishing an applicant’s standing and imposing provisional measures. Moreover, by requiring Israel to report monthly, the ICJ has ensured the case will be continuously relitigated, dealing itself into a dispute it cannot possibly resolve.
None of that will be costless. Already, the compliance rate with the ICJ’s provisional measures has plummeted: excluding this decision, there was no compliance at all with its orders in four of the five cases decided since 2016, and only very limited, utterly ineffectual, compliance in the other.
That might not matter if the court retained the moral high ground, helping to guide world opinion. But it can hardly do so while continuously reducing its standards, making decisions increasingly ambiguous and opening an unbridgeable gulf between provisional orders and final judgments.
Rather, the ICJ’s growing activism will merely further discredit its jurisdiction and encourage the West’s shift to other adjudicative venues, with the risks that creates of conflicting law, jurisprudential overlap and rampant forum shopping.
Today’s international legal system is a very weak reed: it never has, and never will, live up to its founders’ utopian aspirations. But as the world becomes an ever more dangerous place, it deserves a better fate than this decision foreshadows – and a much wiser one too.HENRY ERGAS COLUMNIST
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