By Dr. Gábor Spuller.1
In its decision on 26th January 2024 on provisional measures in the South Africa vs Israel case, the International Court of Justice (ICJ) has opened itself to the allegation that it has become a political body. By equating the measures of injunctive relief with the statements of international principles in advisory opinions, the Court is losing the frontier between the proceedings and increasingly risks being turned into a mere political institution. The provisional measures only harm one side, Israel, because the other real party, Hamas, is not part of the proceedings – and, after all, cannot be a party at all as it is not a state. The Court’s measures neglect the security interests of the accused state. The obligation to report to the Court is bringing Israel, a sovereign state, under some kind of political control of the Court. The pronounced measures are detrimental to the rule of law, institutional stability and coherence, legal predictability, and overall civil legitimacy. Everyone must remember the basic principles developed by Charles de Montesquieu (separation of powers or checks and balances). This also applies to all institutions, especially to one of the most important and powerful courts in the world, to stay and act within its remit as a judicial, rather than political,organ.
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The International Court of Justice (ICJ) has passed its judgement. South Africa sued Israel arguing the latter is in breach of its obligations under the Genocide Convention. On 26th January 2024, the Court made its decision on provisional measures.
Without underestimating the real humanitarian crisis in the Gaza Strip, which is shocking, we can question, whether the Israel-Hamas war falls within the remit of the very special convention. Did the Court really consider serious questions of admissibility, jurisdiction, and evidence in this lawsuit?
At first glance, it is astonishing that states with no common borders or any direct, specific economic, social, ecological, ethnic, or religious relations are allowed to sue other states and, above all, bring a highly politically controversial measure before the World Court.
You may wonder why South Africa is referring a case against Israel to the highest judicial authority in the world, the ICJ. Why is South Africa intervening in favour of the mostly Arab people in Gaza? Why did the Arab states or the Organisation of Islamic Cooperation (OIC) not intervene on behalf of their ethnic kin or the Muslim people, as The Gambia did in the case of The Gambia v. Myanmar? Right at the beginning of its application, South Africa placed the case in a broader context (see para. 4 of the application). It claimed that Israel introduced an apartheid system 75 years ago. The Court did not deal with this accusation because the Court clearly does not have any jurisdiction to examine this claim, nor was this the subject matter of the lawsuit.
While these presented motives of the plaintiff state, South Africa, are not primarily decisive for the litigation – because legal interest is not needed – the motives of the defendant state Israel to wage a war against Hamas in Gaza must be analyzed in detail. When the case enters the merits phase, the Court will have to focus on the intentions of the Israeli government, as intent to destroy is the core element of establishing the crime of genocide. This one-sided perspective is the result of a rather ex officio procedure which can be initiated by each state party against any other state party under the Genocide Convention. However, since the allegation of genocide is very serious, a state must be very careful when preparing a lawsuit against another state. Mutual respect and the principle of sincere cooperation should be the basis of any multilateral agreement. Assuming the role of the prosecutor against another state on an international level should be a very rare exception.
Therefore, I would like to take a closer look at the facts because in this case – one that is overloaded with political views and impressions clothed in legal garb – it is necessary to take a step back in order to gain a more objective perspective. At first glance, it seems to be very difficult with the background of the devastating and massive humanitarian crisis in the Gaza strip. However, you have to consider, that the application of humanitarian law does not fall within the remit of the Genocide Convention, which deals only with the very extraordinary “crime of all crimes”- genocide.
Admissibility, jurisdiction, and evidence
Therefore, the issues of admissibility, jurisdiction and evidence raise very serious questions for the ICJ, not only in terms of the current special issue but also in terms of the checks and balances of power within the world community itself. You may wonder whether the ICJ has really been entrusted by the convening states with the competence to decide this special case.
South Africa has brought before the Court a case that essentially refers to the prohibition of genocide and establishes an obligation among all states (“erga omnes”). According to international legal theory, any state can bring claims for a failure to comply with the prohibition of genocide against any other state party to the Convention. The question remains, however, whether the Court has jurisdiction to rule on the application.
South Africa claims the Court does have jurisdiction, under the terms (and limits) of the Genocide Convention. When it comes to the issuing of provisional measures, the Court was authorized to order such measures even before it has analyzed and finally decided that it has jurisdiction. The Court will do so only if it has prima facie jurisdiction (Wilmshurst, in Roberts (ed.), Satow’s Diplomatic Practice, 6th ed., note 30.36). The questions of admissibility, jurisdiction and evidence must therefore take centre stage.
In fact, the ICJ had to deal with several difficult issues at the provisional measures stage:
- the general absence of regulations for the operative part of judgement;
- the instrument of provisional measures within the framework of the general legal system;
- the regulatory framework of proceedings and the question of competence; and
- the contentious character of the lawsuit.
Contentious case or advisory opinion?
If you look at the Charter of the United Nations, the Statute and the Rules of the ICJ, you will find no requirements regarding the operative part of judgement. Compared to European Union laws and the national laws of some European states, this is a serious shortcoming as they are of central importance for the upholding of legal certainty. For instance, Article 264 of the Treaty on the Functioning of the European Union (TFEU) stipulates that two orders are required for an action for annulment brought before the Court of Justice of the European Union (CJEU) against an EU legal act. In the so-called German “Organstreit” proceedings – a contradictory lawsuit between constitutional public organs, pursuant to Article 67 of the Act on the Federal Constitutional Court, the Federal Constitutional Court determines that the actions or omissions of the opposing party violate a provision of the Basic Law of Germany and can rule on a legal application for the interpretation of the Basic Law (an authoritative interpretation).
The ICJ however, was in this case, obviously turning the proceedings of injunctive relief more into an advisory opinion. But the latter is a very special procedure, only mentioned in the UN Charter itself (see Art 96) and set apart from contentious cases.
Here, the plaintiff, South Africa, has the power to influence the case, the decision-making process and the Court’s decision. Regarding the list of provisional measures proposed by South Africa and the problem of how to deal with the ongoing attacks by Hamas against Israel, it was difficult to find a solution, as a unilateral ceasefire would have disarmed Israel against Hamas’ terrorist attacks. Indeed, the Court applied Article 75, paragraph 2 of the Rules of Court very broadly. By virtue of this regulation, the Court did not feel bound by the measures requested by the plaintiff. This makes the operative part of the Court’s judgement somehow arbitrary. In fact, the first and main part of its operative ruling on provisional measures only restated the obligations under the Genocide Convention, even though Israel, as a state party, is already bound by the Convention. The real question is how Israel is supposed to implement such a general clause without any concrete guidance from the Court. On the other hand, what should South Africa make of the fact that the Court did not explicitly reject its original request for a unilateral ceasefire?
The parties are left completely in the dark about the actual impact of the provisional measures. As the Court’s first provisional measure is only stating an obvious obligation without any self-executing power, it has more the character of a political principle or declaration, which the Court only may give in an advisory opinion.
The question as to whether a dispute exists between these two states is also crucial. It is very important to uphold the different competences and procedures, especially in the case of disputed lawsuits and advisory opinions. At the very least, there should be a mutual exchange of views. This is not just a matter of courtesy but of mutual cooperation within a contractual context of the Convention.
In The Gambia v. Myanmar, the Court stated that Myanmar had failed to respond to a Note Verbale of the plaintiff within one month. There, the Court expected at least an opportunity for the accused party to answer within a reasonable timeline. Here, however, it seems that South Africa did not give Israel adequate time to respond. Nevertheless, surprisingly in this case, the Court abandoned any requirement of the mutual exchange of views. Although the effect of a decision is erga omnes, the nature of the procedure is adversarial and distinctively non-advisory, and a number of preconditions must be met to prevent the Court from being used for political reasons. According to settled case law, any state which filed a case must do so in good faith. From this recognized principle stems mutual respect in interstate relations which is key to international cooperation.
Particularly, in very special proceedings, such as when a state is accused of having committed genocide, the plaintiff has to give clear and unambiguous evidence before the Court. According to its established case law, the Court must distinguish between mere political differences and real disputes. It has to determine this by itself as a matter of substance. This is necessary because states have no authority over each other. The Court provides a forum for the judicial scrutiny of interstate relations and the resolution of interstate conflicts. This is a different function than the issuing of advisory opinions. Therefore, the Court should not deliver an advisory opinion on what is essentially an interstate conflict.
It is a question of a balance of power between the states and of institutional balance within the UN, because only UN organs and agencies are authorized to seek advisory opinions from the Court Above all, appealing to the Court in interstate relations should be the last resort. The requirement of the existence of a real dispute is also an instrument to give the other state the opportunity to be heard and for the final clarification of the content and scope of the dispute. Otherwise, many states would abuse the extraordinary instrument of the Convention.
Provisional measures are a sharp sword
The instrument of provisional measures is a very sharp sword; the Court must prepare and apply it very carefully. The questions of admissibility, jurisdiction, and evidence have to be clearly analyzed. Due to the significant consequences and the adversarial character of the lawsuit between two states, simple ordinary prima facie evidence or plausibility has to be clarified. It is not the same situation as, for example, in the Inter-American Court of Human Rights, where usually individuals initiate proceedings against a state in order to defend their human rights (finally by the intermediary Inter-American Commission on Human Rights). By giving individuals a possible remedy, it deals with allegations of violations of human rights. However, the ICJ does not have a mechanism for individuals to bring complaints against a state, so there is no need to balance the power between the “weak” individual against the “strong” state in order to effectively enforce the protection of human rights. The ICJ only adjudicates between states that are authorized to bring an action, so its main task is to resolve adversarial disputes between states. This was the original idea behind the establishment of this Court.
The Statute and Rules of the ICJ fall short on this point. It is a matter of certainty and of the rule of law. As there are no rules regarding the admissibility of evidence for the issuance of provisional measures, the ICJ should apply the highest standards in determining whether it can adjudicate a matter to begin with.
There are higher standards in determining whether a preliminary injunction may be granted in domestic legal systems, for example, that of the United States. There, a court must first consider whether the application is likely to succeed on the merits, among other factors. Given its vague regulations, in my view, the ICJ must exercise judicial self-restraint and at least apply a similar high standard for the admissibility of evidence and review its settled case law in this regard.
In this current case, in which Israel participated in the hearings as a defendant and vehemently opposed both the admissibility of South Africa’s claims and the Court’s jurisdiction, it is not a solution to first issue a decision on provisional measures and then examine the conditions for admissibility and jurisdiction in a separate proceeding. Israel has vigorously invoked the inadmissibility and non-jurisdiction of the Court. The case of Ukraine v. Russia is not applicable to, or at least should not be instructive, for this case, because Russia did not take part in the initial proceedings of the hearings. In conclusion, there are serious preliminary objections, as the ICJ should have first examined the procedural requirements more thoroughly in accordance with Article 79 of the Rules of Court.
However, by applying a low standard for the admissibility of evidence, the Court confirmed the plausibility of Israel’s genocidal intent, which is a very outrageous statement. Instead of relying on objectively credible factual sources, the Court simply quoted some political statements of UN officials. Interestingly, one of its main arguments is based on the statement of Philippe Lazzarini, the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA, see para. 49 of the Court’s Order). It was the only statement by a third party that pointed to a trace of intent (para. 50). The fatal consequences are now obvious after the recent strong allegations that Hamas has hijacked UNWRA and misused it for its genocidal attacks on October 7, 2023.
In this way, the Court is transforming itself from a judicial organ into a singular institution of law. From the judicial point of view, the proceeding of delivering an advisory opinion is already critical because the Court functions as a counsellor of international organizations such as the UN General Assembly, etc. In an adversarial lawsuit however, such as in this case, it cannot just deliver a legal opinion. By doing it this way nevertheless, it is also taking part in the negotiation of the convening states in order to make law, which affects, due to the political game, the integrity of the Court as a judicial organ (Art 92 of the UN Charter) and upset the institutional balance within the UN. The court risks becoming an actor in the policy-making process (confer Dissenting Opinion of Judge Sebutinde). It would then appear that the Court is a mere political partner and instrument of some states. Especially regarding the peace process of the Middle East, it must be considered that the Security Council, rather than the ICJ, has the primary responsibility for the maintenance of international peace and security (Art 24 of the UN Charter).
South Africa and Hamas
Moreover, there are serious questions regarding South Africa’s standing. According to the current legal situation, South Africa represents not only the innocent people in the Gaza Strip on the one hand, but also a violent terrorist group, Hamas, on the other hand, which initiated the current conflict, terrorizes the people in Gaza and still continuously fires rockets at Israel. Is the nature of South Africa’s action not a contradiction in terms, and possibly a violation of the principle of nemini licet venire contra factum proprium (estoppel/clean hands)?
Considering that there is prima facie evidence that Hamas committed genocidal acts, would it then be permissible for South Africa – acting as an advocate of a terrorist group – to invoke the Genocide Convention at all according to the rules of good faith?
Unfortunately, the ICJ has disregarded any preliminary objections that prevent it from ruling without further investigation. In her dissenting opinion, Judge Sebutinde mentioned that it was brought to the attention of the Court that South Africa, and in particular, certain government bodies, maintained and continue to maintain a cordial relationship with the leadership of Hamas. If the Court goes beyond the request in its operative judgement against Israel, why does it not order South Africa itself according to Article 75, paragraph 2 of the Rules, to use its influence to try to persuade Hamas to release the remaining hostages immediately and unconditionally (see Dissenting Opinion of Judge Sebutinde)?
In this way, the Court runs a high risk of later finding at the merits stage that it was not authorized in the first place to order Israel to implement provisional measures.
To sum up:
- The operative order contained very general and abstract clauses without any self-executional relevance.
- The standards for the fulfilment of preconditions to initiate a contradictory lawsuit and request provisional measures are very low (it is questionable whether there is a real dispute and one that is based on reliable and credible evidence).
- There is a low threshold for the plaintiff to obtain legal standing.
By equating the measures of injunctive relief with the statements of international principles in advisory opinions, the Court is losing the frontier between the proceedings and increasingly risks being turned into a mere political institution. The order read by the American judge Donoghue reflects the general line of Biden’s policy. The concerns regarding institutional checks and balances of states and international organizations, as well as the weak enforcement of the principle of the separation of powers must therefore be taken seriously.
The provisional measures only harm one side, Israel, because the other real party, Hamas, is not part of the proceedings and, after all, cannot be a party at all as it is not a state. The Court’s measures neglect the security interests of the accused state. The obligation to report to the Court is bringing Israel, a sovereign state, under some kind of political control of the Court. The pronounced measures are detrimental to the rule of law, institutional stability and coherence, legal predictability, and overall civil legitimacy.
Everyone must remember the basic principles developed by Charles de Montesquieu (separation of powers or checks and balances). This also applies to all institutions, especially to one of the most important and powerful courts in the world, to stay and act within its remit as a judicial, rather than political,organ.
Note: This article was written solely in the author’s personal capacity. Special thanks to Sylvia Fisher for correction, to Mathias Hermann and Andrew Tucker for their suggestions and encouragement.
Dr. Gábor Spuller is a lawyer with over eight years of experience in
European Affairs, currently serving in the Ministry of Infrastructure
and Digital Affairs of the Federal State of Saxony-Anhalt, Germany ↩︎
