International Court of Justice | Justice without power Premium

Though the decisions of the UN’s top court, which is currently hearing a case instituted by South Africa accusing Israel of committing genocide in Gaza, are legally binding and cannot be appealed against, they are often defied in the absence of an enforcement mechanism

The International Court of Justice (ICJ), the UN’s highest judicial body, is once again in news after it held hearings over the last two days in a case instituted by South Africa, accusing Israel of committing genocide in Gaza. Over 23,000 Palestinians have been killed and 90% of Gaza’s population displaced in Israel’s offensive that started after the October 7 attack by Hamas in which at least 1,200 Israelis were killed. Israel has rejected the genocide allegations as proceedings at the World Court is set to continue in the coming months.

Seated at the Peace Palace in The Hague, the Netherlands, the ICJ was established in June 1945 by the Charter of the UN, following decades of international conflicts in the form of two World Wars.

The multilateral forum has dual jurisdictional powers — advisory jurisdiction and jurisdiction in contentious cases. While the former relates to the jurisdiction of the court in providing legal opinions on matters referred to it by the organs and specialised agencies of the UN, the latter involves settling disputes between countries and determining “state responsibility” for crimes committed in violation of international law. The ICJ was established after its predecessor — the Permanent Court of International Justice — fell into desuetude following its inability to enforce its mandate during the intervening years between the two World Wars.

The court has a total strength of 15 judges who are appointed for nine-year terms through separate, simultaneous elections at the UN General Assembly and the UN Security Council. However, ‘ad-hoc judges’ are sometimes appointed in cases that require specialised knowledge about the concerned dispute.

ICJ judges ought to be impartial and cannot act as extensions of their countries. However, in the past, judges have often voted in line with the politics of their respective nations. For instance, in 2022, when the court ordered Russia to immediately halt its military operations in Ukraine, judges from Russia and China were the only ones who voted against the decision. In fact, India’s appointee to the ICJ, Justice Dalveer Bhandari’s vote in favour of provisional measures against Russia had been misconceived to be in conflict with India’s official stance at the UN since India had abstained from voting on all key resolutions pertaining to the Ukraine-Russia conflict.

No enforcement powers

Although the court’s decisions are legally binding and cannot be appealed against, they are often defied in the absence of an enforcement mechanism of its own. The UN Charter authorises the UNSC to enforce the court’s decisions — however, its compliance is often at the mercy of the power politics of the permanent members of the Security Council. The enforcement of any adverse ruling against Israel is likely to be vetoed by its strongest ally, the U.S.

The Gist

Seated at the Peace Palace in The Hague, the Netherlands, the ICJ was established in June 1945 by the Charter of the UN, following decades of international conflicts

The court has a total strength of 15 judges who are appointed for nine-year terms through separate, simultaneous elections at the UN General Assembly and the UN Security Council

The UN Charter authorises the UNSC to enforce the court’s decisions — however, its compliance is often at the mercy of the power politics of the permanent members of the Security Council

Another challenge to the court’s efficacy is the non-participation of powerful member states in its proceedings. In the proceedings instituted by Ukraine against Russia in 2022, the latter refused to advance submissions “in light of the apparent absurdity of the lawsuit”. Similarly, in the famous Nicaragua vs the U.S. case (over the latter’s support for Contras), the U.S. refused to submit to the court’s jurisdiction and enforce its subsequent ruling.

The ICJ’s slow and bureaucratic procedure resulting in rulings taking years to be pronounced has also been a subject of criticism. A final ruling from the court determining whether Israel has committed genocide in Gaza will likely take years to emerge.

A 2019 case instituted by Gambia against Myanmar for its military crackdown on Rohingya refugees is still in trial. The court took nearly two and a half years to deliver its judgment on preliminary objections since Gambia’s initial plea, requesting provisional measures.

Two prior cases involving the Genocide Convention that have proceeded to a final adjudication on the merits also took over a decade to resolve — Croatia v. Serbia and Bosnia and Herzegovina v. Serbia and Montenegro. This prompts the question of whether any possible redressal of injustice by the court eventually becomes infructuous.

Relevance of the court

Over the last few decades, states have approached the court to rule on areas of international law that were not previously common in its docket such as human rights and environmental violations. The ICJ has also been successful in furthering the participation of states that have not accepted its compulsory jurisdiction by invoking its authority through dispute settlement clauses or special agreements. Romania recently advanced a declaration in support of the court’s jurisdiction in which over 30 states have joined so far.

Major rulings on reparations have also been adhered to by the concerned parties. In its 2022 judgment in the case of the Democratic Republic of the Congo (DRC) v. Uganda, the court ordered Uganda to pay a total of $325 million to the DRC in five annual installments for damages to persons and natural resources. Subsequently, Uganda complied with the ruling and made the first payment to the DRC on time.

The court’s advisory role has also played an enormous role in advancing peaceful solutions to conflicts and supporting diplomatic efforts. In the past, it has rendered opinions such as the ‘Legality of the Threat or Use of Nuclear Weapons’ in 1996, and ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’ in 2004, among others.

In relation to the Israel-Palestine conflict, the UN General Assembly in 2022 passed a resolution calling on the ICJ to give its advisory opinion on the legal consequences of Israel’s illegal occupation of Palestinian territories. The ongoing proceedings instituted by South Africa will play a vital role in documenting evidence for the opinion.

Niche position

The ICJ has been able to carve out a niche position in international judicial adjudication despite the emergence of new courts and tribunals. Today, the court exists alongside the Permanent Court of Arbitration, the International Criminal Court, the International Tribunal for the Law of the Sea, and panels established under the World Trade Organisation. However, this has also raised concerns about the potential fragmentation of international law where various judicial bodies impart contradictory rulings.

Despite several historic strides in the development of international law, the ICJ’s impact is adversely affected due to political biases. Putting one body at the helm of the world order risks subjecting the entire judicial framework to its political and institutional limitations. On the other hand, a decentralised judiciary could foster more judicial independence. Time and again when diplomacy has failed, international law has been the last resort — the heart of which lies in safeguarding the interests of the World Court.

Published - January 14, 2024 01:07 am IST