South Africa’s action has been generally well received across the Global South
On 29th December, 2023, South Africa approached the International Court of Justice (ICJ) in the Hague, Netherlands, for help in stopping Israel from continuing with its military activities in Gaza.
The ICJ is quite literally the “World Court”, the principal judicial authority of the United Nations. The statute of the court is an integral part of the charter that set up the UN itself.
South Africa’s action has been generally well received across the Global South, though a few have pointed to the irony of South Africa’s enthusiasm for international law in conflict matters given its discomfort with the ICC, another international law tribunal, in matters involving the wartime conduct of Sudan (Al Bashir) and Russia (Putin).
Whatever one thinks of South Africa’s motives, the ICJ case is yet another opportunity for hope among those who believe that international law is much too often held hostage by geopolitical interests.
South Africa’s real objective is to secure “provisional orders”, interim rulings by the court that can have a quick impact, since the full case itself could last years. Its own history bears this out. In 1962, Ethiopia and Liberia took the apartheid government to the ICJ over the issue of its quasi-colonial role in Namibia. It took four years before the Court delivered a ruling.
When that ruling was not favourable to anti-apartheid activists, they resorted to a more political forum: the UN General Assembly, where they got the desired results. Five years later, the ICJ finally affirmed the UN’s termination of South Africa’s mandate over Namibia, bringing relief to anti-apartheid activists.
Under article 41 of the ICJ statute, the Court can issue important interim measures with powerful political effects.
In some ways, article 41 mirrors article 40 of Chapter 7 of the UN Charter, which deals with the powers and responsibilities of the Security Council in preventing and managing international conflict.
What provisional orders specifically is South Africa seeking in the Gaza case? The answer is not difficult to guess. South Africa says its request aims “..most immediately — to have recourse to this Court to ensure the urgent and fullest possible protection for Palestinians in Gaza who remain at grave and immediate risk of continuing and further acts of genocide.”
The top 3 requests are pretty straightforward:
The remaining 6 elaborate on the expectations of South Africa in respect of the conduct it deems will be compliant with such provisional orders. Drawing on the ICJ’s jurisprudence on provisional measures, South Africa relies heavily on the “urgency” and “aggravation” principles. Highly interested readers may explore the trajectory of juristic thinking by reading the Institute of International Law’s draft resolution on the subject.
The key thing to bear in mind is that while “urgency” is a particularly strong consideration in deciding whether to issue provisional orders, “aggravation”, on the other hand, is seen by some jurists as not providing sufficient independent basis.
Of course, urgency facilitates the court’s intervention only when the four main criteria for even intervening preemptively at all have been met: a) whether the court has jurisdiction (usually decided, in the case of genocide, for instance, by whether the subject matter falls within the genocide convention); b) whether the rights for which protection is being sought (such as the right to life in the Gaza case) and the interests of the applying state are plausible; c) whether there is a risk of irreparable prejudice before the final determination of the case; and whether such measures are needed to prevent a dispute from worsening.
Much ink has been spilled on the issue of how the court might rule, with much of the debate centering on whether “genocide” is the right word to use in describing Israel’s actions in Gaza. Some say the genocidal intent of Israel is plainly obvious, others lament hypocrisy.
As far as the hopes of international law being elevated above geopolitical machinations and calculations are concerned, however, the real question is whether any orders issued by the World Court will lead to definite outcomes in the theatre of conflict. And even if they do, would they as well influence proxy state actors such as the United States, Qatar, Iran and others that some say are indispensable in any resolution? There is no crystal ball capable of giving a definite answer. However, readers might be able to weigh the probabilities by surveying similar high profile ICJ cases, where provisional orders have received scrutiny. We provide a snapshot of some of these measures with brief commentary on their aftermath.
Gambia vs Myanmar (23rd January 2020)
Aftermath: reports by the United Nations two years later suggest that the government of Myanmar did not follow the court’s stipulations. Myanmar continued to litigate the matter before the court.
DRC vs Uganda (23rd June 1999)
Aftermath: the orders affected all parties, including Rwanda and Burundi. According to reports by credible human rights organisations, the situation in the Eastern Congo persisted. Two decades later, the DRC continues to accuse some of the same parties of perpetrating or supporting atrocities in the region, with customary rebuttals and denials from the accused.
Bosnia and Herzegovina vs Yugoslavia (Serbia and Montenegro) – (8th April 1993)
Aftermath: the orders were not respected, compelling the court to reaffirm them on 13th September 1993, as below.
NATO meanwhile commenced bombings of Serbia and continued even whilst the proceedings were underway, rendering the matter moot. In 2001, a UN-backed Supreme Court sitting in Kosovo concluded that the war was not genocidal despite the massive scale of the atrocities.
Nigeria vs Cameroon (15th March 1996)
Aftermath: Clashes continued after the ruling. Subsequently, a tense ceasefire broadly held, despite occasional local disturbances by militants, until the ICJ finally ruled in 2002. In 2008, Nigeria complied with the judgement and transferred the peninsula to Cameroon.
Russia vs Georgia (15th October 2008)
Aftermath: the orders did not lead to any improvement of the situation on the ground. Eventually, the ICJ disclaimed jurisdiction. The International Criminal Court (ICC) picked up the matter to look into war crimes (under a different specie of international law separate from the anti- racial discrimination claims brought by Georgia to the ICJ).
Burkina Faso vs Mali (10th January 1996)
Aftermath: regional powers had already intervened the month before the case was called, and a ceasefire was therefore in place. The ceasefire continued until final determination of the case. The two countries complied with the judgement to share the territory under dispute, the Agacher Strip.
United States vs Iran (15th December 1979)
Aftermath: Iran disregarded the order. More than a year later, shortly after Reagan came to office in the US, a deal was reached for the release of the hostages. The embassy was never recovered.
Armenia vs Azerbaijan (7th December 2021)
Aftermath: Armenia came to the court under the same convention that Georgia did (the International Convention for the Elimination of all forms of Racial Discrimination – ICERD). On 12th October 2022, Armenia returned, insisting that there have been no improvements on the ground. It requested the court to modify its ruling by tightening the language. The court, in the circumstances, felt that all it needed to do was to reaffirm the existing orders. On 22nd February 2023, Armenia felt obliged to come back since, in its view, the orders were still being flouted, at least in the Lachin Corridor.
The time, the Court agreed and added additional language. On 6th July, 2023, Armenia filed further processes before the court about persisting Azerbaijani conduct in the Lachin Corridor and elsewhere. The court simply reaffirmed the previous order. Following Azerbaijan’s military actions in Nagorno-Karabakh two months later, Armenia stormed the ICJ yet again on 17th November 2023 for yet more orders. The court obliged.
It is safe to say that the pendency of the matter before the ICJ, and successive orders from the court, have not had much of an effect on the ground. Christian observers claim genocide is imminent, as does the former prosecutor of the ICC.
United States vs Nicaragua (10th May 1984)
Aftermath: The United States did not change any conduct in response to the interim ruling nor did the ruling result in any real injunctive relief. In the final judgment, given on 27th June 1986, the court found the US in breach of international law in multiple instances, such as sponsoring paramilitaries, limited military strikes and incursions, laying mines, and friendship-treaty violations. The US maintained its blockade, notwithstanding the judgement, for four more years, and refused to pay the indicated reparations. In March 1990, following a shift in Nicaraguan politics, and the possible onset of friendly relations under Chamorro, the US lifted its embargo against the Sandinista regime.
Russia vs Ukraine (16th March 2022)
Aftermath: Russia, as everyone in the world knows, refused to withdraw its soldiers. In fact, it refused to even attend the proceedings, though it did send some written submissions. Perhaps, it is a coincidence, but the following year, Russia for the first time lost a vote to be represented on the ICJ’s 15-member judicial panel.
Readers familiar with the conflict would likely recall that the actual merits of Ukraine’s approach to the court was derived from an unprecedented mechanism: asking the court to confirm that it – Ukraine – was not committing genocide in the Donbas. From this counterfactual foundation, it then secured a provisional order asking Russia to halt all military actions. The unprecedented statements of interventions filed by 33 states (with 32 being admitted), mostly in Ukraine’s support, underscored the massive global interest. (It is expected that some interventions will be filed in the Gaza case too in due course).
Some might likewise be aware that Ukraine has approached various other international law forums (such as UNCLOS and ITLOS tribunals). Prior to the current conflict, it brought claims before the same ICJ against Russia for past aggression under various conventions, such as the ICERD and ICSFT. Since Ukraine’s request for provisional orders on 16th January 2017 in the latter case, Russia has refused to file a response. It has instead filed multiple requests asking for time-extension.
The ICJ is no stranger to the Holy Land
The media coverage of the case so far has not touched on the fact that this is not the first time Israel has been summoned before the World Court in the context of the conflict in the Holy Land. In 2004, the UN General Assembly asked the court to give an advisory opinion on whether a fence Israel was constructing in Palestine for anti-terrorism purposes is in breach of international law. A part of the court’s conclusion is reproduced below.
The wall is today very much in place. Just a little over a year ago, on 30th December 2022, the UN General Assembly requested another advisory opinion from the World Court, this time about the broader question of: “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem”. It would be quite a while before the court gets round to delivering it. There is another proximate case, between Palestine and the United States, in respect of the Trump-era decision to relocate the US’ embassy to Jerusalem, that has also been pending since 28th September 2018. In the light of the preceding, it will surprise no one that the particularly brutal, nearby, settings of Syria has also attracted ICJ scrutiny, with a typically tepid outcome.
Conclusion
The reader may draw their own conclusions from this checkered record of ICJ provisional measures. Some facts stand out: African countries tend to respect the court a bit more; powerful countries or those backed by powerful countries act with general impunity; and proceedings can be dragged for an extended period, even those deemed injunctive. More dishearteningly, where geopolitical forces are very strong, they tend to render the court’s findings and actions moot, even though the settled jurisprudence says that provisional orders are meant to be binding on states.