/ 15 February 2024

This is why legal experts do not hold the ICJ in the same regard as the ICC

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The signboard of the International Criminal Court (ICC) is seen as people carrying Palestinian flags and banners gather in front of ICC, calling for an investigation for attacks on Gaza, on October 18, 2023 in the Hague, Netherlands. (Photo by Abdullah Asiran/Anadolu via Getty Images)

Now that the highly emotive maelstrom of the SA v Israel court case at the International Court of Justice (ICJ) has subsided somewhat since the court delivered its judgment on provisional measures, it is important to take a step back and objectively analyse whether the court, not only in this matter but since its inception in 1948, has fulfilled its founders’ ambitions, and been as effective as its founders would have hoped in the wake of the destruction and horror of World War II.

While Minister Naledi Pandor has been touting South Africa’s having “won” their application, if one studies the actual judgment, one sees that this is patently incorrect. 

Although some provisional measures were granted, as in The Gambia v Myanmar ICJ case, there was no finding whether genocide had been committed, as that is not required at this stage of the matter and will only be decided after evidence, not simply opening presentations, have been presented by both sides. 

The court found that there is “a reasonable plausibility” of the rights of the protected group being infringed, but this simply means, as similarly occurs in our domestic criminal law, where for example, an application for discharge in terms of Section 174 of the Criminal Procedure Act, is refused by a court, a prima facie case has been presented by the prosecution, although this does not mean that the accused person has committed the alleged crime, only that he has to present evidence proving he is innocent. 

The court furthermore did not grant any substantive provisional measures, apart from more humanitarian access, which Israel argued they are already providing, and that the IDF may not commit any genocidal acts, something Israel already claims they have not and will not commit. 

They will need to set out these issues more comprehensively in the report, which is due in just under 30 days. Ultimately the decision, as in the Myanmar case, could be described as more of an amazing diplomatic tightrope walk than anything else.

The political nature of the decision is not unique to this case. In international legal circles, the ICJ is unfortunately viewed as the “ugly step-sister” of its far more highly respected sister court, the International Criminal Court (ICC). 

The reason for this is that the ICC is viewed as an independent court, with some of the top lawyers and judges that the world has to offer. The ICJ is however seen (with substantial evidence to back this up) as a politically oriented court. 

Many examples exist to prove this assertion, especially regarding the judges voted on by, for example Russia and China, almost always vote in line with their political leaders’ pronouncements on that specific matter.

This was most recently demonstrated in the Ukraine v Russian Federation case at the ICJ – a case South Africa refused to support, although there are undisputed war crimes and violations of the Genocide Convention being committed there, especially at least in the forcible transfer of populations, and an arrest warrant issued by the ICC is currently operative against Riussia’s President Vladimir Putin.  

Furthermore it is noteworthy that in that ICJ matter, Russia and China were the only judges who dissented from the majority decision ordered by the ICJ, namely that Russia must, in terms of their First Order, “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine” — a ceasefire. 

This was, arguably, one of the first times the court has taken such a brave legal decision, as opposed to what it has been accused of doing in most other matters — politically oriented decisions. This is also noteworthy as this is not what the court ordered in the SA v Israel matter. 

Furthermore, the World Court has rightly been criticised many times, (even where the majority of its judges were from liberal democracies with independent judiciaries), when they have voted or refrained from voting on an issue, as they felt explicitly or implicitly compelled to do so, by their member states, as it would have extreme political ramifications. 

This should not be how a court should arrive at a legal decision.

While the ICJ represented an idealistic notion that all member states are equal and should therefore be able to judge each other equally, practice has shown that this approach, unfortunately, does not result in judicial approaches to a matter, as opposed to political ones. 

The only way in which the court can hope to gain more credibility is for the entire manner in which such member states are able to control the tenure of the judges, to be changed, and furthermore, judges should be voted onto such court in terms of their ability, not just the crude notion that each member state should have a turn.

Shimron Shapiro is an attorney of the High Court of South Africa and the founder and owner of S. Shapiro Attorneys, which specialises in human rights, criminal and commercial litigation.