/ 19 February 2024

South Africa v Israel: Does the ICJ have a bite to follow its bark?

Israel Begins Presenting Defense At World Court Against Genocide Case
Judges take their seats prior to the hearing of Israel's defense at the International Court of Justice (ICJ) against South Africa's genocide case in Gaza against Israel on January 12, 2024, in the Hague, Netherlands. On day one of the trial, South Africa presented hard evidence in the case it filed on Dec. 29, accusing Israel of genocide and violations of the UN Genocide Convention with its actions in the Gaza Strip since Oct. 7. (Photo by Dursun Aydemir/Anadolu via Getty Images)

The International Court of Justice (ICJ) has become topical in recent weeks because of South Africa’s case against Israel regarding the alleged genocide of the Palestinian people in Gaza.

The case has brought onto the court room floor divergent views on the Israeli campaign in Gaza, both sides advancing complex legal and moral arguments to support their claims and counterclaims. This is where the politics of conflict intersect with judicial authority. The court is required to make a determination. 

The question that arises is to what extent does the politics of conflict undercut the binding nature of the judgments of the ICJ and the enforceability of such judgments? This question is an important one as it cuts to the heart of the effectiveness of judicial authority over matters of international importance.

In a democratic society the independence of the judiciary is crucial to maintaining the healthy functioning of a state. Judicial independence bestows legitimacy on the behaviour of the courts in passing judgments without fear or favour.

A court’s effectiveness is rooted in its independence, the binding nature of its judgments and, crucially, the enforcement of its judgments and the penalties applicable for non-compliance.  It follows then that courts need to meet three overarching criteria to be effective: Independence (practical and perceive), the ability to enforce judgments and recourse for non-compliance. 

Enforceability and recourse are directly tied to the bidirectional relationship between courts and those state or other actors responsible for enforcement. The most obvious example is the police. If a court orders a warrant for the arrest of an individual, it is the job of the police to enforce that warrant. Conversely, if the police investigate a crime and compile a docket, it is the court who will be required to decide the case, and it is then up to the police and prison system to enforce it. The police in this example form the mechanism through which enforcement and recourse are realised.

The same principles apply to the ICJ. The ICJ is a creature of the United Nations. The UN Charter contains an annexure which gives rise to the ICJ and situates it as the UN’s highest judicial body. The body responsible for the enforcement of ICJ judgments is the UN Security Council. Judges from a variety of countries serve on the bench, representing a variety of judicial systems and languages. In cases between states, two ad hoc judicial appointments are made, with one judge from each country elevated to the bench. 

On paper the ICJ acts as an independent judicial body and has a mechanism, in the Security Council, for enforcement of its judgments. But all is perhaps not what it seems. The problem comes down to politics. And geopolitics in particular. The cases before the ICJ are, in many ways, political. This is not of itself unusual. In South Africa, courts are required, at times reluctantly, to wade into the political sphere to solve disputes. In much the same way the ICJ cannot escape the political environment within which it is embedded. 

In the South Africa vs Israel example, the political nature of the conflict is realised through the political aims of the parties. The political aims of the countries adjacent to the conflict are realised through their actions either for or against the Israeli state. Israel has a domestic audience to play to in destroying Hamas and, at the same time, returning the hostages taken and securing the state of Israel. No doubt Prime Minister Netanyahu is aware his political fortunes are tied to this. The larger internationally recognised two state solution to the Israeli-Palestine conflict now more than ever lies contrary to the political and security aims of the Israeli state.

Hamas has a political agenda; the Palestinian pursuit of statehood. Through the ICJ, South Africa is attempting to tip the scales and increase international pressure on the United States, as Israel’s primary backer, and Israel itself to end the conflict. An overtly political act. Overtly political acts can and often do contain a moral component but let’s leave a discussion on utilitarianism for another time.

The primary job of the ICJ is to cut through the political noise and get to the crux of the issue and make a ruling. In the South Africa v Israel case the court made an interim ruling pending the finalisation of the case. No one has questioned the impartiality of the court. But there is another side to the politics of this conflict that the court, no matter how independently constituted, cannot cut through.

The court cannot cut through the political aims and alliances of the parties to the conflict. The way the UN and the Security Council is constituted has a direct effect on the enforcement of ICJ judgments. The political aims of those represented at the UN are realised through their actions to preserve their own interests and the interests of their allies, and in this way render the independence of the ICJ and its judgments largely moot.

The UN was conceived of during the latter part of the 1940s by the unlikely bedfellows of Russia, Britain, China and the US, who saw the need for an umbrella body of nations upholding the sovereign peace of all represented states. This was a time just after World War II, a horrific period in which European peace had been shattered and the pieces reconstituted. It is not difficult to see that the idea of an organisation representing all nations to keep the peace between sovereign states through a set of agreed upon rules was extremely palatable.

Historical ties between different regions, coupled with the military adventurism of the world’s superpowers motivated primarily by self-interest, saw the creation of a system of entrenched ideas of the “other” changing the geopolitical nature of regions, forming new alliances based on shared interests, shattering others and producing violent actions under the veil of national security. Identity politics and these historical conflagrations play no small part, because these complexities are represented at and play out within the UN.

While the UN provides the broad arena, the UN Security Council provides the stage upon which the politics of self-interest play out. It is within this council that the problematic practices of decision-making based on self-interest are realised. The council is made up of five permanent members; Brazil, Russia, China, the United Kingdom and the US, with 10 non-permanent members elected for two-year terms. 

Each of the five permanent members hold veto power, which means a resolution with one negative vote is therefore not approved. It follows then that the ICJ judgments are, inter alia, subject to the political will of the superpowers represented at the council. This undermines the enforceability of the ICJ’s judgments and erodes its independence. It is highly unlikely that the US, as Israel’s primary backer and a veto power, will let a resolution on the ICJ judgment pass through unhindered.

The net effect of this set-up is that ICJ judgments serve mainly to create international pressure and provide legitimacy to the claims made before it and its rulings. But such rulings are largely symbolic because they inevitably fall prey to the political machinations of the powers that be. 

The answer is clearly that reformation of the UN and Security Council is a necessary condition for the proper functioning of the ICJ. It is bizarre that the ICJ cannot enforce its own judgments and yet is expected to be effective. Clearly it needs to be depoliticised and have its own independent enforcement mechanism. Because that would fly in the face of self-interested parties who would gain the least from such reforms, this is unlikely to happen.

Ultimately the conflagration of human suffering of the peoples caught up in conflict will continue. While the emperors’ squabble, Rome continues to burn. The reality is the ICJ needs the bite to follow its bark through reforms. Right now, the UN is toothless.

Adrian Badminton is a Cape Town native with degrees in psychology and sociology interested in politics, law, and socio-economic dynamics locally and globally.