Issued by the FW de Klerk Foundation on 26/01/2024

What is the ICJ? 

Established in 1945 under the UN Charter, the International Court of Justice (“ICJ”), often referred to as the “World Court”, stands as the highest legal authority within the United Nations (“UN”). It is tasked with adjudicating disputes between member states. It is comprised of 15 judges, each serving nine-year terms. These judges are elected by the UN General Assembly and the UN Security Council (“UNSC”). Article 92 of the UN Charter explicitly outlines the establishment of the ICJ as “the principle judicial organ of the United Nations”, outlining its role in promoting the peaceful resolution of international disputes and providing legal advice on matters of international concern. The Statute of the International Court of Justice (“ICJ Statute”), annexed to the UN Charter, further delineates the Court’s jurisdiction, procedures, and the qualifications of its judges.

It is crucial to distinguish between the ICJ and the International Criminal Court (“ICC”), as their mandates and functions differ significantly. While the ICJ deals with legal disputes between states, the ICC is a distinct entity, emanating from the Rome Statute, and focuses on individual criminal responsibility limited to the signatories of this statute, prosecuting individuals for the most serious crimes. Both institutions contribute to the broader framework of international law, each addressing specific aspects of justice and accountability. 

What does the ICJ do? 

At the heart of the ICJ’s function is the pursuit of global peace through the rule of law. Its establishment was a response to the catastrophic consequences of unchecked state actions, culminating in World War II. The founders envisioned the ICJ as a beacon of justice, steering nations away from the conflict and towards the path of diplomacy and international cooperation. 

The Court’s mandate is clear: (i) to decide legal disputes submitted by states; and (ii) to offer advisory opinions on legal questions referred by the General Assembly, the UNSC, or other specialised UN agencies and bodies. Additionally, member states have the option to refer legal questions to the ICJ voluntarily, allowing them to seek the Court’s guidance on matters of international law and dispute resolution. This reflects the ICJ’s role as a forum for promoting not only compulsory dispute resolution, but also providing a platform for states to voluntarily engage in the peaceful settlement of legal issues.

The UNSC is the ICJ’s right arm: 

The UNSC, established as a powerful body with primary responsibility for maintaining international peace and security, comprises 15 members, of which five – the United States, China, Russia, the United Kingdom, and France – are permanent members with veto power. 

The inclusion of veto-wielding permanent members was a deliberate post-World War II construct, reflecting the desire to prevent any single nation from dominating the global order. 

The UNSC’s powers are outlined in Article 39 of the UN Charter and include the authorisation of military action, the imposition of sanctions, and the establishment of peacekeeping operations. The veto power granted to permanent members adds a layer of complexity, as any of them can block substantive resolutions. This interplay between the ICJ and UNSC highlights the delicate balance between the Court’s authority and the intricate political dynamics among UN member states, where the actions of a few can influence the course of international justice and peace. 

ICJ cases: 

The diversity of cases presented before the ICJ underscores its broad jurisdiction, ranging from territorial disputes to allegations of grave international crimes committed by states. In the current spotlight is the case initiated by South Africa against Israel, a move that raises questions about the standing of one nation to bring charges against another. South Africa contends that Israel’s actions in Gaza constitute “genocidal acts”, alleging violations of the 1948 Genocide Convention, a treaty both countries have ratified and which thus binds both countries. Article II of the Genocide Convention criminalises acts committed “with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group”. This convention outlines the obligations of signatory states to prevent and punish acts of genocide, providing a legal framework for the ICJ to assess the present allegations brought before it – i.e. it sets out what South Africa must prove to prove genocide in Gaza. 

The decision by South Africa to champion the cause of the Palestinian people reflects the complex web of international relations and solidarity among nations. While the legal standing of a state to bring a case before the ICJ is established, the motivations often involve a mix of legal, political, and ethical considerations. 

The South African government, led in this case by Minister of Justice and Correctional Services, Ronald Lamola, has explicitly stated its reasons for taking the case before the ICJ, emphasising South Africa’s commitment to justice and ending the humanitarian atrocities in Palestine. The case aims to ensure a lasting and durable peace, calling for a viable, contiguous Palestinian State within the 1967 internationally recognised borders, with East Jerusalem as its capital. At the time of writing, judgment was expected to be handed down on Friday, 26 January 2024.

Crucially, the ICJ’s and its judgment’s significance extends beyond the immediate parties involved in a case. It plays a role in fostering a sense of shared responsibility for upholding international law and peace. 

ICJ’s shortcomings: 

Nonetheless, even as the ICJ pursues its noble objectives, it faces criticism and shortcomings that warrant scrutiny. The Court’s dependence on the UN Security Council for the enforcement of its decisions introduces a political dimension that can impede the timely and effective resolution of disputes. The UNSC’s composition, influenced by geopolitical considerations, may lead to divergent opinions on the implementation of ICJ rulings, raising questions about the Court’s ability to ensure justice impartially. 

Furthermore, the ICJ’s meticulous deliberative process, involving detailed written submissions, oral arguments, and counter-arguments, can result in protracted timelines. While this thorough approach is designed to render just and well-reasoned decisions, it may also contribute to delays in addressing urgent matters, such as South Africa’s plea for provisional measures to prevent further alleged genocide in Gaza. 

A critical assessment of international law and the ICJ necessitates acknowledging these limitations. The Court’s effectiveness hinges on the willingness of states to comply with its decisions and the UNSC’s commitment to upholding the rule of law. As witnessed in the case of the provisional order that Russia exit Ukraine in 2022, political considerations among the judges can influence outcomes, underscoring the challenge of maintaining impartiality. 

Conclusion: 

The ICJ remains a pivotal institution in the pursuit of global peace through the application of international law. South Africa’s case against Israel offers an opportunity to examine and understand the complexities of international legal frameworks. The Court’s potential to foster diplomatic resolutions and ensure accountability should be celebrated, but a critical eye must be cast on its shortcomings to refine and strengthen the mechanisms designed to maintain international peace and justice.