A Pro-Palestinian supporter outside the Peace Palace that houses the International Court of Justice in The Hague, Netherlands, 25 Jan 2024. Image: Patrick Post /AP

Genocide and the Idiosyncrasies of Balance

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South Africa’s application instituting proceedings against Israel for its conduct and that of its military in Gaza, has invoked the compulsory binding jurisdiction of the International Court of Justice. This invocation is based upon a compromissory clause (Article IX) in the Genocide Convention. This clause provides for the submission of disputes to the ICJ related to the interpretation, application, fulfillment, and state responsibility, and for specific acts that can potentially escalate to genocide.

The application has sought to qualify Israeli conduct as legal genocide, with an anticipation to stem the destruction and desolation of the Palestinian people, and to raise costs for the Israeli military campaign in Palestine. South Africa has made this application with the purported aim of fulfilling its obligation to prevent genocide and has sought Israeli compliance with its obligations under the Genocide Convention. 

These proceedings have set forth questions about the position and the role of the Court within the international legal order. This essay attempts to navigate some aspects informing the decision of selecting the Court as a preferred site of contestation while situating these proceedings within certain idiosyncrasies inherent to the design and contextual positioning of the Court.

Pro-Palestine supporters outside the Peace Palace building in The Hague, Netherlands. Image: Huzaifa

Legitimacy and Expectations: The Contextual Operation of ICJ

A distinctive preoccupation of the International Court of Justice is to resolve inter-State disputes. Under its constitutive instrument, the Court has been mandated to settle disputes between states in conformity with international law and furnish legal advice through advisory opinions to other UN organs and its authoritative agencies. The Court is also a multi-functional actor. It plays a significant role in the protection, development, recognition, and application of community interest norms, and the promotion of international law. Its law-making and law-identifying functions are relatively more significant and vital. It is because there are limited formal sources of international law. While Court decisions are not formal sources, these determinations retain legal consequences over broader understandings of the law. This is achieved through the relative scope of decisional authority and coherence with its previous decisions.

Like most international courts, states constitute the predominant audience of the ICJ. The Court finds its existence predicated upon the consolidation and subsequent retention of legitimate authority. The acceptance of its authority is linked to the perception that it functions within the confines of ‘established international law’. However, the context of operation of the Court has considerably altered since its inception. With the proliferation and subsequent development of international law, there has been a gradual shift in the Court’s imagination of its constituencies. This has been apparent in its progressive appreciation of human rights considerations. This shift has consequently stimulated a broader public interest in international adjudication before the Court. Such an evolution has raised questions regarding its role, function, and actual position within the international order. 

While primarily a court of law and an international adjudicator, the Court has not eschewed varied attributions of role and purpose. Such acquiescence, vocalised or sub-silentio, is inextricably linked to a pursuit of power: power to resolve, to sanction, and to enforce, among other things. This has led to disparities over its envisaged commitments and audiences, and has in turn raised issues related to its legitimacy. Therefore, for effectively exercising its adjudicatory authority, it has constantly pursued compensatory strategies. Balancing in its judicial determinations has been one of such exercises. 

In this broader context, recognition and approval of the Court as a legitimate institution hinges upon deference to its design, processes, and outcomes, across its various envisaged audiences. Deference to its authority also relies upon its perceived legitimacy. While normative legitimacy remains the lynchpin, other forms of legitimacy also contribute and build upon the normative justifiability of the Court. Therefore, in addition to normative justifications for its authority, the Court also seeks sociological legitimacy from its constituencies. 

Resulting legitimacy appraisals are also arched within higher normative questions enquiring whether legitimacy is at all attainable, what sort of evaluations would serve as benchmarks, and who would make such evaluations. These appraisals do not remain confined to ascertaining judicial legitimacy of the Court, but also evaluate its role in shaping expectations. These expectations take the form of seeking justice from the Court, especially in situations of extreme and immediate need, like the current genocide in Palestine.

Limitations in its Design: In whose name does the Court Speak? 

The jurisprudence of the Court has largely developed in the context of disputes between recognized states. At the same time, its jurisprudence is also produced at the intersection of the legal and the political, where questions of law are set out and determined within specific political conditions and perspectives. These conditions inevitably have an effect on how the Court carries out its proceedings: on the language it uses, the measures it takes, and the orders it passes.

However, various intrinsic limitations within its institutional design are seen as a constraint on its power to speak, and its ability to take judicial notice. By its very design, the Court is somewhat hampered in appreciating those aspects of international law that fall outside the purview of what is brought before it by states, either separately by invoking its compulsory(contentious) jurisdiction or in unison through an advisory opinion. 

One of these limitations has been its inadequate consideration of matters concerning the peripheries of the international order. These entities occupy distinct legal and political spaces within a world structured along statist/state lines. 

The Court has however recognized a diversity of subjects and a considerable enrichment of the corpus iuris gentium of international law. More recent jurisprudence has also spoken of a shift in the scope and contents of international law. The Court has situated the existence of international legal agency and the competence of a wide range of body-politic other than a state. These developments indicate that assertions against states by these distinct entities are not entirely precluded and that these entities form a constituency of the Court.

In doing so, the Court has opened itself to accountability and legitimacy appraisals emanating from these entities. However, its judicial function has not expressly recognized such peripheral capacity to participate in the international legal order on a distinct yet equal footing. Rather, their legal fate has been ascertained by subsuming them within the standardized state-centric nexus between international legal personality and sovereignty. 

In this sense, peripheries represent a deliberate blindspot within the Court’s appreciation of the international order. It has chosen to speak in the language of states, even when it speaks to the peripheries. As a result, peripheries constitute sites where the universality of international law is tested. Palestine is one such example. 

Discontent: The Court as a Site of Contestation

An apex stature associated with the Court speaks to a deeper ontology that is predicated upon international law being a universal and emancipatory ideal. These aspirations and assumptions are guided and often challenged by the story of its genesis. This tale has been accompanied by two domain-defining qualities: a postcolonial and a political quality, referring to colonial antecedents and concurrent emancipatory promises of international law. This intrinsic duality informs an optimistic discontent about its nature, role, and utility for state-building and international cooperation.

Further on, the creation of a developmental nation-state model through the processes of decolonization has also led to the participation of third-world states in a “violent transformative urge of the logic,” that has signified the emulation of a structural horizon and a set of values within which international law is embedded. Consequently, international law has been often chosen as a site for political struggles and as a method of discourse. 

International adjudication is a central attribute of contemporary international law and a feature of its legality. Legalized international adjudication for dispute settlement has been envisaged as a pathway to replace war as a means for international politics. Adding to that, the prospects for binding third-party adjudication further incentivize selecting the ICJ for settling disputes. Here, South Africa’s act of application might be construed as a resounding declaration of faith in the ICJ and an endorsement of the current international disposition. Contrary to these expectations, these proceedings symbolize a moment of counterpoised reckoning: an attempt at ownership surging from a prolonged condition of international legal subalternity. This condition refers to a peripheralized Other bereft of any direct recourse to presenting its voice and without any direct pathway to demand political accountability. As such, this application also unveils structural limitations within international legal regimes.

These limitations imply that for entities at the fringes of the current international order, international law and its institutions act both as conduits of redress and remedy and as extensions of an uninviting legal order. Engaging with such dispositions may be construed as a conformation to their legitimacy, but it can also be the case that such platform choice is rather a suspicious acquiescence to their claims of universality simply due to a lack of better options. Then, choosing the Court as the preferred site of contestation corresponds to a deference to its authority, only to the extent of an expectation that its adjudication would furnish a better outcome compared to an independent pursuit of claims against Israel.

Subsuming the Divergent: Balancing and the Provisional Measures of the Court

A provisional-measures order usually involves a balancing of competing interests to prevent its misuse and to preserve the integrity of the final judgment. At the same time, the Court also exhibits an expressive function of norm affirmation and validation. By transmitting justice as a message, especially in its consideration of protected interests like the prohibition of the crime of genocide, it contributes to the development of a universal narrative through its conscience juridique. Therefore, despite its intersectional existence between the legal and the political, the Court’s legitimacy is also contingent upon how law either excludes or modulates morality.

Here, a multitude of expectations and a degree of sacralization of international law can hinder an appropriate contextual positioning of the Court. However, on account of a global morality beyond the state when it comes to the prohibition of genocide, the Court is confronted with a normative choice of giving legal effect to moral principles within its institutional context. 

In the provisional measures proceedings, the Court has not made such a normative choice. The way the Court has proceeded in its provisional measures order shows that it has opted to strike a balance on many fronts.  If the language deployed in the Provisional Measures Order is any indication, the Court has chosen to restate its role of balancing a dispute that intrinsically comes with a certain delay in action, even in the face of genocide. Oscillating between the language of sensitivity and performativity, the Court has sought to juggle its institutional self-image and aspirations to true universality, indicating divergent idiosyncrasies of the Court and international law. 

Another pertinent idiosyncrasy is revealed in the Dissenting Opinion of Judge Sebutinde. The dissent begins by beseeching good faith. Then it denies the link between the legal and the political to render the application inadmissible. However, this linkage is later subjectively reinforced and relied upon throughout the reasoning employed in the dissent. The opinion also deploys a language indicating political and legal parity between Palestine and Israel. The dissent then explicitly advocates for diplomatic interventions to seek political solutions, indicating no judicial role in settling political questions. In doing so, the dissent denies the existence of the legal question before the Court. It ignores significant chunks of history in considering the “historical controversy” around the issue. In such pursuit of equivalence and balance, the dissenting opinion defeats its premise of good faith.

So, what does judicial balancing imply in the face of a genocide? While there could be no expectations of cathartic relief from the Court, there is an expectation of respite from further atrocities. At the same time, current proceedings are linked to the persistence and survival of a community and represent a form of preservation of memory.

One is obliged to enquire about the institutional rationale in vying for a balance between the sanctity of human life and a relentless catastrophe way past the limits of military necessity. The Court has chosen to place an equivalence between meta-constructs, procedural and substantive, as the starting point of its proceedings. Despite televised destructive and dehumanizing acts, the Court has not chosen to break the status quo between what is practicable and what is morally necessary. Its refusal to indicate any additional measures in a subsequent intervention suggests that the contestation between humanization and judicial conservatism remains resurgent at this stage of the proceedings.

Community Interests: A Step Not Taken 

What has also remained unanswered is the Court’s approach to confronting questions outside its traditional state-centric frame. While Palestine is entitled to appear before the Court, a limited international legal personality and state recognition could have severely prejudiced the prospects of clearing admissibility and merits stages before the Court. Proceedings being instituted by South Africa show that the State of Palestine remains a disregarded stranger, although decisions and determinations made will directly affect its survival and interests.

In that sense, these proceedings indicate that peripheral claims to redress, repair, or punishment remain fundamentally constrained, unless first subsumed into ICJ’s state-centric typology. This seems to be the commensurate criterion for such claims to even be acknowledged by the Court, where the affected people are excluded from the formulation of its design and processes.

A rally against Israel’s ongoing military offensive in the Gaza Strip in The Hague, Netherlands on 12 January 2024. Image: Huzaifa

Yet, protection of community interests has been a consideration for the Court in its adjudicatory functions. Community interests signify values perceived and enforced as fundamental for all states of the international order. The Court has placed community interests to supersede the mechanical application of procedural rules. Article 30 of the ICJ Statute confers the Court with the power to frame rules for carrying out its functions. It has been argued that the Court can assume expanded procedural powers.

In finding the correlation between the rights of members of groups protected by the Genocide Convention, the Court held “Palestinians in Gaza” as a substantial part of a protected group. The Court also reiterated its previous position that the purpose and aims of the Genocide Convention were to safeguard the existence of human groups and to confirm and endorse the most elementary principles of morality. Importantly, the Court restated its power to indicate provisional measures proprio motu, other than the ones requested. These determinations provide a legal basis for the indication of a broad range of provisional measures.

While calling for a ceasefire would have meant imposing that obligation only on Israel, the Court could have called for stronger measures than those indicated. Even with such substantially sparse directives, Israeli compliance has been an illusion. A one-month reporting period to inform the Court of compliance has effectively translated into a carte blanche license to kill, an odious siege, and collective punishment against Palestinians. In the process of striking a balance, the Court has not fulfilled the urgent object of requested provisional measures.

The Court must Begin Somewhere

Israel has unleashed a horrendous devastation against the people of Palestine. An unrelenting Israeli military campaign has inflicted a desolation that Gaza is now a different color from space.  The ruins of Gaza bear witness to soul-wrenching shades of loss, grief, and sacrifice. There is no end in sight to this decimating catastrophe. It is at this terrible cost that Gaza has transformed the preferences of a significant number of states. Participation of an unprecedented number in the recently commenced advisory opinion proceedings cannot be dismissed as political theater or as a mere “emotive venting of distaste”. These proceedings signal a precipitation for re-ordering the zeitgeist of our time, when sanguine accounts of an emancipatory international law seem starkly hollow in the face of bloody murder, dislocation and dispossession.

The Court must begin somewhere. A white-marble Lady Justice stands tall inside the Peace Palace. She is a bit different. She is not adorned with a sword. Her hands do not carry a scale. Her eyes have no blindfold. She only wears a ring of unity. Her name-plaque reads “Peace through Justice”. Displayed as an imposing centerpiece in its halls, the Court is also tethered and beholden to this consummation between peace and justice.

The Court must begin somewhere. International judicial activity requires constant evolution and education, but does not merely imply consolidating a balance, if not inaction. Sub-silentio judicial conduct runs dangerously close to enabling, if not abetting Palestinian dehumanization. Lesson-learning from the grotesque carnage against the Palestinian people must be an active process, especially when it comes to addressing genocide. The Court is faced with evaluating its causal effectiveness and navigating its own personal realms of apology and utopia.

At this critical juncture, one can only speculate that a denial of justice, or judicial disregard of current antecedent conditions may very well induce serious scalar and vectorial backlashes against international adjudication and the current international legal order. Moving forward, whether the Court contributes to limiting the international legal discourse to spectral post-fact regret when it could take a stronger position to stem the destruction of life and identity remains to be seen. Whether the Court continues to “find India in every sea”, also remains to be seen. 

The Court must begin somewhere. The Court cannot comprehend the severity of Palestinian grief. But it must grasp the depth of Palestinian resilience. The Court must gaze through its blindfold of balance or consign itself to an etic fiction and the Lady to a relic, or at worst a Trojan Horse. Then, before the end of this world, it would not be a mistake for the International Court of Justice and the broader realm of international law to heed a Palestinian speaker here in The Hague: “You will not free Gaza, but Gaza will free you”.

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Huzaifa bin Showkat

Huzaifa is a Kashmiri international legal researcher, holding an Advanced LLM in Public International Law from Leiden University. He is currently based in the Hague.

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