Brussels: Europe and the Arabs

Media interest in the International Court of Justice increased in January, following South Africa's decision to bring proceedings against Israel in connection with allegations of Israeli violations of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to Palestinians in the Gaza Strip. The daily news bulletin issued by the United Nations, a copy of which we received this morning, included a review of the role of the International Court of Justice and how it works, by answering 6 important questions.
What is the purpose of the International Court of Justice, and how does it work?
The International Court of Justice, headquartered in the Peace Palace in The Hague, Netherlands, was established in 1945 as a means of settling disputes between nations. The Court also provides advisory opinions on legal matters referred to it by other accredited United Nations organs.
The International Court of Justice, widely known as the “World Court,” is one of the six principal organs of the United Nations, which includes the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, and the Secretariat. It is also the only one of the six agencies that is not based in New York.
Unlike the Court of Justice of the European Union, the International Court of Justice is not a supreme court to which national courts can resort. It can only consider a dispute when requested to do so by one or more states.
The Court consists of 15 judges, elected for a nine-year term by the United Nations General Assembly and the Security Council. Elections are held every three years for a third of the seats, and retired judges may be re-elected. The members of the Court do not represent their governments, but are independent judges, and there is only one judge on the Court of any nationality.
Cases begin when the parties file and exchange pleadings, which contain a detailed statement of the facts and law relied upon by each party, and an oral phase consisting of public hearings in which agents and attorneys address the court.
The countries concerned appoint an agent to defend their case, a person who has the same rights and obligations as a lawyer in national courts. Sometimes, a prominent politician may defend his or her country, as was the case in the Gambia/Myanmar case in 2019 and 2020.
That case, brought by Gambia, was marked by the appearance of Aung San Suu Kyi, then Myanmar's civilian leader, in The Hague to defend her country. After this stage, the judges deliberate privately behind closed doors, and the court then issues its ruling. The length of time this takes can range from a few weeks to several years.
Why is the International Court of Justice important?
The International Court of Justice is the only international court that settles disputes between the 193 member states of the United Nations. This means that it makes an important contribution to global peace and security, providing a means for states to resolve issues without resorting to conflict.
What type of cases are brought before the court?
The court can rule on two types of cases: “controversial cases,” which are legal disputes between countries; “Advisory procedures” are requests to obtain advisory opinions on legal issues referred to them by United Nations bodies and some specialized agencies.
The lawsuit filed by South Africa against Israel on December 29, 2023 is the first time that a controversial case has been brought against Israel in the International Court of Justice. It is noteworthy that in 2004, an advisory opinion of the Court concluded that the wall built by Israel in the Occupied Palestinian Territory, including in and around East Jerusalem, and the regime associated with it, are inconsistent with international law.
According to the call made by South Africa, Israel's actions "are of a genocidal character, because they are committed with the specific intent required" to destroy Palestinians in Gaza as part of the broader Palestinian national and racial and ethnic group. The suit also notes that Israel's conduct — “through state agencies, agents of the state and other persons and entities acting on its instructions or under its direction, control or influence” — constitutes a violation of its obligations toward Palestinians in Gaza under the Genocide Convention.
South Africa is seeking to establish the court's jurisdiction over the 1948 United Nations Genocide Convention, which the two countries have signed, while Israel rejects the charges. As for advisory procedures or advisory opinions, at the end of 2022, the General Assembly requested an advisory opinion from the Court on “Israeli practices that affect the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem.”
In March 2023, the General Assembly adopted a resolution asking the Court to issue an advisory opinion on states' obligations with respect to climate change, with most speakers in the debate hailing that hearing as a milestone in their decades-long struggle for climate justice. Advisory procedures remain in place.
Who can file claims in court?
Any Member State can bring suit against any other Member State, whether or not it is in direct conflict, when the common interest of the international community is at stake. In Gambia v. Myanmar, for example, The Gambia was not directly concerned with the allegations of genocide against Myanmar, but this did not prevent it from bringing the case on behalf of the Organization of Islamic Cooperation.
The attack that targeted the village of Horoza, eastern Ukraine, resulted in the deaths of civilians.
What are the consequences of the court's ruling?
The rulings of the International Court of Justice are final, and there is no possibility of appeal. It is up to the States concerned to implement the Court's decisions in their national jurisdictions. In most cases, it respects and complies with its obligations under international law. If a State fails to fulfill its obligations under a provision, the only remaining solution is to resort to the Security Council Who can vote on a resolution, in accordance with the United Nations Charter.
This happened in a case brought by Nicaragua against the United States in 1984, seeking damages for American support for the Contra rebels. The International Court of Justice ruled in favor of Nicaragua, but the United States refused to accept the outcome. Nicaragua then took the matter to the Security Council, where the United States vetoed the relevant resolution.
How does the International Court of Justice differ from the International Criminal Court?
There is frequent confusion between the International Criminal Court and the International Court of Justice. But the simplest way to explain the difference is that International Court of Justice cases involve countries, while the International Criminal Court is a criminal court in which cases are brought against individuals for war crimes or crimes against humanity.
In addition, while the International Court of Justice is an organ of the United Nations, the International Criminal Court is legally independent of the United Nations (although it is accredited by the General Assembly).
Not all of the 193 UN member states are parties to the ICC. The court may exercise its jurisdiction when the person alleged to have committed the crime is a national of a state party to the International Criminal Court or in the territory of a state party. A non-party state may also decide to accept the court’s jurisdiction.