International Court of Justice survives the judicial stress test

The United Nations’ International Court of Justice (ICJ) passed the judicial stress test when it issued a ruling on South Africa’s application for provisional measures against Israel’s military action in Gaza on 26 January, against intense geopolitical pressure from Western countries. 

In paragraph 78, the ICJ ruling concluded that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further” and that “Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza take all measures within its power to prevent the … killing members of the group” or “causing serious bodily or mental harm”. This World Court order, which was passed with a unanimous vote of 15-2, stated explicitly “that Israel must ensure that with immediate effect that its military forces do not commit any of the above described acts”. This in effect was a demand that Israel cease the military actions causing the death and injury of Palestinians in Gaza.

The World Court issued this unanimous ruling, which binds all 193 members of the United Nations, in the face of severe political criticism from Washington, London, Berlin and Ottawa. In particular, Anthony Blinken, the US secretary of state, argued before the ruling that South Africa’s application was “meritless … counterproductive” and “with no basis in fact” — views that were parroted across the echo chambers of Western capitals. But it was clear from the overwhelming majority of votes by the ICJ’s judges that they rejected Blinken’s political posturing in the face of serious acts of human rights violations. In this regard, the World Court’s ruling is a significant turning point for the protection of human rights, and the body reiterated that all parties to the conflict in Gaza were bound to its ruling. 

In paragraph 85, the ICJ expressed its concern for “the fate of the hostages abducted during the attack in Israel on 7 October 2023” and called unequivocally “for their immediate and unconditional release”.

The World Court, which is the primary judicial organ of the UN, has in effect spoken on behalf of humanity. The ICJ’s actions provide a glimmer of hope for the revival of multilateralism based on the founding principles of the UN system. The preamble to the UN Charter states “to save succeeding generations from the scourge of war” and “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”. The UN Charter also commits “to establish conditions under which justice and the respect for the obligations arising from treaties and other sources of international law can be maintained”. The ICJ’s ruling will now put to  test whether all member states of the UN will respect its provisional measures or ignore them. The latter course of action will further imperil the multilateral system and undermine the gains that have been made in creating and maintaining an extensive body of international law, international humanitarian law and international criminal law. 

The ICJ’s ruling also checks the laissez faire and self-help trend that is now a widespread epidemic across the world, with countries opting to use force to address disputes rather than pursuing the mechanisms that were designed to resolve tensions and maintain peace and security. The ICJ ruling has set an important precedent for countries that attack civilians, particularly civilians living in territories that they occupy and control. 

American academic Samantha Power, who is the administrator of the US Agency for International Development (USAID), wrote a seminal study titled A Problem from Hell: America and the Age of Genocide (2002), in which she argued, in the concluding chapter, that historically “the real reason the United States did not do what it could and should have done to stop genocide was not a lack of knowledge or influence by a lack of will.” 

Power’s study of the phenomenon of genocide in the 20th century revealed that “the United States should stop genocide for two reasons … the first and most compelling reason is moral … when innocent life is being taken on such a scale and the United States has the power to stop the killing at reasonable risk, it has a duty to act”. Power further notes that the second reason is America’s “enlightened self-interest” given that “genocide undermined regional and international stability, created militarised refugees, and signalled dictators that hate and murder were permissible tools of statecraft”. In effect, Power makes a compelling case of why there needs to be a sense of urgency in preventing genocidal acts wherever they occur. 

British lawyer Geoffrey Robertson has similarly argued in his book Crimes Against Humanity: The Struggles for Global Justice that “the commission of crimes against humanity provides an indisputable warrant for punishment of violator states”. Robertson observes that “The movement for global justice has been a struggle against sovereignty — the doctrine of non-intervention in the internal affairs of nation states, asserted by all governments which have refused to subject the treatment they mete out to their citizens to any independent external scrutiny.” 

The ICJ’s ruling following South Africa’s application for provisional measures is an attempt to further advance this movement for global justice which is under assault from recalcitrant nation-states that still adhere to a policy of might-makes-right, despite the fact that the citizens of the world are marching in the tens of millions against genocidal acts in Gaza. The ICJ ruling has now established an important body of international law which will inform and frame the relationship between states and their societies for generations to come. 

When the World Court warns humanity against the unfolding nature of a major atrocity, it would do us well to heed the call. The majority of the judges of the ICJ, and a significant number of countries around the world, have pronounced unequivocally that the gratuitous bombing of civilians is an antiquated and anachronistic way of behaving in the 21st century.

Professor Tim Murithi is the head of Peacebuilding Interventions and extraordinary professor of African Studies at the University of the Free State.