On January 26th, 2024, the International Court of Justice (ICJ) issued its ruling regarding the case against Israel brought to the court by South Africa following Israel’s response to the Hamas attacks on October 7th, 2023. In its suit, South Africa argued that Israel’s attacks in the Gaza strip violated its commitment to uphold the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and that the court had a duty to issue a directive toward Israel to immediately cease its military action. In its final decision, the court ordered that, in accordance with the Genocide Convention, Israel must “take all measures within its power” to prevent actions that qualify as genocidal and therefore violate the convention. The ruling marked an important turning point in the conflict itself, while bringing the ICJ into the forefront of many global headlines, highlighting the reality that many are unaware of the ICJ’s origins, its purpose, and its powers. With this in mind, how did the ICJ come to exist, what gives it the power to tell other countries how to behave, and what is its role in enforcing human rights around the world?
The ICJ was established by the Charter of the United Nations in 1945 and is based in the Palace of Peace in The Hague, Netherlands. The purpose of the court is to settle any disputes between U.N. member states that should arise with regards to existing international law. The court models a similar judicial system to that of many western nations, with 15 judges that each serve a 9-year term elected by the U.N. General Assembly. The ICJ was created in part due to the atrocities committed during World War II, as many world leaders desired to come together to put a system in place that would prevent such atrocities from happening again and would hold any perpetrators responsible.
Despite this, since the creation of the ICJ, mass atrocities and genocidal acts have unfortunately continued to be committed all over the world, many of which have resulted in cases brought before the court. The first case regarding genocide was brought to the ICJ in 1993 concerning acts of genocide committed against Bosnian and Herzegovinian peoples by Serbia and Montenegro government forces (within the Former Republic of Yugoslavia). Following the collapse of the Soviet Union, and the breakout of violence in the region, several mass atrocities were committed, one of the most notable of these being the Srebrenica Massacre in July 1955 in which thousands of Bosnians were killed. One of the most notable acts of violence in this conflict was the Srebrenica Massacre in July 1955 in which thousands of Bosnians were killed, the majority of whom were Bosnian Muslims, fueling claims of genocide. In the resulting 2007 court case, the ICJ eventually ruled that Serbia had acted in violation of Article 1 of the Genocide Convention, marking the ICJ’s first ruling that a state was responsible for committing an act of genocide.
As for the South Africa vs. Israel case, the court has issued the previously mentioned decision finding that Israel has violated its commitment to the Genocide Convention. With this, Israel is required to report back to the court within a month with a report detailing the measures it has taken to prevent any further violations of the Convention from being committed. If Israel does not comply with the order, the ICJ could issue a formal condemnation toward the state and recommend further action be undertaken by the U.N. Security Council.
By examining this and other rulings, particularly with accusations as serious as genocide, the Court’s purpose and powers are clearly demonstrated, as well as its limitations. The ICJ serves as a de facto “world court” with the power to settle disputes between states and issue condemnations for violating international law, while recommending formal punishment. However, the court does not have the power to imprison anyone (that power rests with the International Criminal Court) or to issue any direct orders, even when settling military disputes—it simply acts as a mechanism to settle disputes between states. While many headlines expressed shock that the court did not formally call for a ceasefire in the case of Israel, an examination of its actual powers highlights its inability to do so, exposing the need for many to understand the court’s formal powers, especially in current times where disputes between major states are increasing every day. While the ICJ remains an important safeguard in upholding human rights, the recent decision regarding Israel highlights its status, as the Blog of the European Journal of International Law describes, “largely… a reminder of existing obligations,” rather than a strict enforcer.
This article is part of a collaboration between the St. Andrews Law Review and United Nations Association St. Andrews.