UNFOLD ZERO Newsletter
Posted: 12th January 2024
LAW not War Update on key ICJ cases:
* Climate Change case – extension of submission deadline
* Genocide cases against Myanmar, Russia and Israel
(Apologies that this is a long update as it deals with substance and procedure of the International Court of Justice (ICJ) in four very significant cases).
In our Jan 2 update War or Peace in 2024, we noted that UNFOLD ZERO hosts the following online platforms as part of our contribution to these programs:
- Common Security, which includes the promotion of Common Security v. Nuclear Weapons: How to replace the current reliance on nuclear deterrence with sustainable security for all;
- Legal Alternatives to War / LAW not War, which promotes use of the International Court of Justice to resolve international conflicts rather than recourse to armed conflict and/or the threat of nuclear war.
Impact of the International Court of Justice
“The rule of law requires States to comply systematically with decisions of international courts and tribunals that are binding on them, even if they disagree with a decision. It is encouraging to note that there has been compliance with the vast majority of cases decided by the International Court of Justice to date.”
Judge Joan E. Donoghue, President of the International Court of Justice, at the UN Security Council special session on The Promotion and Strengthening of the Rule of Law, January 12, 2023. Photo courtesy of ICJ multimedia service.
ICJ pending cases
The ICJ currently has 22 cases on its docket in various stages of proceedings. All of these cases have aspects of interest. However, with limited space in this update, we will focus on just four of these cases – the climate change case and the three cases dealing with allegations of Genocide. We will provide short introductions to the cases, with links to where you can find more information.But first – an introduction to the ICJ and its jurisdiction…
The ICJ
The ICJ is one of the six core organs of the UN, established in 1945 by the UN Charter as a successor to the Permanent Court of International Justice. It is composed of 15 judges elected to nine-year terms elected by the UN General Assembly and Security Council, with no more than one judge of any nationality serving concurrently. The judges do not represent countries. Never-the-less, a State party to a case before the International Court of Justice which does not have a judge of its nationality on the Bench may choose a person to sit as judge ad hoc in that specific case.
ICJ judgements and orders are adopted by a majority. Prior to its final judgment, the Court has the authority to issue “provisional measures,” which provide injunctive relief where there is reasonable grounds to believe that ongoing violations of international law may be occurring.
ICJ jurisdiction
The ICJ has jurisdiction over international disputes that are referred to it either as Advisory Opinions requested by authorized UN bodies, such as the Security Council or General Assembly, or as Contentious Cases between two states, both of which have accepted the jurisdiction of the ICJ either: a) generally through declaration of acceptance (74 countries currently accept such compulsory jurisdiction), b) by mutual agreement for the dispute in question, or c) through being parties to international treaties which include compulsory ICJ jurisdiction for disputes regarding obligations under those treaties.
Peace, justice and the International Court of Justice
“From the smallest village to the global stage, the rule of law is all that stands between peace and stability and a brutal struggle for power and resources. I note the importance of accepting the compulsory jurisdiction of the Court and call on all Member States to do so without any reservations.”
Antonio Guterres, UN Secretary-General. Remarks to the UN Security Council Thematic Debate on the Rule of Law amongst Nations, January 12, 2023
“From the smallest village to the global stage, the rule of law is all that stands between peace and stability and a brutal struggle for power and resources. I note the importance of accepting the compulsory jurisdiction of the Court and call on all Member States to do so without any reservations.”
Antonio Guterres, UN Secretary-General. Remarks to the UN Security Council Thematic Debate on the Rule of Law amongst Nations, January 12, 2023
ICJ Climate Change case
On March 29, 2023, the United Nations General Assembly adopted by consensus a resolutionrequesting the International Court of Justice to render an Advisory Opinion on the Obligations of States with Respect to Climate Change. This resolution occurred due to a global campaign initiated by World’s Youth for Climate Justice plus leadership of the government of Vanuatu and a core group of like-minded countries.
The reason for this issue being taken to the ICJ is because the international diplomatic processes, primarily the Framework Convention on Climate Change and the Conferences of States Parties to the Convention (the ‘COPs’), have failed to generate sufficient national action and international cooperation to cut emissions, transition away from fossil fuels, limit temperature rise to under 1.5 degrees and prevent catastrophic climate change. The ICJ, using customary principles of law protecting the environment and future generations, is able to affirm much stronger legal obligations of States and stimulate global implementation of such obligations.
The Court initiated proceedings by inviting UN Member States to make submissions on the legal questions asked by the UN General Assembly. The Court has also responded favourably to a number of requests from regional bodies and international organizations to participate in the case.
We encourage civil society to support through advocacy to your government (or parliament) in order to ensure strong participation in the proceedings, starting with effective written submissions which must be made to the Court by the new deadline of March 22, 2024.
Mr Arnold KIEL LOUGHMAN, Attorney General of Vanuatu, encouraging governments and international organizations to make submissions to the ICJ in the case on Climate Change. He was speaking at the New York event “Rights of Future Generations from the International Court of Justice (ICJ) Climate Case to the UN Summit of the Future.” The new deadline for submissions is March 22, 2024.
Genocide cases
Three separate cases relating to allegations of acts of genocide have been submitted to the ICJ in the past two years: The Gambia v Myanmar which was lodged with the Court on November 11, 2019; Ukraine v Russia which was lodged on February 27, 2022 and South Africa v Israel which was lodged on December 29, 2023. (See our summaries of these cases below: Gambia v Myanmar, Ukraine v Russia and South Africa v Israel cases).
ICJ jurisdiction over these allegations is provided by Article IX of the Genocide Convention, which holds that “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
What constitutes Genocide?
In determining whether a State has committed genocide, the ICJ applies the facts of the cases to the Convention’s definition of genocide, which states that:
“[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
In determining whether a State has committed genocide, the ICJ applies the facts of the cases to the Convention’s definition of genocide, which states that:
“[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
The Gambia v Myanmar
Innovative use of the Genocide Convention
“While in the past, states have brought cases before the ICJ under the Genocide Convention regarding allegations of genocide against its citizens, this is the first time that a state has invoked its jurisdiction to seek redress for alleged genocidal acts committed against the citizens of another state.”
Photo: Rohinga refugees escaping the Myanmar military
About the case:
The Gambia’s application to the ICJ alleges that Myanmar’s military and other security forces have perpetrated genocide by systemically destroying—through mass murder, rape, and other kinds of sexual violence—villages of the Rohingya ethnic population in the Rakhine province of Myanmar.
While in the past, states have brought cases before the ICJ under the Genocide Convention regarding allegations of genocide against its citizens (e.g. Croatia v Serbia and Bosnia and Herzegovina v. Serbia and Montenegro), this is the first time that a state has invoked its jurisdiction to seek redress for alleged genocidal acts committed against the citizens of another state. See The Gambia v. Myanmar: An Analysis of the ICJ’s Decision on Jurisdiction under the Genocide Convention, American Society of International Law).
Case Update:
On January 23, 2020, the Court announced provisional measures required to be taken by Myanmar pending its decision on jurisdiction. Then on July 22, 2022, the Court gave its judgement on jurisdiction, deciding that it does have jurisdiction to consider the case (see ICJ July 22 press release for a summary of the judgement).
The Gambia has lodged its memorial (written document with facts and legal arguments) to the Court. Myanmar has lodged its counter-memorial. A number of other states have applied to intervene – Canada, Denmark, France, Germany, the Netherlands, the United Kingdom (jointly) and the Maldives. On 16 October 2023, the ICJ invited The Gambia to submit its Reply to arguments made by Myanmar by 16 May 2024 and for Myanmar to submit a Rejoinder – its response to The Gambia’s Reply – by 16 December 2024.
For more on the case see ICJ – The Gambia v. Myanmar, produced by the Independent Investigative Mechanism for Myanmar, a UN body established by the Human Rights Council in 2018 to investigate “serious crimes” committed in Myanmar since 2011.
Ukraine v Russia
Ukraine v Russia: Affirming the illegality of Russia’s invasion
If successful, and the Court finds in favour of Ukraine, this would remove any legal uncertainty that the Russian invasion of Ukraine is indeed an illegal act of aggression.
Photo: Public hearings for the Ukraine v Russia case, September 2023.
Credit: International Court of Justice mutli-media service
On February 24, 2022, Russia launched a full-scale invasion of Ukraine, alleging that Ukraine was undertaking acts of genocide in the Luhansk and Donetsk oblasts/regions of Ukraine, and that Russian military action was necessary to end this genocide.
Ukraine took a number of political, military and legal responses to the Russian invasion. On the legal side, Ukraine lodged a case against Russia in the ICJ under the Genocide Convention. In its Application to the Court, Ukraine denied that such genocide had occurred and that it submitted the Application “to establish that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide”.
In the Application, Ukraine also accused the Russian Federation of “planning acts of genocide in Ukraine” and contends that Russia “is intentionally killing and inflicting serious injury on members of the Ukrainian nationality, the actus reus of genocide under Article II of the [Genocide] Convention”.
Case Update:
On March 16, 2022 the ICJ announced provisional measures ordering Russia to “suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” Russia has not complied with this order. Instead, Russia filed preliminary objections to the ICJ contesting jurisdiction and admissibility of the case.
Between 21 July 2022 and 15 December 2022, 33 countries filed declarations of intervention in the case, supporting Ukraine. The ICJ agreed to accept the interventions from all of them except the United States, which the Court rejected due to the fact that the U.S. had previously lodged reservations to the Genocide Convention, including to exempt themself from Article IX of the Genocide Convention which provides for ICJ jurisdiction. The written interventions and responsesare public on the ICJ website.
Public hearings were held at the ICJ from September 18-27, 2023 on the preliminary objections submitted by Russia regarding jurisdiction and admissibility of the case. The Court is now deliberating on this part of the case and will deliver its decision in a public session, the date of which is still to be announced.
For more background see Goliath vs David (and Friends): A Recap of the Preliminary Objections Hearings in Ukraine v. Russia, European Journal Of International Law.
Related cases – Ukraine v Russia under the Convention on Terrorism and under the Convention on Racial Discrimination:
Ukraine had previously (in 2017) lodged two conjoined cases against Russia under the International Convention for the Suppression of the Financing of Terrorism and under the International Convention on the Elimination of All Forms of Racial Discrimination.
In the first case Ukraine alleges that since 2014 the Russian Federation has been “intervening militarily in Ukraine, financing acts of terrorism, and violating the human rights of millions of Ukraine’s citizens, including, for all too many, their right to life”, all in violation of the Terrorism Convention.
In the second case, Ukraine alleges that the Russian Federation has, in the Autonomous Republic of Crimea and City of Sevastopol, “defied the U.N. Charter, seizing a part of Ukraine’s sovereign territory by military force”, and that “in an attempt to legitimize its act of aggression, the Russian Federation engineered an illegal ‘referendum’ which it rushed to implement amid a climate of violence and intimidation against non-Russian ethnic groups”. According to Ukraine, this “deliberate campaign of cultural erasure, violates the International Convention on the Elimination of All Forms of Racial Discrimination.”
These court has heard all arguments in these two cases and they are now at the stage of deliberation – the final stage before a judgement is made.
South Africa v Israel
Israel attack on Gaza City on October 9, 2023. Photo by Anadolu Images
About the case
On October 7, 2023, Hamas forces undertook a surprise attack on Israel killing approximately 1200 Israelis, mostly civilians. In response, Israel has launched attacks on Gaza which to-date have killed over 22,000 Palestinians, also mostly civilians. In addition the attacks have resulted in the displacement of 1.9 million people, or nearly 85 per cent of the total population of Gaza.
On December 29, 2023, South Africa lodged a case against Israel in the ICJ under the Genocide Convention arguing that “acts and omissions by Israel . . . are genocidal in character, as they are committed with the requisite specific intent . . . to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group” and that “the conduct of Israel — through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention”.
South Africa has also requested provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”. See Application of South Africa to the ICJ.
This is the second ICJ case under the Genocide Convention where a state has invoked its jurisdiction to seek redress for alleged genocidal acts committed against the citizens of another state. (The first is The Gambia v Myanmar).
Two related cases
Separately and previously, before the current escalation of violence in the region, the UN General Assembly requested the ICJ to render an advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.
The Court also is currently contemplating another case concerning territorial sovereignty brought by Palestine against the United States regarding Relocation of the US Embassy to Jerusalem, which Palestine alleges constitutes a breach of the Vienna Convention on Diplomatic Relations.
These cases come at a time when public allegations are being made that actions of both Hamas and Israel are genocidal. Such allegations are being used to polarize and inflame the situation, justify atrocities in response and provoke both anti-Semitic and Islamophobic actions globally.
Genocide or war crimes and crimes against humanity?
Legal experts are divided on whether or not Israel’s actions in Gaza constitute genocide. Many argue that Israel’s actions amount to war crimes and crimes against humanity, but which do not meet the definition of genocide in the Genocide Convention as there is no official intent by the Israel government to destroy Palestinians as national, racial and ethnical group.
Hamas, on the other hand, appears to have genocidal intent against Israel and Jews in its Charterand the actions of October 7 indicate a potential willingness to implement this intent, in part if not in full. But this does not justify the war crimes and crimes against humanity being committed by Israel in Gaza against Palestinians. Indeed, the UN has previously noted (in its report on Darfur) that “crimes against humanity and war crimes that have been committed…may be no less serious and heinous than genocide.”
For references to the opinions reported above, see How the term “genocide” is misused in the Israel-Hamas war, The Economist, How to think through allegations of genocide in Gaza, VOX news and Is What’s Happening in Gaza a Genocide? Experts Weigh In, Time Magazine.
How might the ICJ case help?
Given both unintentional conceptual confusion on the legal merits and deliberate politicization of the situation, it is especially important that the ICJ weigh-in to apply a legal lens on the conflict based on facts. Such a process might be able to reduce the polarization, clarify the law applicable to the atrocities being committed by all sides, provide restraint on further military acts and other acts of violence, and establish a legal and political basis for resuming a peace process between Israel and Palestine.