The provisional measures ordered by the International Court of Justice (“ICJ”) in the recent case of South Africa v. Israel have prompted concerns about the ICJ’s ability to enforce its judgments particularly in cases concerning imminent threats of mass civilian casualties.[1] The measure issued by the ICJ requires Israel to take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention against Palestinians in Gaza while the case awaits final judgement.[2] Advocates for human rights from the International Commission of Jurists, Amnesty, and other international organizations have verified that Israel has since breached the Court’s orders, particularly because of its mass displacement of civilians, its extensive destruction of essential infrastructure such as hospitals and housing, and its deliberate blocking of humanitarian aid for the besieged and blockaded Palestinians.[3] Israel’s failure to comply with the ICJ’s judgement is not a unique response because since 2001, parties subject to provisional measures only meaningfully comply around fifty percent of the time.[4] When the underlying dispute is of a highly political character, which often involves a state’s use of force, the judgments are even more likely to be defied.[5] Without reform, the UN’s failure to ensure Israel’s compliance puts the lives of millions of Palestinians at risk and threatens to undermine the legitimacy of the institutions responsible for enforcing international law.[6]
Established in 1945, the function of the Court, as specified in the UN Charter and the Statute of the Court, is to issue advisory opinions and settle legal disputes between states in accordance with international law.[7] All 193 members of the United Nations are ipso facto parties to the Statute of the ICJ.[8] Article 94 of the ICJ Statute states that each member of the UN must comply with the decisions of the ICJ in any case to which it is a party.[9] This applies to any decision rendered by the Court, including provisional measures, which the court affirmed have binding effect.[10]
In contentious cases, such as South Africa v. Israel, the Court can only entertain a dispute if the states concerned have accepted its jurisdiction.[11] So far, 74 countries have recognized jurisdiction as compulsory under Article 36.[12] In the event of a dispute as to whether the Court has jurisdiction, the Court will settle the matter subject to preliminary objections by the involved parties.[13] The Court previously held that in cases concerning the Genocide Convention, Article IX shall be invoked as basis for the Court’s jurisdiction to settle the dispute.[14] Arguments invoking lack of jurisdiction have nonetheless “become a habit” in disputes between member states.[15] The jurisdictional objection was raised by Israel in the present case, and it was also raised by Russia in 2022 when the Court ordered it to suspend its military invasion in Ukraine.[16] Consequently, Russia defied the ICJ’s order and continued its invasion.[17] Preliminary disputes over jurisdiction in cases involving Member Nations present a serious issue if the non-compulsory members continue to raise it in court to justify non-compliance with unfavorable decisions.
Additionally, “the Charter conceives enforcement of ICJ decisions not as part of the judicial but of the political branch of government.”[18] Thus, under Article 94 of the Charter, the UN Security Council has discretionary power to take enforcement action.[19] In cases of non-compliance, the Security Council has the authority to vote on resolutions calling on members to apply economic sanctions and recommend other measures not involving the use of force to give effect to the Court’s judgment.[20] Nonetheless, each of the five permanent members of the Council, the U.K, the U.S., France, Russia, and China, have the power to veto any effort at enforcement.[21] As the U.S. is a permanent member and a longstanding ally of Israel, it is likely that they will veto any resolution calling for adherence or accountability in this case. [22]
Without additional measures to ensure compliance, it’s suggested that “[d]ecisions of the ICJ can, nonetheless, carry important weight…[a]nd even if the decisions are not formally enforced by the Security Council, they shape the way in which states respond to the parties involved in the dispute.”[23] The application of diplomatic pressure from states has been informally used to enforce the ICJ’s decisions in the past, though there is no explicit provision in the Charter or the ICJ Statute to this extent.[24]
To encourage compliance with the ICJ’s order requiring Israel to cease and prevent the commission of genocide, the UN should consider at least two procedural reforms. First, Member Nations should be required to accept compulsory jurisdiction as it would mark an important advancement in the rule of law, contribute to the maintenance of peace, and show the Nations’ willingness to adhere to international law.[25] Second, to successfully invoke the Security Council’s authority to enforce non-compliance in this case, there’s a serious need for increased scrutiny where the use of the veto is concerned.[26] Representatives of the European Union have called on members to refrain from using their right of veto in cases of mass atrocities and to use its right of referral, which would grant the International Criminal Court jurisdiction to hear the case.[27]
In the words of former ICJ Judge Oda, “the repeated disregard of the judgments or orders of the Court by the parties will inevitably impair the dignity of the Court and raise doubt as to the judicial role to be played by the Court in the international community.”[28] The member states’ failure to comply with ICJ decisions presents the inherent dilemma of international tribunals that lack direct enforcement capacity,[29] and in cases involving allegations of genocide, the ICJ should be especially concerned about their ability to compel compliance from members. Therefore, the UN must spare no effort to reassess the legal enforcement mechanisms currently in place to ensure that orders to prevent mass atrocities are taken seriously.
[1] See, e.g., Victor Peskin, What enforcement power does the International Court of Justice have in South Africa’s genocide case against Israel?, The Conversation (Jan. 13, 2024, 9:00 AM), https://theconversation.com/what-enforcement-power-does-the-international-court-of-justice-have-in-south-africas-genocide-case-against-israel-220523; Xhanti Mhlambiso & Ottilia A. Maunganidze, ICJ’s Gaza genocide case – big win, but with what effect?, ISS Africa (Feb. 13, 2024), https://issafrica.org/iss-today/icjs-gaza-genocide-case-big-win-but-with-what-effect; Israel/Opt Update: Israel vs. South Africa International Court of Justice Case Explained, Amnesty Int’l (Feb. 8, 2024), https://www.amnesty.org.au/israel-opt-update-israel-vs-south-africa-international-court-of-justice-case-explained/.
[2] Application of Convention on Prevention and Punishment of Crime Of Genocide In The Gaza Strip (South Africa v. Israel), Provisional Measure, 2024 I.C.J. 192, ¶ 78 (Jan. 26).
[3] Gaza: One month on, Israel fails to comply with the Order of the International Court of Justice, Int’l Comm’n of Jurists (Feb. 26, 2024), https://www.icj.org/gaza-one-month-on-israel-fails-to-comply-with-the-order-of-the-international-court-of-justice/; See also Israel Not Complying with World Court Order in Genocide Case, Hum. Rts. Watch (Feb. 26, 2024, 1:00 AM), https://www.hrw.org/news/2024/02/26/israel-not-complying-world-court-order-genocide-case; Amnesty Int’l, supra note 1.
[4] Matei Alexianu, Provisional, but Not (Always) Pointless: Compliance with ICJ Provisional Measures, Blog of the European J. of Int’l Law (Nov. 3, 2023), https://www.ejiltalk.org/provisional-but-not-always-pointless-compliance-with-icj-provisional-measures/.
[5] Constanze Schulte, Compliance with Decisions of the International Court of Justice 413 (Oxford University Press, 2004).
[6] Hum. Rts. Watch, supra note 3.
[7] See U.N. Charter.
[8] U.N. Charter art. 93, ¶ 1; States Entitled to Appear Before the Court, Int’l Ct. of Just., https://www.icj-cij.org/states-entitled-to-appear (last visited Apr. 7, 2024).
[9] Statute of the International Court of Justice, art. 94, ¶ 1.
[10] LaGrand (Germany v. U.S.), Judgment, 2001 I.C.J 466, ¶ 108-109 (June 27).
[11] Contentious Jurisdiction, Int’l Ct. of Just., https://www.icj-cij.org/contentious-jurisdiction (last visited Apr. 5, 2024).
[12] Declarations Recognizing the Jurisdiction of the Court as Compulsory, Int’l Ct. of Just., https://www.icj-cij.org/declarations (neither Israel nor the U.S. have declared that they recognize jurisdiction as compulsory under Article 36).
[13] Statute of the International Court of Justice, art. 36 ¶ 2-6.
[14] See Application of Convention on Prevention and Punishment of Crime Of Genocide (Gambia v. Myanmar), 2022 I.C.J. 178 (July 22).
[15] Erwin Muller & Patricia Schneider, ICJ 1945-2001: Empirical Findings about Its Performance and Recommendations for an Improvement of Its Efficiency, 1 Usak Y.B. Int’l Pol. & L. 103, 115-117 (2008); See also Basis of the Court’s Jurisdiction, Int’l Ct. of Just., https://www.icj-cij.org/basis-of-jurisdiction#4 (preliminary objections to jurisdiction have been raised in at least 49 cases since the 1940s).
[16] Application of Convention on Prevention and Punishment of Crime Of Genocide In The Gaza Strip (South Africa v. Israel), Provisional Measure, 2024 I.C.J. 192, ¶ 23 (Jan. 26).
[17] Peskin, supra note 1.
[18] Schulte, supra note 5, at 38.
[19] U.N. Charter art. 94.
[20] Functions and Powers, U.N. Sec. Council, https://www.un.org/securitycouncil/content/functions-and-powers (last visited Apr. 5, 2024).
[21] See Mariano-Florentino Cuéllar & Oona A. Hathaway, The International Court of Justice’s Balancing Act, Carnegie Endowment for Int’l Peace (Jan. 26, 2024), https://carnegieendowment.org/2024/01/26/international-court-of-justice-s-balancing-act-pub-91490.
[22] Basema Al-Alami, Israel isn’t complying with the International Court of Justice ruling — what happens next?, The Conversation (Feb. 6, 2024, 1:08 PM), https://theconversation.com/israel-isnt-complying-with-the-international-court-of-justice-ruling-what-happens-next-222350.
[23] Cuéllar & Hathaway, supra note 21.
[24] Schulte, supra note 5 at 74; Mhlambiso & Maunganidze, supra note 1.
[25] Press Release, Security Council, Greater Acceptance, Participation in International Court of Justice’s Compulsory Jurisdiction Key for Improving Global Dispute Settlement, Security Council Hears, U.N. Press Release SC/15171 (Jan. 12, 2023).
[26] Id.
[27] Id.
[28] Armed Activities on the Territory of the Congo (Congo v. Uganda), Provisional Measures, 2000 I.C.J. 131, ¶ 6 (July 1) (Declaration of Oda J).
[29] Cuéllar & Hathaway, supra note 21.
