By Udayvir Ahuja
In the past couple of years, two armed conflicts have made people question the viability of the current multilateral world order and polarised the world to an extent which has not been seen since the Cold War.
Since 2022, the ongoing Russia-Ukraine conflict has shown no signs of ending, while tensions in the Israel-Palestine conflict continue to escalate daily. The toll of these conflicts, marked by a significant number of civilian casualties and economic loss, underscores the inability of the United Nations, under the leadership of the Security Council, to both prevent and address these crises.
In times of such upheaval, the international community looks to international courts and law to offer a solution. The International Court of Justice (ICJ) has endeavoured to do exactly that by way of its recent judgements in the suit brought by South Africa against Israel as well as by Ukraine against Russia. While superficially similar—both involving allegations of genocide against the aggressor nation, the same could not be further from the truth.
The Ukraine-Russia case
On 2 February 2024, the ICJ issued a ruling on the preliminary objections raised by Russia regarding the jurisdiction and admissibility of the genocide case filed against it by Ukraine following a full-scale invasion in February 2022.
Interestingly, this case differs from all other genocide cases brought before the ICJ in its history. In any other genocide case, the claim is naturally that the respondent nation committed or facilitated the act of genocide. However, in the present case, Ukraine claims that Russia falsely accused the former of committing genocide against Russians or the Russian-speaking population in its territory, which it then used to justify its unlawful acts of aggression against Ukraine, making for a “dispute” under the Genocide Convention. Thus, making this a genocide case in reverse.
Ukraine’s rationale behind presenting such an innovative argument stems from the absence of authority with any international court to address Russia’s breach of the UN Charter during its invasion of Ukraine, as well as the lack of jurisdiction over the crime of aggression committed by Russian leaders. Ukraine instead used the dispute resolution provision in the Genocide Convention to bring Russia to court.
In March 2022, the Court in its order on provisional measures, decided that Ukraine’s creative argument was indeed plausible and even ordered Russia to “immediately suspend the military operations that it commenced in February 2022 in the territory of Ukraine’, an order which the Russian Federation predictably ignored.
However, in its February 2024 judgement, ICJ upheld Russia’s most important preliminary objection, that the use of force based on false allegation of genocide does not fall within the scope of the Genocide Convention. This is because if a case is brought under the Genocide Convention, as in the present case, the ICJ cannot consider other questions like the legality of an invasion or whether war crimes and crimes against humanity have been committed. Additionally, no such clause addressing an act of aggression based on a false allegation of genocide currently exists within the convention.
This means that going forward, the court will only decide whether Ukraine indeed violated the Genocide Convention, as alleged by Russia, and no question of responsibility of Russia will arise, except implicitly.
South Africa-Israel case
On the day India celebrated its Republic Day in January 2024, the ICJ issued a ruling in the suit brought by South Africa, for alleged violation of the obligations to prevent and punish genocide under the Genocide Convention by Israel in Gaza.
First off, it is intriguing as to why South Africa, a country which on face value, has nothing to do with the conflict in question, brought a suit against Israel. The answer to the question, as stated in the ICJ judgment is ‘any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bring that failure to an end.’ Since both the countries are parties to the Genocide Convention, the former has standing to submit to the court the dispute with the latter, concerning alleged violations of obligations under the Genocide Convention.
Since the hearing in question was regarding provisional measures, the court needed to be satisfied that the set standard to order the issuance of provisional measures had indeed been met. This does not mean that South Africa had to prove that Israel is in fact committing genocide in Gaza, which would arise only later, rather, only that its claim for the protection of rights and fulfilment of obligations under the Genocide Convention was indeed plausible. In light of various statements from UN officials, statements from Israeli leaders, news reports etc, the court held that a plausible risk of a genocide-like situation currently exists in Gaza.
The court granted the majority of the measures requested by South Africa, including that Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide and take immediate and effective measures to enable the provision of humanitarian assistance to Gaza. Further, the ruling goes on to identify the Palestinian people as a distinct national group, a fact which is paramount to prove a crime of genocide and recognised the plausibility of the existence of a specific genocidal intent, proving which is the most difficult aspect of proving the crime.
However, there are two things which clearly stand out in the ICJ’s ruling:
- Despite South Africa’s main request that a cease-fire be ordered in Gaza, the court refused to order Israel to do the same. Therefore, Israel is under no obligation to halt its military campaign, as we have already witnessed.
- To establish the intent of genocide, the act of gathering facts by a neutral body is essential for a case such as this. However, despite South Africa’s request for the same, the court declined to order Israel to grant access to fact-finding bodies such as the UN special procedures
Even though the court has ruled that Israel must prevent the commission of acts such as killing members of the group, and causing serious bodily or mental harm or physical destruction against Palestinians, these are not new by any measure as Israel was already bound by these obligations under the Genocide Convention.
What does this mean?
Since the pronouncement of both the judgements, not much has changed on the ground. Russia continues to wage its war in Ukraine and Israel has if anything, intensified its resolve to eradicate Hamas despite the significant human toll on Palestinians.
Since ICJ cannot enforce its orders on its own and has to rely on the ever-stagnant UN Security Council to ensure compliance, not much will ultimately change even after the final pronouncement of judgement, whenever it may be.
Nonetheless, the decisions of the ICJ can hold significant influence in reshaping global perceptions regarding the legality or illegality of states’ actions. While these decisions may not be formally enforced by the Security Council, they often exert a decentralised impact by influencing how states engage with parties involved in disputes. For example, even when ICJ issued an advisory opinion declaring that the construction of the Israeli-West Bank barrier violated international law in 2004, it contributed to global condemnation of the barrier’s construction and influenced the discourse surrounding the Israeli-Palestinian conflict.
While international law may lack enforceability in a traditional sense and exhibit flaws and frustrations, its influence remains significant in shaping the opinions and policies of nations. Despite its imperfections, international law has played a pivotal role in the evolution of global governance. Recognising its imperfection does not diminish its indispensable role in maintaining order and cooperation in our interconnected world.
- About the author: Udayvir Ahuja is a Programme Coordinator for the Strategic Studies Programme at the Observer Research Foundation
- Source: This article was published by the Observer Research Foundation