Humanitarian Litigations at the International Court of Justice

Humanitarian Litigations at the International Court of Justice

By Cosmas Emeziem

“Orders issued by international tribunals, such as the ICJ, hold significant juridical importance in shaping norms and contributing to legal education.”

A.   Introduction

Sir Edward Coke, a prominent English jurist, famously asserted that the Common Law is a product of the finest reason passed down through the ages. [1] The law’s validity, therefore, stems from this because the law is produced by “grave and learned” [authors]. Coke also considered the judicial mind the best refinement that the law can undergo and that “as in truth, justice is the daughter of the law for the law bringeth her forth.”[2] In a different era, Cicero expressed that “the law is a force of nature, the mind and reason of the prudent man, the standard of the just and injustice.”[3] However, reason and experience must cohere for the interest of the common good. Law, therefore, is, in an immense sense, reason modulated by experience.

Therefore, both perspectives, as expressed by Edward Coke and Cicero, underscored the role of “grave and learned [authors]” and the judicial mind in making law—especially in international law. In a sense, the International Court of Justice (hereinafter “ICJ”) serves as the juridical mind of international law—shaping norms, formulating principles, clarifying laws, and offering hope(s) to populations facing genocide. Such hopes may seem like miserable comfort sometimes—especially in the face of a ravaging war or state-sanctioned violence. Yet, without the faintest hope of accountability, there will be no guardrail for human rights and check on power. Initially constituted by judges who were predominantly aging European men, the ICJ as an institution has since evolved—encompassing judges from diverse legal traditions worldwide.

Fortunately, our understanding of the institutions of law has evolved, within the international society and international law. International law continues to attempt to reconcile humanity rather than delineate it around genus, and geography. Epitomizing this evolution is the development of contemporary norms and laws that universally prohibit discrimination against individuals and communities based on gender, race, or religion because these constitute violations of international law.

 Elimination approaches such as starvation, deprivation, incineration using gas chambers, and other such violent methods to human encounters across times and boundaries do not serve the common good. Thus, states are obligated by norms, erga omnes partes, to safeguard the rights of peoples and communities and to penalize violations of these precepts of international law. The foundations of these conventions draw from natural law, liberty, self-autonomy, reason, values of decency and human dignity. Recent expansions of the voice of international law have also seen the emergence of philosophies of humane universal encounters such as Ubuntu—the African concept of being with others—Recognizing the humanity of others. These fundamental international law commitments have recently garnered attention in international judicial and diplomatic deliberations in cases involving Ukraine/Russia,[4] The Gambia/Myanmar,[5] and South Africa/Israel.[6]

Crucial to these discussions are the proceedings on genocide before the ICJ. For observers, there arises a question of the achievable outcomes, given that some states—especially the Permanent United Nations Security Council members—often disregard the Court’s decisions. Thus, what is the broader significance of the ongoing debates, proceedings, and efforts concerning genocide, specifically within the context of the South African Application before the ICJ against the state of Israel? I present a set of perspectives through which we can analyze litigations before the ICJ—especially in cases with such global public interest resonance. Such perspectives enable scholars and the public to comprehend the broader systemic ramifications of these disputes and proceedings.

B.  Making Sense of these Proceedings

To comprehend these proceedings, it is pertinent to consider facts, relevant laws, the role of the ICJ as a global forum, contemporaneity, and inter-temporality. Additional facets include norm establishment, education, interest convergence, and the diplomatic framework influencing the pursuit of peace.

1.   What are the Facts?

Proceedings before the ICJ and other courts/tribunals possess a unique ability to sift through emotional and political discourse to ascertain the pertinent facts essential for resolving issues in dispute. This process is rooted in the principle that no court will grant reliefs devoid of factual substances. This is also important for establishing jurisdiction and authority to adjudicate disputes. When proceedings commence, parties are compelled to present the most persuasive evidence supporting their respective positions. In international courts and tribunals, this often occurs through the submission of memorials and counter-memorials, which sets the stage for hearings and the admission of evidence.

Upon receiving these memorials, the Court undertakes measures to delineate the scope of hearings and areas of evidence requiring clarification or elaboration. Additionally, these facts prompt considerations regarding the issues for determination, their interrelationships, and the evidential weight necessary for proof. Publications such as expert reports, fact-finding reports, official institutional statements, diplomatic observations, and media reports may contain evidentiary kernels that courts assess in rendering decisions. However, the authority to consider evidence is not unfettered; courts are bound to focus on the facts presented before them. As courts of law and fact, they evaluate and assign evidentiary value to these facts, with the determination of probative value being pivotal in their decisions. In adversarial systems, the strict adherence to evidentiary rules governing admissibility is vigorously debated. The ICJ relies on its procedural rules to govern the admission of evidence, consistent with Article 38 of the Statute of the ICJ 1946. See also. [7]

Besides, the ICJ is sometimes invited to offer advisory opinions on significant international law concerns. Such advisory opinions have been given on critical public interest interventions such as the Legality of the Threat or Use of Nuclear Weapons case.[8] In these types of advisory opinions, many states intervene by filing memorials and presenting oral arguments in court—expressing their views on the state of the law.[9] This broad participation of states in proceedings has two important contributions. First, they provide the ICJ with a wide range of resources and materials upon which it can rely to answer the questions asked. Second, it indicates what may be seen as the practice of states on the point in issue.

2.   What are the Laws in Issue?

Having articulated the relevant facts to the case, the next crucial aspect is to curate and espouse the laws implicated by the facts and issues for determination. At this point, parties to the case are required to show that the law supports their litigation theory or view. This includes stating treaties and conventions, customs, principles, jurisprudence of the matter, and other relevant juridically definitive articulation on the law on the subject matter by international institutions. The adumbration of these laws may also be elicited from the opinion of the most highly regarded publicists in the field.

For instance, resolutions of the General Assembly or the Security Council of the United Nations (hereinafter “UN”) can be crucial in the hearing and determination of controversial issues. They could also be issues of threshold such as jurisdiction because assuming that the subject matter is for an advisory opinion, the instrument of the request of that advisory opinion would form the basis of the proceedings. The letters of referral are also essential in examining the extent of the jurisdiction. Vertically, the jurisdiction must exist to entertain the proceedings. Otherwise, the Court would potentially be exercising powers which it does not have either out of its statute and consent of parties before it, or otherwise as stipulated in the instruments of referral. For instance, in the Legality or Threat of Nuclear Weapons case, the ICJ limited itself to the strict terms of that referral.

Thus, notwithstanding how the decision goes the relevant laws, emerging norms, and debates about these subjects would have been vigorously articulated and considered in these proceedings. It is also the practice that international organizations such as the World Health Organization sometimes submit questions for advisory opinions to the ICJ. One such case is that concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflicts. The question that was referred to the ICJ by the World Health Assembly (hereinafter WHA) is whether “in view of the health and environmental effects, would the use of nuclear weapons by a state in war or other armed conflict be a breach of its obligations under international law, including the WHO Constitution?”[10]   

3.   The ICJ as a Global Common

The principles of international law and their continued development necessitate the establishment of shared spaces for deliberative engagement. Such commons are particularly critical for addressing common challenges such as global peace and security—that surpass the capacities of individual states. The existence of these commons is both pragmatic and normative. The ICJ is a global common for democratic deliberation and the search for enduring answers to our common challenges. Over time, it has evolved from obscurity into a powerful voice and “light” in dark times.[11] Normatively, while international law upholds the juridical equality of states and individuals, de facto inequality often diverges from de jure equality.[12] The conceptual equality of sovereign states, as theorized by Bordin and others like Hobbes, has not effectively translated into peaceful interactions in international law and relations.[13]

Ideological notions of “racial superiority” and “civilization” have compounded challenges from “enslavement” and “conquest” to “colonialism,” World Wars, “(de)colonization,” and self-determination.[14] Despite historical progress, persistent issues remain, notably concerning “self-determination” and the “recognition” of emerging states globally.[15] Moreover, “incomplete decolonization” cases like Chagos and internal sovereign dilemmas involving “indigenous peoples” and “insular cases” underscore the necessity for a pragmatic global forum like the ICJ to address these matters. [16] Consequently, states, irrespective of their power dynamics, are allowed to engage one another peaceably through some of these litigations.

Interestingly too, the ICJ has been recently asked to give an advisory opinion on the obligations of states in respect of climate change.[17] The referral to the ICJ posed the following questions for advisory opinion:

(a)         What are the obligations of states under international law to protect the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for states and present and future generations?

(b)         What are the legal consequences under these obligations for states where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment…”

4.   Contemporaneity and Inter-Temporality

The evolution of international law, particularly customs and general principles across various subjects, heavily relies on the conduct of states and other relevant entities within the realm of international jurisprudence. The crystallization of a principle, custom, or legal rule is contingent upon the concurrent actions of stakeholders in international law. Legal proceedings bring forth the collective perspectives and stances of states regarding customary practices or legal principles, thereby significantly impacting “inter-temporal law.”[18] Inter-temporal law, as a fundamental doctrine of international law, elucidates the “critical date” upon which the legal framework governing an event becomes universally binding or erga omnes.[19] Understanding this pivotal moment is paramount in discerning the applicability and scope of international legal obligations. That is, it has broader ramifications concerning the international responsibility of states.

In the Island of Palmas Case, the intertemporal law was articulated to entail, amongst other things, that “a juridical fact must be appreciated in the light of the law contemporary with it, and not the law in force at the time when a dispute in regard to it arises or falls to be settled.”[20] The law must also take into consideration any changes over time.[21] The ICJ has explored it in many cases in subjects such as territorial disputes and delimitation of boundaries. Equally, it resonates with treaty interpretation and the doctrine of non-retroactivity.[22] The issues of critical date/relevant time are also important in determining the existence and application of a particular custom in international law. They provide the measure for opinio juris and other aspects of norm formation in customary international law.[23]

5.   Judicial Processes and Pronouncements as Public Records

A rigorous assessment of the law unfolds within the framework of factual contexts, theoretical constructs, and conclusive determinations presented in legal proceedings before courts. These judicial processes, regardless of their impact on direct case outcomes, become part of the public record. Such well-articulated proceedings disseminate the preferred narratives and normative commitments of disputing parties to the public. The narratives also complicate the discourse in the ‘blogosphere’ and social media, which often have limited understanding of the subject matter. This complexity is crucial for a deeper understanding of the dispute, recognizing the inherent limitations in parties’ narratives due to power imbalances and information asymmetries in international law disputes.

In wars, the contextualization of narratives can bewilder the general public regarding accountability in the ensuing conflict. This confusion holds significant implications for international law and policy. In international humanitarian law, the narrative plays a pivotal role in determining the implicated international legal instruments. Identifying these laws further influences the nature of interventions required and the procedural aspects of such interventions. These interventions may manifest through resolutions from international organizations like the UN or its Security Council. If these matters reach the ICJ and receive adjudication, they gain legitimacy as enduring public records. This imbues the dispute with long-term significance, shaping its interpretation and serving as a valuable material for future legal historians.

6.   Orders, Norm Formation, and Legal Education

Orders issued by international tribunals, such as the ICJ, hold significant juridical importance in shaping norms and contributing to legal education. This significance arises from the fact that these tribunals, in rendering their orders, do not operate in vacuo. Instead, they distill and articulate states' principles, laws, and practices, along with other crucial elements that establish their competence to adjudicate the matters in dispute. Consequently, at a minimum, these orders have a normative impact by delineating existing norms.

For scholars, applying these norms serves to concretize their theoretical elucidations, resolving previous ambiguities. Furthermore, the legal education derived from tribunal hearings, such as those before the ICJ on matters like the Gaza conflict, the Rohingyas, and the Chagos, significantly contributes to public understanding. These cases have facilitated education on various aspects of international law, including Genocide, the duty to prevent Genocide, Colonialism, self-determination, and incomplete decolonization processes.

Noteworthy legal outcomes have also emerged from cases like the reparations cases, certain expenses cases, consular rights cases, and the use of nuclear weapons cases. These proceedings have illuminated previously unclear areas of international law. Notably, the ICJ’s articulation of these norms has reverberated globally, influencing legal education and contributing to the development of international law across jurisdictions.

7.   Interest Convergence, Diplomatic Teeth, and An Agenda for Peace

International law frequently intersects with politics, attracting diverse stakeholders invested in the outcomes of disputes. Take, for instance, the South Africa/Israel case, where various entities align themselves with differing positions. Germany, for instance, submitted responses to the ICJ application in support of Israel, while many other states supported the position of South Africa.[24] Nicaragua has since instituted proceedings against Germany before the ICJ, alleging that Germany’s intervention as a third party for Israel in the Genocide case violates Germany’s obligation to uphold peremptory norms of International Law.[25] In another relevant situation between Ukraine and the Russian Federation on Genocide, many countries have also filed their third-party interventions, thereby indicating both their legal and policy preferences regarding the dispute.[26]

The alignments over cases before the ICJ are also reflected in voting patterns on related resolutions within the UN. Such patterns delineate countries’ positions clearly, informing diplomatic strategies aimed at engaging stakeholders. Judicial rulings also serve to bolster diplomatic initiatives and leave no ambiguity about potential historical missteps on the subject. Thus, for keen diplomats and other institutions interested in global peace and security efforts—especially through informal channels, these open positions of states on the issues in dispute can assist in strategically evaluating the situation and tailoring interventions.

C.  Conclusion

Undoubtedly, the realm of litigation, whether in domestic or international contexts, confronts numerous limitations. Factors such as temporal constraints, exorbitant procedural costs, requisite legal expertise, geographical remoteness from the adjudicative forum, and the intricate politics inherent in international legal frameworks often circumscribe litigation and judicial deliberations. Indeed, these limitations, both substantive and procedural, significantly impede the pursuit of judicial remedies, particularly in addressing humanitarian crises. Even when the issues seem clear, delays can be costly to populations facing violence in war or genocidal situations. However, within the domain of international law, nuanced debates emerge amidst disputes. Analyzing litigations before international courts necessitates an examination of seven pivotal dimensions—including facts, relevant laws, existence of a forum for their adumbration, contemporaneity, interest convergence and juris-genesis. This structured approach facilitates a comprehensive grasp of the broader systemic repercussions stemming from such litigations. Even in instances where the desired outcome remains elusive, litigation leaves enduring legacies that fortify the fabric of a law-based and rule-driven international order.