The International Court of Justice, South Africa and Israel

 

This article is not a review of the ICJ judgment in the case of 'South Africa v Israel', full coverage of which is available across the media. It outlines the legal and political framework to that judgment.

States, in theory anyway, are "sovereign", an idea descended, obviously, from kings: no one can tell them what to do.

Accordingly, the ICJ only delivers judgment in a dispute between states that have agreed to the Court having jurisdiction in the dispute. This sounds strange because it is entirely different from a domestic criminal court, which hears and delivers verdicts on cases about law-breaking - that is, about crimes that have been committed. 

The ICJ is not a criminal court. It is not involved in investigating war crimes and in finding parties guilty or innocent. War crimes are brought against individuals in a different court altogether, the International Criminal Court.

At the start of its work to determine if and how the Israeli state has committed genocide, as South Africa proposes, the ICJ also did not “call for” a ceasefire, as many seem to have hoped it would and see as a failure in the present judgment. The reason is simple. The ICJ cannot enforce such a call, or its judgments, because it is not backed by a police force or army. 

Unlike in domestic society where courts are backed by those means of coercion, international society has to manage its affairs and disputes through diplomacy and, ultimately, war. There is no alternative, no executive authority to maintain legal order in international society.

In those circumstances, states can ignore judgments and carry on as if they had never been arrived at and handed down. From its immediate reaction, Israel may be ready to do that in respect of this judgment.

Many people think this makes international law powerless and the whole business an elaborate waste of time, an interminable process ending in empty words.

That is mistaken. Words uttered, opposing positions set out, a formal judgment from the ICJ, do not disappear. Legal arguments are rehearsed, precedents are created and stand forever. The law can be clarified and advanced. In that respect at least, international law works like domestic law.

The ICJ judgment has a moral force that Israel like any other state can ignore and even ridicule.

But at its peril, now and in the future.