There seems to be a mismatch. The horror in Gaza. The composure in The Hague. Civilians raped and killed or abducted by Hamas, Palestinian women and girls arbitrarily executed or sexually assaulted by Israeli soldiers, children starving; there is inhumanity and despair. The cases of South Africa v. Israel and Nicaragua v. Germany raise questions on the threshold of plausibility, the role of genocidal intent at the provisional measures stage, the indispensable third party rule; there is order and decorum. Judge Georg Nolte noticed this seemingly peculiar discrepancy in his Separate Opinion to the Order of 28 March 2024 in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) case: “Given the current horrific situation of the Palestinians in the Gaza Strip, raising any apparently technical legal issues now may seem out of place.” (para 1) How can we make sense of this conflict, this disparity, this tension? Taking the mentioned proceedings as examples, I want to strike a balance between technical international law and its critics.
Doctrinal Questions, Doctrinal Answers
The cases of South Africa v. Israel and Nicaragua v. Germany have raised and continue to raise several doctrinal questions. An example illustrating the technical debate aptly is the question of the role of the indispensable third party rule in the last-mentioned case. According to this rule, which is also called Monetary Gold Principle, the ICJ cannot proceed if the legal interests of a non-participating State “would form the very subject-matter of the decision” (p32). In the opinion of Stefan Talmon, Israel is such an indispensable third party to the proceedings of Nicaragua and Germany. As Israel is not participating in the proceedings, the case between Nicaragua and Germany will “hit the buffer stop at the preliminary objections stage – at the latest.” Marco Longobardo, however, takes a more differentiated view: “[I]f the accidental ascertainment of whether the Third State has violated IHL is not necessary to assess compliance with the Respondent State’s duty to ensure respect, then the Monetary Gold Principle does not bar the exercise of a court’s jurisdiction.” Similarly, Alexander Wentker and Robert Stendel do not regard the ICJ to be barred from ruling on Germany’s positive obligations under Common Article 1 of the Geneva Conventions. However, Wentker and Stendel do perceive the indispensable third party rule as an obstacle to Nicaragua’s claim that Germany is violating Art. III(e) of the Genocide Convention. Unsurprisingly, while Nicaragua argued that the indispensable third party rule forms no barrier to the proceedings, Germany repeatedly raised the issue of Israel’s absence as an admissibility problem in relation to alleged violations of the Genocide Convention and the Geneva Conventions during the hearings. Without a doubt, these are most crucial questions with regard to the outcome of the proceedings. And essentially, the States participating in the proceedings, namely Nicaragua and Germany, are predominantly interested in precisely this: the outcome of the case. However, what I want to bring to attention here is that the same questions may not be as relevant with respect to larger issues at hand.
Crisis in International Law
Hilary Charlesworth famously claimed that “[i]nternational lawyers revel in a good crisis”, that a crisis “allows international lawyers the sense that their work is of immediate, intense relevance” (p377). In her article “International Law: A Discipline of Crisis”, she takes the situation in Kosovo in 1998-1999 as the prime example of “a meaty international law crisis, a real-life Jessup moot problem” (p379). Use of force, international criminal responsibility, sovereignty – for international lawyers, the events in Kosovo posed a set of classical or doctrinal international law questions which demanded answers. Charlesworth criticises that international lawyers’ focus on crises “diverts attention from structural issues of global justice” (p382). Instead, Charlesworth demands consideration for “the politics of everyday life” and “analysis of longer-term trends and structural problems” (p389).
To draw a parallel, focusing on the doctrinal dimension of the cases of South Africa v. Israel and Nicaragua v. Germany may also run the risk of narrowing perspectives. Genocide, armed conflict, self-defence, human rights violations, consent, procedural law – the situation in the Gaza Strip seems manageable, divisible into “bite-size pieces” (p384) if we approach the unimaginable horror with our doctrinal skills. Certainly, this approach is more than appealing. Marina Veličković aptly captured this sense of fascination, this sense of attraction or, perhaps, this hesitation: She regarded the ICJ’s Order of 26 January 2024 in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) case as a “good thing”, regardless of whether the same changed any facts on the ground. It was “nice to see” that international law at least attempted to alleviate the heartbreaking suffering. At the same time, some international lawyers may feel uneasy roasting and rooting for international law – understandably so, I might add.
I believe (perhaps in contrast to Charlesworth) this is not solely an issue for doctrinal international lawyers, but for “crits” too. In my view, arguing that the proceedings between South Africa and Israel have created a watershed moment in international law is a manifestation of misguided questions. Claiming that the ICJ has to choose between ruling “in favour of South Africa and indicate provisional measures or damn international law into oblivion” offers a false binary and shrinks imaginaries, while not being of help to neither the parties to the proceedings nor indeed the Court.
Yet Another Apology
A balancing act is possible. Judge Nolte is correct in raising technical legal issues regardless of whether they appear out of place or not. To be frank, providing doctrinal answers to doctrinal questions will in the end solve disputes in international legal proceedings. Or to put it differently: if a State relies on doctrinal arguments, its chances to win a case increase. At the same time it remains doubtful whether the ICJ will have the ultimate say in this complex conflict. Is there reason to believe that the belligerents and their supporters will be more impressed by a decision of the ICJ than by a binding UN Security Council resolution (see Hannah Birkenkötter’s blogpost soberly assessing resolution 2728 (2024) as “no cause for enthusiasm”)? Hilary Charlesworth is right in pressing for greater imagination and empathy regarding structural injustices. The cases of South Africa v. Israel and Nicaragua v. Germany emerge as a magnifying glass for international law’s possibilities and limits more broadly. International law, premising on minimal consensus, offers a framework for disputes. Nothing more, but also nothing less. International law does not fulfil the promise of being in sync with actuality as Robert Knox persuasively suggested; there is no automatic or natural guarantee of consistency.
Judge Charlesworth pertinently acknowledged the confined position of the Court in her declaration to the Order of 28 March 2024 in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) case:
“In the dispute brought by South Africa, the Court’s mandate is confined to protecting the right of the Palestinian group to be protected from acts of genocide and other prohibited acts under the Genocide Convention only if, and in so far as, that right is prejudiced by Israel’s acts. And the Court cannot order a ceasefire as the conflicting parties are not all before it. However, while the Court cannot remove the risk to the Palestinian group completely, it can at least mitigate it by indicating measures directed at the Parties that are before it: Israel and South Africa.” (para 6)
Judge Charlesworth spots space for practical impacts, impacts which could make a difference in everyday life. If it is a grain of hope, I take it, bearing in mind the “pleasurable sense of internationalist virtue that comes with being an international lawyer” (p392).
Julian A. Hettihewa is currently a lecturer at the University of Bonn and a law clerk at the Higher Regional Court of Cologne. He was a PhD student and a research assistant at the Institute for Public International Law at the University of Bonn. He studied law in Berlin and London and is an editor at Völkerrechtsblog.