Telling Stories at the International Court of Justice
The Provisional Measures Hearings in South Africa v. Israel
The provisional measures hearings in South Africa v. Israel, held on 11 and 12 January 2024, were watched by an audience in the tens of thousands. The Hindustan Times feed on YouTube alone had close to 12,000 viewers. Security around the Peace Palace was tight, with protestors supporting both sides rallying outside. Rarely has a case at the International Court of Justice (‘ICJ’ or ‘Court’) caused such consternation worldwide.
And certainly, both parties to the case appeared cognisant of the fact that they were speaking not only to the Court, but to those watching at home. South Africa spoke of the ‘systematic oppression and violence’ suffered by the Palestinian people, in addition to describing in detail (as respectfully as possible) the genocidal acts allegedly committed by Israel in Gaza. Israel, meanwhile, spent a significant percentage of its submissions on the ‘scenes of unfathomable cruelty’ inflicted by Hamas on October 7. Wearing a symbolic yellow ribbon as a sign of solidarity with the Israeli hostages, Israel’s Co-Agent accused South Africa of ‘close relations with Hamas’.
Was this what the audience were waiting for? Bold, even gratuitous, descriptions of the horrors on the ground – amounting to genocide, on South Africa’s case, or a ‘nightmarish environment created by Hamas’ in Israel’s view?
Because it is hard to imagine that this audience was interested in the questions which the Court actually needs to consider in order to reach a decision on ordering provisional measures; the precise contours of the plausibility standard or the establishment of prima facie jurisdiction.
In this post, I plan to say a little something about Israel’s defences, and something more about the role of the Court as a theatre of justice.
South Africa asserts that Israel is in violation of its obligations under the Genocide Convention, including Articles I, III, IV, V and VI, read in conjunction with Article II. That is, not only is Israel allegedly committing genocide, but it has incited genocide, attempted to commit genocide, and/or failed to prevent or punish genocide. It seeks a full ceasefire, in addition to orders that Israel take all measures within its power to ensure that Gazans have access to adequate food and water, humanitarian aid, and so on.
In respect of provisional measures, the parties are in agreement about the legal tests to be applied; they differ merely in the way those principles should be applied to the facts of the case. Indeed, Israel agrees with South Africa that ‘Israel does not have any right to violate the law, still less to commit genocide’. It is in respect of the facts, and, as counsel repeated many times, the ‘context’ of acts that are undeniably taking place, that the parties are at odds.
For example, we know that in order to succeed here, South Africa must establish that the rights it claims are at least plausible. But this plausibility standard has been reasonably well-settled in the Court’s recent jurisprudence. The plausibility standard is a low bar, but it does require the Applicant State to prove the essential elements of their claim. This means, basically, that it will come down to the Court’s assessment of the facts and in particular the question of Israel’s intent behind the acts that have taken place. At the merits stage, the intent standard is a very high bar requiring a pattern of conduct from which the ‘only reasonable inference to be drawn’ is that of genocidal intent. Israel says their ‘efforts to mitigate the ravages of this war on civilians are the very opposite of intent to destroy them’. South Africa says Israel’s conduct – including statements from government officials – forms ‘a calculated pattern … indicating a genocidal intent’. There was not much argument from counsel regarding the test to be applied by the Court in respect of provisional measures; Israel simply asserts that South Africa’s claims are not even plausible.
Likewise, the Court’s previous cases were distinguished on their facts. South Africa suggests that the Court ordered provisional measures in every case concerned with the Genocide Convention and therefore should do so here. By contrast, Israel seemed particularly concerned to ensure that no order for a ceasefire be made. In arguing that the measures sought by South Africa were not necessary to protect rights and also have no link with the rights sought to be protected Israel sought to rely on the Bosnia case as establishing that the Court will not order a ceasefire in the context of an ongoing military conflict; and distinguished this from the Russia precedent on the basis that Israel does not rely on the Genocide Convention or prevention of genocide to justify its operations.
Israel also raised arguments related to jurisdiction; perhaps foreshadowing a future preliminary objections phase of the case. In a detailed submission, Malcolm Shaw KC attempted to add yet further gloss to the dispute requirement by suggesting that ‘where a State makes an assertion concerning the conduct of another State, it must thus give the latter a reasonable opportunity to respond before resorting to litigation’. Otherwise, the claim cannot be said to be positively opposed by the Respondent. This builds further on the Court’s notorious decisions in Marshall Islands which created a de facto notice obligation for would-be Applicant States. Though, South Africa did send a number of Notes Verbales to Israel indicating its views prior to instituting the proceedings. This is not only more than Ukraine did in its successful provisional measures application, but the Court held in The Gambia v. Myanmar that that ‘in light of the gravity of the allegations … the lack of response [to a Note] may be another indication of the existence of a dispute between the parties’. In any event, the remainder of Israel’s submissions show that there is very much a live dispute between the parties on the question of Israel’s fulfilment of the Genocide Convention; their ‘conciliatory’ reply Note sent after the institution of proceedings serving perhaps only to confirm that the parties are in ‘disagreement on a point of law or fact’.
The Theatre on Carnegieplein
Because, in part, it is on the facts that the parties disagree, the oral proceedings were devoted at length to descriptions of the situation in Gaza. But we know that the Judges have before them the documentary evidence provided by both sides. Why devote hours to telling the Court things that they already know?
The answer is because the parties are not only speaking to or for the benefit of the Court. Rather, the Court’s oral proceedings are a ‘medium through which the legal system stages itself’, through which the law enters the world ‘as a performance’ and is rendered tangible, experiential. Court procedures utilise performance and aesthetics ‘in order to enact justice (i.e. to make it seen)’. Bentham, for this reason, called the courtroom a ‘theatre of justice’. The performance undertaken by the parties serves to generate important symbolic capital for use both domestically and internationally. The oral proceedings are a type of performance in which the parties perform for two audiences: the Court itself, and the general public.
The oral proceedings also offer participants the opportunity to tell their story, receiving direct and formal recognition of their individual (sovereign) dignity. States have ‘feelings’, as Jessup once said, and this was particularly on display when South Africa declared its recognition of the ‘ongoing Nakba of the Palestinian people through Israel’s colonization since 1948’ and Israel’s outraged depiction of the case as a ‘libel’. The parties were thus appearing in the Great Hall of Justice not only to argue about the law, but to tell their stories. It is worth mentioning also that both parties chose to bring “their” victims into the courtroom and mentioned having done so. Gazans, and families of the hostages, respectively. In this way, both parties gave a voice to the individuals affected by the acts of Israel and Hamas. Israel may also, as Mann points out, be ‘preparing to lose’ and thus taking the opportunity offered by the oral proceedings to ensure that its narrative is aired, and potentially even picked up by any minority opinions. As stated by Israel’s Co-Agent, ‘Israel is singularly aware of why the Genocide Convention, which has been invoked in these proceedings, was adopted’ – the memory of the Holocaust palpable in the courtroom but not in fact relevant to the questions that the Court must decide.
Ensuring that the parties can tell their story and have their day in court contributes to expressively demonstrating the Court’s own impartiality and in turn, its legitimacy. Impartiality is in many respects an internal judicial ethic. If decisions are made behind closed doors on the basis of written submissions, the judge may well be impartial, but the parties (and public) cannot see their impartiality. Here, oral proceedings’ expressive functions are indispensable. The dignified setting, performance, and symbolism of oral proceedings together operate as ‘social signs that the judge has put aside her individuality and assumed the role of an authority acting “under law” – that is, deciding according to neutral principles’. The judges’ courtroom demeanour likewise conveys a particular ideal of the neutral decision-maker. The Court’s silent, attentive act of listening during the oral proceedings publicly and transparently perform the Court’s impartiality, which in a case as emotive as the present one, is essential to the effective resolution of the dispute (although it may be insufficient to counter ill-informed public commentaries suggesting that the Judges ‘represent’ their countries).
Israel’s Co-Agent said that ‘if there is a place where words should still matter, where truth should still matter, it is surely a court of law’. But in this case, the Court will need to sift for the truth in two vastly different stories.