Thanks to the overwhelming positive response to my original post (thank you all, I deeply appreciate it!!) and to a handful of additional questions sent by friends and blog-readers alike, here we are with a Part II:
1. One of the things I noticed was the regular use of the argument that Hamas is to blame for the violence. Is this really a justification for Israel’s actions? Can Hamas’ attack influence the overall decision of the Court?
Ultimately this goes back to the question of justification. For every international legal norm, except “peremptory norms” (also known as jus cogens norms), a State may violate the norm–effectively breaking the law–if there is a good reason for them to do so (the “circumstances precluding wrongfulness” mentioned in the prior post). One of those circumstances is self defense, as Malcolm Shaw–Israel’s lawyer–points out. As the prior post explained, an armed attack is a condition that must be met for a state to invoke self defense. Thus, Hamas’ actions are relevant in that regard and will likely factor into the court’s decision.
However, this does not mean Hamas’ attack justifies Israel’s actions. Ultimately, a State may only use self defense to justify a proportional response. Because there was an attack that did result in the loss of lives, I think the ICJ will agree that Israel was justified in responding in some way. But will the ICJ agree that Hamas’ actions justify a 100+ day war that has involved indiscriminate bombing of civilian areas? I think that is unlikely; it is much more likely the Court will find that Israel would have been justified in a much smaller, targeted response–e.g., tracking down and detaining / prosecuting (but not summarily killing) those involved in the October 6 attack. But again, we will have to see what the court says.
Wait, if in fact it is genocide, is there any justification for it? This also goes back to peremptory norms. Genocide is a peremptory norm that cannot be violated under any circumstances. So, if South Africa succeeds in proving a genocide is occurring in Gaza, Israel cannot use self defense as justification for their actions.
2. So this was the first time I learned that a territory or a people under occupation have no right to self defense. Can you explain why? How did that law come about?
Great question! There is the diplomatically correct answer and the not-so-diplomatic answer. And while I could give you the diplomatic one, it sounds too much like propaganda justifying colonization. So we are just going to focus on the less diplomatic one:
Fundamentally, international law was created by a series of states who maintained colonies. It was not until 1945, with the creation of the United Nations, that the principle of “self determination” (meaning a group of peoples’ right to govern themselves) became solidified as a universal right, and even then there is what is called “lawful occupation” and “unlawful occupation”. Additionally, the right to “self determination” does not extend to a right of those colonized people to take up arms against the colonizer. Instead, the colonized people are expected to use peaceful means to push for independence. While there are a million arguments for why this is (e.g., the diplomatic answers), most of the worlds global south–who were subject to colonization and still remain wildly under-represented in the international legal system–will explain it plainly: no colonizing state will agree to grant their colonies the right to attack the occupying forces. And, at the end of the day, international law is based on a system of consent: there is no higher power to write or enforce it; it is the states themselves that must agree to the rules upon which they will be bound. Thus, while people under occupation may have a right to self determination (when the occupation is considered unlawful, which is arguably the case for Gaza), they do not have a right to commit violent acts to achieve that right. There is a great book that has a chapter explicitly on this: Human Rights and Personal Self-Defense in International Law by Jan Arno Hessbruegge.
Here is one more note: self defense does not always allow for violent acts. Even under domestic criminal law, if your life is threatened, you are allowed to use the force necessary to defend yourself–but that does not necessarily include deadly force. Deadly force may only be used if there is a direct and imminent threat to your life–e.g., a legitimate (not theoretical) gun pointed at your head allows you to shoot first. This is highly unpalatable in situations of occupation, because there are many theoretical “guns” in the form of starvation and unlawful arrest. Nevertheless, even for states to justify their actions, there must be an immediate threat of armed attack (think Six-Day War with tanks lined up along a border); an embargo will not be sufficient, and neither will rumors of a future armed attack.
3. This is only a request submitted for provisional measures; in the actual case judging whether there was incitement or genocide, will South Africa be able to respond to Israel’s arguments?
Yes! The hearing last week was part of what is called the “preliminary” phase of a case. As the prior blog post explained, the ICJ at this point only needs to decide whether it is possible that South Africa’s arguments are correct–which means they do not need to give a definitive “yes” or “no”, just a “maybe”. At some point, likely 6+ months from now, the Court will have to decide a firm “yes” or “no” (in the “Merits” portion of the case), at which point South Africa will be able to respond to Israel’s arguments.
4. You talked about something called “Resolution No. 1” and why it can’t be used to hold Israel accountable for war crimes. Can you explain that more?
Definitely! In fact, I’ve written a paper on the issue, but in the context of the Ukraine-Russia war. Here is the relevant excerpt, with the footnotes removed:
Each of the four 1949 Geneva Conventions—which form the legal foundations of international humanitarian law, the legal framework which applies to parties during armed conflict—include a common article that establishes an “enquiry procedure” to investigate alleged violations of the Conventions. The enquiry procedure is a variation on the pre-existing 1929 Geneva Convention enquiry procedure, with one addition designed to remedy situations where the parties reach an impasse on the choice of forum through which they will peacefully settle their dispute.
Under the first clause of the enquiry procedure, if the enquiry mechanism is triggered by the request of any belligerent party, the mechanism is compulsory on all parties. Further, under the second clause of the enquiry procedure, “[i]f agreement has not been reached concerning the procedure for the enquiry, the Parties should agree on the choice of an umpire who will decide upon the procedure to be followed.” The delegates at the Diplomatic Conference, which drafted the Geneva Conventions, included this latter provision because of the rising importance of providing for legal settlement in situations where parties disagree on the interpretation or application of a treaty.
However, given that only 59 States were parties to the UN Charter at the time, the delegates of the Diplomatic Conference feared that specifying the ICJ as the venue for dispute settlement would contravene article 35 of the UN Statute, which provides the conditions for a non-State party to bring a dispute before the ICJ. Consequently, instead of directly referring a dispute that cannot be settled through other means to the ICJ, the delegates adopted Resolution No. 1—annexed to the 1949 Geneva Conventions—which strongly recommends that disputing parties refer a dispute to the ICJ when the parties reach an impasse in how to peacefully settle their dispute. The delegate’s debate therefore establishes that the purpose of the Resolution No. 1 was not to allow States to avoid dispute resolution, but rather to give deference to the UN Charter criteria for ICJ membership.
Now, here is where it gets in-the-weeds. As the law stands at the moment, this Resolution is only optional because it uses optional language (for the reasons explained above). In my opinion, under an evolutive interpretation of the law, Resolution No. 1 should be considered strong enough evidence of the drafter’s intent to grant the ICJ jurisdiction over all disputes concerning the application or interpretation of the Geneva Conventions because the drafting parties’ concern is invalid now that almost all States recognized in international relations are UN Member States. If it were, then the enquiry provisions, read in the context of Resolution No. 1, would combine to create a compromissory clause under the Geneva Conventions that requires parties to resort to conciliation, arbitration, or—if the parties cannot agree to another venue—litigation before the ICJ.
But at the end of the day, no one has successfully made such an evolutive interpretation argument. So, as the law stands at the current moment, Resolution No. 1 is simply optional and cannot be used to bring a case for war crimes to the ICJ.
5. If there is no obligation to negotiate, what exactly was Israel’s argument claiming South Africa needed to negotiate?
The answer to this question is very much in-the-weeds, so please bear with me and ask me any follow up questions you may have:
As the prior post explained, South Africa used the compromissory clause in the Genocide Convention to bring the case. Compromissory clauses can include conditions that must be met before the ICJ is able to hear a case. For example, in the Convention On The Elimination Of All Forms Of Discrimination Against Women, “Any dispute . . . which cannot be settled through negotiation shall . . . be submitted to arbitration” and “[i]f within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration” the dispute may be submitted to the ICJ. In the Genocide Convention, the compromissory clause reads:
“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
As you can see, there is no similar preconditions to submitting a case to the ICJ. So, from the compromissory clause aspect, there is no obligation to negotiate.
However, this does not mean Israel’s lawyers are lying. In fact, Malcolm Shaw is a really good lawyer. Shaw is like the late James Crawford, who would come out and make these arguments that were mindblowing in their complexity and often caused the ICJ to completely shift its prior position on a point of law. With his argument, Shaw is getting at a different aspect that goes to the fundamentals of what a “dispute” is:
Under ICJ Statute Article 38, the Court may only exercise “contentious jurisdiction” (meaning hear a case between two states who have not agreed between themselves to submit the case to the court) if a dispute exist between the parties at the time the application initiating proceedings is filed. A dispute is “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” Thus, for a dispute to exist, “[i]t must be shown that the claim of one party is positively opposed by the other,” such as when the parties hold clearly opposing views regarding the performance of a specific international obligation. However, the conflict must be more than a simple disagreement regarding whether a convention applies, in which case a dispute will exist only if the alleged violations fall within provisions of the disputed treaty. In 2016, in Marshall Islands v. UK, the ICJ added a layer to this analysis: a dispute can only exist when Respondent is “aware, or could not have been unaware,” of Applicant’s contrary position. Thus, statements relied upon to demonstrate a dispute must be directed at Respondent and must provide particulars on the conduct that allegedly breaches Respondent’s obligations.
So what does this mean? It means that for the ICJ to hear the case between Israel and South Africa, the court must be convinced that both parties understood, at the time the case was filed, that they have a fundamental disagreement on a point of law. So, according to Shaw, because there was no negotiation, South Africa cannot prove that Israel was “aware, or could not have been unaware” that the two states had a fundamental disagreement on a point of law, meaning no dispute existed and the ICJ cannot hear the case and, because it cannot hear the case, it cannot order provisional measures either.
Now for the most important question–is this argument valid? I really couldn’t say. There are entire dissertations on what exactly constitutes a “dispute”, especially after the Marshall Islands case. Moreover, this area of the law is constantly evolving as the court tries to clarify the new “awareness” criteria. So, for us international law nerds, it is going to be incredibly interesting to see whether the ICJ agrees with Shaw or sides with South Africa.
6. Okay so there is a chance the ICJ will not provide provisional measures. How much of a chance, do you think?
I wish I had a crystal ball so I could give an answer to this one. But alas, I do not…
I think coming off of the Ukraine-Russia case, the ICJ will order provisional measures to stop the violence. I would be extremely surprised if they do not, because Russia was equally arguing that their actions were permissible under international law. But, at the end of the day, there are enough facts that are different (in legalese, “distinguishing factors”) between the two cases that I simply cannot give a good answer to this question…
7. Is there any chance that the ICJ will order provisional measures, but then not address the case in the merits phase?
The ICJ does have a habit of avoiding politically sensitive topics. And this case is wildly politically sensitive. It is entirely possible that the ICJ will do this here. They have done this before in prior politically sensitive cases; for example, the ICJ has been accused of avoiding a politically sensitive topic when it added the “awareness” criteria explained above (which was added in the Marshall Islands case).
Alternatively, the court has also heard a case related to the occupation of a territory, and decided the case in favor of the colonizers (e.g., the South West Africa case in the 1960s). In that case, the court rejected the claims of Liberia and Ethiopia because the court decided those states did not have an established legal right or interest in their claims that South Africa was abusing its mandate over the colonized area, South West Africa. It took years for the ICJ to bounce back from the backlash of that case, when the court was accused of perpetuating the system of colonization. (For those interested in learning more, I highly recommend Philippe Sands‘ book, “The Last Colony”).
As for this case, only time will tell what path the ICJ chooses to take.
8. Why were South Africa and Israel able to bring their own judges?
This is something called an ad hoc judge. The existence of this position comes back to the principle of consent: no one is forcing the states to be part of the ICJ and allow the court to hear cases involving the state. Every member state of the UN is equally a member of the ICJ, but just because you are a member state of the UN does not mean you inherently must consent to being brought before the ICJ. So, to effectively appease states and encourage them to use the ICJ to settle disputes, both the claimant / applicant state (the one who files the case) and the respondent state (the one who is alleged to have violated international law) are allowed to appoint a judge of their own choice to join the 9 permanent judges when hearing the case.
An ad hoc judge is a judge of the parties choice; it can be a national of their state, or literally anyone else as long as they possess the qualifications necessary to be a judge on the ICJ. And they sit on the panel. The only way a state would not be allowed to appoint an ad hoc judge is if there is a national of the state already sitting on the court. For example, the USA would not have the right to an ad hoc judge in a case before the court (e.g., the current Jerusalem Embassy case) because one of the ICJ judges is an American, but Canada can (e.g., the current State Immunities case) because there is no Canadian sitting on the court.
Follow up question-–does this pose a problem of bias? Judges are supposed to be impartial and above reproach, meaning they are not supposed to side with whatever nationality they hold (but sometimes they are accused of doing so–whether they do or not, I can’t say). But in all reality, an ad hoc judge is only one of 9+ judges, so they really are not going to be the make or break for the court’s decision. Yes, a state can appoint an ad hoc judge. Yes, it can be a person of their nationality or choosing. Yes, in theory, maybe they could be bias. But, if there is a concern of bias, the judge could be disqualified from participating in the case. And, at the end of the day, the ad hoc judge is not going to be the deciding vote. To my knowledge, there has never been a situation where the ad hoc judge was the reason a case was decided a specific way. So, the ability to appoint an ad hoc judge is just an act of appeasement for the state to feel a little better about using the ICJ to settle disputes.
9. I’m worried about all the disinformation and propaganda. Can you talk a bit about how these might affect the court’s decision?
A court will not make a decision solely based on either parties’ word. For example, in a domestic court, you cannot claim to a judge that you were assaulted by Person B without actually showing evidence that you were assaulted. This principle is the same with the ICJ; the court will not just take a state’s word, it needs evidence to support any claims made. In practice, this means that both parties will need to back up their claims with extensive evidence during the Merits phase of the case. The ICJ will require both South Africa and Israel to provide evidentiary support for their arguments. For example, if either party claims a rape occurred, the party will equally need to show the court that the rape did occur.
But here is the fun part: there have actually been cases before the ICJ where a party was unable to prove their claims, and instead submitted fabricated evidence to the court. Here is a great book on some of the audacious things that states have done before the court: Fraudulent Evidence Before Public International Tribunals: The Dirty Stories of International Law.
10. I’m surprised Malcolm Shaw is acting as Israel’s lawyer. I used to respect him, but now I feel uncomfortable continuing to do so.
Honestly, I think this is a feeling many people are having at the moment. It is always difficult to see people we respect acting in a way we don’t agree with. But, in my opinion, it is also always important to keep things in perspective.
Malcolm Shaw’s textbook is one of the most prevalent sources of reference for international law students and practitioners. But also, even when you are using his textbook, many long-time international lawyers will warn you that his approach is incredibly hawkish (meaning he is more likely to support war / warlike policies). As a Jessup Moot Court competitor, I was literally warned by my team coach that I should be careful not to rely too heavily on his explanation of self defense under international law because he takes a hawkish approach. As a result, it is not super surprising that he is now the lawyer representing the incredibly hawkish Israeli government.
Most importantly, one of my favorite professors in law school–who taught Criminal Law, and previously had represented murderers and even individuals accused of terrorism–makes a great point in this regard: everyone, especially those accused of the most heinous crimes, deserve proper representation of their legal rights. Because, if they don’t have representation, how can we claim that our legal system is fair; that it functions properly; that justice has truly been served? Of course, this does not mean that a lawyer must always represent a client accused of any crime. Even this professor refused to represent accused pedophiles (because, just as everyone deserves representation, they also deserve a lawyer who can put aside their personal feelings to defend the client to the fullest extent allowed under the law). I’d imagine Shaw, though he may not agree with Israel’s actions, is doing just that: ensuring the proper administration of justice by ensuring Israel has proper representation.
One last interesting note: following Russia’s invasion of Ukraine in 2022, all of the lawyers previously representing Russia in international litigation and arbitration cases resigned, which forced Russia to request state-appointed legal representation from the Dutch bar association because otherwise they had no lawyers to represent them in cases pending before the Dutch courts. The Dutch bar association actually denied their request, which caused Russia to appeal the decision to the Dutch courts. In the resulting decision, the courts sided with Russia, saying that Russia must have a right to court-appointed representation for the very reason my professor gave.
I hope that helped answer any lingering questions! But, as before, if anyone else has follow up questions, feel free to add them in the comments to this post or submit a question using the “Ask a Question“ feature.
Ginger Without Borders 
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