tag:theconversation.com,2011:/uk/topics/icj-37519/articlesICJ – The Conversation2024-01-28T14:53:39Ztag:theconversation.com,2011:article/2221102024-01-28T14:53:39Z2024-01-28T14:53:39ZRuling by UN’s top court means Canada and the U.S. could be complicit in Gaza genocide<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/ruling-by-uns-top-court-means-canada-and-the-us-could-be-complicit-in-gaza-genocide" width="100%" height="400"></iframe>
<p>The International Court of Justice has issued <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf">a ground-breaking decision</a> in South Africa’s genocide case against Israel, <a href="https://theconversation.com/uns-top-court-orders-israel-to-prevent-genocide-in-gaza-but-fails-to-call-for-immediate-ceasefire-222080">ordering Israel to comply with six provisional measures</a> to safeguard the right of Palestinians in Gaza to be protected from genocidal violence.</p>
<p>The court’s order is binding on Israel and formalizes the international legal obligations of other countries that are parties to the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">UN Genocide Convention</a>.</p>
<p>Properly understood, the order should dramatically alter both the foreign and domestic policy decisions of Israel’s allies, including Canada and the United States.</p>
<p>Israel and its allies cannot dismiss or minimize the importance of this decision. In granting interim relief, the court concluded that South Africa’s allegations of genocide are, at a minimum, legally and factually plausible.</p>
<h2>Other countries must act</h2>
<p>Crucially, the court expressly concluded, by an overwhelming majority, that Palestinians in Gaza face a “real and imminent risk” of genocide. This puts other countries on notice that they have an international legal duty to take steps to prevent genocide in Gaza in accordance with the court’s order.</p>
<p>As the court stated in a 2007 ruling <a href="https://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf">when Bosnia accused Serbia of genocide</a>, countries that are parties to the Genocide Convention have an obligation to prevent and a corresponding duty to act “the instant that the state learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”</p>
<p>Both Canada and the U.S. have construed the court’s decision narrowly, suggesting it merely reiterates Israel’s right of self-defence and obligation to comply with international humanitarian law.</p>
<p>This is a legally indefensible reading of the court’s ruling.</p>
<p><a href="https://www.nytimes.com/live/2024/01/26/world/israel-hamas-gaza-news/b6568e0f-1669-55c8-b41f-0538b71e83c7?smid=url-share">U.S. President Joe Biden’s administration says</a> it believes the court’s decision is consistent with existing American policy on Israel and that it continues to view South Africa’s case as “meritless.”</p>
<p>Canadian Foreign Affairs Minister <a href="https://www.canada.ca/en/global-affairs/news/2024/01/statement-by-minister-joly-on-the-international-court-of-justices-decision-on-south-africas-request-for-provisional-measures-in-its-case-against-is.html">Mélanie Joly reiterated that</a> Canada’s “support for the ICJ does not mean that we accept the premise of the case.”</p>
<p>Statements of political support by the U.S. and Canada that Israel is abiding by the laws of war — <a href="https://www.hrw.org/news/2017/06/04/israel-50-years-occupation-abuses">contrary to the facts</a> — <a href="https://x.com/AdHaque110/status/1751243731557056872?s=20">cannot shield</a> Israel or its allies from their legal obligations under the Genocide Convention. Those obligations — including to prevent genocide — are created via treaty and are interpreted by courts, the highest of which is the International Court of Justice.</p>
<p>The obligation to prevent genocide, combined with the court’s finding of a serious risk of genocide, means that all parties to the Genocide Convention must refrain from taking steps that would actively frustrate the effective implementation of the court’s order.</p>
<h2>Canada in violation of its obligations</h2>
<p>As <a href="https://dirco.gov.za/statement-by-south-africa-welcoming-the-provisional-measures-ordered-by-the-international-court-of-justice-against-israel/">South Africa stated</a>, “the ICJ has determined that Israel’s actions in Gaza are plausibly genocidal and has indicated provisional measures on that basis.” </p>
<p>Among other measures, the court directed Israel to “take all measures within its power to prevent the commission” of acts of genocide, to prevent and punish incitement to genocide and to “enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”</p>
<p>The court emphasized evidence from the World Health Organization indicating that “93 per cent of the population in Gaza is facing crisis levels of hunger” and “that maternal and newborn death rates are expected to increase due to the lack of access to medical care.”</p>
<figure class="align-center ">
<img alt="Several Israeli flags fly in front of a giant screen showing military action." src="https://images.theconversation.com/files/571754/original/file-20240128-29-qcc3my.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571754/original/file-20240128-29-qcc3my.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571754/original/file-20240128-29-qcc3my.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571754/original/file-20240128-29-qcc3my.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571754/original/file-20240128-29-qcc3my.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571754/original/file-20240128-29-qcc3my.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571754/original/file-20240128-29-qcc3my.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Pro-Israel activists gather next to a screen near the International Court of Justice in The Hague, Netherlands on Jan. 26, 2024.</span>
<span class="attribution"><span class="source">(AP Photo/Patrick Post)</span></span>
</figcaption>
</figure>
<p>But just hours after the court’s ruling, <a href="https://www.nytimes.com/2024/01/26/world/middleeast/un-aid-israel-oct-7-attacks.html">the U.S. announced it was suspending funding</a> for the <a href="https://www.unrwa.org/">United Nations Relief and Works Agency for Palestine Refugees in the Near East</a>. </p>
<p>The funding cuts came after Israeli allegations that 12 UNRWA employees had participated in the Oct. 7, 2023 attack by Hamas against Israel. <a href="https://www.unrwa.org/newsroom/official-statements/serious-allegations-against-unrwa-staff-gaza-strip">UNRWA has terminated the accused employees and launched an investigation</a>.</p>
<p>The U.S. is the biggest financial contributor to UNRWA. <a href="https://www.aljazeera.com/news/2024/1/28/which-countries-have-cut-funding-to-unrwa-and-why">Several other key donor countries</a>, <a href="https://www.canada.ca/en/global-affairs/news/2024/01/statement-by-minister-hussen-on-allegations-against-staff-of-united-nations-relief-and-works-agency-for-palestine-refugees-in-the-near-east.html">including Canada</a>, quickly followed suit.</p>
<p>UNRWA is the largest aid provider in Gaza and a trusted lifeline to civilians in the territory. Even if the allegations are true, defunding the entire organization <a href="https://twitter.com/FranceskAlbs/status/1751554749659324847">openly defies</a> the court’s order and <a href="https://x.com/UNLazzarini/status/1751345422918959147?s=20">amounts to collective punishment of the civilian population in Gaza</a>.</p>
<p>Disturbingly, moves to defund UNRWA appear to help implement Israeli government plans to undermine the organization’s capacity to deliver aid to Palestinians in Gaza. Earlier this month, policy experts <a href="https://www.jns.org/israeli-lawmakers-ponder-unrwa-overhaul/">told the Knesset</a> that UNRWA “must be dismantled and thrown in the dustbin of history” and that “no country that is a friend of Israel should provide them any money.”</p>
<p>The ICJ found that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further,” plausibly inflicting conditions of life calculated to bring about the physical destruction of Palestinians in Gaza. </p>
<p>Accordingly, any country’s action knowingly contributing to further deterioration would violate the obligation to prevent genocide and could amount to complicity in genocide.</p>
<h2>Canada must halt arms sales to Israel</h2>
<p>The court’s provisional measures also impact Canada’s compliance with its own laws on military exports.</p>
<p>In 2022, <a href="https://www.international.gc.ca/transparency-transparence/controls-controles/military-goods-2022-marchandises-militaires.aspx?lang=eng">Canada sent more than $21 million worth of military exports to Israel</a>. The <a href="https://laws-lois.justice.gc.ca/eng/acts/e-19/page-4.html#h-203166">Export and Import Permits Act</a> forbids arms permits to be issued if there’s a “substantial risk” that the goods could be used to commit or facilitate serious violations of international humanitarian or human rights law.</p>
<p>Because the ICJ found a serious risk of genocide in Gaza, continuing to export arms to Israel would be illegal. It would also be flagrantly inconsistent with Canada’s obligation to prevent genocide, and could expose Canada and Canadian officials to liability for participation in genocide.</p>
<p>We must reject the politics of deliberate indifference to atrocity currently on display in the Canadian government’s reactions to the ICJ ruling.</p><img src="https://counter.theconversation.com/content/222110/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Heidi Matthews receives funding from the Social Sciences and Humanities Research Council, Women and Gender Equality Canada, York University and the British Academy. </span></em></p><p class="fine-print"><em><span>Faisal A. Bhabha receives funding from the Social Sciences and Humanities Research Council. He is an advisor to the Centre for Free Expression, the National Council of Canadian Muslims and the Legal Centre for Palestine. </span></em></p><p class="fine-print"><em><span>Mohammad Fadel receives funding from the Social Sciences and Humanities Research Council. He is a director of Muslim Advocates, a U.S. 501(c)(3) legal education and civil rights charity. </span></em></p>The recent ruling by the International Court of Justice means Canada could be guilty of supporting genocide in Gaza by cutting aid funding and continuing military exports to Israel.Heidi Matthews, Assistant Professor of Law, Osgoode Hall Law School, York University, CanadaFaisal A. Bhabha, Associate Professor of Law, York University, CanadaMohammad Fadel, Professor, Faculty of Law, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2219852024-01-27T02:38:10Z2024-01-27T02:38:10ZUN’s top court puts Israel on notice over its war in Gaza. Here’s what its judgement could mean<p>The <a href="https://www.icj-cij.org/home">International Court of Justice</a> (ICJ) in The Hague has issued an unprecedented set of preliminary orders in the case brought against Israel by South Africa alleging it is committing genocide in its war against Hamas in Gaza.</p>
<p>By a <a href="https://www.icj-cij.org/case/192">15–to–two majority</a>, the <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-sum-01-00-en.pdf">orders</a> place constraints on Israel’s military operations in Gaza and require Israel to report back by February 26 on steps it is taking to fulfil these orders. </p>
<p>However, the ICJ did not accept South Africa’s request that Israel immediately suspend its military operations in Gaza. Rather, the court modified the South African request, which if upheld would have denied Israel’s inherent right of self-defence. </p>
<p>Israel can therefore continue to defend itself against ongoing Hamas attacks in Gaza. However, Israel must now conduct its military operations consistently with the ICJ’s orders. </p>
<p>The orders are final and binding and not subject to appeal. But the ICJ lacks enforcement capacity, which ultimately rests with the UN Security Council. </p>
<p>The ICJ orders make clear there is no conclusive finding at this stage as to whether acts of genocide have occurred. That will be determined at the “merits” phase of the case, which may take up to four to five years to be completed.</p>
<p>While Hamas and its conduct was not before the court, direct reference was made to the group’s assault on southern Israel on October 7 and the fate of the remaining hostages taken that day. The <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf">ICJ observed</a> that it “is gravely concerned about the fate of the hostages […] and calls for their immediate and unconditional release”.</p>
<h2>Background to the case</h2>
<p>South Africa brought the case to the court on December 29, alleging Israel’s military operations in Gaza in response to the October 7 Hamas attacks <a href="https://theconversation.com/south-africa-is-taking-israel-to-court-for-genocide-in-palestine-what-does-it-mean-for-the-war-in-gaza-220660">amounted to acts of genocide</a>. </p>
<p>Although South Africa is not involved in the Israel-Hamas conflict, it claimed it had standing to bring the case as a party to the <a href="https://www.un.org/en/genocideprevention/genocide-convention.shtml">Genocide Convention</a>. </p>
<p>The case has proceeded swiftly. Preliminary hearings were held in early January and South Africa expedited the case by seeking “provisional measures” against Israel. These are a form of interim orders the ICJ can urgently issue where there is a risk of irreparable harm occurring. </p>
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Read more:
<a href="https://theconversation.com/south-africa-has-made-its-genocide-case-against-israel-in-court-heres-what-both-sides-said-and-what-happens-next-221017">South Africa has made its genocide case against Israel in court. Here's what both sides said and what happens next</a>
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<p>South Africa did not need to conclusively prove Israel was engaging in genocide. All South Africa needed to demonstrate was that there was a plausible case Israel was acting with genocidal intent in Gaza and engaging in genocidal conduct. </p>
<p>As to evidence of of this genocidal intent, the <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf">ICJ made express reference</a> to public statements between October 9 and 13 of Israeli public officials such as Defence Minister Yoav Gallant, President Isaac Herzog and Energy and Infrastructure Minister Israel Ketz. For example, the judgement quotes Gallant as saying to Israeli troops on the Gaza border in early October:</p>
<blockquote>
<p>You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against […] Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.</p>
</blockquote>
<p>With respect to genocidal conduct, the court noted the deaths of 25,700 Palestinians and more than 63,000 injuries since the war began, while also observing these figures could not be independently verified. </p>
<p>The <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf">court also stated</a> that the “civilian population in the Gaza Strip remains extremely vulnerable” and the “catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment”.</p>
<h2>What the court’s orders will mean</h2>
<p>The court ordered Israel (including its military) to immediately comply with <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-sum-01-00-en.pd">six provisional measures</a>, ensuring it takes all measures to prevent acts of genocide against Palestinians in Gaza. </p>
<p>This extends to killing Palestinians, causing serious bodily or mental harm to civilians and imposing measures to prevent births. Israel is also to take immediate measures to allow for the provision of humanitarian assistance to address the adverse conditions faced by Palestinians in Gaza. </p>
<p>Of the <a href="https://www.icj-cij.org/current-members">17 judges</a> sitting on this case, an overwhelming majority (15 of them) voted to endorse these orders. Its president, Judge Donoghue, is from the United States. Other judges are from Australia, Brazil, China, India, Japan and Russia. Special ad hoc judges from Israel and South Africa were also appointed to the court for this case.</p>
<p>While the ICJ’s interim judgement demonstrated the strength of the South African case at this preliminary stage, it will not resolve the Israel-Hamas conflict. For example, the court’s orders do not interfere with Israel’s right of self-defence. </p>
<p>Nevertheless, the judgement will impact how Israel conducts its military operations. Much greater emphasis will now need to be given to the principle of distinction between targeting combatants and civilians, and additional measures of precaution will need to be taken to avoid civilian casualties. Humanitarian aid will also need to flow to Gaza. </p>
<p>In addition, Israel’s supporters and allies such as Australia, Canada, the United Kingdom and the United States will now be expected to respond to the court’s ruling. How they recalibrate their public statements supporting Israel – and their diplomatic and private exchanges with Israeli political leaders – may prove pivotal to Israel scaling back aspects of its military operations.</p>
<p>Israel has been placed on notice by the ICJ. A plausible case has been made out that Israel has engaged in genocidal conduct in Gaza. It will take many years before a final judgement is reached, but this judgement will influence how the international community and court of public opinion ultimately view Israel’s conduct in Gaza and its pursuit for justice following the October 7 Hamas attacks.</p><img src="https://counter.theconversation.com/content/221985/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald Rothwell receives funding from Australian Research Council</span></em></p>Much greater emphasis will need to be taken to distinguish between targeting combatants and civilians, and additional measures of precaution will need to be taken to avoid civilian casualties.Donald Rothwell, Professor of International Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2221092024-01-26T19:25:48Z2024-01-26T19:25:48ZUN court ruling against Israel shows limits of legal power to prevent genocide − but rapid speed<figure><img src="https://images.theconversation.com/files/571673/original/file-20240126-17-5cfmyk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">International Court of Justice President Joan Donoghue, center, and other judges arrive prior to the preliminary order announcement on Jan. 26, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joan-donoghue-and-icj-judges-arrive-at-the-news-photo/1954769511?adppopup=true">Remko De Waal/ANP/AFP via Getty Images </a></span></figcaption></figure><p><em>The International Court of Justice <a href="https://apnews.com/article/israel-gaza-genocide-court-south-africa-27cf84e16082cde798395a95e9143c06">ordered Israel on Jan. 26, 2024</a>, to prevent possible genocide against Palestinians in Gaza. But the court did not call for a cease-fire, as South Africa had requested.</em></p>
<p><em>The United Nations’ highest court, based in The Hague, Netherlands, also declined to <a href="https://www.reuters.com/world/middle-east/israel-braces-world-court-ruling-focuses-attack-south-gaza-2024-01-26/">toss out South Africa’s case</a> against Israel alleging genocide.</em></p>
<p><em>South Africa submitted a complaint in December 2023 <a href="https://apnews.com/article/world-court-israel-genocide-gaza-south-africa-774ab3c3d57fd7bcc627602eaf47fd98">claiming that Israel is committing genocide</a> against Palestinians in Gaza. South Africa requested the International Court of Justice order the Israeli military to halt its war in Gaza.</em> </p>
<p><em><a href="https://www.bbc.com/news/world-middle-east-67944903">Israel argues that</a> its military is trying to minimize civilian harm and that South Africa is trying to both weaponize the term genocide and interfere with Israel’s right of self-defense against Hamas.</em></p>
<p><em>The <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf">court’s initial ruling</a> on this case, in which it ordered Israel to comply with a total of six provisional measures, does not reflect whether the court will eventually determine that Israel is committing genocide. As history shows, such a ruling could take years to decide.</em></p>
<p><em>“Now, in the wake of this ruling, a key question concerns whether and to what extent the Israeli government and military will comply with the provisional measures. A related question concerns how much pressure the U.S. and other Western countries will place on Israel to comply and to limit the scope of civilian harm in Gaza,” said <a href="https://search.asu.edu/profile/858959">Victor Peskin</a>, a scholar of international relations and human rights.</em> </p>
<p><em>The Conversation U.S. spoke with Peskin to better understand the potential impacts of South Africa’s <a href="https://www.icj-cij.org/case/192">genocide complaint against Israel</a>, the impact of the ICJ’s ruling, and the scope of the court’s power.</em> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/569113/original/file-20240112-19-75izr8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men wear scarves, including one with red, blue and green, stand in front of a set of microphones and look past the camera." src="https://images.theconversation.com/files/569113/original/file-20240112-19-75izr8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569113/original/file-20240112-19-75izr8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=381&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569113/original/file-20240112-19-75izr8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=381&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569113/original/file-20240112-19-75izr8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=381&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569113/original/file-20240112-19-75izr8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=478&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569113/original/file-20240112-19-75izr8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=478&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569113/original/file-20240112-19-75izr8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=478&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Ronald Lamola, South Africa’s minister of justice and correctional services, center, speaks to the press outside the International Court of Justice in The Hague, Netherlands, on Jan. 12, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/minister-of-justice-and-correctional-services-of-south-news-photo/1919783681?adppopup=true">Dursun Aydemir/Anadolu via Getty Images</a></span>
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<h2>What is the significance of this International Court of Justice order?</h2>
<p>It is a mixed result. South Africa wanted the International Court of Justice to order an immediate cease-fire, which it did not do. Israel wanted the court to toss out the case entirely, which also did not happen.</p>
<p>The court ruled this is a case that falls under its jurisdiction and that South Africa’s claim of genocide <a href="https://www.npr.org/2024/01/26/1227078791/icj-israel-genocide-gaza-palestinians-south-africa">is plausible</a>. However, that does not mean the court will eventually rule for or against South Africa or Israel.</p>
<p>Furthermore, the court is saying that the war is creating a dire situation for civilians in Gaza. </p>
<p>Among other things, the court is putting the Israeli government and its military on notice that it is watching its military conduct quite closely. And it is ordering Israel to ensure Palestinian civilians have access to urgently needed humanitarian aid. It also says that the Israeli government must preserve any evidence of possible genocide and submit a report to the court, within one month, detailing steps taken to comply with the court-ordered provisional measures. </p>
<p>Importantly, the court also calls for the immediate release of the 100- plus hostages Hamas is holding in Gaza.</p>
<h2>What kind of pressure does this create for Israel, Hamas and others involved in the war?</h2>
<p>The International Court of Justice is the U.N.’s most prominent court and is widely considered legitimate. And in a sign of this international legitimacy, the <a href="https://www.timesofisrael.com/liveblog_entry/eu-says-it-expects-full-compliance-with-icj-ruling/">European Union has already called</a> for all parties of the war to immediately comply with the order.</p>
<p>I think this will increase pressure on Israel to limit civilian casualties, increase humanitarian assistance and temper the inflammatory statements issued by prominent Israeli leaders that were cited in South Africa’s complaint against Israel.</p>
<p>This ruling might be one factor that helps to advance Israel and Hamas’ negotiations for a hostage release and cease-fire. </p>
<h2>The International Court of Justice lacks enforcement power. So, is this case more than political theater?</h2>
<p>The International Court of Justice does not prosecute individuals, but rather focuses on resolving legal disputes between countries. The Hague-based International Criminal Court, which has the legal authority to investigate and prosecute individuals for war crimes, crimes against humanity and genocide, has opened up a <a href="https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-khan-kc-ramallah-situation-state-palestine-and-israel">separate investigation</a> into Israeli forces’ and Hamas militants’ alleged violations of international humanitarian law. </p>
<p>It’s always an open question – will an International Court of Justice ruling even be enforced and have any tangible effect? </p>
<p>While the International Court of Justice moved at a glacial pace in reaching a final decision in the Bosnia-Serbia genocide case, it has shown that it can move more quickly when addressing mass violence through issuing provisional measures, as it just did in the South Africa-Israel case. ICJ judges also issued provisional measures calling for the prevention of violence in the Myanmar and Russia cases. </p>
<p>However, there is <a href="https://www.justsecurity.org/80703/qa-icj-order-on-provisional-measures-ukraine-russia/">little indication</a> that the International Court of Justice’s provisional measures eased <a href="https://www.cfr.org/global-conflict-tracker/conflict/rohingya-crisis-myanmar">Myanmar’s crackdown on the Rohingya</a>. Similarly, the ICJ’s provisional measures calling on Russia to halt its invasion of Ukraine has <a href="https://www.icj-cij.org/case/182">had no apparent effect</a>.</p>
<h2>What precedence is there for the ICJ to consider cases like this?</h2>
<p>There is some precedence for countries to bring a case regarding a conflict it is not directly involved in to the International Court of Justice, as South Africa is now doing. In 2019, Gambia filed a complaint at the <a href="https://iimm.un.org/icj-the-gambia-v-myanmar/#:%7E:text=On%2011%20November%202019%2C%20The,in%20Rakhine%20State%20as%20required">court against Myanmar</a>, regarding its alleged genocide of the Rohingya people, an ethnic minority living in Myanmar. </p>
<p>Countries without a direct connection to an alleged case of genocide can legally bring a genocide complaint forward, <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">according to the Genocide Convention.</a> </p>
<h2>What does the ICJ’s track record on genocide tell us about this current case?</h2>
<p>In the first <a href="https://www.icj-cij.org/case/91/judgments">case of this kind</a>, in 1993, <a href="https://www.icj-cij.org/case/91">Bosnia instituted proceedings</a> against Serbia, which was then part of the former republic of Yugoslavia, for alleged genocide. </p>
<p>The International Court of Justice’s eventual <a href="https://www.icj-cij.org/sites/default/files/case-related/91/091-20070226-PRE-01-00-EN.pdf">ruling in 2007</a> in the Serbia case was controversial. The court ruled that genocide was committed in the Bosnian war but that the government of Serbia was not directly responsible for it. Instead, the court ruled that the Serbian government failed to prevent genocide in Srebrenica. </p>
<p>Srebenica was the eastern, Muslim enclave in Bosnia that <a href="https://www.britannica.com/event/Srebrenica-massacre">Bosnian-Serb military forces overran</a> in 1995, murdering around <a href="https://www.hmd.org.uk/learn-about-the-holocaust-and-genocides/bosnia/srebrenica/">8,000 Muslim boys and men</a>. </p>
<p>The court also found the Serbian government violated the Genocide Convention by failing to arrest former Bosnian Serb Gen. <a href="https://www.britannica.com/biography/Ratko-Mladic">Ratko Mladic,</a> then wanted for genocide by the U.N. International Criminal Tribunal in the former Yugoslavia. </p>
<p>That judgment by the International Court of Justice was a big blow and disappointment to many Bosnian Muslims and global human rights activists. </p>
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<a href="https://images.theconversation.com/files/569114/original/file-20240112-29-jzu5xc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People stand on the street and hold up large banners of kidnapped Israeli family members, with the words 'Bring them home now,' and 'She can't testify.' They also have Israeli flags." src="https://images.theconversation.com/files/569114/original/file-20240112-29-jzu5xc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569114/original/file-20240112-29-jzu5xc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569114/original/file-20240112-29-jzu5xc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569114/original/file-20240112-29-jzu5xc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569114/original/file-20240112-29-jzu5xc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569114/original/file-20240112-29-jzu5xc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569114/original/file-20240112-29-jzu5xc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Pro-Israel protestors on Jan. 12, 2024, near the International Court of Justice wave flags and banners about hostages held in Gaza.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-israel-protesters-with-banners-and-flags-stand-next-to-news-photo/1927317158?adppopup=true">Michel Porro/Getty Images</a></span>
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<h2>How long could it take the ICJ to determine whether Israel committed genocide?</h2>
<p>It could take a number of years. The Bosnia-Serbia case took 14 years. It is unclear if the South Africa-Israel case would have to wait for a final judgment to first be rendered in the Gambia-Myanmar and Ukraine-Russia cases, which have not concluded. </p>
<p><em>This is an update of a previous story, <a href="https://theconversation.com/what-enforcement-power-does-the-international-court-of-justice-have-in-south-africas-genocide-case-against-israel-220523">originally published</a> on Jan. 13, 2024.</em></p><img src="https://counter.theconversation.com/content/222109/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Victor Peskin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While the International Court of Justice lacks enforcement powers, its new provisional measure could heighten pressure on both Israel and Hamas to save civilian lives and free the hostages in Gaza.Victor Peskin, Associate professor of politics and global studies, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2215122024-01-24T12:34:21Z2024-01-24T12:34:21ZSouth Africa’s genocide case against Israel is the country’s proudest foreign policy moment in three decades<p>On 11 January 2024, South Africa <a href="https://www.icj-cij.org/case/192">hauled</a> Israel before the International Court of Justice (ICJ) on the charge of violating the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">1948 Genocide Convention</a>. This was for Israel’s indiscriminate bombing and siege of Gaza following the deadly 7 October attack on Israel by Hamas which claimed 1,200 Israeli lives.</p>
<p>More than 25,000 Palestinians, at least half of them children, have reportedly <a href="https://apnews.com/article/israel-hamas-war-gaza-health-ministry-health-death-toll-59470820308b31f1faf73c703400b033">been killed </a>in Israeli retaliatory attacks. The siege has led to a humanitarian crisis, as civilians struggle to get food and and have no access to hospitals, which have been <a href="https://www.aljazeera.com/features/2023/10/21/analysis-the-military-logic-behind-israels-total-gaza-siege">all but totally destroyed</a>.</p>
<p>The South African team of lawyers pleaded with the court to impose <a href="https://theconversation.com/south-africas-genocide-case-against-israel-expert-sets-out-what-to-expect-from-the-international-court-of-justice-220692">provisional measures</a> – temporary orders to stop irreparable harm, including an immediate ceasefire – while the court considers the merits of the case.</p>
<p>As observers of South Africa’s international relations, we believe this move to be the high-water mark in the country’s foreign policy since the end of apartheid in 1994.</p>
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<a href="https://theconversation.com/south-africas-foreign-policy-under-ramaphosa-has-seen-diplomatic-tools-being-used-to-provide-leadership-as-global-power-relations-shift-218966">South Africa's foreign policy under Ramaphosa has seen diplomatic tools being used to provide leadership as global power relations shift</a>
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<p>South Africa’s liberation is sometimes portrayed as the <a href="https://global.oup.com/academic/product/postscripts-on-independence-9780199479641?cc=us&lang=en&">last act</a> of 20th century decolonisation: the crowning moment of <a href="https://www.britannica.com/money/topic/Third-World">“Third World”</a> solidarity. The country’s new approach to foreign policy symbolised the hopes of countries that struggled for freedom. The (now governing) ANC’s discussion document of 1994 <a href="https://www.anc1912.org.za/policy-documents-1994-foreign-policy-perspective-in-a-democratic-south-africa/">stated</a>: </p>
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<p>a democratic South Africa will be in solidarity with all those whose struggle continues.</p>
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<h2>From Mandela to Ramaphosa</h2>
<p>Nelson Mandela, the first president of democratic South Africa, <a href="https://www.foreignaffairs.com/articles/south-africa/1993-12-01/south-africas-future-foreign-policy">advocated for human rights</a>, sometimes even at the expense of <a href="https://www.icirnigeria.org/mandela-begged-abacha-not-to-execute-ken-saro-wiwa-and-companions/">African partners</a>. That early promise was progressively whittled down. </p>
<p>In 1995, for example, Mandela pleaded with then Nigerian military head of state <a href="https://www.britannica.com/biography/Sani-Abacha">Sani Abacha</a> to spare the lives of <a href="https://www.britannica.com/biography/Ken-Saro-Wiwa">Ken Saro-Wiwa</a> and eight other Ogoni activists. Critics of the Nigerian government’s failure to act against foreign oil companies causing environmental damage, they were accused of murdering Ogoni chiefs. Mandela’s pleas fell on deaf ears and they were <a href="https://www.icirnigeria.org/mandela-begged-abacha-not-to-execute-ken-saro-wiwa-and-companions/">executed</a>.</p>
<p>In his <a href="https://archive.nelsonmandela.org/index.php/za-com-mr-s-1576">scathing response</a>, Mandela called for Nigeria to be expelled from the Non-Aligned Movement and the Commonwealth until it established democratic rule. South Africa also recalled its High Commissioner to Lagos for consultations.</p>
<p>From the late 1990s, under the succeeding presidencies of Thabo Mbeki, Jacob Zuma and Cyril Ramaphosa, the South African government has often supported authoritarian regimes in the global south, often in repudiation of people’s struggles. Examples are <a href="https://www.theguardian.com/world/2011/sep/27/dalai-lama-banned-south-africa">China</a>, <a href="https://www.actionsa.org.za/human-rights-will-be-the-light-that-guides-actionsas-foreign-policy/">Russia</a>, <a href="https://www.aljazeera.com/news/2017/7/6/icc-s-africa-broke-rules-by-failing-to-arrest-bashir">Sudan</a> and <a href="https://www.aljazeera.com/opinions/2023/6/8/south-africa-is-failing-and-its-failing-zimbabwe-too">Zimbabwe</a>. </p>
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Read more:
<a href="https://theconversation.com/south-africa-and-russia-president-cyril-ramaphosas-foreign-policy-explained-198430">South Africa and Russia: President Cyril Ramaphosa's foreign policy explained</a>
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<p>South African foreign policy is often described as being <a href="https://open.uct.ac.za/items/9dbfd78a-e95b-469c-8131-f2bd263f385d">inconsistent</a>, <a href="https://www.jstor.org/stable/10.18772/22010105027.14">unclear and insincere</a>. </p>
<p>Palestine remains the single issue on which South Africa’s support for a people’s struggle has been unquestionably consistent. </p>
<h2>Solidarity with Palestine</h2>
<p>During the Cold War, the apartheid South African and Israeli states <a href="https://www.sahistory.org.za/archive/unspoken-alliance-israels-secret-relationship-apartheid-south-africa-sasha-polakow-suransky">collaborated</a> on military, diplomatic and nuclear issues. The liberation movements of these two countries – namely the Palestinian Liberation Organisation (PLO) and the African National Congress (ANC) – practised an alternative form of internationalism. This was subversive and inspired by people’s solidarity in the Third World. </p>
<p>In 1974, when the PLO leader Yasser Arafat <a href="https://www.jstor.org/stable/2535860?seq=1">addressed</a> the United Nations General Assembly, the first liberation leader to do so, he called for the same right to be extended to other liberation movements. Arafat used the occasion to denounce the apartheid regime with the same vehemence as he used to criticise Israel.</p>
<p>Two years later, the then ANC president, <a href="https://theconversation.com/south-africas-anc-is-celebrating-the-year-of-or-tambo-who-was-he-85838">Oliver Tambo</a>, stood before the same body and both <a href="http://www.gutenberg-e.org/pohlandt-mccormick/pmh03i.html">applauded</a> Arafat’s leadership on this matter and expressed “unswerving solidarity” with the Palestinians.</p>
<p>In addition to diplomatic support, the two movements shared resistance tactics.</p>
<p>Arafat’s own faction within the PLO, Fatah, assisted the ANC and other resistance movements <a href="https://global.oup.com/academic/product/armed-struggle-and-the-search-for-state-9780198292654?lang=en&cc=gb">to acquire training and arms</a>. Importantly, the relations between Tambo and Arafat were based on trust. In 1988, Tambo asked Arafat to help with securing funding from the Middle Eastern countries and requested the PLO to become a financial trustee of funds from that region. </p>
<h2>The lodestar</h2>
<p>This consistency of approach and support was reflected in South Africa’s case before the ICJ. It has put the promise of liberation back into South Africa’s national consciousness. This imaginative initiative reveals a sense of clarity that the country’s foreign policy has lacked due to its <a href="https://open.uct.ac.za/items/9dbfd78a-e95b-469c-8131-f2bd263f385d">inconsistencies</a> which resulted in contradictory choices in the 21st century.</p>
<p>It stays true to the <a href="https://www.foreignaffairs.com/articles/south-africa/1993-12-01/south-africas-future-foreign-policy">founding principles</a> of the post-apartheid polity. Not only was this needed in the country’s approach to international affairs, but it is vitally important to restore its self-image. </p>
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Read more:
<a href="https://theconversation.com/south-africas-foreign-policy-new-paper-sets-the-scene-but-falls-short-on-specifics-188253">South Africa's foreign policy: new paper sets the scene, but falls short on specifics</a>
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<p>South Africa’s <a href="https://theconversation.com/south-africas-legal-team-in-the-genocide-case-against-israel-has-won-praise-who-are-they-221019">team</a> at The Hague included opponents of the ANC government. As they argued the legal and ethical case against Israel’s genocidal ambitions, their country watched in hope. </p>
<p>Could its international relations finally live up to the high ideals the country set for itself when apartheid ended? </p>
<p>South Africa’s appearance before the ICJ is an affirmation of the moral compass that the ANC government has <a href="https://pari.org.za/new-book-state-capture-in-south-africa-how-and-why-it-happened/">lost</a>.</p><img src="https://counter.theconversation.com/content/221512/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Palestine remains the single issue on which South Africa’s support for a people’s struggle has been unquestionably consistent.Peter Vale, Senior Research Fellow, Centre for the Advancement of Scholarship, University of Pretoria., University of PretoriaVineet Thakur, Assistant Professor, International Relations, Leiden UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2211142024-01-16T00:55:36Z2024-01-16T00:55:36ZNew Zealand can learn from South Africa, The Gambia and others when it comes to international accountability<p>In 2023 the world witnessed a sustained attack on the very foundations of the international legal order. </p>
<p>Russia, a permanent member of the United Nations Security Council, <a href="https://commonslibrary.parliament.uk/research-briefings/cbp-9847/">continued its illegal invasion in Ukraine</a>. Israel’s response to the <a href="https://www.theguardian.com/world/2023/oct/07/israel-strikes-back-after-massive-palestinian-attack">October terrorist attack by Hamas</a> exceeded its legitimate right to self-defence. And <a href="https://theconversation.com/why-venezuela-is-threatening-to-annex-guyanas-oil-rich-province-of-essequibo-219352">Venezuela threatened force against Guyana</a> over an oil-rich area of disputed territory. </p>
<p>But is it all bad news for the international legal order? </p>
<p>There are six ongoing international court cases initiated by states or organisations seeking to clarify the law and hold other states to account on behalf of the international community. </p>
<p>These cases offer smaller countries, such as New Zealand, an opportunity to have a significant role in strengthening the international legal order and ensuring a pathway towards peace.</p>
<h2>A departure from the legal norm?</h2>
<p>Normally, <a href="https://www.icj-cij.org/cases">cases are brought</a> to the International Court of Justice (ICJ) when a state’s direct interests are impacted by the actions of another state.</p>
<p>However, six recent court cases reflect a significant departure from this tradition and mark an important development for international justice. </p>
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Read more:
<a href="https://theconversation.com/south-africa-has-made-its-genocide-case-against-israel-in-court-heres-what-both-sides-said-and-what-happens-next-221017">South Africa has made its genocide case against Israel in court. Here's what both sides said and what happens next</a>
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<p>These cases argue the international community has a collective interest in certain issues. The focus of the cases range from Israel’s actions in Gaza (brought by South Africa) through to the responsibility of states to ensure the protection of the climate system (brought by the United Nations General Assembly).</p>
<h2>Holding states accountable for genocide</h2>
<p>Three of the six cases seek to hold states accountable for genocide using Article IX of the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%2520on%2520the%2520Prevention%2520and%2520Punishment%2520of%2520the%2520Crime%2520of%2520Genocide.pdf">1948 Genocide Convention</a>. Put simply, Article IX says disputes between countries can be referred to the ICJ. </p>
<p>In late December, South Africa <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231229-pre-01-00-en.pdf">asked the court</a> to introduce <a href="https://theconversation.com/south-africa-is-taking-israel-to-court-for-genocide-in-palestine-what-does-it-mean-for-the-war-in-gaza-220660">provisional measures</a> – a form of international injunction – against Israel for genocidal acts in Gaza. </p>
<p>These proceedings build on the precedent set by a 2019 case brought by <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf">The Gambia against Myanmar</a> for its treatment of the Rohingya people. </p>
<p>In 2022, the ICJ concluded it had jurisdiction to hear The Gambia’s case on the basis that all parties to the Genocide Convention have an interest in ensuring the prevention, suppression and punishment of genocide. </p>
<p>According to the ICJ, The Gambia did not need to demonstrate any special interest or injury to bring the proceedings and, in effect, was entitled to hold Myanmar to account for its treatment of the Rohingya people on behalf of the international community as a whole. </p>
<p>South Africa has <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">made the same argument</a> against Israel. </p>
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<p>In the third case, Ukraine was successful in obtaining <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf">provisional measures</a> calling on Russia to suspend military operations in Ukraine (a call which has been reiterated in several <a href="https://www.un.org/en/ga/sessions/emergency11th.shtml?_gl=1*1i8bd0e*_ga*MTc2NzMyNjk4MC4xNjkxOTc0NjUx*_ga_S5EKZKSB78*MTcwNDY3Mjk1MC4xLjAuMTcwNDY3Mjk1NC41Ni4wLjA.*_ga_TK9BQL5X7Z*MTcwNDY3Mjk1MC4zLjAuMTcwNDY3Mjk1MC4wLjAuMA..">United Nations General Assembly resolutions</a>). </p>
<p>While Ukraine is directly impacted by Russia’s actions, 32 states, including <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220728-WRI-01-00-EN.pdf">New Zealand</a>, have also intervened. These countries have argued there is an international interest in the resolution of the conflict. </p>
<p>In November 2023, following the example of intervention in Ukraine v. Russia, seven countries – Canada, Denmark, France, Germany, the Netherlands, the United Kingdom (jointly) and the Maldives – <a href="https://www.icj-cij.org/case/178/intervention">filed declarations of intervention</a> in The Gambia v. Myanmar, in support of The Gambia and the international community. </p>
<p>States can apply for permission to intervene in proceedings where they have an interest of a legal nature that may be affected by the decision in the case (in the case of the ICJ, under <a href="https://www.icj-cij.org/statute">Article 62 of the ICJ Statute</a>). That said, intervening in judicial proceedings in support of the legal order or international community more generally was relatively rare until 2023. </p>
<h2>Climate change obligations under international law</h2>
<p>But it is not just acts of genocide that have attracted wider international legal involvement. </p>
<p>In 2023, three proceedings seeking advisory opinions on the legal obligations of states in respect of climate change under international law have been introduced before the <a href="https://www.icj-cij.org/sites/default/files/case-related/187/187-20230412-app-01-00-en.pdf">ICJ</a>, the <a href="https://www.itlos.org/en/main/cases/list-of-cases/request-for-an-advisory-opinion-submitted-by-the-commission-of-small-island-states-on-climate-change-and-international-law-request-for-advisory-opinion-submitted-to-the-tribunal/">International Tribunal for the Law of the Sea</a> and the <a href="https://www.corteidh.or.cr/docs/opiniones/soc_1_2023_en.pdf">Inter-American Court of Human Rights</a>. </p>
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Read more:
<a href="https://theconversation.com/myanmar-charged-with-genocide-of-rohingya-muslims-5-essential-reads-128742">Myanmar charged with genocide of Rohingya Muslims: 5 essential reads</a>
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<p>These cases can be similarly characterised as having been brought on behalf of the international community for the international community. <a href="https://www.itlos.org/fileadmin/itlos/documents/cases/31/written_statements/1/C31-WS-1-3-New_Zealand.pdf">New Zealand</a> has intervened in the Law of the Sea case.</p>
<p>Collectively, these six cases comprise actions taken on behalf of the international community with the overarching purpose of strengthening the international legal order. </p>
<p>They demonstrate faith in and support for that legal order in the face of internal and external challenges, and constitute an important counter-narrative to the prevailing view that the international legal order is <a href="https://www.ejiltalk.org/project-2100-is-the-international-legal-order-fit-for-purpose/">no longer robust</a>. </p>
<p>Instituting proceedings does not guarantee a positive outcome. But it’s worth noting that less than three years after the ICJ issued an <a href="https://www.icj-cij.org/case/169">advisory opinion</a> condemning the United Kingdom’s continued occupation of the Chagos Archipelago, the UK is quietly negotiating with Mauritius for the <a href="https://www.theguardian.com/world/2022/nov/03/uk-agrees-to-negotiate-with-mauritius-over-handover-of-chagos-islands">return of the islands</a>.</p>
<h2>New Zealand’s support for the global legal order in 2024</h2>
<p>The international legal order underpins New Zealand’s security and prosperity. New Zealand has a strong and internationally recognised track record of positive intervention in judicial proceedings in support of that order. </p>
<p>In 2012 <a href="https://www.icj-cij.org/sites/default/files/case-related/148/17256.pdf">New Zealand intervened</a> in the case brought by <a href="https://www.icj-cij.org/case/148">Australia against Japan</a> for whaling in the Antarctic. Following our contributions to cases before the ICJ and ITLOS in 2023, we are well placed to continue that intervention in future judicial proceedings. </p>
<p>Calls have already been made for New Zealand to intervene in <a href="https://www.thepost.co.nz/nz-news/350142118/government-urged-join-genocide-case-against-israel">South Africa v. Israel</a>. Contributing to this case and to The Gambia v. Myanmar proceeding provides an important opportunity for New Zealand to make a proactive and substantive contribution to strengthening the international legal order.</p><img src="https://counter.theconversation.com/content/221114/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karen Scott does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Six cases are testing international accountability mechanisms and showing how small countries like New Zealand can impact global justice.Karen Scott, Professor in Law, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2139862023-09-27T20:05:50Z2023-09-27T20:05:50ZUkraine and Russia traded barbs in the UN’s top court over the legality of the invasion. What could happen next in the case?<p>In the days immediately following Russia’s invasion of Ukraine in February 2022, the Ukrainian government <a href="https://apnews.com/article/russia-ukraine-media-united-nations-netherlands-moscow-8ef82dabe40c0340c162f61479a9aa27">filed a case</a> against Moscow in the UN’s highest court, the International Court of Justice.</p>
<p>Ukraine accuses Russia of violating the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">Genocide Convention</a> by falsely claiming its invasion was required because Ukraine’s government and military were committing genocide against Russian speakers in eastern Ukraine. Ukraine argues Russia has abused the convention by using these claims to justify its invasion.</p>
<p>Over the past fortnight, both sides finally had their day in court. The ICJ <a href="https://www.icj-cij.org/case/182">heard</a> from Ukraine, Russia and 32 other countries in hearings that will determine if the case moves forward. Even though the court has little power to enforce its judgments, the results of this case will still have huge symbolic importance.</p>
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Read more:
<a href="https://theconversation.com/putins-claims-that-ukraine-is-committing-genocide-are-baseless-but-not-unprecedented-177511">Putin's claims that Ukraine is committing genocide are baseless, but not unprecedented</a>
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<h2>Why does Russia object to the case proceeding?</h2>
<p>Ukraine is arguing that the court should have jurisdiction because Article IX of the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">Genocide Convention</a> – to which both Russia and Ukraine are parties – permits it to hear cases relating to the “interpretation, application or fulfilment” of the convention. </p>
<p>Russia is arguing the ICJ does not have jurisdiction to proceed with the case. It says the court can only hear a case when states have consented to its jurisdiction ahead of time, and where the dispute relates to the subject matter covered by the Genocide Convention. </p>
<p>Russia contends its war in Ukraine has nothing to do with genocide, but rather is justified under the <a href="https://www.un.org/en/about-us/un-charter">UN Charter</a> and customary international law that governs the use of force between states. </p>
<p>As such, there is no dispute between it and Ukraine regarding the “interpretation, application or fulfilment” of the Genocide Convention. Russia says Ukraine is instead attempting to “shoehorn” a claim about the legality of the 2022 invasion into an argument about the interpretation of the Genocide Convention.</p>
<h2>What happened at the hearings?</h2>
<p>The oral statements were replete with barbs directed at each side. Russia’s representative, Gennady Kuzmin, referred to Ukraine’s “Western handlers” and alleged Ukrainian Nazi associations no less than 37 times. </p>
<p>Ukraine’s representative, Anton Korynevych, boldly declared that “every missile that Russia fires at our cities, it fires in defiance of this court”. </p>
<p>A casual listener may not have realised the parties were talking about the same case, so far apart were their presentations on the facts and the law.</p>
<p>Ukraine presented significant evidence that Russia did refer to genocide before the invasion – rather a lot. As a result, it argued the case falls within the confines of the Genocide Convention.</p>
<p>Ukraine also argued that if a state believes another state is committing genocide, it cannot act unlawfully (in this case, using military force) to prevent that genocide. This would be in breach of Article 1 of the convention. </p>
<p>Russia denies outright that it ever based its invasion on the Genocide Convention. </p>
<p>Russia also argues that by adopting Ukraine’s interpretation of the Genocide Convention, the court will then be empowered to rule on the overall legality of the invasion – a question that is not governed by the convention. </p>
<p>Dozens of other countries also appeared before the court, largely European states, but also Australia, New Zealand and Canada. This was an unprecedented event; never before in the court’s history have so many countries intervened in a case. </p>
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<p>As such, the court had to organise the proceedings carefully. With all of these countries coming, rather explicitly, in support of Ukraine, the court was faced with a situation that could have called into question its impartiality: one side would have a much longer time to argue its case than the other.</p>
<p>The court therefore limited the 32 countries to time slots of 10-15 minutes to present their submissions, which were restricted to offering their views on whether the court has jurisdiction. And it gave Russia twice as much time to reply. </p>
<p>This was an important step to ensure the equality of the parties before the court. The ICJ has taken great pains to ensure its proceedings in this case are impartial and legitimate.</p>
<h2>What happens next?</h2>
<p>The court will now retire to decide whether it has jurisdiction. The case is not open and shut. The fact that 32 countries considered it necessary to intervene at this stage attests to that. </p>
<p>If the court accepts one of Russia’s arguments, the case may end here. But if it rejects all of Russia’s objections, the case will proceed to a hearing on the merits. This is when the court would decide whether or not Russia has contravened the Genocide Convention and made false allegations of genocide against Ukraine. </p>
<p>Ukraine has also requested the court order Russia to pay compensation for the damage caused by the war.</p>
<h2>If this is what international justice looks like, is it useful?</h2>
<p>Given recent history suggests it’s unlikely Russia will comply with any judgment the court issues, one may be tempted to conclude the proceedings are, for want of a better word, pointless. </p>
<p>But any order from the court – including one ordering compensation – would remain binding on Russia and could feasibly be implemented by a new Russian government at some point in the future. </p>
<p>However, this is the limit of the court’s power. It cannot enforce its judgment using an international police force, for no such thing exists. It cannot – in contrast to the International Criminal Court – issue a warrant for Putin’s arrest. (The ICC <a href="https://www.theguardian.com/world/2023/mar/17/icc-arrest-warrant-vladimir-putin-explainer">did this</a> in March in a separate case.)</p>
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<a href="https://theconversation.com/ukraine-war-iccs-putin-arrest-warrant-may-be-symbolic-but-must-be-the-beginning-of-holding-the-russian-leader-accountable-201907">Ukraine war: ICC's Putin arrest warrant may be symbolic but must be the beginning of holding the Russian leader accountable</a>
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<p>Despite the court’s limitations, the importance of these hearings lies predominantly in <a href="https://cil.nus.edu.sg/blogs/great-hall-small-states/">symbolism</a> and <a href="https://cil.nus.edu.sg/blog/symposia/small-states-legal-argument-and-international-disputes/">politics</a>. </p>
<p>Russia used the court’s platform to rail against NATO and Ukraine’s “32 partisans” despite the fact this had nothing to do with the case; it scores points at home and with Russia’s allies. </p>
<p>For Ukraine, there is now an opportunity to secure a “win” in a protracted war. The battle for hearts and minds is just as important as the one on the ground – and it is one in which Ukraine presently has the ascendancy.</p><img src="https://counter.theconversation.com/content/213986/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Juliette McIntyre has been personally sanctioned by the Russian government for her previous publications in respect of the war in Ukraine.</span></em></p>Ukraine is seeking compensation from Russia in the case, but the International Court of Justice needs to agree to hear it first.Juliette McIntyre, Lecturer in Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1251022019-12-10T11:34:12Z2019-12-10T11:34:12ZWhy Aung San Suu Kyi is in The Hague defending Myanmar against allegations of genocide<p>In what is likely to be a remarkable moment for international justice, Aung San Suu Kyi, the political leader of Myanmar and a Nobel peace prize winner, will <a href="https://www.theguardian.com/world/2019/nov/20/aung-san-suu-kyi-to-defend-myanmar-against-genocide-charge-at-the-hague">be in The Hague</a> this week to lead her country’s defence against allegations of genocide. </p>
<p>On November 11, the Gambia launched <a href="https://www.icj-cij.org/files/case-related/178/178-20191111-PRE-01-00-EN.pdf">proceedings</a> against Myanmar before the International Court of Justice (ICJ) for alleged violations of the <a href="https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf">Convention on the Prevention and Punishment of the Crime of Genocide</a>. I have looked into the question of atrocity crimes, including genocide, as part of my <a href="https://academic.oup.com/jcsl/article-abstract/23/2/173/5086414">recent research</a> on the principle of the responsibility to protect in international law. </p>
<p>The case focuses on the clearance operations carried out from around October 2016 by Myanmar’s military and security forces against the Rohingya Muslims, a distinct ethnic and religious group that resides primarily in Myanmar’s Rakhine state. </p>
<p>The Gambia <a href="https://www.icj-cij.org/files/case-related/178/178-20191111-PRE-01-00-EN.pdf">claims</a> that those operations amounted to a genocidal campaign of violence that included mass murder, forcible displacement, rape, and other forms of sexual violence. The UN says that <a href="https://www.unhcr.org/uk/rohingya-emergency.html">742,000 Rohingya</a> have fled Myanmar for neighbouring Bangladesh since 2017 and many are still living in dire conditions <a href="https://theconversation.com/citizens-of-nowhere-one-million-rohingya-still-without-rights-status-or-justice-122135">in refugee camps</a>. </p>
<p>During the public hearings that the ICJ will <a href="https://www.icj-cij.org/files/case-related/178/178-20191118-PRE-01-00-EN.pdf">hold</a> between December 10 and 12, the Gambia will essentially ask the court to order Myanmar to prevent ongoing atrocities against the Rohingya so as to protect them from further, irreparable harm – something known as “provisional measures”.</p>
<p>This is the third time that the world’s court has been called to establish whether a state is responsible under international law for breaches of the genocide convention. In 2015, the ICJ <a href="https://www.icj-cij.org/files/case-related/118/118-20150203-JUD-01-00-EN.pdf">ruled</a> that neither Croatia nor Serbia had committed genocide during the hostilities that took place in Croatia between 1991 and 1995. In a 2007 case brought by Bosnia-Herzegovina, the court also <a href="https://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf">cleared</a> Serbia of direct responsibility for genocide and complicity in genocide in relation to the 1995 massacre of Srebrenica. </p>
<p>This means that the ICJ has never held a state responsible for committing genocide. In this respect, the 2007 and 2015 verdicts reveal some of the obstacles that the Gambia will face in persuading the court that Myanmar committed genocide against members of the Rohingya group. </p>
<h2>Proving ‘intent’</h2>
<p>The genocide <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">convention</a> lists a number of acts, including killing or causing serious bodily or mental harm, that may constitute genocide provided that they are committed with the “intent to destroy”, in whole or in part, a national, ethnic, racial or religious group. </p>
<p>It is precisely the existence of this special intent that distinguishes genocide from other heinous crimes. This is of special importance given the difficulty of proving genocidal intent in a courtroom. In the absence of direct conclusive evidence, the ICJ will infer genocidal intent from particular circumstances – such as a pattern of acts committed against members of the targeted group – only if the circumstances point unequivocally to the existence of that intent. </p>
<p>Adopting this strict approach in both the 2007 and 2015 judgements, the court determined – with the only exception of Srebrenica – that the atrocities committed during the conflicts in Croatia and Bosnia lacked the requisite intent to destroy the targeted groups, and so could not be qualified as genocide. In the case of Srebrenica, the court <a href="https://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf">ruled</a> that the acts “were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina” and were therefore genocide. </p>
<p>Still, it found that Serbia itself was not directly responsible for the massacre, which was committed by Bosnian Serbs. Serbia was nevertheless found responsible for failing to prevent genocide given that it was in a position of influence over those who devised and implemented it.</p>
<p>The rationale for setting such a high standard of proof is, in the ICJ’s <a href="https://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf">words,</a> that: “Claims against a state involving charges of exceptional gravity must be proved by evidence that is fully conclusive.” </p>
<p>Unsurprisingly, this stringent approach has been the object of much criticism. One of the current judges sitting at the ICJ, Cançado Trindade, noted in 2015 that imposing such a high threshold for proof of genocide <a href="https://www.icj-cij.org/files/case-related/118/118-20150203-JUD-01-05-EN.pdf">runs the risk</a> of reducing the genocide convention to a dead letter.</p>
<h2>UN fact-finding mission</h2>
<p>To demonstrate the genocidal nature of the violence against the Rohingya, the Gambia – which is backed by the 57 members of the Organisation of Islamic Cooperation – will rely extensively on UN sources. In March 2017 the UN Human Rights Council created an <a href="https://www.ohchr.org/en/hrbodies/hrc/myanmarffm/pages/index.aspx">Independent International Fact-finding Mission on Myanmar</a> and tasked it with establishing the facts and circumstances of the human rights violations committed by Myanmar’s military and security forces against the Rohingya. </p>
<p>The implications of the mission’s investigative activities could be profound. In the 2007 genocide case, the ICJ relied heavily on the judgements of the International Criminal Tribunal for the former Yugoslavia (ICTY) to conclude that genocide was committed at Srebrenica. The authoritativeness of the UN’s factfinding mission to Myanmar cannot be equated to that of a tribunal such as the ICTY. Yet, the ICJ is likely to give serious consideration to the mission’s reports in light of the care taken in preparing them, their comprehensiveness, and the independence of those responsible for their preparation.</p>
<p>Crucially, the <a href="https://undocs.org/A/HRC/39/CRP.2">2018</a> and <a href="https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf">2019</a> reports infer genocidal intent behind the attacks against the Rohingya from a number of factors and circumstances linked to, among other others, the brutality and the scale of destruction of the military operations as well as the widespread use of rape and sexual assault during those operations. </p>
<p>The ICJ judges will need to be satisfied with the solidity of this inference of genocidal intent by the UN mission. However, the very fact that they will have to engage with and determine the weight of those findings as evidence will be of paramount importance.</p>
<p>After ruling on the question of provisional measures – and assuming that no <a href="https://www.ejiltalk.org/the-gambias-gamble-and-how-jurisdictional-limits-may-keep-the-icj-from-ruling-on-myanmars-alleged-genocide-against-rohingya/">jurisdictional obstacles</a> will be identified – the court will fix time limits for the filing of the parties’ written pleadings in the case. After the written and then oral proceedings, the court will begin its deliberation and so it will be <a href="https://www.icj-cij.org/en/contentious-cases">some years</a> before a final decision on this important case is made.</p><img src="https://counter.theconversation.com/content/125102/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mauro Barelli does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A case brought by the Gambia claims that Myanmar’s military committed genocide against its Rohingya Muslim minority.Mauro Barelli, Senior Lecturer in Law, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/878882017-11-21T14:00:28Z2017-11-21T14:00:28ZPolitics won out over international law in recent UN elections<p>For the first time in the court’s history, the UK will not have a judge sitting at the International Court of Justice (ICJ). Christopher Greenwood, who was seeking a second nine-year term, <a href="https://www.theguardian.com/law/2017/nov/20/no-british-judge-on-world-court-for-first-time-in-its-71-year-history">pulled out of the race</a> on November 20, allowing India’s candidate to take the contested seat. This follows weeks of conflict and tension, with a sizeable majority of the UN General Assembly having voted in favour of Judge Dalveer Bhandari. The situation reveals a lot about the internal politics of the UN – because it was politics, not candidate suitability, that determined this recent election.</p>
<p>The UK is one of the five Permanent Members of the UN Security Council, and that group – the “P5” – has held a vice-like grip on power throughout the UN’s seven decades of existence. The ICJ election is one of the few ways in which the full UN membership has an opportunity to express its dissatisfaction with P5 dominance at the UN; and what is clear is that the dissatisfaction and frustration runs deep.</p>
<p>The problem lies in the fact that the P5 – China, France, Russia, UK, and US – insisted on exceptional powers at the time that the UN was created. The failure of the <a href="http://www.bbc.co.uk/history/worldwars/wwone/league_nations_01.shtml">League of Nations</a> had led to World War II, and those countries that led the defeat of Nazi Germany insisted that they shape the United Nations in such a way as to be able to stop a third world war. The key way in which those countries could ensure that such an aim was met was by holding permanent seats and veto powers at the Security Council, the body given the task of and necessary powers to ensure international peace and security.</p>
<p>But P5 power extends far beyond just the Security Council. The convention of all P5 members having judges sitting at the ICJ has only one previous exception (China, 1967-1985). Until 2006, when the main human rights body was <a href="http://www.ohchr.org/en/hrbodies/hrc/pages/hrcindex.aspx">reformed</a> and membership rules changed, the P5 held <em>de facto</em> permanent seats, as they continue to do at the Economic and Social Council (<a href="http://www.un.org/en/ecosoc/">ECOSOC</a>). And there are many political and expert bodies where P5 dominance is felt in the room even where membership is for fixed, non-renewable terms.</p>
<p>And P5 dominance is not limited to places where states are represented by diplomats. The UN Secretary-General appoints Under-Secretaries General and Assistant-Secretaries General to head key departments and office. P5 countries have traditionally made it clear which bodies they wish to be headed by their nationals. </p>
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<img alt="" src="https://images.theconversation.com/files/195636/original/file-20171121-6061-1df67ui.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/195636/original/file-20171121-6061-1df67ui.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=263&fit=crop&dpr=1 600w, https://images.theconversation.com/files/195636/original/file-20171121-6061-1df67ui.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=263&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/195636/original/file-20171121-6061-1df67ui.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=263&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/195636/original/file-20171121-6061-1df67ui.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=331&fit=crop&dpr=1 754w, https://images.theconversation.com/files/195636/original/file-20171121-6061-1df67ui.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=331&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/195636/original/file-20171121-6061-1df67ui.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=331&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The P5.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/w/index.php?curid=30959622">Mátyás / Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<p>The US continues to try to ensure that one of its nationals is appointed to head the Department for Political Affairs, a post previously filled by a UK national until the UK took the lead on Humanitarian Affairs. France traditionally leads on Peacekeeping Operations, and Russia recently ensured that its former ambassador to the UN was appointed to head the newly-formed Counter-Terrorism office. Of course, formally those positions are political appointments by the Secretary-General – and António Guterres <a href="http://foreignpolicy.com/2017/02/15/big-powers-clip-u-n-secretary-generals-wings/">has indicated</a> that he may well change the <em>staus quo</em> in this regard. But there are significant grumblings about how the areas with the most clout and reach remain in the hands of P5 nationals.</p>
<p>P5 dominance reflected the geopolitical landscape in 1945, but the reality today is that two of those members, France and the UK, can no longer claim to be amongst the most powerful countries economically, militarily or politically. Russia, similarly cannot claim to compete economically or politically with the likes of Germany, Japan, Brazil and India, although it continues to use its military force internationally in a manner long abandoned by France and the UK.</p>
<p>Therefore, calls to reform the Security Council to reflect today’s global landscape have grown louder with every passing year. And given the near impossibility of reforming P5 powers enshrined in the Charter, as they are able simply <a href="http://www.un.org/en/sections/un-charter/chapter-v/index.html">to veto such changes</a>, large parts of the UN membership have sought otherwise to force changes and reforms wherever possible. Elections are one central way of achieving that aim.</p>
<p>Let us be clear, this election was not about who was the more expert judge; but appointments of independent experts at the UN frequently centre as much on politics as they do on qualifications for the role. Both candidates are excellent and highly-qualified. But this election was about nationality, and represents frustration, protest, and calls for change. And it is likely that other P5 states will face similar challenges to their <em>de facto</em> power in similar elections.</p>
<p>And while there is a need to heed those calls for change, it is unlikely that much will change in practice for some time. It is a great shame for international law and justice that this election was decided for political reasons.</p><img src="https://counter.theconversation.com/content/87888/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rosa Freedman receives funding from the AHRC, the British Academy, the ESRC, and the Jacob Blaustein Institute.
</span></em></p>UN appointments frequently centre as much on politics as they do on qualifications for the role.Rosa Freedman, Professor of Law, Conflict and Global Development, University of ReadingLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/755172017-04-05T01:10:08Z2017-04-05T01:10:08ZBosnia’s 25-year struggle with transitional justice<figure><img src="https://images.theconversation.com/files/164098/original/image-20170405-14629-16m39ti.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Graves at the memorial center Potocari, near Srebrenica</span> <span class="attribution"><span class="source">AP Photo/Amel Emric</span></span></figcaption></figure><p>The Bosnian war started 25 years ago this week.</p>
<p>Although bombs ceased falling in 1995, in many ways the people of Bosnia and Herzegovina (BiH) are as divided as ever. The past two decades have repeatedly shown that divisions exacerbated by the war continue to permeate politics. </p>
<p>In fact, according to a 2013 public opinion poll, just one in six residents of BiH feels that the three ethnic groups that live there – the Bosniaks, Serbs and Croats – have reached <a href="http://www.media.ba/sites/default/files/prism_research_for_un_rco_statistical_report_1.pdf">reconciliation</a>.</p>
<p>It would be easy to pass this sentiment off as what one former U.S. secretary of state called “<a href="http://dosfan.lib.uic.edu/ERC/briefing/dispatch/1992/html/Dispatchv3no52.html">ancient tribal, ethnic and religious rivalries</a>.” But I believe it raises profound doubts about the ability of international justice to bring about a more peaceful world.</p>
<p>As I demonstrate in my book, <a href="http://undpress.nd.edu/books/P01398">“The Costs of Justice</a>,” transitional justice – the process of dealing with human rights abuses committed by a previous regime – is an inherently political process made even more contentious by taking it out of the country. The fallout is not just a lack of reconciliation, but also the constant threat of violence. </p>
<p>In BiH, <a href="http://www.media.ba/sites/default/files/prism_research_for_un_rco_statistical_report_1.pdf">more than 30 percent</a> believe a renewal of armed conflict could be right around the corner.</p>
<h2>The G word</h2>
<p>Ongoing resentment in BiH was highlighted by two recent events. </p>
<p>First was the fall election of a Serbian genocide denier, Mladen Grujicic, as mayor of <a href="https://www.hrw.org/news/2005/07/10/legacy-srebrenica">Srebrenica</a> – a town where more than 8,000 Bosniaks, or Bosnian Muslims, were systematically killed in 1995.</p>
<p>Next came the Bosniak response: a February <a href="http://www.rferl.org/a/icj-bosnia-serbia-genocide/28360242.html">request</a> for the International Court of Justice (ICJ) to review its 2007 ruling that cleared the neighboring state of Serbia of complicity in genocide during the war. </p>
<p>The war may be long over, but wounds are still oozing. </p>
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<p>Lack of reconciliation in BiH comes despite – or perhaps because of – a major international effort to ensure justice in the region. BiH, like other states of the former Yugoslavia, was under the jurisdiction of the <a href="http://www.icty.org/en/about">International Criminal Tribunal for the former Yugoslavia</a> (ICTY) at The Hague for more than two decades. </p>
<p>The ICTY’s establishment in 1993 was greeted by human rights advocates as the harbinger of a new era of justice. At the time, transitional justice scholars preached its <a href="https://bookstore.usip.org/books/BookDetail.aspx?productID=51329">numerous benefits</a>. These included deterring future rights violations, strengthening rule of law, increasing the legitimacy of a new regime and, perhaps most importantly, encouraging reconciliation within broader society.</p>
<p>There are many <a href="http://journals.sagepub.com/doi/abs/10.1177/0022343309340108">ways to address</a> past rights abuses – from issuing apologies and providing victim compensation to holding truth commissions and launching criminal trials. The international community has historically focused on the latter – whether at <a href="https://global.oup.com/academic/product/accountability-for-human-rights-atrocities-in-international-law-9780199546671?cc=us&lang=en&">Nuremberg</a>, <a href="http://law2.umkc.edu/faculty/projects/ftrials/tokyo/tokyolinks.html">Tokyo</a> or <a href="http://www.cornellpress.cornell.edu/book/?GCOI=80140100357920">The Hague</a>.</p>
<p>Criminal prosecutions are largely symbolic, but they are nonetheless important. They signal the end of impunity, or the ability to escape punishment, and the start of a more just order. The fact that post-conflict countries frequently lack institutions strong or independent enough to pursue criminal prosecutions on their own makes international mechanisms indispensable. Indeed, BiH’s inability to carry out its <a href="https://www.ictj.org/sites/default/files/ICTJ-FormerYugoslavia-Domestic-Court-2008-English.pdf">own criminal trials</a> for a decade and a half points to a real need for international courts. </p>
<p>But the very process of taking criminal prosecutions out of the domestic purview can ultimately be a <a href="https://global.oup.com/academic/product/accountability-for-human-rights-atrocities-in-international-law-9780199546671?cc=us&lang=en&">blow to justice</a>. Most locals, for instance, lose interest in trials that play out in faraway courtrooms, meaning trials fail to bring about the sorts of dialogue that might lead to mutual understanding. </p>
<p>Formidable challenges of international prosecutions, from learning the intricacies of a foreign culture and political regime to collecting evidence essential for a successful prosecution, mean that international trials also take a long time to complete. And, of course, they are expensive. The <a href="https://www.wcl.american.edu/hrbrief/15/3skilbeck.pdf">ICTY cost</a> more than US$1 billion, or between $10 million and $15 million for each person accused. Various countries, including the United States, footed the bill.</p>
<p>And yet, rather than improve relations in the region, the ICTY may have <a href="http://undpress.nd.edu/books/P01398">incited tensions</a>. Each of the parties claimed they were unfairly targeted. Serbs were infuriated by their overrepresentation on the court’s docket. Croats couldn’t believe that any of their heroes were facing judgment. </p>
<p>Little surprise then that <a href="http://www.media.ba/sites/default/files/prism_research_for_un_rco_statistical_report_1.pdf">only 8 percent</a> of those polled in BiH in 2013 felt the ICTY had done a good job facilitating reconciliation. </p>
<p>While international courts did little for reconciliation, they fundamentally sabotaged more <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2486.2009.00891.x/abstract">organic forms of justice</a> than could otherwise have happened at the local level. In the former Yugoslavia, political leaders who were struggling to balance international pressure for – and domestic opposition to – ICTY cooperation opted for half-baked local initiatives designed to satisfy both. The result was a watered-down <a href="https://www.usip.org/publications/2002/02/truth-commission-serbia-and-montenegro">truth commission</a> here, an <a href="http://www.rferl.org/a/1105227.html">apology</a> of questionable sincerity there. </p>
<p>These half-measures ultimately replaced what might have been <a href="https://academic.oup.com/ijtj/article-abstract/10/2/292/2356904/History-of-a-Failure-Attempts-to-Create-a-National?redirectedFrom=fulltext">more earnest mechanisms</a> had they not been established in the context of ongoing international trials. The recent Bosniak appeal to the ICJ, just like the key political victory of a Serb genocide denier, highlights the degree to which justice and historical memory remain politicized in BiH a quarter-century after the war began. </p>
<h2>The ICTY’s long shadow</h2>
<p>The ICTY and subsequent tribunals demonstrated that international prosecutions can play an important role in ending impunity. But they must carefully balance the need of the international community to ensure accountability with the needs of a local populace to deal with past rights abuses on their own terms. </p>
<p>Limiting international prosecutions to the most serious perpetrators is one way to reach this balance. Few in Serbia shed tears for the arrest of Slobodan Milosevic, a corrupt dictator. </p>
<p>Even then, the recent experience of the International Criminal Court (ICC), established in 2002 as a permanent and global version of the ICTY, demonstrates this can be a tough sell. Numerous African states have accused the ICC of the same bias Yugoslavs attributed to the ICTY. They are <a href="https://www.theguardian.com/law/2017/jan/31/african-leaders-plan-mass-withdrawal-from-international-criminal-court">threatening to withdraw</a> as a result.</p>
<p>Back in Bosnia, the <a href="http://www.rferl.org/a/icj-bosnia-serbia-genocide/28360242.html">ICJ last month rejected</a> the Bosniak request on the grounds it did not come from all three members of the country’s <a href="https://www.theguardian.com/news/datablog/2014/oct/08/bosnia-herzegovina-elections-the-worlds-most-complicated-system-of-government">tripartite presidency</a>. In other words, the very lack of reconciliation between Bosniaks, Serbs and Croats that prompted the initial appeal now makes that appeal impossible. It is ironic that Bosniaks still feel the need to turn to international justice mechanisms for redress. After all, international justice may bear some blame for the predicament they’re in today.</p><img src="https://counter.theconversation.com/content/75517/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Grodsky received funding from a number of organizations while carrying out research in the former Yugoslavia, including grants from Fulbright-Hayes and the Woodrow Wilson International Center for Scholars. </span></em></p>How long does it take to make peace? Decades after the end of the Bosnian war, just one in six residents felt that country had reached reconciliation.Brian Grodsky, Associate Professor of Political Science, University of Maryland, Baltimore CountyLicensed as Creative Commons – attribution, no derivatives.