South Africa is currently proceeding with its case against Israel (South Africa v. Israel) on the basis of a rationale that is similar to both the Gambia’s case against Myanmar and the Netherland’s and Canada’s case against Syria for its alleged violation of the Convention Against Torture — two cases in which the International Court of Justice (ICJ) “found that countries could bring cases even when they had only a generalized interest in enforcing an obligation under the treaties that all states owe to one another and did not otherwise have a direct interest in the dispute.” The legal basis common to all three aforementioned cases is located in a 2019 preliminary ruling by the ICJ in a case the Gambia brought against Myanmar and wherein the ICJ recognized a new form of standing: “erga omnes partes standing, or standing based on obligations ‘in relation to everyone,’ or owed to all. This allows a state, party to a treaty that protects common legal rights, to enforce those rights even if that state is not specially affected by the violation.”1 While the ICJ has been called to pronounce upon the most diverse areas of international law, this 2019 preliminary ruling marked a truly novel moment of jurisprudence by the “principal judicial organ of the United Nations.”
I. Precursors to the International Court of Justice
In 1907, the second Hague Peace Conference convened the 101 States party to the Hague Conventions. At issue was the proposed creation of an International Court of Arbitration and the States who would be represented therein. Yet, in spite of whatever genuine aspirations harbored by the Conference itself, the 1907 Conference would “break up without a single result” given the United States’ and major European powers’ refusal to divest themselves of the power to appoint permanent members to the Court. For both US and European self-interests, however, the main source of frustration came in the figure of Brazilian anti-slavery theorist and statesman, Rui Barbosa, who ‘attacked the Anglo-German-American scheme stipulating’ that endowing the ‘Great Powers’ with the right to appoint permanent members to the International Court of Arbitration would, in effect, guarantee that the ‘Great Powers’ would “no longer be formidable only by the weight of their armies and their fleets. They would also have the superiority of right in the international magistracy, by arrogating unto themselves a privileged position in the institutions to which we pretend to entrust the meting out of justice to the nations.”2 Rejecting Barbosa’s proposal that any future International Court give equal, not hierarchical, representation to the states summoned to it, and without a single result in terms of resolutions or agreements, the 1907 Conference concluded by demonstrating its essential impotence — the “futility of its nominal goal of helping to secure international peace became plain seven years later, with the outbreak of the First World War.”3
After WWI, its victors convened for the Versailles Conference with the purpose of dictating the “terms of peace to Germany, redraw the map of Eastern Europe, divide up the Ottoman empire and — not least — create a new international body devoted to ‘collective security,’ to ensure establishment of durable peace and justice between states, in the shape of the League of Nations.”4 Never having forgotten their experience at the 1907 Conference, the United States ensured Rui Barbosa’s exclusion from the Brazilian delegation. Unlike in 1907, the Versailles Conference was not without its results. The Permanent Court of International Justice (PCIJ) “was set up in the Hague, its Article 38 continuing to invoke ‘the general principles of law recognized by civilized nations.’”5 Established by virtue of Article 14 of the Covenant of the League of Nations, the Permanent Court of International Justice (PCIJ) held its inaugural session in 1922.6 That said, less than ten years before its official dissolution (1946), the PCIJ held its final public sitting on 4 December 1939 “following several years of diminished activity in the 1930s and after the onset of WWII.”7
In 1944, the US, Soviet Union, the UK, and China agreed that a Committee of Jurists would “prepare a draft statute for what was to become the ICJ, for submission to the 1945 San Francisco Conference, where the UN Charter would be drawn up.” That said, and in light of the fraught history in the founding of international institutions for the meting out of justice on the grounds of equality and impartiality, it was telling that the Committee of Jurists, comprised of representatives from 44 states, was chaired by the US State Department legal adviser Green Hackworth. More telling still, was the fact that, precisely at the precise moment of founding “the highest official embodiment of international law, namely the United Nations, whose Charter enshrines the sovereignty and integrity of its members, the United States was engaged in their systematic violation. In an Army base in the old Spanish for a few miles from the inaugural conference that created the United Nations in San Francisco in 1945, a special team of US military intelligence was intercepting all cable traffic by delegates to their home countries; the decoded messages landed on the breakfast table of American Secretary of State Stettinius the next morning. The officer in charge of this round-the-clock operation of surveillance reported that ‘the feeling in the Branch is that the success of the Conference may owe a great deal to its contribution.”8 With regard to this episode of international relations, it was perhaps none other than Perry Anderson who summarized this prehistory of the ICJ best when he remarked on how the UN and its principal organs were “‘from the beginning a project of the United States, devised by the State Department, expertly guided by two hands-on Presidents, and propelled by US power […] For a nation rightly proud of its innumerable accomplishments’ — the most recent, the dropping of atomic bombs on Japan — ‘this unique achievement should always be at the top of its illustrious roster.’”9 On 26 June 1945, the ICJ’s Statute was officially adopted at the San Francisco Conference.
II. The Principal Judicial Organ of the United Nations
As defined by Article 92 of the UN Charter, the “International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.” As for Article 92’s qualification that the ICJ “shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice,” the late Judge of the International Court of Justice (2009-2022), Antônio Augusto Cançado Trindade, emphasized its significance in light of the ICJ’s functional differences from the PCIJ: the significance of Article 92 of the UN Charter stems both from its acknowledgment of the ICJ as the “principal judicial organ of the United Nations” as well as the inclusion of the ICJ Statute within the UN Charter itself. Moreover, the ICJ’s juridical function was clearly defined, endowing the Court with the right to hear cases against states as per Article 34(2) of its Statute to adjudicating disputes between States rather than individuals and/or citizens of UN member States and not individuals, which falls within the purview of the International Criminal Court (ICC).10 In other words, not only is the ICJ’s status as the singular arbiter entrusted with meting out justice in accordance with international law significant; equally important is the degree to which the ICJ has been integrated with the five other ‘principal organs’ of the United Nations: as per Article 7 of the UN Charter, “[t]here are established as the principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat.” By contrast, “the relationship between the Court and the then existing procedures of other (arbitral) organs of dispute-settlement was stated in Article 1 of the PCIJ Statute, in the following terms: the PCIJ would be ‘in addition to the Court of Arbitration organized by the Conventions of The Hague of 1899 and 1907, and to the special Tribunals of Arbitration to which States are always at liberty to submit their disputes for settlement.’”11
III. Between Equal Rights… Force Decides
Regarding the potential for South Africa’s case against Israel to ‘alter the ICJ’s standing’ in the eyes of the international community, Oona A. Hathaway, a nonresident scholar in the Global Order and Institutions Program at the Carnegie Endowment for Peace, remarked that by rendering its decision in the South Africa v. Israel case, “the ICJ made specific reference to the obligation of the parties to abide by the decisions of the court precisely to respond to this concern.” The reasons for this, says Hathaway, are due to the difficulties “for a tribunal to maintain its legitimacy if its orders are regularly ignored.” Moreover, Hathaway notes, this reality “constitutes one of the inherent dilemmas of international tribunals that lack any enforcement capacity (ICJ decisions are formally subject to enforcement by the Security Council, but each of the five permanent members can veto any effort at enforcement). Both of these realities — the importance considering how decisions will be enforced and the divides judges must bridge internally — can cause tribunals to proceed with some caution when it comes to the merits of politically thorny cases.” That said, even if the enforcement of ICJ decisions ultimately depend on the currently existing political will (or lack thereof) within the UN Security Council, “decisions of the ICJ can, nonetheless, carry important weight.” For Hathaway, the ICJ’s decision that Russia’s invasion of Ukraine was unlawful is a case and point since it “likely played a role in many states’ willingness to provide unprecedented financial and military support to Ukraine in its defense against Russia. International law often has force in this way — by shaping how states respond to one another’s actions.”
For the Palestinians in Gaza, the Occupied Territories, and the diaspora, it is unclear how such reminders can serve as a reliable source of conciliation. If only because to praise such acts, whose virtue is reflected in its ability to act “upon possible action, the action of others,”12 is nothing other than to exalt the process by which subjects are constituted and made to live a life of subordination under conditions of genocide. The transformation of ‘relationships of out and out warfare’ into ‘relations of diplomatic confrontation’ that is the very promise of international law and its enforcement simultaneously inaugurate the process of the recomposition and redistribution of relations of power. Precisely because “from the moment it is not a struggle to the death, the fixing of a power relationship becomes a target.”13 In other words, from the moment a ceasefire is announced (and upheld), the singular aim of Zionist settler-colonialism will be one of establishing relations of domination conducive to the necessary conditions for Israel’s continued exercise of influence, management, and control over and against the Palestinian people.
Endnotes
1. “In 2019, The Gambia brought suit against Myanmar in the International Court of Justice to hold it accountable for its alleged genocidal acts against the Rohingya, an ethnic Muslim minority group that has long been subjected to systemic abuse by the Myanmar government. As a State party to the Genocide Convention, The Gambia claimed that it had a common interest in preventing genocide by Myanmar. In a landmark decision issued in 2022, the Court accepted that The Gambia had standing and ordered Myanmar to prevent the commission of genocidal acts against the Rohingya.” For more see Oona A. Hathaway, Alaa Hachem, Justin Cole, ‘A New Tool for Enforcing Human Rights: Erga Omnes Partes Standing,’ Columbia Journal of Transnational Law, Vol. 61, No. 2 (2024),
2. Rui Barbosa, The Proceedings of the Hague Conferences, Vol. II (New York: 1921), 645; 647; cited in Perry Anderson, ‘The Standard of Civilization’, New Left Review 143 (Sept/Oct: 2023), 12, emphasis added
3. Perry Anderson, ‘The Standard of Civilization,’ 12.
4. Ibid.
5. Ibid. Moreover, adds Anderson: “Among those who drafted its Statues was the author of a 600-page defense of the admirable record of Belgian administration in the Congo.”
6. Article 14 provided that: “The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly”.
7. Michael Wood and Eran Sthoeger, The UN Security Council and International Law (Cambridge University Press: 2022), 159.
8. Anderson, ‘The Standard of Civilization,’ 21.
9. Stephen Schlesinger, Act of Creation: The Founding of the United Nations (Boulder: 2003), 331; cited in Perry Anderson, ‘The Standard of Civilization’, New Left Review 143 (Sept/Oct: 2023), 21.
10. The latter is the responsibility of domestic courts, as well as other international courts, including the International Criminal Court (ICC).
11. Antônio Augusto Cançado Trindade, Introductory Note to ‘Statute of the International Court of Justice’ (September: 2014).
12. Michel Foucault, ‘The Subject and Power,’ Critical Inquiry, Vol. 8, No. 4 (Summer, 1982), 777-795, 794.
13. Ibid.
