ICJ ruling could be catalyst for progress

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Abuse of power ranging from environmentally dangerous initiatives to crimes against humanity is increasingly the norm as states seek justice from institutions such as the United Nations, the International Criminal Court (ICC) and the International Court of Justice (ICJ).

However, these international institutions constantly face obstacles to implementing the rulings of the International Court of Justice. Although they are considered the most prominent organizations in the world, their perceived authority is threatened by states that choose to reject their suggestions and directives or withdraw from international jurisdiction, as evidenced by Australia’s actions in 2002 to evade mandatory provisions in large maritime disputes.

Since their inception, these institutions have served as essential references for states to consult with, and in theory abide by. However, an inherent weakness lies in their non-binding nature. The United Nations, the International Criminal Court and the International Court of Justice operate on the basis of mere rulings, suggestions, advisory opinions or investigations, and their reliance on flexible language lacks the concrete enforcement power needed to significantly change state behavior.

The long-awaited ruling of the International Court of Justice in the coming weeks on the landmark case for us as Arabs and Muslims of South Africa’s lawsuit against Israel will have little impact on the ongoing genocide committed by Israel and any ruling issued by the International Court of Justice lacks legal enforceability.

International bodies lack the ability to intervene directly in international conflicts, even in the face of increasing levels of violence. This limitation is particularly troubling in long-term conflicts that do not show great prospects for resolution through the efforts of the two countries concerned alone, necessitating international assistance.

This weakness becomes particularly disturbing in the context of ongoing global conflicts that include human rights violations, crimes against humanity, acts of terrorism, and disturbances of international peace, and these events are in direct conflict with the basic principles and objectives of justice.

United Nations bodies have been entrusted with the task of implementing international judicial rulings issued by the International Court of Justice in accordance with Article 94 of its Charter in Paragraph 2, through the Security Council, which is considered a competent body at the United Nations level to implement these rulings and decisions of the International Court of Justice in favor of one of the parties or based on a decision by it.

If it deems it necessary to intervene. In light of the international criticism directed at the UN Security Council, I believe that among the reasons for failure is the restriction of the United Nations bodies in the implementation process as a result of assigning veto power to the five permanent members, in addition to the lack of a central international authority, which leads to the lack of authority to issue executive measures immediately. Issuance of a ruling or decision in favor of the right holder.

International precedent has made clear that the International Court of Justice is not empowered to impose provisional measures, as demonstrated by the Anglo-Iranian case on jurisdiction.

In submitting its complaints to the UN Security Council, Britain invoked Article 41 of the UN Charter, asserting the Security Council’s authority to deal with orders relating to precautionary measures, this reliance on the provisions of the UN Charter was intended to highlight the practical limitations faced by the International Court of Justice in implementing such measures.

Likewise, in my follow-up to the case of Ukraine against Russia, the International Court of Justice has already indicated, within its interim procedures, that the Russian Federation must immediately suspend the military operations that it began on February 24, 2022 in the territory of Ukraine. Russia objected to the ruling as the war continues to date.

The President of the International Court of Justice, Judge Joan E. Donoghue, representing the United States, will retire in February 2024, and this may be her last ruling, her replacement Judge Sarah Selivland will take over as one of the fifteen judges on the committee.

In either case, even if the interim ruling that is expected to favor South Africa is pronounced, there will be little relief for the Palestinians in Gaza, but it will be a major moral victory over the aggressor and perhaps the beginning of an opportunity to reform the system. If the International Court of Justice finds Israel guilty of human rights violations or unlawful military rule, as has been the case in the past, there is hope that powerful states will feel pressure to modify their current positions.

At the very least, it adds to an important global discourse that can put pressure on society.In cases where other actors have failed to alleviate the plight of Palestinians, the International Court of Justice can serve as the catalyst needed to ignite the flame of progress.

Tareq Yousef AlShumaimry served as advisor and head of the Finance and Administrative Committee and head of the General Budget Committee at the Permanent Court of Arbitration in The Hague (PCA) and an observer in the Administrative Council of the International Court of Justice and at the Embassy of the State of Kuwait in the Netherlands during this period from 2013 to 2020.

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