In January 2024, the spotlight of the world fell on The Hague when South Africa made an application to the International Court of Justice (ICJ) accusing Israel of committing genocide in the Gaza Strip. Despite the Court issuing urgent orders in the case, the humanitarian crisis in the region continues, leading to suggestions that the ICJ somehow lacks authority or power. This is a common misconception. Decisions rendered by the ICJ are binding on all States party to that case. Almost all decisions of the Court are complied with, but it is up to the States themselves, the main actors in the international arena, to implement the Court’s decisions and thereby ensure the maintenance of international peace and security.
The judicial organ of the United Nations
Founded in 1945 by the newly formed United Nations, the ICJ carried on the work started by the Permanent Court of International Justice (PCIJ) in the 1920s.
The election of the first Members of the ICJ took place on 6 February 1946 at the First Session of the United Nations General Assembly and Security Council. In April of that year, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge José Gustavo Guerrero from El Salvador.
The first case submitted to the Court was in May 1947 by the United Kingdom against Albania concerning incidents in the Corfu Channel. Since then, around 200 cases have been brought before the Court by countries all over the world.
The ICJ is the only organ of the United Nations that is located outside of New York. This is significant as it allows the Court to retain its independence away from the more political work of the UN. Quite simply, its location in The Hague alongside the ICC and PCA reflects the ICJ’s position as a cornerstone of international justice.
A unique panel of judges
The ICJ is presided over by 15 sitting judges, each of whom serves a renewable term of nine years. New judges are appointed by the UN General Assembly and the Security Council in simultaneous elections every three years and must include representatives from all regions of the world and every major legal system. All 15 judges sit on every case before the ICJ and reach decisions by a majority vote.
Around 80% of the cases brought before the ICJ are ‘contentious’, meaning they have been brought by one State (or occasionally a group of States) against another to resolve a dispute between them. The remaining caseload is made up of ‘advisory opinions’ in which the Court delivers clarifications on points of international law at the request of UN organs or agencies.
In contentious cases - such as the one involving South Africa and Israel - both parties need to give their consent and accept the jurisdiction of the Court before the ICJ can hear the case. This consent may be given in a number of ways, including by a special agreement, when two or more States with a dispute on a specific issue may agree to submit it jointly to the Court and conclude an agreement for this purpose; by a clause in a treaty (over 300 treaties contain such clauses) by which a State party undertakes to accept the jurisdiction of the Court should a dispute arise with another State party about the interpretation or application of the treaty; this was the situation in the South Africa v. Israel case, where both States are parties to the Genocide Convention; or by a unilateral declaration by which the States parties to the Statute of the Court may opt to recognize the jurisdiction of the Court as binding with respect to any other State also accepting it as binding.
Once accepted by the Court, both contentious and advisory cases follow a similar procedure: an initial written phase and then oral proceedings in the courtroom at the Peace Palace. These are public hearings with an emphasis on transparency. Often, decisions and advisory opinions are delivered to a packed courtroom, with the world’s media looking on.
“The fact that the Court has never been busier, at a time when multilateralism is under threat and grave breaches of international law are of worldwide concern, is a testament to the ICJ’s contribution to the maintenance of international peace and security.”
A ‘state-led’ enforcement mechanism
Ultimately the ICJ’s role in contentious cases is to deliver binding decisions. The enforcement mechanism itself is ‘State-led’ and results in the States in question taking steps to implement the Court’s judgments. In advisory proceedings, it is usually for the United Nations organs and specialized agencies requesting them to give effect to them or not, by whichever means they see fit. Almost all decisions of the Court are complied with, but it is up to States, the main actors in the international arena, to implement its decisions and in doing so, ensure the maintenance of international peace and security.
“The Court is currently experiencing one of the most dynamic periods of its history — a trend that shows no sign of slowing. Members of the Court are honoured by the confidence that the international community continues to place in the Court.”
What is the difference between the International Court of Justice (ICJ) and the International Criminal Court (ICC)?
In simple terms, the ICC is a criminal court where individuals can be tried for international crimes. Most notably these involve war crimes, crimes against humanity, genocide and the crime of aggression.
*Picture: the building of the ICC
The ICJ, on the other hand, only hears cases involving State responsibility, for example where countries are accused of contravening international law. As the main legal organ of the United Nations, it delivers judgements that are recognized as binding by the international community.
*Picture: the building of the ICJ
Cases of the ICJ
Cases of the PCA
Cases of the ICC
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