International & Comparative Law: The Role of the ICJ in Global Justice

Introduction

The International Court of Justice (ICJ) is the central structure of the United Nations. It is responsible for deciding matters for the sovereign states internationally and preserving international law. Being one of the principal organs of the United Nations, the ICJ fulfills many important functions in promoting international peace and justice as a holder of the legal standards that are obligatory for the entire world. Such importance is best seen in cases like The Gambia v Myanmar, South Africa v Israel, Canada and Netherlands v Syria, where violations of erga omnes obligations are in question the obligations owed to all members of the international community as a whole, including the obligation not to commit genocide or engage in torture. These cases demonstrate the important role of the ICJ in construing and applying international conventions and standards regarding State responsibility for grave human rights abuses. Additionally, the system of the jurisdiction of the ICJ’s dependence on non-injured states to bring an application for responsibility for such breaches, the permissiveness of interventions for third parties, and the adoption of preliminary measures all demonstrate the peculiar position of this Court in the maintenance of international order based on rules. In this way, the ICJ acts as a forum for working out an inter-state conflict and consolidates the international society’s shared responsibility for compliance with legal norms (Crawford, 2013; International Court of (Justice, 2023). This analysis explores these features to show how matters of the ICJ are fundamental for law enforcement in the international sphere.

Jurisdiction of the International Court of Justice

The ICJ gets its powers from the consent of States utilizing a treaty, declaration, or special agreement. Each case under consideration highlights a distinct legal basis for ICJ jurisdiction:

The Gambia v Myanmar

The International Court of Justice assumed jurisdiction in The Gambia v Myanmar under Article IX of the 1948 Genocide Convention, which afforded the ICJ power to decide on contentious matters relating to the Convention’s interpretation, application, or compliance. Genocide is prohibited both in The Gambia and in Myanmar, and both states have accepted the jurisdiction of the Genocide Convention. The application filed by the Gambia for genocide case against Myanmar argues that the military acts in Rakhine state targeting the Rohingya have been genocide since killing, displacement, and rape. In invoking Article IX, The Gambia thus anchored its argument on genocide prevention as an erga omnes responsibility, which puts States under an obligation to do so even in the absence of direct harm to them. It reaffirms that the ICJ is there to make States answerable for gross violation of international law irrespective of whether the applicant State is a victim. The apprehensive or preventive role of the ICJ can be understood from the provisional measures ordered in 2020, wherein the Court directed Myanmar to prevent more Rohingya genocide (The Gambia v Myanmar, ICJ Reports 2019; Crawford & Brownlie, 2019). This case also demonstrates the functions of International Courts in the non-recognition of impunity for mass crimes and violations of Universal human rights.

South Africa v Israel

In South Africa v Israel, the source of the Court’s jurisdiction is in Article IX of the Genocide Convention for the legal hearing of Genocide or breaches of the Convention complaints. In its application, South Africa alleges that Israel engages in genocidal acts in response to the October 2023 Hamas attack by destroying vast areas of civilian infrastructure and allegedly targeting civilians in Gaza. The subject matter of this case is to allow South Africa to determine whether the actions of Israel qualify for genocide by the Convention. Pivotal to the case is the principle of proportionality and whether Israel’s military responses failed to comply with some very fundamental legal aspects that require the distinction of combatants and civilians. The fact that the erga omnes obligations have been invoked in this case shows the increasing involvement of the non-injured state in seeking justice for alleged violations of peremptory norms of international law. ICJ involvement ensures an independent legal system to determine if the actions taken are genocides in line with the legal systems of the world (South Africa v Israel, ICJ Reports 2024; Pavel, 2020). By so doing, the ICJ proceeds to solve the conflict between the sovereignty of the State and international law obligations with a special focus on cases involving armed conflict and violation of human rights.

Canada and the Netherlands v Syria

Canada and the Netherlands filed suits against Syria under Article 30 of UN CAT, which allows for reliance on the Courts of the International Court of Justice in cases of disputes concerning the interpretation or application of the Convention. In substance, the applicants claimed that Syria has acted in a manner calculated to give effect to the torture of detainees in the provision of UNCAT. These two countries appeal to Article 30 to assert themselves as promoters of the common principles of human rights – torture being forbidden across the board and is an obligation that concerns everyone (erga omnes). The case essentially provokes important questions concerning the State’s legal responsibility for systematic human rights violations, as well as the legal liability of the governments for such practices. The case allows the ICJ to develop an independent judgment on the conduct of the Syrian authorities and provide other international actors who could collectively address numerous violations. In addition, the case exemplifies a tendency in which the non-injured States form a coalition to legally respond to international wrongs and reaffirm the principle of accountability (Canada and the Netherlands v Syria, ICJ Reports 2023; Higgins, 1995). The case under consideration shows the significance of the ICJ as the legal framework for treaty enforcement and prevention of impunity for the infringements of human dignity to the greatest extent.

In all three cases, the jurisdictional structure shows that the ICJ uses treaties and relies on treaty provisions to settle the conflict related to grave violations of international law.

Role of Non-Injured States

These cases are distinguished because many states not affected by the violations directly participated. International law permits non-injured States to invoke the responsibility of another State under specific circumstances:

Erga Omnes Obligations

Erga omnes obligations refer to those obligations that a State owes to the World as a whole and include norms that prohibit genocide, slavery, torture, and aggression, among others. Bilateral relationships do not restrict these but are duties for all the State, according to the Barcelona Traction (1970) case by the ICJ. The Court also noted that any failure to fulfill such obligations requires a joint response from the States of the world community regardless of whether a particular State was directly affected by the breach. This principle evokes the doctrine of the liberty of States to act if another State violates certain human rights. The non-injured States based such intervention on these obligations to address alleged violations of genocide and torture and to be legal representatives of international law (The Gambia v Myanmar, ICJ Reports 2019; Crawford & Brownlie, 2019). The concept enhances the universal principles’ striking and the ICJ’s reiteration as the fundamental norms’ forum.

Legal Precedents

The ICJ’s jurisprudence confirms that non-injured states have a legal right to act to protect principles. For instance, in East Timor (Portugal v Australia), the ICJ stressed the legal conduct that obliges every State to protect the right to self-determination, which is recognized today as one of the erga omnes. Likewise, in Belgium v Senegal, Belgium was able to urge Senegal to prosecute or extradite former Chadian president Hissène Habré for torture contrary to the Convention Against Torture, even though Belgium itself has not been injured. These cases support the proposition that non-injured States can also initiate proceedings so that the violation is not simply allowed. In the present disputes, The Gambia, South Africa, Canada, and the Netherlands advance this framework of state responsibility for genocide and torture in pursuit of international law’s evolution (McWhinney, 2023; Canada and Netherlands v Syria ICJ Reports, 2023).

Collective Responsibility

The actions of The Gambia, South Africa, Canada, and the Netherlands in filing these cases present the broad move towards recognizing collective responsibility for heinous human rights violations. These States show that the international community is also the bearer of these principles by serving as caretakers of international law, even without direct harm. This trend is significant, more or less, in the cases that are connected with genocide and torture, as they exceed the limits of any country and influence the international moral codes. These collective measures also reestablish the role of the ICJ as a reference regarding violating peremptory norms. Such cases represent the deconstruction of the absolutist sovereignty concept towards introducing the new paradigm emphasizing global responsibility, thus contributing to implementing humanitarian norms (Pavel, 2020; Crawford, 2013). In this way, the States promote the development of a mandatory, detailed, and efficient system of rules of international law that aims at combating impunity and fostering justice.

Third-Party Intervention

The law that governs third-party participation is enshrined in the Statute of the International Court of Justice in Article 63. A State may intervene where there is a dispute over the (interpretation of a treaty) treaty to which the particular State is a party. The following principles govern such interventions:

Legal Interest

The third-party intervention before the ICJ requires that the intervening States have a legal interest in interpreting or applying the treaty. This principle was evidenced in Gambia v Myanmar, where they joined other States, including Canada and Denmark, to support the case because the Genocide Convention is the framework under which genocide and punishment of genocide is provided. It also reaffirms the fact that the States are equally responsible for the promotion of international norms such as genocide. When claiming their share of the proper application of the Genocide Convention, these States contribute to building up the legal basis and to the enhanced role of the ICJ as a legal guardian (The Gambia v Myanmar, ICJ Reports 2019; Crawford, 2013).

Procedural Requirements

The ICJ expects the intervening State to file an application demonstrating its legal interest in the case. This procedural step provides safeguards to the effect that the interventions are based on concerns about the interpretation ushered to the international treaties or its application. For example, in the case of The Gambia v Myanmar, the intervening States availed themselves of their competency. It gave reasons and legal interest in the continuing implementation of the Genocide Convention. The acceptance of such declarations by the ICJ not only acknowledges the importance of typical treaty responsibilities but also the impact of treaty interpretation on more than two states (McWhinney, 2023; Pavel, 2020). Such procedural effectiveness of human rights interventions helps to make interventions intentional and conform to legal norms of global law.

Purpose

The primary goal of third parties’ intervention is to explain the provisions of treaties and enhance the harmonization of their implementation. Intervening States are devoid of involvement in a conflict but aspire to shed light on the situation and maybe provide the ICJ with some new points of view that might be useful in determining the Treaty’s purpose and contributions. Still, the nature of such interventions is that they do not make the intervening States interested in the conflict a party to the dispute. For example, in The Gambia v Myanmar, the intervening States participated in the amount of the meaning of the Genocide Convention regardless of being the parties to the case. This division preserves the ICJ’s structural fairness while allowing more people to stand behind international norms (Smith, 2022; Crawford & Brownlie, 2019).

Collaborative Enforcement

Such cases like The Gambia v Myanmar also show that third-party States can actively enforce international law. In these proceedings, several States express their commitment as a collective to supporting common legal standards, including banning genocide. Such actions show an organized approach to violating international law and highlight the mission of the people worldwide. Interventions by third parties enhance the Court’s capacity to be an appropriate venue to clarify and apply various international treaties to create a harmonized and effective global legal regime (Pavel, 2020; Canada and the Netherlands v Syria, ICJ Reports 2023).

Provisional Measures

Provisional measures act as an interim relief as a case pending in the International Court of Justice. The legal framework for provisional measures is articulated in Article 41 of the ICJ Statute:

Purpose of Provisional Measures

Preservative measures aim to safeguard the parties’ rights during the ICJ proceedings and avoid acts that deteriorate conflicts and the final decision. As seen in the case of The Gambia v Myanmar, the ICJ recently called for avoiding any continuation of human rights violations and ordered preliminary measures, including protection of the Rohingya people from what might follow genocide. These measures purport to maintain the status quo and safeguard the weaker groups until the case is determined (The Gambia v Myanmar I.C.J.Reports 2019; Crawford, 2013). In this way, the ICJ additionally strengthens the anticipating function of international law in the context of humanitarian crises, which is active when addressing the problem.

Binding Nature of Provisional Measures

The binding character of measures was provided in the LaGrand case, where the ICJ stated that states must comply with provisional measures. This precedent proves that the ICJ can issue measures that States are legally bound to follow to prevent requisite provisionally of international law, even in international disputes (McWhinney, 2023; Crawford, 2013). Preliminary measures in the Gambia case show that the ICJ may protect the international legal system when the litigation seat is in immediate danger and prevent it from becoming diluted by domestic politics.

Effectiveness and Challenges

The success of provisional measures is hinged on the cooperation of the State and the backing of the international community. For example, South Africa V Isreal’s opposition to the ICJ provisional measures shows the challenge of implementing compliance during armed conflict. International procedures also assist in enforcing ICJ orders, especially when the State disagrees on the jurisdiction or the nature of the measures invoked (Pavel, 2020; South Africa v Israel, ICJ Reports 2024). Nevertheless, those difficulties do not exclude using provisional measures to prevent harm and respond to international law violations during an ongoing controversy.

Despite these questions, the provisional measures in these cases prove that ICJ is ready to ensure the given rights and stop further violations.

Conclusion

The Gambia v Myanmar, South Africa v Israel, and Canada and Netherlands v Syria exemplify how the ICJ is an indispensable forum for dealing with alleged breaches of erga omnes obligations. By exercising jurisdiction, recognizing non-injured states’ right to invoke responsibility, allowing third-party intervention, and issuing provisional measures, the ICJ strengthens the legal system of state responsibility and international law enforcement. Nevertheless, the efficacy of such mechanisms entirely depends on the possibility of the states’ abiding by the basic principles of international justice as recognized by the ICJ.