Given the steep rise in global anti-Israel and anti-Semitic prejudice, South Africa may well win its genocide case against the Jewish state in the International Court of Justice (ICJ), or at least in the short term, obtain a demand that Israel halt its response to Hamas’s October massacre of 1,200 Israelis, kidnappings, and over 10,000 rocket attacks. More than 25,000 Palestinian civilians have died in the conflict as well. However the case turns out, it will bring into closer focus the intrinsic contradictions of international courts, and also international human-rights institutions set up to regulate the moral behavior of the world’s diverse nations.

The ICJ, or World Court, has sixteen members, nominated by national representatives and voted in by the UN General Assembly and Security Council. Article 9 of the Court’s Statute mandates that “representation of the main forms of civilization and the principal legal systems of the world should be assured.” Article 2 stipulates that the judges “must be elected from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices…” In other words, diversity of national and political culture is considered essential to the legitimacy of the institution.

But this mandatory diversity embeds politics into a court aimed at establishing a realm of transcendental justice, making the outcome of South Africa’s case against Israel a matter of vote-counting among often divergent legal traditions. Scholars have long documented the problem of culturally inculcated values and national biases in international courts, which the eminent British jurist Hersch Lauterpacht, an early advocate for international human rights and judicial bodies, called “one of the most urgent problems of the political organization of the international community.” A 1968 quantitative analysis found that ICJ justices showed “a definite tendency to support their countries,” rarely ruling against national policy, postures attributed mainly to cultural preferences rather than overt instructions to adhere to state policy. In 2005, Eric Posner and Miguel de Figueredo showed that ICJ judges “vote for states that are similar to their home states” in terms of culture and political regime; they do not, in general, vote impartially, but rather in ways consistent with their state’s national interests.

The Chinese and Russian governments haven’t publicly supported South Africa’s genocide charges, but both energetically court African and Islamic states. It could thus be expected that Xue Hanqin, from China, will follow her government’s anti-Israel posture rather than commit detached legal reasoning. China did not forcefully condemn the October 7 slaughter of Israelis and has intensified efforts to align with regimes claiming Israel is a colonial, occupying power. Indeed, were Xu Hanqin to adhere to an ethos of judicial independence, she would violate a principle of Chinese legal culture: the judiciary is overtly subordinated to the Chinese Communist Party. A similar approach might be expected of Kirill Gevorgian of Russia, who served as Vladimir Putin’s ambassador and, as an ICJ judge—along with Xue—voted against the Court’s demand that Russia cease its attack on Ukraine. 

While judges on the ICJ will likely rule according to governmental positions, those positions, in turn, are influenced by collective national policies enforced by international organizations like the Organization of Islamic Cooperation (OIC) and the Arab League, both of which support the genocide claim. Some judges within these groups are former government representatives, and they are as unlikely to make independent assessments as their governments are to stand against groupthink. Nawaf Salam, of Lebanon, served as a diplomat, assigned to UN posts to represent and defend his country, and has been deeply involved on behalf of Palestinian interests. Pro-government media in Morocco have already criticized the Israeli military’s campaign in Gaza, stoking expectations that Judge Mohamad Bennouna, a former diplomat, will agree. Somalia’s dysfunctional government and judicial system make the country’s approach to the situation in Gaza vulnerable to the will of restive citizens who have demonstrated against Israel. Still, Somalian ICJ judge Abdulqawi Yusuf, who formerly served as the court’s president, is a person of broad experience and perspective. The same can be said of Julia Sebutinde of Uganda, another OIC member state.

Brazil officially supports South Africa’s claims. Brazilian president Lula de Silva called Israel’s military campaign one of “terrorism” and associated himself with the “Global South.” However, Judge Leonardo Nemer Caldeira Brant has a record of independent legal scholarship. Brazil is one of a thin majority of states with citizens serving on the ICJ that can boast an independent judiciary. These are countries where prevailing legal cultures can make possible a sober and objective analysis of South Africa’s charges in light of facts and the legal definition of genocide. They are also countries that have, in general, measured policies toward Israel that do not reflect hostility toward Zionism as upholding the right of the Jewish people to a homeland. 

The German government will actively intervene in the ICJ in defense of Israel, warning against “political instrumentalization” of the charges. But if Georg Nolte, a German judge, rules against them, it will be assumed that he did so not based on facts or principles but to reflect the interests and policies of Germany. The ICJ will thus be seen, in the words of British commentator Melanie Phillips, as “a theater of partisan political activism.” The international judicial and human rights system upholds the independence of courts as essential to the enjoyment of basic rights and freedoms. But no matter which way the Court rules, its decision will be seen as politicized and unfair, confirming the relativism of values, not the universality the Court aspires to honor. The legal politics of institutionalizing these principles through the inclusive practices of the United Nations thus inevitably undermines faith in them. In this way, international courts can do more harm than good.

Aaron Rhodes is President of the Forum for Religious Freedom-Europe and author of The Debasement of Human Rights (Encounter Books, 2018).

 

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