The International Court of Justice (ICJ) and genocide are once again in the media, with a case brought by South Africa against Israel in December 2023.
The International Criminal Court (ICC) made news in 2023 for issuing an arrest warrant for war crimes against Russian President Vladimir Putin. The ICC Prosecutor also has an open investigation into the situation in Israel and Palestine.
There is quite a lot of confusion and misinformation in the media (and particularly on social media) about the ICJ and the ICC, their powers and jurisdiction, and what they can actually do in circumstances like accusations of genocide.
Let's clear up these misunderstandings.
A tale of two courts in one city
The ICJ and ICC are often confused with each other, and while both courts sit in The Hague, Netherlands, that is about where the similarities end.
The ICJ has been around since 1945 and its primary duty is to resolve disputes between States. For example, much of its work is devoted to settling the boundary lines (maritime or land) between States.
Cases are brought by one State against another, in almost the same way that in a civil court, a plaintiff must sue a defendant to initiate proceedings. The difference is that at the ICJ proceedings can only be brought where both States have consented to the ICJ's jurisdiction.
This consent can happen in a few different ways, but a common one is called a compromissory clause. There is one in the Genocide Convention - it says that:
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide … shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
This means that where one State believes another to be committing genocide, if both States are parties to the Genocide Convention a case can be brought using this compromissory clause.
However, if a case is brought, it can address only the question of 'the interpretation, application or fulfilment of the present Convention' - a very limited question that we will return to shortly.
There are 153 State parties to the Genocide Convention, meaning that many States have the option of bringing a case against another State under the compromissory clause. Russia, Myanmar, and Israel are all parties to the Genocide Convention.
The ICC is a much more recent institution that has only been operating for about 20 years. Rather like a domestic criminal court, it prosecutes individual people for committing crimes.
Once States have ratified the Rome Statute, which sets out the list of crimes that the ICC can prosecute, they have almost no other role. States do not 'sue' at the ICC, only the ICC Prosecutor can elect to open an investigation.
Usually, the Prosecutor will investigate a situation in which crimes have likely been committed such as in Darfur, Ukraine, Palestine, or Venezuela to name a few presently on the books.
If the Prosecutor's team can gather enough evidence of crimes, link those crimes to individuals, and (this is the hardest part) have those people arrested, those individuals can be tried and convicted of a crime, and then imprisoned.
One of these crimes is genocide. The catch is that the Prosecutor is only permitted to open investigations into situations arising in countries that have ratified the Rome Statute. While the Rome Statute has 123 State parties, there are notable absentees including Russia, Israel, Myanmar and even the United States.
Genocide at the ICJ versus genocide at the ICC
So, what we have is two Courts that are equipped to address the matter of genocide, but in two different ways.
The ICJ can consider whether a State has committed genocide under the Genocide Convention. Under that Convention, genocide is defined as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
The most difficult aspect of this definition is intent. It must be established that the respondent State intended to destroy the group.
The ICJ has applied quite a strict test, it's not simply a matter of killing enormous numbers of people. There must be an intent to destroy the group entirely in a particular place.
And, if a case is brought under the Genocide Convention, the ICJ cannot consider other questions like the legality of an invasion or whether war crimes and crimes against humanity have been committed.
The ICC, on the other hand, prosecutes genocide as a crime committed by individuals, and it also has jurisdiction over other crimes that the ICJ cannot consider, such as war crimes and crimes against humanity.
While the definition of genocide is the same at both the ICC and ICJ, the difference is that at the ICC an atrocity does not need to meet the threshold of 'genocide' to be prosecuted.
The ICC can therefore investigate a much wider array of crimes than the ICJ. However, it can only do so in situations arising in States that are party to the Rome Statute.
The ICJ has jurisdiction over many more States, but it can only address the very limited question of whether a particular State has committed genocide.
So remember, the ICJ resolves disputes between States, while the ICC prosecutes individuals for crimes.
Both the ICJ and the ICC have important roles to play in holding States and people within those States accountable for their actions. However, it is important to understand the limitations of each institution and not to expect more than either can deliver.
