In 2023 the world witnessed a sustained attack on the very foundations of the international legal order.
Russia, a permanent member of the United Nations Security Council, continued its illegal invasion in Ukraine. Israel’s response to the October terrorist attack by Hamas exceeded its legitimate right to self-defence. And Venezuela threatened force against Guyana over an oil-rich area of disputed territory.
But is it all bad news for the international legal order?
There are six ongoing international court cases initiated by states or organisations seeking to clarify the law and hold other states to account on behalf of the international community.
These cases offer smaller countries, such as New Zealand, an opportunity to have a significant role in strengthening the international legal order and ensuring a pathway towards peace.
A departure from the legal norm?
Normally, cases are brought to the International Court of Justice (ICJ) when a state’s direct interests are impacted by the actions of another state.
However, six recent court cases reflect a significant departure from this tradition and mark an important development for international justice.
These cases argue the international community has a collective interest in certain issues. The focus of the cases range from Israel’s actions in Gaza (brought by South Africa) through to the responsibility of states to ensure the protection of the climate system (brought by the United Nations General Assembly).
Holding states accountable for genocide
Three of the six cases seek to hold states accountable for genocide using Article IX of the 1948 Genocide Convention. Put simply, Article IX says disputes between countries can be referred to the ICJ.
In late December, South Africa asked the court to introduce provisional measures – a form of international injunction – against Israel for genocidal acts in Gaza.
These proceedings build on the precedent set by a 2019 case brought by The Gambia against Myanmar for its treatment of the Rohingya people.
In 2022, the ICJ concluded it had jurisdiction to hear The Gambia’s case on the basis that all parties to the Genocide Convention have an interest in ensuring the prevention, suppression and punishment of genocide.
According to the ICJ, The Gambia did not need to demonstrate any special interest or injury to bring the proceedings and, in effect, was entitled to hold Myanmar to account for its treatment of the Rohingya people on behalf of the international community as a whole.
South Africa has made the same argument against Israel.