Symposium: High Politics at the International Court of Justice
The politics of facts before the
International Court of Justice
By Ana Luísa Bernardino
Published on 23 October 2024
There was a time in the history of the International Court of Justice (ICJ), in the years immediately following its establishment and, most acutely, in the aftermath of the 1966 judgment in South West Africa, when the Court struggled to attract cases, let alone politically-charged ones. Some judges lamented the fact that the Court’s docket, which was then comprised primarily of boundary disputes, rarely featured in the front page of newspapers. Scholars similarly doubted the possibility that the Court would ever hear ‘big cases’ despite its judges being engaged in ‘ambulance chasing’. No longer: the ICJ has, in the past few years, been routinely seized of some of the most politically salient disputes of our time, involving questions of aggression, decolonisation, self-determination, and climate change.
This short post explores what is at stake in the Court’s laying down of the factual record in ‘high politics’ disputes. Indeed, the fact that these disputes make headlines around the world does not mean that the Court’s fact-finding with respect to them is any less demanding. As well-informed citizens, judges will be familiar with the broad factual contours of these cases. As members of the Court, however, they face specific challenges in their factual determinations precisely because of the highly political nature of these disputes.
Highly political disputes commonly entail navigating the high politics of facts. In these proceedings, most states will not justify their conduct by openly defying firmly established rules of international law, such as the prohibition of the use of force, the right to self-determination, the prohibition of genocide, or the duty not to cause environmental harm to other states. They will, however, fiercely contest whether their conduct constitutes a breach of an international obligation, prompting the Court to make determinations of the ‘facts on the ground’. Even when the existence of the facts per se is not contested, their relevance and proper interpretation will usually be the object of controversy. Highly political cases before the ICJ may primarily hinge not on contested interpretations of the applicable law, but rather on deep disagreement about the facts, be it their existence, proper interpretation, relevance, or legal classification. By submitting these disputes to the Court or otherwise participating in the proceedings, states may seek first and foremost factual determinations and not simply statements of the law.
This is entirely consistent with the function of the Court. States can consent to the jurisdiction of the ICJ for the determination of ‘the existence of any fact which, if established, would constitute a breach of an international obligation’ (Article 36(2)(a) of the Statute). Although its advisory jurisdiction is reserved for ‘legal questions,’ the ICJ has nevertheless clarified that the imbrication of a ‘legal question’ with a question of fact does not strip the Court of its power to hand down an advisory opinion (see Namibia; Western Sahara).
Highly political disputes also pose special challenges to the bench because they have the potential to shape the discipline’s collective memory of certain events in international affairs regardless of the specific purpose for which these factual determinations are made. Because of this, some judges will, consciously or unconsciously, aim to ‘establish an accurate historical record’. A judgment or advisory opinion of the ICJ has the potential to shape official history and become received wisdom for generations of international lawyers, many of whom will not have lived through these events and will learn about them from these decisions. In exceptional circumstances, even the wider public’s perception of the events will be shaped in part by how the Court has narrated the facts. Whether participants in the dispute and the populations directly affected by these events will share the same perception of the events is less clear-cut.
One of the most pressing challenges in highly political cases, however, remains that the ICJ will commonly face widely different presentations and experiences of reality. Take, for example, the recent Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. The facts were characterised in a myriad of ways by the participants. Israel, in its written statement, alluded to a distortion of the factual background and misrepresentation of the legal reality in the very wording of the question posed to the Court. Similarly, Fiji deemed certain factual allegations ‘misleading or false’. The United Kingdom argued that the complexity and controversial nature of the factual record, extending over five decades, would be unsuited for determination through the advisory jurisdiction of the Court. Guatemala considered the evidence insufficient. Other states rather pointed to the sufficient (Chile, Indonesia, Lebanon Luxembourg, Malaysia), extensive (Namibia), abundant (Russia), ample (Algeria, Bolivia, Jordan, Syria), widely documented (African Union, Egypt, Palestine, Switzerland), or undisputed (Organization of Islamic Cooperation) nature of the evidence before the Court.
This brief sketch of the different characterisations of reality by participants in proceedings aptly illustrates Richard Rorty’s claim that ‘[t]he world is out there, but descriptions of the world are not. Only descriptions of the world can be true or false. The world on its own—unaided by the describing activities of human beings—cannot.’ Indeed, there is no unmediated access to reality that is not shaped by our prior convictions, socialisation, values and theories that inform our observation and narration of it.
The official discourse in international adjudication has shown resistance to perceiving or acknowledging facts as discursive constructions. But disagreements on the qualification of the facts of the dispute were palpable among the judges, too. In the same advisory opinion, Judge Tladi deemed the facts ‘clear’ and Judge Xue considered them ‘sufficient’ to ground the conclusions of the Court. Judge Nolte, Judge Sebutinde, Judges Tomka, Abraham and Aurescu, on the other hand, had some difficulty following certain conclusions of the majority because, in their view, the Court did not possess sufficient information before it to adequately answer some of the legal questions before it. The majority recalled that it is for the Court to consider whether the information before it is sufficient to decide on the legal questions and concluded, on the basis of the submissions of more than 50 states and international organisations, as well as the extensive dossier submitted by the United Nations Secretary-General that there was no compelling reason to decline to provide an opinion on that basis.
Factual determinations, including those made by international courts, are inevitably selective, draw specific distinctions (not least between fact and law), are theory-laden, and rely on particular narratives for their cogency. As judges lay down the facts of a dispute, they do more than to describe a reality that is independent of them for its precise contours, they are endorsing or committing to a particular claim to reality. As Stanley Fish writes, ‘[d]isagreements are not settled by the facts, but are the means by which the facts are settled’. As such, adjudicators are making decisive choices for which they bear specific responsibility. But if different actors report widely incompatible versions of reality, does this mean that we are doomed to irreducible relativism? Some will take part in the proceedings with the intention to deceive, deny or manipulate reality. The ICJ is certainly no stranger to such cases. Such interventions made in bad faith and self-interest, not with a view to ‘maintain or refine’ the commonly agreed standards for arriving at the truth, should not be tolerated. This is where the determinations of the Court can constitute powerful tools against gaslighting.
Because of the highly contentious nature of the facts, it may come as no surprise that, in most of highly political disputes, the Court has not readily fallen back on its rule that it may take judicial notice of evidence that constitute public knowledge (Tehran Hostages), so long as it does not emanate from a single source (Nicaragua v. United States). In many of these situations, practical considerations would also advise against the organisation of a site visit under Article 66 of the Rules of Court. Moreover, the Court’s task can be made significantly more onerous in instances where the United Nations, its agencies, or the press are targeted by states or non-state actors are unable to report in accordance with their mandates. The modest budget, burgeoning caseload and tight timeframes for deliberation and drafting are other structural limitations that restrict what the Court is able to do. Instead, when available, the ICJ has heavily relied on admissions against interest, United Nations reports, reports of UN Special Rapporteurs, and other sources that are widely perceived as independent, impartial and objective. Much of the Court’s approach to assessing the evidentiary value of reports from official or independent bodies has been laid down in Bosnian Genocide. The Court has clarified that it will assess official reports based on the comprehensiveness of the sources, the processes through which they are arrived at, and the independence of those preparing them.
In advisory opinions, an additional difficulty has been commonly raised by judges and scholars alike. Indeed, it has become commonplace to draw a distinction between contentious and advisory proceedings and the proper role of the Court in determining the facts of the dispute for each (see, for instance, here, here, here and here). That distinction is meant to underscore the claim that the contentious jurisdiction is the most appropriate arena for judicial factual determinations, considering the adversarial nature of the production of evidence. This distinction has been exaggerated: although it is generally the case that contentious proceedings ensure the presentation of at least two sides of the same factual background, the non-appearance of one or more of the parties may dictate that the adversarial nature of the production of evidence is, if not lost, then fundamentally affected. Article 53 of the Statute of the Court, regulating cases of non-appearance, requires judges to ensure that a claim is well founded ‘in fact and law’ before deciding in favour of the other party. In addition, while judges are not required to conduct their factual assessments on their own, they can certainly choose to do so on their own volition.
Most importantly, in highly political cases, judges should bear a professional responsibility to engage with divergent factual claims: just as with legal arguments, statements of facts cannot dispense with a duty of justification and persuasion. This is especially the case when it comes to claims of insufficient information on the record. Starting with the Advisory Opinion in Peace Treaties, the Court established a requirement on the admissibility of advisory opinions, which has been reiterated ever since, that is, that it may decline the request to give an opinion if it does not have before it sufficient information ‘to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character.’
However, in all advisory proceedings, and especially so in those involving politically controversial questions, the Court customarily receives a voluminous dossier from the United Nations or the specialised agency requesting the opinion, in addition to statements from states and organisations authorised by the Court to furnish information on the question. Despite this, it has been a distinct pattern in these highly political advisory proceedings before the ICJ that a handful of states invoke lack of sufficient information with respect to the factual background of the dispute as a ground for the Court to decline answering the question submitted to it (see, for instance, the arguments made in Namibia, Western Sahara, Chagos, Palestine).
In highly political cases, it rests on the judges to demonstrate, and not merely assert, the insufficiency of the information before it, especially when the Court is presented with considerable material (contra see here). Appeals to ‘insufficient information’ by members of the Court in these cases become shorthand for the abjuration of one’s professional role. Judges cannot reasonably invoke insufficient information without engaging with the information on record that goes against their positions. Mere denial also does not discharge a judge’s professional duties. These appeals are all the more concerning when these judges provide their own competing accounts of the events and rely on sources that are not included in the case file while still claiming lack of sufficient information on the record. By doing so, they reveal that their willingness to engage with facts beyond the record is instrumental.
In highly political cases at the ICJ, facts are not the mere backdrop to the political fight, they are part of the site of political struggle. The way the ICJ positions itself in the struggle over the facts will likely determine whether its docket continues to grow and, indeed, whether the Court will continue to make the frontpage of newspapers.
Ana Luísa Bernardino is a postdoctoral fellow at the University of Helsinki. Her research is funded by the Swiss National Science Foundation. Email: analuisa.bernardino@helsinki.fi