The Recent Genocide Cases and Public Interest Litigation: A Complicated Relationship

Here we go again! On 1 March 2024, Nicaragua instituted proceedings before the International Court of Justice (ICJ, the Court) against Germany for complicity in genocide. This marks another development in a series of disputes pending before the Court in the last four years, where it is asked to decide on whether a State has committed genocidal acts under the Genocide Convention: The Gambia v Myanmar, South Africa v Israel and Nicaragua v Germany. These cases fall within the category of public interest litigation, as the obligations in the Genocide Convention are erga omnes partes, and the cases are brought by states who are not directly affected by the alleged harm. Rather, their ability to stand before the Court is based on their right to act in the ‘common interest’ (p. 23).

This now settled practice of public interest litigation is likely to continue. But is this practice desirable to ensure accountability for genocide? This piece sheds light on certain pros and cons of public interest litigation with respect to the Genocide Convention.

A voice for the voiceless?

First, it can be argued that public interest litigation serves as a voice for the voiceless. South Africa for instance made it clear that it was litigating on behalf of the Palestinian people of Gaza. It is a practical expression of two ideas shared by Koskenniemi on the purposes of international law: to promise justice on one hand, and to serve as a voice to those “seeking to express their claims in the language of something greater than merely their personal interests” on the other hand. Indeed, the Genocide Convention is one of the clearest recognitions of common values that international law upholds. The litigation of those common values engages societies across the world: the international community and, indirectly, the victims themselves.

Not only does public interest litigation give a voice to some, but it places them at equal standing to more powerful states. Indeed, the appearance before the Court serves as an equaliser, as explained by Guilfoyle (p. 93). For example, South Africa’s institution of proceedings against Israel was largely seen as a symbol of the Global South confronting the Global North in this spirit (see, for example: here and here).

On the other hand, the judicial politicisation of genocidal acts can come at its own expense. The underlying political motives of states may be questioned, with assumptions that states may not necessarily litigate to give voice to the victims, but as a tool to further certain political agendas beyond that particular case.  Both South Africa (para. 31) and Nicaragua have been accused of this (discussed here). Beyond this, the invocation of genocide itself may also be questioned – some may argue that public interest litigation for the Genocide Convention has resulted/will result in “Cinderella’s glass slipper” cases, as one judge dissented in South Africa v Israel: the Genocide Convention may be a pretext “in a desperate bid to force a case” before the Court, presumably for other motives.

Process or outcome?

A second consideration is the tension between the emphasis on strategy and process in public interest litigation on one hand, and the need for specific outcomes with respect to genocide on the other hand. Indeed, one key characteristic of public interest litigation is the underlying strategy. As Jessberger and Steinl have aptly written: “[A]chieving the objectives behind the specific case or process significantly outweighs, in the eyes of the actors pursuing litigation, the immediate outcome of that case (…). Thus, in essence, what distinguishes strategic litigation from other types of litigation is that it is not necessarily about winning the case”. Therefore, the political pressure, media attention and signalling that other states could be next (as Nicaragua has warned other states beyond Germany) would be considered wins in these three cases.

However, this may be unsettling if we consider that genocide is one of the biggest moral wrongs that the international legal order recognises. The expectations concerning the outcomes are therefore also the highest and, from the perspective of the victims, anything less than punishment for genocide would be a disappointment. The judgments on remedies will therefore have further consequences on the usefulness of public interest litigation in genocide cases.

A win for human rights compliance or a blow to international cooperation?

Another value of public interest litigation is that it serves as another means to enforce human rights and respect for multilateral human rights treaties, as Oona Hathaway has pointed out. In a world rife with human rights violations, another means of enforcement beyond the existing judicial and quasi-judicial avenues might strengthen compliance and signal a message that compliance is taken seriously.

However, states may likely not appreciate the confrontational manner in which this is executed. As we have written elsewhere, states directly adjudicating against other states in a court-like process to push for compliance with multilateral treaties is largely seen as an antagonistic faux pas. Before UN human rights treaty bodies, for example, state-to-state triggers have seldom been used, and only as one of a series of measures in a widespread multi-forum litigation strategy (e.g., Qatar/UAE, Israel/Palestine).

Such confrontational public interest litigation could result in blows for international cooperation. Indeed, states may perceive that there is a mismatch between the cooperative efforts to adhere to multilateral human rights treaties on one hand, and the uncomfortable adversarial initiatives to respect them on the other hand. It could instigate the withdrawal from multilateral human rights treaties for fear of being dragged to court. We may also see an increase of reservations by states that their consent must be sought before proceedings may be instituted, as has controversially done the USA with respect to the Genocide Convention. This would compromise the effectiveness and reach of such treaties.

Political gain or a concern for judicial economy?

Public interest litigation is pursued as a political disrupter – it is the turn to a court as a “forum of protest” in the wake of failed political negotiations in other venues. In many ways it is the last resort used after other means of dispute resolution and institutions have failed (Article 33 UN Charter). In this sense, the Court is deeply embedded in the world’s largest crises at the legal and political level.  Moreover, as the main judicial organ of the UN, it is in a particular position to hear public interest cases. In a way, these recent genocide cases push the potential of the Court as a UN organ.

However, there are concerns for the Court’s judicial economy and capacity to handle the ever-growing number of disputes of this nature. Some scholars foresaw the “potentially unmanageable proliferation of disputes” as early as The Gambia v Myanmar case, lamenting that the Court did not “heed to [their] warning”. The Court itself might be hinting at its resistance in subtle ways. For instance, it recently amended its Rules to better manage mass third party intervention following Ukraine v. Russia, in a manner that may possibly limit mass intervention. It also did not rush to schedule oral hearings for Nicaragua v Germany despite the clear urgency, and took time to respond to South Africa’s request for new provisional measures against Israel – both pointed out by Mike Becker.

Conclusion: Public interest litigation beyond the Genocide cases

Public interest litigation is not likely to go away anytime soon. There is, more broadly, a clear keenness to participate in judicial proceedings, whether contentious or advisory. The impressive participation in advisory proceedings – over 50 in the 2024 Palestine advisory proceedings and over 90 in the Obligations of States in respect of Climate Change proceedings – is testament to this. The mass third-party interventions in Ukraine v Russia and The Gambia v Myanmar also speak to this. Furthermore, litigation to uphold obligations erga omnes partes beyond genocide is growing, as seen with allegations of torture in Canada/Netherlands v Syria. States are likely to test the waters further with reference to the obligations established by the ICJ in Barcelona Traction (para. 34 – for instance, racial discrimination or slavery).

In light of this, and in the wake of growing global crises involving genocide, it is a good time to take stock and assess the prospects of public interest litigation: a practice that has widened judicial participation to litigate against genocide even further. Beyond whether one agrees or disagrees with the practice, the judicial and political repercussions will continue to unfold before us.