By Dr Jed Odermatt and Dr Bilyana Petkova
At the end of January 2024, the US District Court in Northern California applied the political question doctrine to dismiss a suit brought against the US President and the Secretary of Defense based on alleged violations of international law. The Plaintiffs, a group of Palestinian human rights organizations and activists including Defense for Children International-Palestine and Al-Haq, alleged that the US government breached its duty to prevent genocide “by providing diplomatic, financial, and military support to Israel, are complicit in Israel’s purported commission of genocide, in violation of Article III(e) [of the Genocide Convention] and its implementing legislation, which makes genocide a federal crime”. The Plaintiffs sought an injunction enjoining the provision of any further military or financial support or any form of assistance to Israel by the United States. The District Court went on to extensively cite the recent order on provisional measures of the International Court of Justice (ICJ) in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). However, the Court found that the case was inadmissible, as “any determination to challenge the decision of the executive branch of government on support of Israel is fraught with serious political questions”.
The political question doctrine is a controversial legal mechanism for docket management in the toolbox of the US Supreme Court and – more recently – lower US courts. According to the broader, “functional” view of the doctrine, courts should abstain from deciding on a question that is likely to be better decided by the executive or legislative branch or that the courts abstain from deciding when they lack sufficient expertise and information to make a reasoned legal judgment. According to the “prudential” rationale, the Court should apply the doctrine to promote its reputation and legitimacy by avoiding questions that are essentially non-legal in nature.
International courts, including the ICJ, have not explicitly accepted a political question doctrine like that developed by the US Supreme Court. However, as argued elsewhere, international courts usually engage in various forms of ‘avoidance techniques’ to evade addressing politically sensitive issues. They may do so, for example, by applying a restrictive approach to issues of standing and jurisdiction, or by reframing legal questions in a way that allows them to avoid addressing thorny political issues. It is important to highlight a distinction between ‘political questions’ and ‘politically sensitive’ disputes. A ‘political question’ is thus one that is ‘non-legal’ in nature, that is, one that cannot be resolved through the application of legal standards, whereas a ‘politically sensitive’ dispute is one that will have political repercussions for the actors involved. As the ICJ itself has acknowledged in its Wall Advisory Opinion, “whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task” (Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep 2004, p. 136, para. 41). A court dealing with contentious disputes between states and delivering advisory opinions on international law will likely be confronted with issues of a political nature, but this does necessarily detract from the legal nature of the dispute.
The US District Court’s finding that this is essentially a non-justiciable ‘political dispute’ echoes the views of Judge Sebutinde in her Dissenting Opinion on the request for provisional measures in South Africa v. Israel. Judge Sebutinde voted against provisional measures, arguing that “the failure, reluctance or inability of States to resolve political controversies such as this one through effective diplomacy or negotiations may sometimes lead them to resort to a pretextual invocation of treaties like the Genocide Convention, in a desperate bid to force a case into the context of such a treaty, in order to foster its judicial settlement: rather like the proverbial “Cinderella’s glass slipper”. Judge Sebutinde found that the dispute between Israel and Palestine was essentially political. However, such an approach converts a politically sensitive dispute into a non-legal one. Such reasoning, taken to its logical extension, would mean all politically sensitive disputes – the majority of the ICJ’s docket – would be non-justiciable ones.
While the Israel-Palestine dispute is unquestionably a politically sensitive issue, it also involves legal issues capable of judicial determination. The assessment of whether a state has failed to fulfill its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide is undoubtedly of a legal nature. The fact that it would draw the ICJ into issues that are politically sensitive in nature is not a good reason to avoid addressing these questions. The Court, moreover, is not called upon to settle the broader Israel-Palestine dispute but to adjudge whether Israel has complied with its obligations under the Genocide Convention. Judge Sebutinde’s approach would practically render useless the Genocide Convention’s dispute settlement clauses. The approach, we argue, goes further than judicial restraint, but is an abdication of judicial responsibility.
South Africa v. Israel is not the only case dealing with the Israel-Palestine dispute before the ICJ. In addition to the contentious case of South Africa v. Israel there is a pending advisory opinion on Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory and a contentious case of Palestine v. United States on the relocation of the US Embassy from Tel Aviv to Jerusalem. In the latter case, Palestine seeks to ground the Court’s jurisdiction on the Vienna Convention on Diplomatic Relations to which it acceded in March 2018. In both of these proceedings, the ICJ will encounter issues that are politically sensitive. The Court may seek to avoid some of these questions by applying avoidance techniques. In advisory proceedings, the Court could potentially reframe the question, as it arguably did in its Kosovo Advisory Opinion to avoid weighing in on the legal status of Kosovo.
This raises the question of whether the ICJ, like the US Supreme Court, should adopt a type of political question doctrine. While the US political question doctrine has been criticised, especially for being unclear and applied in an inconsistent fashion, it has been a useful tool for ensuring that US courts do not pronounce on issues that are best left to the other branches of government. In a similar way, the ICJ might refrain from ruling on issues that are deemed to be non-legal in nature, or where other organs of the United Nations, such as the UN Security Council, have primary responsibility. It is unlikely, however, that the ICJ would explicitly adopt such an approach. The Court has stated that requests for advisory opinions ‘in principle, should not be refused’ (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), ICJ Reports 1950, p. 71). In Certain Expenses, the ICJ also stated that it “cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision.” (Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), Advisory Opinion, [1962] ICJ Rep 151 p. 155). While the US Supreme Court might use the political question doctrine to bolster its legitimacy in the eyes of the public, the ICJ’s image and reputation would likely be damaged by essentially abandoning its judicial role as the principal judicial organ of the United Nations. As the UN Security Council has not been able to take action to resolve the Israeli-Palestinian dispute, other UN organs like the ICJ will be called upon to address the ongoing humanitarian disaster.
This post was first published by the EJIL:Talk! and can be accessed here.
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