Now How Can Turkey Get Involved?

On August 7^th Turkey officially requested to join the International Court of Justice (ICJ) genocide case brought by South Africa against Israel. By filing its 53 page declaration in the Hague, Turkey joined approximately a dozen other countries that have either already submitted such petitions or announced their intention to do so.

But what does it mean to join a case? After all, in ordinary criminal or civil lawsuits there is no way to do such a thing. Let’s say a friend of mine sues an auto mechanic for being so negligent in doing a repair that they ruined his car. No matter how strongly I think my friend is right I can’t become a party to the lawsuit. I can sit in the gallery to lend moral support, or if I happen to have relevant evidence I can testify. But I cannot become either an additional plaintiff or defendant since the issue directly affects only my friend and the mechanic, not me.

But in Israel’s ICJ case, there is in fact a way for additional countries to add themselves as parties. To understand how and why, we have to first understand the ICJ’s basis for jurisdiction here to begin with.

Let’s remember at the outset that the ICJ, even though it is sometimes called the World Court, exists primarily to resolve differences between states that consent for it to do so. Its other job is to provide advisory opinions to the United Nations. It is absolutely not authorized to decide whether a country is guilty of war crimes or to enforce human rights and humanitarian law.

So why is the ICJ involved here? Israel and South Africa are both parties to an international treaty known as the genocide convention. This convention, which went into effect in 1951 and currently has 153 state parties, defines genocide, declares genocide an international crime, and commits signatory states to prevent and punish those who commit genocide. It also says in Article 9 that disputes between states that have signed the convention relating to its ‘interpretation, application, or fulfilment. . . including those relating to the responsibility of a state for genocide’ shall be submitted to the International Court of Justice.

South Africa claims, in accusing Israel of genocide in Gaza, that it has a dispute with Israel with regard to the interpretation and application of the Genocide Convention. It is therefore turning to the ICJ to decide whether, as it says, Israel’s actions in Gaza meet the criteria for genocide set out in the convention or if Israel is right that they don’t (See paragraph 16 of South Africa’s original filing).

What About Other Countries?

But how do other countries such as Turkey now get involved? It’s because the formal subject of South African’s suit is the interpretation of the genocide convention, and there is a mechanism to let countries join lawsuits over the interpretation of treaties.

This is easiest to understand in the context of an environmental treaty. Let’s say there is a treaty that prohibits some forms of air pollution, with a clause similar to the genocide convention saying that disputes about the treaty’s interpretation should be settled by the ICJ. Then Country A sues Country B, claiming that Country B releasing a certain chemical into the air is a violation of the treaty, while Country B says that chemical isn’t a pollutant covered by the treaty at all.

Other countries party to the pollution treaty may have strong views about this and may legitimately claim this decision affects them. Some may be planning to release that chemical also and say they never would have signed the treaty if they thought the treaty would prohibit it. Others may believe that chemical is a key pollutant that they were counting on the treaty to do away with. For these reasons the ICJ can allow them to join the original lawsuit- they are affected by the outcome and may also provide information or perspective that is helpful in deciding the case.

Here Turkey (and others) are claiming that how the ICJ decides this case will help shape how genocide is understood in international law, and as a party to the genocide convention that affects its ongoing legal obligations. Therefore it should be entitled to contribute its two cents worth as to why it views Israel’s actions in Gaza as genocide.

It’s Actually Politics

The problem is that although Turkey’s lengthy declaration is filled with facts and legal theories, it’s hard to see much difference between it and what South Africa has already submitted. Turkey does not appear to articulate a position or perspective different than South Africa’s, or to provide any new information. Its declaration is really more a rehash of what South Africa has already said.

This is perhaps not surprising in light of the explanation given by the Turkish foreign minister for why his country wants to intervene. He said, “The international community must do its part to stop the genocide; it must put the necessary pressure on Israel and its supporters.” In other words, Turkey’s main goal in joining the suit is to add to the political pressure on Israel and demonstrate its support for the Palestinians.

But the ICJ is not supposed to be a venue for political posturing. And the judges are required to decide cases on their legal merits only- the number of countries piling on to one side or the other should have no influence on the outcome. For these reasons it is possible the ICJ may even reject Turkey and other similar bids, and in fact some experts have already suggested it should do so (for example, see here).

Of course the war in Gaza is not only military but also political, as each side tries to gain allies and sway world opinion. Countries petitioning to join South Africa at the ICJ may be aiming to deal Israel yet more public relations blows, but even if Turkey and others succeed at joining the case the legal landscape will hardly be altered.