The value of public hearings

1. Introduction

Genocide cases make headlines. The provisional measures hearings in South Africa v Israel, held on 11 and 12 January 2024, were watched by an audience in the tens of thousands. The hashtag #InternationalCourtofJustice was even trending on social media platforms such as Instagram, TikTok, and Twitter.[1] Shortly thereafter, on 26 January,^[2] the International Court of Justice (‘ICJ’ or ‘the Court’) held another public sitting for the reading of its first provisional measures Order,[3] in which it declared that ‘the right of the Palestinians in Gaza to be protected from acts of genocide’ was ‘plausible’[4] and that ‘there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible’.[5] The Court ordered Israel to, inter alia, take all reasonable measures to prevent the commission of acts falling within art II of the Genocide Convention,[6] and to ensure that its military did not engage in any such acts.^[7] It also directed Israel to take ‘immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance’ in Gaza.^[8]
In the weeks that followed, as conditions in Gaza worsened and as Israel appeared to expand its military offensive, South Africa requested the Court to amend its provisional measures orders three times. However, there was only one more public hearing conducted in the Great Hall of Justice.
First, on 12 February, South Africa requested the Court to exercise its power under art 75(1) of the Rules of Court to indicate provisional measures proprio motu against Israel.^[9] The Court declined to do so, while nevertheless reiterating the necessity of ‘immediate and effective implementation’ of the provisional measures previously indicated.^[10] Then on 6 March, South Africa sought further provisional measures and/or the modification of the provisional measures order of 26 January, on the basis that ‘widespread starvation’ in Gaza constituted a change in circumstances necessitating modification of the January Order.^[11] On 28 March– without holding a public hearing – the Court acceded to the request and indicated measures particularly directed at ensuring the ‘unhindered provision at scale of urgently needed basic services’.^[12] Third and finally, South Africa submitted another request on 10 May. This time the Court sat in oral proceedings (on 16 and 17 May) but they were poorly attended. Israel’s external legal counsel were not available within the specified timeframe leaving only its Co-Agents appearing in the Great Hall of Justice.[13] The Court, in an Order dated 24 May,^[14] directed Israel to, inter alia:

This order was passed with 13 votes in favour and 2 against, an apparently strong majority. News outlets shortly afterwards declared that the Court had ordered Israel to ‘immediately halt its military assault on the southern Gaza city of Rafah’.[16] However, it was (and remains) controversial whether this was an order to halt all military action in Rafah or only that which could risk creating conditions of life that might lead to physical destruction of the Palestinian people.[17]
But rather than take up questions relating to the substance of the Court’s Orders, the present article is addressed to an aspect of the Court’s procedure in this case; specifically, the oral proceedings. The Court indicated provisional measures in South Africa v Israel without holding an oral hearing. This has hitherto been an exceedingly rare event; the Court has issued provisional measures without oral proceedings on only two prior occasions.[18] More broadly, decisions on the papers seem to be something of a growing trend and have featured in all three of the Court’s recent Genocide Convention cases.[19]
While it might seem trite to focus on issues of procedure in the face of a ‘catastrophic humanitarian situation’[20] in Gaza which has only grown vastly more significant over time,[21] it will be beneficial to the Court’s future practice to identify the value of oral hearings and principles that might guide their non-use.
The article proceeds in 5 parts. Part 2 commences with a summary of the procedural regime governing oral proceedings; observing that in respect of provisional measures and other interlocutory phases, an oral hearing is not compulsory. Querying why oral proceedings are nevertheless considered an essential part of the court process, Part 3 explains that their unique importance lies in the expressive manifestation of procedural fairness values. There are three core value elements of procedural fairness – equality, dignity, and impartiality – and oral proceedings perform and embody these values. Part 4 observes that the provisional measures proceedings in South Africa v Israel gave rise to several procedural fairness concerns, which could negatively impact on the Court’s perceived legitimacy and authority. Part 5 concludes.

2. Oral proceedings for provisional measures: Implicit rules and inconsistent practices

2.1. The Statute and Rules

The Court’s Statute and Rules provide only limited guidance in respect of oral proceedings generally. Article 43(1) of the Court’s Statute requires that proceedings ‘consist of two parts: written and oral’.^[22] Article 43(5) indicates that the oral proceedings may include the hearing by the Court of ‘witnesses, experts, agents, counsel, and advocates’.^[23] Once the oral proceedings are concluded, the case is closed for the time being,^[24] and the Court retires to deliberate on its judgment or order.
The oral proceedings are governed principally by the Rules in Articles 54 to 72, which guide the Court in respect of matters such as the time and place of the hearings,^[25] the languages used in Court,^[26] the order in which the parties will be heard, and the examination of any witnesses or experts.^[27] The use of oral witness evidence, factual or expert, remains very unusual before the Court.^[28]
Article 59(1) of the Rules makes clear that the decision to conduct hearings in private is a broad power that rests with either the Court or the parties:

However, oral hearings held in private are one thing; sometimes publicity might disturb the proceedings,^[29] or certain evidence might need to be redacted to protect victims.^[30] But this is a quite separate question from whether to conduct oral proceedings at all, and this issue is not explicitly governed by either the Statute or the Rules.
Turning to the Rules governing the conduct of provisional measures, some additional insights regarding oral proceedings may be gleaned. Article 74(1) requires that requests for the indication of provisional measures have priority over all other cases – this includes in respect of oral proceedings. However, provisional measures hearings are considered to be so urgent that parties are only afforded ‘an opportunity of being represented’,[31] and the Court ‘shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings’.[32] This implies that provisional measures may be indicated following a purely written procedure, a conclusion further supported by the terms of Article 76 which provide that:

To the extent that the Court is empowered to revoke or modify any decision concerning provisional measures proprio motu and need only ‘afford the parties an opportunity of presenting their observations’, it would seem that the Court has a wide discretion to decide whether or not to hold oral proceedings.
The Court’s practice also suggests that it is only in respect of the merits phase before the full Court that an oral hearing is mandatory.^[33] For interlocutory phases, the oral proceedings are optional,^[34] although usually held.^[35] The Court also held hearings by videoconference during the height of the COVID-19 pandemic,^[36] although this now seems to be in abeyance.
However, the Court has only very rarely issued an order or judgment without holding oral hearings. These cases are addressed next.

2.2. Judgments and Orders issued without oral proceedings

The first series of cases can be treated collectively; several Advisory Opinions in which ‘appeals’ from international administrative tribunals were in issue. These are discussed further in Part 3. But outside of this context, there are very few interlocutory decisions in which the Court has issued a judgment or orders without holding a hearing – two involving requests for provisional measures, three concerning intervention, and two addressed to interpretation.

a) Provisional Measures

The first is the well-known case of LaGrand, in which Germany instituted proceedings against the United States in the evening of 2 March 1999 in a dispute concerning alleged violations of the Vienna Convention on Consular Relations.[37] Karl and Walter LaGrand were German nationals convicted of murder and sentenced to the death penalty; Karl had been executed on 24 February and Walter was due to be executed on 3 March 1999. At 9am that morning (The Hague time) Vice-President Weeramantry received the representatives of the parties in chambers, at which point the German Agent asked the Court to indicate, without holding any hearing, provisional measures proprio motu pursuant to Article 75 of the Rules.
This was the first (and so far, only) time the Court has made use of this provision. Ordering that Walter LaGrand should not be executed pending a final decision in the case,[38] the Court observed that in the event of ‘extreme urgency’, it may order provisional measures without holding oral hearings.[39]
In his separate opinion, Judge Schwebel indicated his ‘profound reservations’ regarding the procedure followed by the Court.[40] In particular, he was concerned not only with the lack of an oral proceeding but also with the fact that the US was denied the opportunity to present written observations.[41] He moreover considered that it was not a genuine application of the rule in Article 75, as it could not be an order proprio motu since Germany had initiated the order via its request for provisional measures.[42]
More recently, in Armenia’s proceedings against Azerbaijan provisional measures were indicated without a hearing on two occasions. The case was instituted on the basis of alleged breaches of the Convention for the Elimination of Racial Discrimination in the context of an ongoing conflict in the Nagorno-Karabakh region.[43] Azerbaijan has issued proceedings against Armenia likewise alleging breaches of the same convention.[44] These cases, while not formally joined,[45] mirror one another.
The Court first indicated provisional measures in both cases in December 2021, following which in September 2022, Armenia, referring to Article 76(1), requested a modification of the Court’s Order. Azerbaijan filed written observations, but no oral hearing was conducted before the Court, two weeks later, found that the circumstances did not require the modification of the original December 2021 Order.[46]
Armenia then filed a new request for provisional measures in December 2022. Hearings were conducted, and in February 2023 the Court indicated a new provisional measure related to movement through the Lachin Corridor. This was again followed by a request for modification; the Court received written communications from the parties before concluding (in July, several weeks after receiving the request in May) that the circumstances did not require the modification of the February 2023 Order.[47]

b) Intervention

Decisions relating to the admissibility of Article 63 declarations of intervention have also been handed down without an oral hearing. On 9 June 2023, the Court uploaded to its website an order regarding the admissibility of the many Article 63 interventions in the Ukraine v Russia genocide case.[48] Despite Russian objections, all of the 32 interventions from 33 States were admitted bar one; the United States intervention was inadmissible at the preliminary objections phase due to its reservation to Article IX of the Genocide Convention.[49] Russia’s objection triggered Article 84(2) of the Rules, which requires the Court to ‘hear the State seeking to intervene and the parties’ before deciding on admissibility. However, the Court proceeded in writing alone. Russia had in fact requested an oral round of hearings,[50] but this was denied for reasons not explained by the Court. It is possible that the large number of rather repetitive declarations motivated the Court to avoid oral hearings in the name of efficiency,[51] certainly this might be implied from the Court’s emphasis on ‘procedural efficiency’ when it set an early deadline for States to intervene.[52] But the lack of oral hearings may also have been a contributing factor in Russia electing to re-litigate some of the issues relating to the interventions at the preliminary objections phase.[53]
The Court again utilised a purely written procedure in respect of the admissibility of the declarations of intervention submitted by the Maldives and jointly by Canada, Denmark, France, Germany, the Netherlands and the United Kingdom in The Gambia v Myanmar.[54] It may be that decisions on the papers are the new normal for situations of ‘mass intervention’,[55] although it remains to be seen what procedure the Court will follow in South Africa v Israel, where at the time of writing 10 States have applied to intervene using a combination of Articles 62 and 63 of the Statute. This adds a layer of complication not seen in the previous cases, as Article 62 enables intervention as a party.[56]
The Court also did not hold oral hearings in respect of El Salvador’s attempted intervention in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),[57] but in this instance Nicaragua did not formally object to the intervention, and as such El Salvador had no right to a hearing under Article 84(2) of the Rules. Judges Ruda, Ago, Mosler, Jennings and Lacharrière jointly opined that it would have been ‘more in accordance with judicial propriety’ for an oral hearing to have taken place,^[58] since Nicaragua had drawn the Court’s attention to ‘certain deficiencies both in form and substance’;^[59] an objection de facto if not de jure.

c) Interpretation

Finally, the Court twice rejected applications for interpretation of a judgment without oral hearings. In Land and Maritime Boundary between Cameroon and Nigeria,[60] the Court made a decision to reject Nigeria’s request for interpretation without holding a hearing – despite having had to do so for the swearing in of the judges ad hoc and again for the reading of the judgment.[61] The Court suggested that it had sufficient information in the written dossier to reach its decision and as such did not require further explanations by way of oral proceedings.[62] Similarly in the Asylum case,[63] Colombia’s request for interpretation (submitted the same day as the judgment was handed down) was rejected by the Court following an exchange of letters between the parties Agents but no oral hearings.[64]

2.3. Decisions on the papers: Fast and efficient?

So far it is difficult to discern a clear pattern justifying the Court’s decisions to not conduct oral proceedings. Two possible arguments could be made – the need for a decision is so urgent that there is no time to conduct oral proceedings, or a judgment on the papers is a more economical use of the Court’s limited resources.[65] However, neither provides a complete explanation due to the Court’s inconsistent practices.
Urgency might provide a rationale – certainly the situation in LaGrand was one of extreme urgency and the case may well be sui generis on that front. But the Court has held oral proceedings in other time-sensitive cases, albeit less pressing. In Paraguay v United States, a Paraguayan national was due to be executed on 14 April 1998. Paraguay applied for provisional measures on 3 April, alleging in its application breaches of the Vienna Convention on Consular Relations.[66] The Court conducted oral hearings on 7 April and indicated measures on 9 April 1998.[67] Similarly in the Jadhav case, an Indian national had been sentenced to death in Pakistan while allegedly being denied access to consular assistance.[68] According to Pakistani law, Mr Jadhav had only 40 days in which to file an appeal – India submitted its request for provisional measures 28 days into this timeline on 8 May 2017, following which the Court held public hearings on 15 May and issued its order on 18 May 2017. It would appear that oral proceedings for provisional measures can be held very rapidly when circumstances demand.
The more significant indication that urgency is not the driving force behind decisions to dispense with oral hearings is the longer time frames involved in Armenia v Azerbaijan: two weeks and one month and 24 days, respectively. Thus, the Court elected to not conduct oral proceedings despite there being plenty of time in which to do so. Urgency may be a motivation in some cases, but it is not the only factor motivating the Court.
Another rationale could be that the Court, faced with a patently unmeritorious application, is being efficient by not holding a hearing. Efficiency in this sense means the resolution of a case ‘at the earliest possible date and at the lowest possible cost to the parties’.^[69] This was perhaps implicit in the Cameroon v Nigeria Interpretation decision;^[70] the Court deemed that it had the information required and did not need to waste resources on further hearings. Yet in that case there were three dissenting opinions, which suggests that the request for interpretation was far from groundless. Judge ad hoc Ajibola in particular was concerned that the lack of oral hearing, or at least the lack of two rounds of written procedure, had impinged on the principle of audi alteram partem.[71] Moreover, this does not explain the March Order in South Africa v Israel, where measures were indicated despite the lack of a hearing.
As the case law does not provide a ready explanation, we must return to first principles. The following Part explains that oral proceedings expressively manifest procedural fairness values. There are three core value elements of procedural fairness – equality, dignity, and impartiality – and oral proceedings perform and embody these values. Oral proceedings are thus significant in and of themselves,^[72] and not merely an inefficient step in the production of a judgment. As such, the Court should be conscious of these values when deciding whether to dispense with oral proceedings and overall adopt (and articulate) a more consistent and principled approach.

3. The value(s) of oral proceedings

What is the point of oral proceedings? While grand, this phase is often perceived as being a ‘critical weakness’ in the Court’s procedure.^[73] Scholars, judges, and counsel have noted that the oral proceedings can be repetitive and dull,^[74] unnecessarily prolix,^[75] underproductive,^[76] a ‘dialogue of the deaf’,^[77] and even irrelevant.^[78] There are regular calls for reform, including suggestions for a reduction in the repetition of the written material and greater engagement from the bench.^[79] Despite such persistent criticism, the oral proceedings are equally considered ‘the highpoint to proceedings, when the parties will have the Court’s attention in full’.^[80] A former member of the Court has written that the oral arguments ‘have served to stimulate deep and careful consideration of the issues by the Court’.^[81] In the end, the oral phase seems to ‘matter’.^[82]
This is because the Court during oral proceedings is not only hearing the arguments of the parties,^[83] but is also operating in an affective register using ritual,^[84] and symbolic communication.^[85] Through the oral proceedings, the Court not only performs justice, but also performatively enacts it.^[86]
In respect of the former, scholars regularly note the parallels between performance and courts;^[87] Bentham famously called the courtroom a ‘theatre of justice’.^[88] Oral proceedings rely upon the same key elements as a theatrical performance: ‘actors, stages, scripts and audiences’.^[89] State representatives can even engage dramatic rhetoric,^[90] such as James Crawford’s mock declaration of the independence of South Australia during the Kosovo Advisory Opinion.^[91] The parties perform for two audiences: the Court itself, and the general public,^[92] relying on both verbal and nonverbal forms of communication.^[93] The latter was aptly demonstrated during the 2022 Arbitral Award of 3 October 1899 (Guyana v Venezuela) oral proceedings, during which Venezuela’s Agent wore a pin in the geographical shape of Venezuela including the Essequibo, the region in dispute between the parties.^[94]
But the oral proceedings can also be read performatively,^[95] as ‘reiterated and referential practices that produce social effects over time’.^[96] The formal, ritual-like characteristics of oral proceedings, such as the black robes symbolizing judicial authority,^[97] or the use of ‘stylized and ritualistic dialogue’,^[98] can improve the effectiveness of the actions and statements made during the proceedings.^[99] These symbols and rituals are ‘constitutive’ of the Court and its judicial process.^[100] Empirical studies have shown that the use of judicial symbols during oral proceedings strengthens institutional legitimacy and increases the chances that the decision will be accepted by the parties,^[101] even when the decision is disappointing.^[102] The Court therefore relies on the symbolism and ritual which take place during oral proceedings in order to foster its own legitimacy and authority.^[103]
The activities taking place during the oral proceedings can thus ‘entrench certain practices and modes of thought, naturalizing and making them seem self-evident through each repeated performance’.^[104] The Court’s oral proceedings serve to demonstrate (as performance) and constitute (as performatives) procedural fairness.^[105]

3.1. Defining procedural fairness

There is sufficient evidence of a set of common core values constituting procedural fairness across international courts and tribunals.^[106] Ruiz Fabri and Paine identify as elements of procedural fairness ‘ensuring equality of arms between the parties, principe du contradictoire, and expectations around the independence and impartiality of adjudicators and the transparency of proceedings’.^[107] To this list may be added the idea that equal participation in open court promotes the value of ‘dignity’;^[108] in particular that there is an independent value in adjudicative practices that afford parties ‘the opportunity to tell their story in a meaningful way’.^[109] As Lahav notes, permission to tell one’s story may be considered ‘the irreducible minimum of just procedure’.^[110] Individual judges have also made reference to particular concepts such as equality as elements of procedural fairness.^[111]
In sum, it appears that the core values constituting procedural fairness are equality between the parties, participant dignity, and the impartiality of the Court. Even if no more than a narrow overlapping consensus,^[112] this is sufficient for the purposes of situating the concept of fairness in respect of the oral proceedings of the Court.

a) Party equality

The first value inherent in procedural fairness is party equality – the correlative ideas of the right of each party to be heard, and the procedural equality of the parties^[113] – captured in the maxim audi alteram partem or principe du contradictoire.^[114] Indeed, Strong suggests that equality and the right to be heard are so well accepted that they constitute a form of procedural ‘jus cogens’.^[115]
Procedural equality is intended to ‘guarantee that neither party derives any special and material procedural advantage over the other’.^[116] In its contentious proceedings, the Court has endorsed this value, in particular noting that procedural equality requires that each party have an equal opportunity to present its case and to comment on its opponent’s case.^[117] Equality is, in the words of the Court, an ‘integral’ constituent of the rule of law.^[118] The Court’s Statute embeds equality of treatment; for example in Article 35(2) which states that even in the case of ad hoc procedural arrangements for States that are not parties to the Statute, in no case shall the conditions established for access to the Court ‘place the parties in a position of inequality before the Court’.^[119]
The Court has addressed procedural equality in some detail in the Advisory Opinions mentioned in Part 2, above. These are an unusual feature of the Court’s docket, as the tribunals under review decide cases between individuals and international organisations, usually related to the employment of the former by the latter. In this context, the Court has considered the ‘inherent inequality’ between the entities involved, as individuals have no right to appear before the Court,^[120] and has dispensed with oral proceedings as a means of countering this inequality.^[121] The Court’s solution to party inequality in the Complaints Made against UNESCO Advisory Opinion was to accept written statements from individuals provided that they were transmitted to the Court via UNESCO.^[122] UNESCO undertook to make the transmission ‘directly to the Court, without checking the contents’.^[123] The Court considered this workaround sufficient to meet the requirements of equality.^[124] However, a number of the judges considered that the Court should have declined to issue an Opinion, on the basis that ‘the absence of oral proceedings constituted either an insuperable or a serious obstacle’.^[125] The Court noted in a later Opinion that it ‘took the view that any absence of equality … is capable of being cured by the adoption of appropriate procedures which ensure actual equality in the particular proceedings’,^[126] albeit that this was not a matter ‘free from difficulty’.^[127]
In 2012, the Court faced a particularly critical problem of unequal parties, as the International Fund for Agricultural Development not only attempted to insist upon its right to be heard orally,^[128] but also failed to transmit its opponent’s documents to the Court in a timely fashion.^[129] While the Court proceeded to give an Opinion, as it had done in the previous similar cases, it was particularly critical of the inequalities created by the procedures used.^[130] Judge Cançado Trindade said ‘[t]he procedural acrobatie is not to hold oral hearings: this is not a solution either, as the Court thereby ends up depriving itself to instruct better the dossier of the case, by imposing such limit to the freedom of expression of the “parties” concerned’.^[131] Likewise, Judge Greenwood stated that such inequality between the parties ‘is incompatible with modern notions of justice and due process’.^[132]
The Court’s practice in respect of these Advisory Opinions suggests that the Court holds the equality of the parties as one of its highest order values, and also that it perceives the oral proceedings as having a particular importance related to equality. Not only was there a practical concern that the Judges would not have access to sufficient information without the oral proceedings,^[133] but the inability of one party to stand before the Court amounted to an inherent inequality as well as an imposition on party freedom.
The Court’s practice in these cases does not make explicit, however, the relationship between oral proceedings and party equality, particularly given that the Court was able to proceed to render Advisory Opinions purely on the papers.^[134] Moreover, the general principle of audiatur et altera pars can arguably be complied with by proceeding in writing.^[135] But while oral proceedings are not the only means through which equality can be pursued, they are its optimal manifestation. Viewed through an expressive lens, the Court’s oral proceedings enact equality both physically and symbolically, and for that reason give an important message to State parties, underscoring the fact that they will be treated fairly.^[136]
Oral proceedings express and make real equality; placing the parties in a position of adversarial equality despite any power differences that may exist outside of the courtroom.^[137] Parties are placed on an equal footing, physically, and are allocated equal speaking time.^[138] The Court actively listens to both parties in an open and transparent manner. Moreover, the parties are required to engage with the Court and one another using the same language of legal forms.^[139] Parties are judged on the quality of their argument alone. No matter how powerful a party is outside of the courtroom, inside they ‘must operate as equals of their adversaries’.^[140] Inside the highly formal, ritualised space of the Great Hall of Justice, the treatment of States as procedural equals contributes to possibilities of actual equality.^[141] While in other fora informal disputing can magnify power imbalances, the Court’s oral proceedings are able to give a ‘material presence’^[142] to sovereign equality and permit States to ‘escape power relationships’^[143] temporarily.

b) Dignity

The second value identifiable within the broader concept of procedural fairness is dignity. Fairness, Kennedy tells us, ‘is a feeling, the result of participation in a discourse’.^[144] Procedural fairness requires that ‘those affected by a decision have the option to participate in the process by which the decision is made’.^[145] The value of participation is in turn connected to the dignity of the participants.^[146] It is based on the almost instinctive notion that ‘there is a difference between losing and being treated unfairly’.^[147] It is possible to leave the courtroom victorious ‘and yet dissatisfied’,^[148] on the basis that one’s voice was not heard.^[149]
Dignity is a unique concept, albeit closely related to equality.^[150] Khaitan argues that dignity is fundamentally expressive, insofar as it takes seriously ‘the expression of disrespect/insult/humiliation etc to a cherished person, object or value’.^[151] Franck, drawing on Kant, explains that individuals possess dignity ‘[b]ecause persons are ends, and may not be used merely as means, they are above all price, and have no equivalent’.^[152] In general terms, participation in litigation affirms the value of dignity by allowing those harmed to ‘receive direct recognition’.^[153] Giving the parties a ‘voice’ recognises their dignity and grants them respect,^[154] and ensures the party has an opportunity to participate in a decision that may affect them ‘profoundly’.^[155] Thus, the practice of hearing both sides is based on dignity,^[156] as well as in party equality. Litigant stories have an independent value that is not merely expressed vis-à-vis equality with their opponent; the Court will hold oral proceedings even where one party elects not to appear.[157] The idea of one’s right to a ‘day in court’ is powerful.^[158]
Dignified participation also signals that the participants are considered fully-fledged members of their society.^[159] Ensuring the dignity of participants is also a key consideration in the physical design of courtrooms,^[160] because a ‘dignified setting’ conveys the message that the participants are being treated with respect.^[161] The act of listening attentively during oral proceedings reinforces the expression of the participants’ dignity.^[162] Thus the ‘courtroom performance of human dignity becomes real, at least for the duration of the performance itself’.^[163]
The dignitary theory is premised upon the innate moral value of humanity. Can this theory apply to the Court’s oral proceedings? Importing a metaphorical notion of ‘humanity’ to States parties as litigants before the Court is problematic.^[164] However, dignity inheres in sovereign States as well,^[165] and oral proceedings expressively perform and constitute State dignity in a manner analogous to individual dignity in domestic courts. States have ‘feelings’, as Jessup once said.^[166] States can be friends,^[167] or enemies.^[168] The manner in which States relate to one another is governed by ‘a world of feeling and sentiment’,^[169] concerned largely with the question of respect for their inherent dignity as equal sovereigns.^[170]

c) Impartiality

In addition to fostering the inherent value of dignity, ensuring that the parties are able to tell their story and have their day in court also contributes to the third and final value of procedural fairness by expressively demonstrating the Court’s own impartiality and in turn, its legitimacy. If the parties involved, and the public, can witness that arguments have been fully presented to the Court, they will be more likely to accept and comply with the final judgment.^[171] Impartiality is in many respects an internal judicial ethic. If decisions are made behind closed doors on the basis of written submissions, the judge may well be impartial, but the parties (and public) cannot see their impartiality.^[172] Here, oral proceedings expressive functions are indispensable. The place, performance, and symbolism of oral proceedings together operate as ‘social signs that the judge has put aside her individuality and assumed the role of an authority acting “under law” – that is, deciding according to neutral principles’.^[173] A visible performance of impartiality is essential, because there is no other opportunity in the judicial process for certifying that the judges are engaged in a fair assessment of the parties’ respective cases.^[174] Crawford and McIntyre point out that ‘accountability is a necessary counterpoint to judicial independence and impartiality; indeed it is, in many ways, merely the other side of that coin’.^[175] The Court’s oral proceedings are open to the public,^[176] bringing ‘into the public light what would otherwise remain a relatively private and obscure administration of justice’.^[177] It is a key part of the symbolic expression of the Court, permitting the public audience to bear ‘witness to the fairness of proceedings’.^[178] Elimination of oral proceedings removes the one occasion on which the judges can be seen at work.^[179]

3.2. Oral proceedings and the Court’s legitimacy

Taken together, the procedural fairness values expressively performed during oral proceedings make an important contribution to the Court’s legitimacy.^[180] Courts operate in accordance with a principle of publicity,^[181] which in turn sustains the foundation of their authority and power.^[182] While the Court still relies upon party consent as a source of its authority, as the principal judicial organ of the United Nations^[183] it is also engaged in an exercise of public power.^[184] Publicity and transparency are therefore essential attributes of the Court’s work.^[185] The repeated public enactment of equality, dignity, and impartiality during the oral proceedings ‘sustains and perpetuates public and juridical belief’ in the Court as ‘a source of justice’.^[186]
The legitimising performance of oral proceedings is particularly important to balance the Court’s lack of formal enforcement. Luban colourfully argues that international courts ‘bootstrap themselves into legitimacy by the quality of justice they deliver; their rightness depends on their fairness’.^[187] Parties are more likely to submit to judicial resolution before,^[188] and more likely to comply with a judgment that is issued by,^[189] a Court that is perceived as fair and legitimate.^[190] This is so even when the final decision is disappointing.^[191] As Stahn states, expressivism ‘is an instrument to gain “buy-in” for authority’.^[192] For the Court, lacking as it does any supporting enforcement mechanism, the expression of procedural fairness that is performed during oral proceedings is an essential contribution to its legitimacy,^[193] and social authority.^[194]

4. South Africa v Israel: Procedural fairness unperformed?

The importance of understanding the values inherent in oral proceedings and the need to articulate principles regulating their use or non-use is aptly demonstrated by the South Africa v Israel case.
To begin, the Court’s two non-hearing decisions in February and March led to completely different results. The first, rejecting South Africa’s request for an Article 75(1) order, seems logical enough. The Court was declining an invitation to use its proprio motu powers; essentially, the Court was simply acting as it would otherwise have acted. Nothing changed.
But the second decision was fundamentally different in scope. The Court was convinced to modify the provisional measures indicated in the 26 January Order, a course of action which, as Judge Nolte pointed out, is rare in the Court’s jurisprudence.[195] Moreover, it did so on the basis of evidence that neither party submitted nor had the opportunity to comment upon.[196] By deciding on the basis of written submissions alone, the Court arguably deprived the parties of full procedural fairness (the dignity value of the right to be heard) and also lost the opportunity of reinforcing its authority to reach the decision that it did. This is particularly serious when the jurisprudence is underdeveloped; Judge Nolte indicated his concern that the Court’s ruling might be taken to mean that ‘the threshold for modifying, adding or specifying a provisional measure is low’.^[197]
It can be asked whether the Court, having conducted a public hearing in January, felt that the procedural fairness benefits of oral proceedings had been satisfied; particularly given that the March Order was a modification rather than a new application for provisional measures. This would be consistent with the Court’s approach in Armenia v Azerbaijan, where Armenia’s two requests for modification were adjudicated on the papers while oral proceedings were conducted for its new request for provisional measures in December 2022.[198] Although the Court has not expressly articulated any reasons for its decisions to dispense with oral hearings, treating requests for modification as an extension of the original Order (and therefore as part and parcel of the original oral proceedings) seems both logical and appropriately economical. It corresponds with the rule in Article 61(1) that allows the Court to indicate the issues ‘on which it considers that there has been sufficient argument’ (thus limiting the scope of the oral argument[199]) and with the approach taken by the Court to dealing with questions from the bench, whereby parties respond in writing following the conclusion of the oral proceedings.[200]
However, this neat explanation comes undone by the procedure followed in respect of the Court’s final Order in South Africa v Israel. South Africa’s ‘urgent Request for the modification and indication of provisional measures’ dated 10 May referenced both Articles 75 and 76 of the Rules,[201] but the Court elected to treat it as ‘a request for the modification of the Order of 28 March’.[202] Despite this, oral proceedings took place. It appears that initially, the Court intended to proceed by way of a written procedure, as Israel was invited to present written observations on the Urgent Request by 15 May.[203] But for reasons unknown, on 13 May the Court informed the parties that an oral proceeding would take place on 16 and 17 May.
Given the enormous attention focussed on the case, was the Court consciously electing to perform its role in public in order to bolster the effectiveness of its resulting orders? If so, the result was mixed at best. Rather than performing procedural fairness effectively, the oral proceedings gave rise to new concerns about a lack of fairness.
As noted in Part 1, above, during the May hearings South Africa was represented by a full team, while Israel’s external legal counsel was unavailable. The Court did not accede to Israel’s request to postpone the hearings ‘in light of the circumstances’,[204] which may be taken as a coded reference to the fact that the ground offensive in Rafah, first announced in February, had actually begun on 7 May and as such matters were reasonably urgent.[205] The Court’s decision to hold oral hearings in spite of the unbalanced representation available to the parties was criticized by Judge Sebutinde in her Dissenting Opinion, where she noted that:

Indeed, the manner in which the Court conducted the May hearing appears to run contrary to the fundamental values underlying oral proceedings. While Israel was afforded the opportunity to be heard, impeding their access to external counsel arguably negatively impacted their perceptions of dignified treatment and may have degraded the Court’s performance of impartiality. This in turn may have reduced the Court’s overall perceived legitimacy and authority. As pointed out by Olivia Flasch,

Only fairness makes losing tolerable.^[208] In a case such as this one, involving as it does the most serious allegations of wrongdoing and underscored by a factual background of truly apocalyptic human suffering, the Court must do everything in its power to ensure that justice is not only done but is at the same time seen to be done. The expressive capacities of oral proceedings to both perform and performatively enact procedural fairness need to be given the closest attention; at the very least where the Court elects not to hold oral proceedings, it should articulate clearly the reasons behind the decision. Parties should not be left to guess whether or not they will receive a public hearing, nor be left stumbling in response to last minute changes.

* BA LLB/LP Hons (Flin) LLM International Law (Cantab) PhD (Melb); Senior Lecturer in Law, University of South Australia.
[1] J McIntyre, A Plan, ‘The ICJ Goes Viral: Transparency and Sensationalism in South Africa v Israel’ Opinio Juris (31 January 2024).
[2] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures) (26 January 2024) (‘South Africa v Israel, Order of 26 January 2024’).
[3] Also covered extensively in the media. See eg: <www.aljazeera.com/news/liveblog/ 2024/1/26/live-icj-to-issue-preliminary-ruling-in-south-africa-genocide-case-against-i>.
[4] South Africa v Israel, Order of 26 January 2024 (n 2) para 54.
[5] ibid 22 para 74.
[6] Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.
[7] South Africa v Israel, Order of 26 January 2024 (n 2) para 86 [1]-[2].
[8] ibid 86 [3]-[4]. For a detailed analysis see MA Becker, ‘Crisis in Gaza: South Africa v Israel at the International Court of Justice (or the Unbearable Lightness of Provisional Measures)’ (2024) Melbourne J Intl L (forthcoming).
[9] ‘Urgent Request for Additional Measures Under Article 75(1) of the Rules of Court of the International Court of Justice’, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (‘Urgent Request’).
[10] International Court of Justice, Press Release no 2024/16 (16 February 2024) ‘Decision of the Court on South Africa’s Request for Additional Provisional Measures’.
[11] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures) (28 March 2024) (‘South Africa v Israel, Order of 28 March 2024’) para 16.
[12] ibid para 51(2)(a).
[13] ‘Verbatim Record 2024/28’, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures) (17 May 2024) 8-9.
[14] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures) (24 May 2024) (‘South Africa v Israel, Order of 24 May 2024’).
[15] ibid para 57(2)(a).
[16] See eg: <www.aljazeera.com/news/2024/5/24/icj-orders-israel-to-halt-its-offensive-on-rafah-gaza-in-new-ruling>.
[17] J McIntyre, ‘Consensus, at What Cost?’ Verfassungsblog (25 May 2024).
[18] Discussed in Part 2 infra.
[19] In addition to South Africa v Israel, Ukraine instituted proceedings against Russia in 2022 (Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) (International Court of Justice, General List No 182)) and The Gambia instituted proceedings against Myanmar in 2019 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (International Court of Justice, General List No 178)). In both, orders in respect of intervention were made without an oral hearing. See discussion in Part 2.
[20] South Africa v Israel, Order of 26 January 2024 (n 2) para 72.
[21] South Africa v Israel, Order of 28 March 2024 (n 11) (Judge Nolte) para 1.
[22] Statute of the International Court of Justice (opened for signature 26 June 1945, entered into force 24 October 1945) 33 UNTS 99316 (‘Statute’) art 43(1).
[23] ibid art 43(5).
[24] ibid art 52; International Court of Justice, Rules of Court (adopted 14 April 1978, entered into force 1 July 1978) (‘Rules’) art 72 provides for the reopening of proceedings to facilitate the presentation of further evidence should both parties consent, but although the Court has at times considered it, a reopening has never happened. See Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253, 263-5; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, 39; JJ Quintana, Litigation at the International Court of Justice (Brill 2015) 378-379. Cf Permanent Court of International Justice, Seventh Annual Report of the Permanent Court of International Justice (1930-1931) [1931] PCIJ Ser E No 7, 301.
[25] Rules (n 24) arts 54, 55, 59.
[26] Rules (n 24) art 70.
[27] Rules (n 24) arts 56, 57, 58, 62-69.
[28] J Crawford, ‘Advocacy Before International Tribunals in State-to-State Cases’ in D Bishop, EG Kehoe, The Art of Advocacy in International Arbitration (2^nd edn, Juris 2010) 303, 323.
[29] R Kolb, The Elgar Companion to the International Court of Justice (Edward Elgar, 2014) 321. This was the case in United States Diplomatic and Consular Personnel at Tehran: International Court of Justice, Annuaire–Yearbook No 34 (1979-1980) 127.
[30] Eg Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), where a document was required to be kept secret by French law: International Court of Justice, Annuaire–Yearbook No 62 (2007-2008) 199, 338.
[31] Rules (n 24) art 74(2).
[32] ibid.
[33] For proceedings in Chambers, an oral proceeding is not mandatory: Rules (n 24) art 92(3). Cf Treaty of Neuilly, Article 179, Annex, Paragraph 4 (Interpretation) (Judgment) [1924] PCIJ Ser A No 3, 5.
[34] S Talmon, ‘Article 43’ in A Zimmermann et al (eds), The Statute of the International Court of Justice: A Commentary (3^rd edn, OUP 2019) 1088, 1129-30; Quintana (n 24) 350.
[35] Shabtai Rosenne is critical of not holding oral proceedings for incidental phases: ‘Controlling Interlocutory Aspects of Proceedings in the International Court of Justice’ (2000) 94(2) AJIL 307, 308.
[36] Rules (n 24) arts 59 and 94, amended on 25 June 2020. See also G Pinzauti, P Webb, ‘Litigation before the International Court of Justice during the Pandemic’ (2021) 34 Leiden J Intl L 787.
[37] Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261.
[38] LaGrand (Germany v United States of America) (Provisional Measures) [1999] ICJ Rep 9, 16 para 29(1)(a).
[39] ibid 14 para 21.
[40] ibid (Judge Schwebel) 22.
[41] ibid. Judge Oda also expressed concerns with the Order, but on the basis that in his view the Order was not directed to the preservation of the rights of Germany (ibid 19).
[42] ibid (Judge Schwebel) 22.
[43] Application of International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v Azerbaijan) (International Court of Justice, General List No 180, 16 September 2021).
[44] Application of International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v Armenia) (International Court of Justice, General List No 181, 23 September 2021).
[45] Rules (n 24) art 47. See eg Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Joinder) [2013] ICJ Rep 166 and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Joinder) [2013] ICJ Rep 184.
[46] The full procedural history is recounted in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v Azerbaijan) (Request for the Modification of the Order of 22 February 2023) [2023] ICJ Rep 403, 404-405.
[47] ibid.
[48] J McIntyre, K Wigard, O Pomson, ‘A Hot Potato: The ICJ’s Order on the Admissibility of 32 Declarations of Intervention in Ukraine v Russia’ EJIL:Talk! (13 June 2023).
[49] Genocide Convention (n 6).
[50] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) (Admissibility of the Declarations of Intervention) (5 June 2023) 6.
[51] K Wigard, O Pomson, J McIntyre, ‘Keeping Score: An Empirical Analysis of the Interventions in Ukraine v Russia’ (2023) 14 J Intl Dispute Settlement 305; J McIntyre, ‘Less a Wave Than a Tsunami: Procedural Implications for the ICJ of the Article 63 Interventions in Ukraine v Russia’ Völkerrechtsblog (11 October 2022).
[52] Ukraine v Russia (Admissibility of the Declarations of Intervention) (n 50) 5.
[53] ‘Verbatim Record 2023/13’, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) (Admissibility of the Declarations of Intervention) (18 September 2023) 96-98.
[54] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Admissibility of the Declarations of Intervention) (3 July 2024) 4 [18].
[55] B McGarry, ‘Mass Intervention?: The Joint Statement of 41 States on Ukraine v. Russia’ EJIL:Talk! (30 May 2022).
[56] Statute (n 22) art 62. See further Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (Application to Intervene by Nicaragua) [1990] ICJ Rep 92, 135 para 99.
[57] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Order on Declaration of Intervention by El Salvador) [1984] ICJ Rep 215.
[58] Nicaragua (n 57) 219 (Judges Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharrière).
[59] ‘Written Observations on the Declaration of Intervention’, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (10 September 1984) 465.
[60] Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Preliminary Objections) (Nigeria v Cameroon) [1999] ICJ Rep 31.
[61] Rosenne (n 35) 308.
[62] Interpretation of the Judgment of 11 June 1998 (n 60) 33.
[63] Interpretation of the Judgment of November 20^th 1950 in the Asylum Case (Colombia v Peru) [1950] ICJ Rep 395.
[64] ibid 399-401.
[65] A Sarvarian, ‘Procedural Economy at the International Court of Justice’ (2019) 18 L & Practice Intl Courts Tribunals 74, 90-1. See also B Coleman, ‘The Efficiency Norm’ (2015) 56 British Columbia L Rev 1777, 1813-14.
[66] Vienna Convention on Consular Relations (n 37).
[67] Vienna Convention on Consular Relations (Paraguay v United States of America) (Provisional Measures) [1998] ICJ Rep 248.
[68] Jadhav (India v Pakistan) (Provisional Measures) [2017] ICJ Rep 231.
[69] Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) [1991] ICJ Rep 53, 124 (Judges Aguilar Mawdsley and Ranjeva).
[70] Interpretation of the Judgment of 11 June 1998 (n 60) 33.
[71] ibid 56 (Judge Ajibola).
[72] MS Ball, ‘The Play’s the Thing: An Unscientific Reflection on Courts under the Rubric of Theater (1975) 28(1) Stanford L Rev 81, 82.
[73] C Rose, ‘Questioning the Silence of the Bench: Reflections on Oral Proceedings at the International Court of Justice’ (2008) 18 J Transnational L Policy 47, 48.
[74] R Kolb, The International Court of Justice (Hart 2013) 958, 971.
[75] S Rosenne, ‘The 1972 Revision of the Rules of the International Court of Justice’ (1973) 8(2) Israel L Rev 197, 227.
[76] Rose (n 73) 48.
[77] Eg ‘Verbatim Record 2002/17’, Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v Nigeria) (12 March 2002) 31 (Sinclair).
[78] M Lachs, ‘The Revised Procedure of the International Court of Justice’ in F Kalshoven, PJ Kuyper, JG Lammers (eds), Essays on the Development of the International Legal Order, in Memory of Haro F van Panhuys (Sitjoff and Noordhoff 1980) 21, 35.
[79] A Keene (ed), ‘Outcome Paper for the Seminar on the International Court of Justice at 70: In Retrospect and in Prospect’ (2016) 7 J Intl Dispute Settlement 238, 251-3; International Law Association, Committee on the Procedure of International Courts and Tribunals Final Report (1 May 2020) 33-4.
[80] S Ugalde, JJ Quintana, ‘Managing Litigation before the International Court of Justice’ (2018) 9 J Intl Dispute Settlement 691, 717.
[81] S Oda, ‘The International Court of Justice viewed from the Bench (1976-1993)’ (1993) 244 Recueil des Cours de l’Académie de Droit International 118. See also M Bedjaoui, ‘The “Manufacture” of Judgments at the International Court of Justice’ (1991) 3 Pace Intl L Rev 29, 46.
[82] Ugalde, Quintana (n 80) 718. See also RY Jennings, ‘The Role of the International Court of Justice’ (1997) 68(1) British YB Intl L 1, 14: ‘The oral argument is, in this writer’s opinion and experience, an essential part of the adversarial system of trial’; Pinzauti, Webb (n 36) 793: ‘The prevailing view is that “oral hearings make a difference, even at the ICJ”, even if they take place via video conference’.
[83] Indeed, Tommaso Soave suggests that oral proceedings ‘have little or no value in acquiring additional information from the litigants’, T Soave, The Everyday Makers of International Law: From Great Halls to Back Rooms (CUP 2022) 267-8.
[84] E Craig, ‘The Inhospitable Court’ (2016) 66(2) U Toronto L J 197, 218; L Schirch, Ritual and Symbol in Peacebuilding (Lynne Rienner Publishers 2004) 71; P Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (U Chicago Press 1999) 79 cited in OG Chase, Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context (New York U Press 2005) 119; DI Kertzer, Ritual, Politics, and Power (Yale U Press 1988) 132. Contra H Ruiz Fabri, ‘La justice procédurale en droit international’ (Speech, Académie de droit international, 11 July 2022). See also H Ruiz Fabri, ‘La justice procédurale en droit international’ (2023) 432 Recueil des Cours de l’Académie de Droit International 14.
[85] B Authers, H Charlesworth, M-B Dembour, E Larking, ‘Introduction to Humanity Rituals Special Issue’ (2018) 9(1) Humanity 63, 63-64.
[86] B Ertür, Spectacles and Spectres: Political Trials, Performativity and Scenes of Sovereignty (Birkbeck, U London, PhD thesis, 2015) 19; RN Bellah, ‘Durkheim and ritual’ in JC Alexander, P Smith (eds), The Cambridge Companion to Durkheim (CUP 2008) 183, 193.
[87] J Allen, ‘Theater of International Justice’ (2012) 3(1) Creighton Intl Comparative L J 131, 137.
[88] J Bentham, Scotch Reform; Considered, with Reference to the Plan, Proposed in the Late Parliament, for the Regulation of the Courts, and the Administration of Justice, in Scotland (2^nd ed, Richard, Taylor & Co 1811) vol 5, letter 2 reiterating the similar arguments Bentham made in his 1791 Panopticon. See also Soave (n 83) 269. Cf H Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 1977) 8 warning against trials that descend into mere show.
[89] G Lynch, Performances of Injustice: The Politics of Truth, Justice and Reconciliation in Kenya (CUP 2018) 20. See also ME O’Connell, The Art of Law in the International Community (CUP 2019) 264; P Lahav, ‘Theater in the Courtroom: The Chicago Conspiracy Trial’ (2004) 16(3) L & Literature 381, 392; C Stahn, Justice as Message (OUP 2020) 252; J Bens, The Sentimental Court: The Affective Life of International Criminal Justice (CUP 2022) 24. For analysis of this approach as applied to international criminal trials see K Leader, ‘The Trial’s the Thing: Performance and Legitimacy in International Criminal Trials’ (2018) 24(2) Theoretical Criminology 241.
[90] A Allo, ‘The ‘Show’ in the “Show Trial”: Contextualizing the Politicization of the Courtroom (2010) 15 Barry L Rev 41, 55; B Kotecha, ‘The Art of Rhetoric: Perceptions of the International Criminal Court and Legalism’ (2018) 31 Leiden J Intl L 939, 943-4; J Boyd White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (U Wisconsin Press 1985) 28.
[91] ‘Verbatim Record 2009/32’, Accordance with international law of the unilateral declaration of independence in respect of Kosovo (10 December 2009) 47 (Crawford). See also examples in Soave (n 83) 268.
[92] Talmon (n 34) 1171.
[93] Ball (n 72) 102.
[94] See screenshot by @OriPomson (Ori Pomson) (Twitter, 17 November 2022, 8:11pm ACDT): <https://twitter.com/OriPomson/status/1593177599244914688>.
[95] It goes beyond the scope of this article to engage closely with the philosophies of speech acts and performativity, but very briefly speech act theory posits the existence of performative utterances: a form of constitutive speaking. See J L Austin, How To Do Things With Words (OUP 1975) and J R Searle, Expression and Meaning: Studies in the Theory of Speech Acts (CUP 1979). For Judith Butler, speaking performatively creates and defines categories of identity (eg in relation to gender): see Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990). For a summary of Butler’s work and how it can relate to law and courts, see M Merill Umphrey, ‘Law in Drag: Trials and Legal Performativity’ (2011) 21(2) Columbia J Gender L 114.
[96] A Alvarez-Nakagawa, ‘Rituals of (dis)possession: Appropriation and Performativity in the Early Modern Law of Nations’ (2022) 10 London Rev Intl L 33, 69.
[97] OG Chase, J Thong, ‘Judging Judges: The Effect of Courtroom Ceremony on Participant Evaluation of Process Fairness-Related Factors’ (2012) 24(1) Yale J L Humanities 221, 223-24.
[98] Pnina Lahav (n 89) 392.
[99] RA Rappaport, Ecology, Meaning, and Ritual (North Atlantic Books 1979) cited in Schirch (n 84) 85.
[100] Soave (n 83) 269.
[101] JL Gibson, M Lodge, B Woodson, ‘Losing, but Accepting: Legitimacy, Positivity Theory, and the Symbols of Judicial Authority’ (2014) 48 L Society Rev 837, 838.
[102] ibid 857. See also C Tomlins, ‘Pursuing Justice, Cultivating Power: The Evolving Role of the Supreme Court in the American Polity’ (2006) 17(1) Researching L 1, 8.
[103] J Allen, ‘A Theory of Adjudication: Law as Magic’ (2008) 41 Suffolk University L Rev 773, 796-802; F Gélinas et al (eds), Foundations of Civil Justice: Toward a Value-Based Framework for Reform (Springer 2015) 17-22; Soave (n 83) 270.
[104] Authers et al (n 85) 67.
[105] Stahn (n 89) 250. On the role of symbolism in the consolidation of rules, see T Franck, The Power of Legitimacy among Nations (OUP 1990) 91-105.
[106] See R Kolb, ‘General Principles of Procedural Law’ in A Zimmermann et al (eds), The Statute of the International Court of Justice: A Commentary (3^rd edn, OUP 2019) 876-77; Quintana (n 24) 14; F Fontanelli, P Busco, ‘What We Talk About When We Talk About Procedural Fairness’ in A Sarvarian et al (eds), Procedural Fairness in International Courts and Tribunals (BIICL 2015) 17, 22.
[107] H Ruiz Fabri, J Paine, ‘The Procedural Cross-Fertilization Pull’ (Max Planck Institute Luxembourg for Procedural Law Research Paper Series, No 6, 2019) 25. For similar lists, see S Schiettekatte, ‘The Faces of Procedure in International Adjudication: Servant, Justice, and Power’ (2020) 34 Temple Intl Comparative L J 227, 239; O’Connell (n 89) 48; A D Lahav, ‘Procedural Design’ (2018) 71 Vanderbilt L Rev 821, 871; CT Kotuby, Jr, LA Sobota, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (OUP 2017) 70 ff; H Stewart, ‘Concern and Respect in Procedural Law’ in W Waluchow, S Sciaraffa (eds), The Legacy of Ronald Dworkin (OUP 2016) 373, 375; Fontanelli, Busco, ‘What We Talk About’ (n 106) 33-35; H Thirlway, ‘Procedural Fairness in the International Court of Justice’ in A Sarvarian et al (eds), Procedural Fairness in International Courts and Tribunals (BIICL 2015) 243, 244; CF Amerasinghe, Jurisdiction of Specific International Tribunals (Martinus Nijhoff 2009) 13-14; B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Grotius 1987) 290 ff. Cf MH Redish, L C Marshall, ‘Adjudicatory Independence and the Values of Procedural Due Process’ (1986) 95 Yale L J 455 who argue that the core of procedural fairness relates to judicial independence. For a summary of the elements common to all fairness theories and how they apply to international criminal trials, see Y McDermott, Fairness in International Criminal Trials (OUP 2016) 27-31 and D Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in S Besson, J Tasioulas (eds), The Philosophy of International Law (OUP 2010) 569, 580.
[108] A Lahav, In Praise of Litigation (OUP 2017) 32.
[109] L B Solum, ‘Procedural Justice’ (2004) 78 Southern California L Rev 181, 273.
[110] Alexandra Lahav, In Praise of Litigation (n 108) 96.
[111] Certain Activities (n 45) 179. Other references to procedural fairness are merely in passing: Judge Donoghue in Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep 100, 187 identified res judicata as applicable ‘for reasons of procedural fairness’ but does not elaborate further. Judges Al-Khasawneh and Simma in Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 114 argue that invisible experts go against ‘transparency, openness, procedural fairness’.
[112] Ruiz Fabri (n 84).
[113] V S Mani, International Adjudication: Procedural Aspects (Martinus Nijhoff 1980) 12.
[114] Ruiz Fabri, Paine (n 107) 25; Cheng (n 107) 290; Jurisdictional Immunities of the State (Germany v Italy) (Counterclaims) [2010] ICJ Rep 310, 342 (Judge Cançado Trindade).
[115] SI Strong, ‘General Principles of Procedural Law and Procedural Jus Cogens’ (2018) 122 Pennsylvania State L Rev 347, 404. See also H Thirlway, ‘Dilemma or Chimera? Admissibility of Illegally Obtained Evidence in International Adjudication’ (1984) 78 AJIL 622, 626; H Thirlway, ‘Procedural Fairness’ (n 107) 244; AD Lahav, ‘Procedural Design’ (n 107) 871; Kotuby and Sobota (n 107) 70 ff.
[116] Mani (n 113) 15. See also WB Rubenstein, ‘The Concept of Equality in Civil Procedure (2002) 23(5) Cardozo L Rev 1865, 1867.
[117] Nicaragua (Merits) (n 24) 26: ‘The provisions of the Statute and Rules of Court concerning the presentation of pleadings and evidence are designed to secure a proper administration of justice, and a fair and equal opportunity for each party to comment on its opponent’s contentions’. See also Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder [1929] PCIJ Ser A No 23, 45; Border Area and Construction of a Road (Joinder) (n 111) 195-97 (Judge Cançado Trindade); CF Amerasinghe, Evidence in International Litigation (Martinus Nijhoff 2005) 148.
[118] Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v France) (Order) [1995] ICJ Rep 288, 325. See also Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) (Admissibility of the Declarations of Intervention) para 4 (Gevorgian).
[119] Statute (n 22).
[120] Statute (n 22). See Review of Judgment No 158 of the United Nations Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166, 178.
[121] See GA Res 957(X), UN Doc A/RES/957(X) (8 November 1955) which recommended avoiding oral statements in such review proceedings, so as to avoid inequality. Another scenario arose in Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City (Advisory Opinion) [1935] PCIJ Ser A/B No 59, 41 whereby the Senate of the Free City was able to submit a written memorial, and also to have oral statements made on its behalf, while three minority parties were only allowed to send written notes and could not take part in the oral proceedings. Judge Anzilotti in his separate opinion was critical of ‘the resulting inequality’ (65).
[122] These events are recounted in Review of Judgment No 158 of the United Nations Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166, 179. See also Judgments of the Administrative Tribunal of the ILO upon complaints made against the UNESCO (Advisory Opinion) [1956] ICJ Rep 77.
[123] Review of Judgment No 158 (n 122) 179. See also Complaints made against the UNESCO (n 122).
[124] Complaints made against the UNESCO (n 122) 86.
[125] Review of Judgment No 158 (n 122) 180. See also Complaints made against the UNESCO (n 122) 108 (Judge Winiarski) 112 (Judge Klaestad) 114-5 (Judge Zafrulla Khan) 166-7 (Judge Córdova).
[126] Review of Judgment No 158 (n 122) 180.
[127] ibid 183.
[128] ‘Written Statement of the International Fund for Agricultural Development’, Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (International Court of Justice, General List No 146, 29 October 2010) 10, 25, 30. See further Kolb, The International Court of Justice (n 74) 974-75.
[129] Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Advisory Opinion) [2012] ICJ Rep 10, 60 (Judge Cançado Trindade).
[130] ibid 27-31.
[131] ibid 88 (Judge Cançado Trindade).
[132] ibid 96 (Judge Greenwood).
[133] Contra Soave (n 83) 267-68.
[134] Talmon (n 34) 1130.
[135] ibid.
[136] Vice-President Gevorgian appears cognisant of this when he states that in Ukraine v Russia the addition of 32 intervenors to the case could result in an inequality which is ‘further exacerbated in future oral proceedings’: Ukraine v Russia (Admissibility of the Declarations of Intervention) (5 June 2023) para 3 (Gevorgian).
[137] J Resnik, D Curtis, A Tait, ‘Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere’ in A Wagner, RK Sherwin (eds), Law, Culture and Visual Studies (Springer, 2014) 515, 520; NW Spaulding, ‘The Enclosure of Justice: Courthouse Architecture, Due Process, and the Dead Metaphor of Trial’ (2012) 24(1) Yale J L Humanities 311, 330.
[138] Soave (n 83) 257.
[139] D Kritsiotis, ‘The Power of International Law as Language’ (1998) 34(2) California Western L R 397, 399, 402.
[140] J Resnik, D Curtis, ‘Representing Justice: From Renaissance Iconography to Twenty-First-Century Courthouses’ (2007) 151(2) Proceedings of the American Philosophical Society 139, 175.
[141] LA Viola, D Snidal, M Zürn, ‘Sovereign (In)Equality in the Evolution of the International System’ in S Leibfried et al (eds), The Oxford Handbook of Transformations of the State (OUP 2015) 221, 226.
[142] T Kelly, ‘Two Cheers for Ritual: The UN Committee Against Torture’ (2018) 9 Humanity: An Intl J of Human Rights, Humanitarianism, and Development 93, 103: ‘The bureaucratic and ritual forms of human rights monitoring can give a material presence to otherwise disparate and intangible aspirations’.
[143] P-M Dupuy ‘Comments on chapters 4 and 5’ in M Byers, G Nolte (eds), United States Hegemony and the Foundations of International Law (CUP 2003) 176, 177. S Steininger, N Deitelhoff, ‘Against the Masters of War: The Overlooked Functions of Conflict Litigation by International Courts’ (2022) 84 L and Contemporary Problems 95, 107 observe that ‘[t]he transferal of conflicts from the battlefield to the courtroom is a strategy often pursued by the less powerful’. See also A A Fatouros, ‘International Law and the Third World’ (1964) 50 Virginia L Rev 783, 791; D Guilfoyle, ‘Litigation as Statecraft: Small States and the Law of the Sea’ (2023) British YB Intl L (advance).
[144] D Kennedy, ‘Tom Franck and the Manhattan School’ (2003) 35 Intl L Politics 397, 433.
[145] Solum (n 109) 259.
[146] See AA Higgins, ‘The Rule of Law Case Against Inconsistency and in Favour of Mandatory Civil Legal Process’ (2019) 39(4) Oxford J Legal Studies 725, 726 and discussion in Solum (n 109) 262 ff.
[147] JL Mashaw, Due Process in the Administrative State (Yale U Press, 1985) 162-3. See also Solum (n 109) 263.
[148] KF Röhl, ‘Procedural Justice: Introduction and Overview’ in KF Röhl, S Machura (eds), Procedural Justice (Routledge 1997) 1, 13.
[149] Gélinas et al (n 103) 34.
[150] T Khaitan, ‘Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea’ (2012) 32(1) Oxford J Legal Studies 1, 3.
[151] Khaitan (n 150) 4.
[152] TM Franck, The Power of Legitimacy Among Nations (OUP 1990) 214 referencing I Kant, The Philosophy of Law tr W Hastie (2^nd edn, 1798). See also JT Gleeson, ‘Law, Values and the Advocate’ in JT Gleeson, RCA Higgins (eds), Constituting Law: Legal Argument and Social Values (Federation Press 2011) 4, 23-4.
[153] A Lahav, In Praise of Litigation (n 108) 32. See also OM Fiss, ‘The Allure of Individualism’ (1993) 78 Iowa L Rev 965, 978: ‘participation has a value in its own right, manifesting a public commitment to the dignity and worth of the individual’.
[154] Stahn (n 89) 312; TR Tyler, ‘Procedural Justice and the Courts’ (2007) 44 Court Rev 26, 30.
[155] EE Sward, ‘Values, Ideology, and the Evolution of the Adversary System’ (1989) 64(2) Indiana L J 301, 310.
[156] Gleeson (n 152) 24.
[157] For example, Russia refused to participate in the 2022 provisional measures oral proceedings: Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) (Provisional Measures) [2022] ICJ Rep 211
[158] J Resnik, ‘The Contingency of Openness in Courts: Changing the Experiences and Logics of the Public’s Role in Court-Based ADR’ (2015) 15 Nevada L J 1631, 1668; Solum (n 109) 262-3.
[159] ibid. See also AE Lind, TR Tyler, The Social Psychology of Procedural Justice (Plenum 1988) 37.
[160] L Mulcahy, E Rowden, The Democratic Courthouse: A Modern History of Design, Due Process and Dignity (Routledge 2020) 78; cf Gélinas et al (n 103) 14-15.
[161] Chase and Thong (n 97) 236. See also Ball (n 72) 113.
[162] E Kidd White, ‘On Emotions and the Politics of Attention in Judicial Reasoning’ in A Amaya, M Del Mar (eds), Virtue, Emotion and Imagination in Law and Legal Reasoning (Hart, 2020) 101, 116.
[163] Allen, ‘Theater of International Justice’ (n 87) 141.
[164] RN Lebow, National Identities and International Relations (CUP 2016) 35. See also J d’Aspremont, ‘The Doctrine of Fundamental Rights of States and Anthropomorphic Thinking in International Law’ (2015) 4 Cambridge J Intl Comparative L 501, 504 who refers critically to ‘anthropomorphic constructions’. See further Marshall Islands v United Kingdom [2016] ICJ Rep 833, 1093 (Judge Crawford): ‘that indefinite object, the state of mind of a State’.
[165] Mani (n 113) 15; Kolb, ‘General Principles’ (n 106) 969; P Palchetti, ‘Making and Enforcing Procedural law at the International Court of Justice’ (2019) 61 QIL-Questions of International Law 5, 19; R Higgins, ‘Respecting Sovereign States and Running a Tight Courtroom’ (2001) 50 ICLQ 121.
[166] P C Jessup, A Modern Law of Nations: An Introduction (Macmillan Co 1948) 28.
[167] Treaties of friendship have a long lineage, eg: Articles of Peace, Friendship & Entrecourse, Concluded and Agreed between England and France, In a Treaty at Westminster, 3 November 1655.
[168] See G Simpson, The Sentimental Life of International Law: Literature, Language, and Longing in World Politics (OUP 2021) 153.
[169] ibid 169.
[170] G Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (CUP 2009) 54. See also C Cruise O’Brien, Feliks Topolski, The United Nations: Sacred Drama (Hutchinson & Co 1968) 66.
[171] Talmon (n 34) 1171.
[172] Soave (n 83) 270; Ruiz Fabri and Paine (n 107) 31.
[173] Chase and Thong (n 97) 226; D Wasserman, ‘The Procedural Turn: Social Heuristics and Neutral Values’ in KF Röhl, S Machura (eds), Procedural Justice (Routledge 1997) 37, 37.
[174] AD Lahav, ‘Rites without Rights: A Tale of Two Military Commissions’ (2012) 24(1) Yale J L Humanities 439, 439; Allen, ‘Theater of International Justice’ (n 87) 139; Soave (n 83) 270. See also J Stone Peters, Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe (OUP 2022) 298; F Baetens, ‘Transparency Across International Courts and Tribunals – Enhancing Legitimacy or Disrupting the Adjudicative Process?’ (2022) 91 Nordic J Intl L 595, 598; A Peters, ‘Towards Transparency as a Global Norm’ in A Bianchi, A Peters (eds), Transparency in International Law (CUP 2013) 534; K Leader, Trials, Truth-Telling and the Performing Body (U Sydney, PhD thesis, 2008) 94.
[175] J Crawford, J McIntyre, ‘The Independence and Impartiality of the “International Judiciary”’ in S Shetreet, C Forsyth (eds), The Culture of Judicial Independence (Brill 2012) 187, 199.
[176] Statute (n 22) art 46; Rules (n 24) art 59. See also discussion in M Shaw, Rosenne’s Law and Practice of the International Court: 1920-2015 vol III (5^th edn, Brill 2017) para 317; D Bethlehem, ‘Submissions on Points of Fact and Law: Written and Oral Pleadings Before the International Court of Justice’ in F Weiss (ed), Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other International Courts and Tribunals (Cameron May 2000) 175, 176; A von Bogdandy, I Venzke, ‘In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification (2012) 23(1) Eur J Intl L 7, 26.
[177] Rose (n 73) 54; Soave (n 83) 270.
[178] Stahn (n 89) 309.
[179] JA Chapper, ‘Oral Argument and Expediting Appeals: A Compatible Combination’ (1983) 16(3) U Michigan J L Reform 517, 517; RY Jennings, ‘The International Court of Justice After Fifty Years’ (1995) 89(3) AJIL 493, 497; Soave (n 83) 270.
[180] N Grossman, ‘The normative legitimacy of international courts’ (2013-2014) 86 Temple L Rev 61, 67, 81. Grossman argues that procedural fairness alone is insufficient to sustain the legitimacy of a court. I do not suggest that fairness is the sole source of legitimacy, but it is certainly a contribution. See also F Fontanelli, P Busco, ‘The Function of Procedural Justice in International Adjudication’ (2016) L & Practice Intl Courts Tribunals 1, 4; Fontanelli and Busco, ‘What We Talk About’ (n 106) 26; Jennings, ‘The Role of the International Court of Justice’ (n 82) 14-5; Soave (n 83) 270.
[181] See J Bentham, Rationale of Judicial Evidence (1827) in The Works of Jeremy Bentham, Published under the Superintendence of his Executor, John Bowring (William Tait, 1843) 352: ‘establishment of publicity … will stand recommended as the general rule, as being, in most cases, conducive to the direct ends of justice’. See also S Forlati, The International Court of Justice – An Arbitral Tribunal or a Judicial Body? (Springer 2014) 101. Cf the Kantian principle, by which laws must be able to be publicly proclaimed in order to be morally justified: ‘All actions relating to the rights of other men are wrong, if the maxims from which they follow are inconsistent with publicity’. I Kant, Perpetual Peace: A Philosophical Essay tr Smith (3^rd edn 1795, Allen & Unwin 1917) 185. See further KR Davis, ‘Kantian “Publicity” and Political Justice’ (1991) 8 History of Philosophy Quarterly 409 and J Clinger, ‘The Kantian Publicity Principle and the Transparency Presumption in Public Affairs: When Private Citizens’ Participation Becomes Public Knowledge’ (2017) 19 Public Integrity 394.
[182] J Resnik, ‘The Contingency of Openness in Courts: Changing the Experiences and Logics of the Public’s Role in Court-Based ADR’ (2015) 15 Nevada L J 1631.
[183] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 art 92. The Court’s public role is underscored by the fact that there is no fee for States to engage the Court; the institution is financed exclusively by the United Nations. See further Kolb, The International Court (n 74) 1002-06. See also A Pellet, ‘Strengthening the Role of the International Court of Justice as the Principal Judicial Organ of the United Nations’ (2004) 3 L & Practice Intl Courts Tribunals 159, 163.
[184] von Bogdandy and Venzke, ‘In Whose Name?’ (n 176) 17; Y Kryvoi, ‘Private or Public Adjudication? Procedure, Substance and Legitimacy’ (2021) 34 Leiden J Intl L 681, 691.
[185] Quintana (n 24) 340; S Rosenne, The Perplexities of Modern International Law (Martinus Nijhoff 2004) 85; A Wiik, Amicus Curiae before International Courts and Tribunals (Hart/NOMOS 2018) 63; Kolb, The International Court (n 74) 994.
[186] Leader, Trials, Truth-Telling and the Performing Body (n 174) 258. See also S Falk Moore, ‘Selection for Failure in a Small Social Field: Ritual, Concord, and Fraternal Strife among the Chagga Kilimanjaro, 1968-1969’ reprinted in BG Myerhoff, S Falk Moore (eds), Symbols and Politics in Communal Ideology (1975) 109, 112 cited in Chase, Law, Culture, and Ritual (n 84) 116.
[187] Luban (n 107) 579. Cf Y Shany, ‘International Courts in a Politicized World’ (24 October 2020): <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3794365>.
[188] D Shelton, ‘Form, Function, and the Powers of International Courts’ (2009) 9 Chicago J Intl L 537, 545.
[189] C Renning, ‘Subjective Procedural Justice and Civil Procedure’ in KF Röhl, S Machura (eds), Procedural Justice (Routledge 1997) 207.
[190] Gibson et al (n 101) 838.
[191] ibid 857.
[192] Stahn (n 89) 45, 206. See also J Stone Peters, ‘Legal Performance: Good and Bad Law’ (2008) 4 Law, Culture and the Humanities 179, 180. See generally E Goffman, Interaction Ritual – Essays on Face-to-Face Behavior (Routledge 1967, 2017).
[193] T Franck, ‘Fairness in the International Legal and Institutional System’ (1993) 240 Recueil des Cours de l’Académie de Droit International 22, 303-5; S Rigney, Fairness and Rights in International Criminal Procedure (Edinburgh U Press 2022) 66.
[194] F Zarbiyev, ‘Saying Credibly What the Law Is: On Marks of Authority in International Law’ (2018) 9 J Intl Dispute Settlement 291, 312. Like Zarbiyev, I am using the term ‘authority’ in a sociological sense, rather than in the jurisprudential normative sense. See also I Venzke, ‘Understanding the Authority of International Courts and Tribunals: On Delegation and Discursive Construction’ (2013) 14 Theoretical Inquiries in Law 381. For the jurisprudential concept of authority see J Raz, The Morality of Freedom (Clarendon Press 1986) 35-37; J Raz, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90 Minnesota L Rev 1003; S Besson, ‘The Authority of International Law – Lifting the State Veil’ (2009) 31 Sydney L Rev 343.
[195] South Africa v Israel, Order of 28 March 2024 (n 11) 1 para 2 (Nolte).
[196] ibid 4 para 22 (Barak).
[197] ibid 2 para 5 (Nolte).
[198] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (n 46) 404-5.
[199] The only time the Court has made use of this provision was in Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) (Decision on the organization of the public hearings) [2022] ICJ Rep 563. It was controversial, with Judges Tomka, Xue, Robinson, Nolte and Judge ad hoc Skotnikov issuing a Joint Declaration indicating that the procedural rights of the parties had not been ‘respected’ (at 566).
[200] Rules (n 24) art 61(2)-(4). See eg ‘Written reply of the State of Israel to the question put by Judge Nolte at the public sitting held on 17 May 2024’ Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures) (18 May 2024).
[201] Urgent Request (n 9) 1.
[202] South Africa v Israel, Order of 24 May 2024 (n 14) 6 para 20.
[203] ibid 5 para 15.
[204] ibid.
[205] Urgent Request (n 9) 2 para 9.
[206] South Africa v Israel, Order of 24 May 2024 (n 14) 9 para 28 (Sebutinde).
[207] O Flasch, ‘Equality of Arms: Due Process in South Africa v Israel’ Lawfare Blog (22 July 2024).
[208] H Genn, Judging Civil Justice (CUP 2010) 14.