31 Jan The ICJ Goes Viral: Transparency and Sensationalism in South Africa v. Israel
[Juliette McIntyre is a Lecturer in Law at the University of South Australia and a PhD candidate at the University of Melbourne.
Audrey Plan is an ERC a postdoctoral researcher at University College Dublin’s Sutherland School of Law.]
The courtroom is, as Bentham once said, a ‘theatre of justice’. Like, fr bruh. Wait, what?
The last few weeks saw, perhaps for the first time in its 79-year history, the #InternationalCourtofJustice trending on social media. The media coverage of, and public engagement with, the South Africa v. Israel case appears unprecedented, with commentaries and opinions (of wildly varying accuracy) receiving views in the hundreds of thousands on platforms such as Instagram, TikTok and Twitter. The proceedings were broadcast live across multiple platforms; there were celebrity recitations of pleadings and popular satirical takes. This case has brought the spectacle and the performance of justice out of the courthouse, where it is usually confined, and into the public awareness. In this post, we will unpack the entrance of international justice into (mass) spectacular justice and some of the potential implications for the ICJ more broadly.
All the World’s (Disputes are Resolved on) a Stage
The formalism of the Great Hall of Justice, ‘the loci where and through which international law is most obviously performed’, helps draw a clear, although symbolic, line between the political and the legal. While the majority of the audience is witnessing proceedings through a screen rather than being physically in the room (and this prevents the ICJ from being a truly liminal space), the sheer decorum and proceduralism of the hearings may be enough to establish this line still. Indeed, a courthouse can be conceived as a type of stage on which the play of a trial unfolds before an audience. The ICJ is no exception: oral proceedings rely upon the same key elements as a theatrical performance: ‘actors, stages, scripts and audiences’. From its architecture to its procedure, from the costumes to the decorum, from its language to its publicity, the ICJ needs to perform justice in order to deliver justice. As Felman has argued, the function of a court ‘is in its very moral essence, a dramatic function: not only that of “doing justice,” but that of “making justice seen” in a larger moral and historically unique sense’.
There are well-extolled virtues to having justice rendered publicly: transparency breeds trust, and a better understanding of the concrete proceedings and experience of justice. Virtually opening the doors of the Peace Palace puts a face on all actors involved, from lawyers to judges, on all sides, de-mystifying international justice and letting it enter the viewer’s reality. In this sense, even the small incidents we have witnessed – from a lawyer shuffling his papers mid-plea, to another being asked to slow down for the interpreter, to the President of the Court announcing a coffee break – ground international justice in an almost mundane reality.
And while these points all hold true for national courts as well, they take on a particular significance for the ICJ. To begin, greater public understanding of the Court could lead to rallying behind ideals of international justice. At a time where faith in international institutions seems low, with disillusionment and irony dominating public and political discourse, the clear display of a physical, embodied space for international justice could renew trust in these mechanisms from the ground up. Social media engagement potentially breathes new life into international adjudication, especially from a younger generation. Diffuse support and public legitimacy are fundamental to empower these courts at the later stage of implementation, which in the end, falls onto States. Using social media as a platform of communication to collectively engage with international justice also means putting academia and experts in the same virtual space as laypersons. Social media incorporates individuals who are often excluded from international law discourse, democratizes knowledge, and in a conflict such as the South Africa v. Israel case, offers marginalized voices (for example, citizens in Gaza) a platform to share their perspectives.
But Maybe We Can’t Have Nice Things
The account so far has offered the idealised version of events. There is a darker side to the ICJ going viral, however. We have identified three potential risks.
The first risk is that of turning justice into a sensationalised affair, the way high profile domestic trials have sometimes been in the US (with the immediate example of the OJ Simpson trial and the Heard/Depp affair). This may drag international justice into becoming simply the sensationalisation of human rights violations and their subsequent judicial handling to the point of making it another type of (viral) “content”: liked, hashtagged, retweeted, then falling into collective internet oblivion like thousands of online trends before it. It could also lead to the transformation of the ICJ into a public forum at which parties do not address the judges, but rather focus their pleadings on the global audience – or even their own constituency. Pleadings become PR strategies, with parties prioritising political narratives over legal arguments. The line between politics and the law is erased, and the Court’s fourth wall is broken: there can be no performance when one of the actors is reading from a different script.
The second risk is that the mass public discourse does not lead to genuine engagement or worse, creates misinformation. The media interest in this case, while massive, has had some clumsy coverage, including a few notorious instances of the ICJ being mistaken for the ICC. Coverage has been uneven, leading to questions of bias. For example, the BBC broadcast parts of Israel’s pleas on the Friday, but none of South Africa’s the day before. Be it lack of expertise, lack of care or lack of time, these problematic coverages prevent the emergence of a true understanding of what the case, and specifically these hearings, are about. Experts, lawyers, and academics on social media can only do so much with the given format of each platform, the algorithm they have no control over, and the lack of willingness to engage constructively from others on the platform.
This speaks to a broader challenge and the third identified risk: the language of the law and legal procedures is one that is meant to keep away purely political discourse, but its technicality and complexity also insulates it from belonging to the non-expert viewer. The proceedings of the 11th and 12th of January were, specifically, on provisional measures, with South Africa having to prove prima facie jurisdiction, plausible harm and urgency. The Court was not ruling on whether a genocide was happening, and yet this is what the public (social) media discourse revolved around. And how could it be otherwise? With civilian casualties by the thousands, mass violence broadcast in photos and videos and livestreams, there is a deeply human and understandable need to make sense of senseless violence through legal categories that can be grasped by everyone. Genocide, whether or not one knows its exact constitutive elements in legalese, can be grasped conceptually. The nuances in the proof of genocidal intent to establish genocide, as opposed to what will be required to establish incitement to genocide; the (ir)relevance of the whether there is a dispute between South Africa and Israel; whether Israel can claim to be acting in self-defence; all of these matters – which will determine the result of the case – are left out of the discourse in part because of the inherently exclusionary nature of legal language. The narrowed and simplified lens offered by social media risks creating expectations of the ICJ that it simply cannot meet. This in turn could result in precisely the opposite outcome to that identified above. A worsening reputation and less support for international justice mechanisms on the basis of a misunderstanding about what it is that courts are capable of achieving in these circumstances.
In summary, if justice must not only be done, but also be seen to be done, then engagement with the ICJ and international justice via social media is to be praised and encouraged. But there is also a risk of such mass popular engagement throwing international courts into the same murky waters as international politics; cynicism and misinformation prevailing over nuance and expertise. The inherent spectacular, the drama, of the ICJ has captured public attention at this moment but if it degenerates into mere spectacle the results may be less than positive:
“#ICJ, didn’t stop #genocide, one star would not recommend.”
Meme attributed to Apologetic Internat’l Law Memes for Utopian Teens (@IntLawMemes)