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The ICC and ICJ must uphold international law

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Picture: Koen van Weel / ANP MAG / ANP via AFP / Taken on January 12, 2024 THE HAGUE – Pro-Palestinian sympathisers take action during the hearing at the International Court of Justice (ICJ) on a genocide complaint from South Africa over Israeli military action in the Gaza Strip. Israel denies accusations that it is genocidal in the Gaza Strip.

By Wesley Seale

While many people would recall February 10, 1990, as the day when FW de Klerk announced that Nelson Mandela would be released from prison the next day, not many would know that three years earlier, on the same date, the Ronald Reagan administration in the US announced its major shift in foreign policy towards apartheid South Africa.

After continuously defending the Pretoria regime and supporting the pariah of the world against sanctions, the US finally relented.

Even though Republican Reagan had imposed sanctions on South Africa in September 1985, it was on February 10, 1987, that his administration had to admit that “constructive engagement” had failed.

The recent interim ruling of the International Court of Justice (ICJ) is a strategic strike in furthering the isolation of the apartheid state of Israel.

Whereas many of us expected Israel to defy the ruling as it has defied international law and rulings in the past, we must put pressure on democracies the world over who purport to respect the rule of law.

As with the shift in US foreign policy towards apartheid South Africa in 1987, so too there must be a shift in Western foreign policy towards Israel and an abandonment of “constructive engagement” with the apartheid state.

Yet the interim ruling of the court has brought into sharp focus perceptions that the court dispenses justice selectively.

As with the South Africa versus Israel case, the court has yet to hear the Ukraine versus Russian Federation case which also pertains to allegations of genocide. In the interim ruling of the Ukraine versus Russian Federation case, the court, though deeply divided, unlike in the South Africa versus Israel case, ruled for an immediate ceasefire.

The ICJ would not rule for a ceasefire in the South Africa versus Israel case nor use the words “shall immediately suspend the military operations”, which it had done in the Ukraine versus Russia case.

Though the jury is out on whether South Africa requested from the court a “ceasefire” or Israel’s “suspension of military operations” in Gaza, the ICJ should have gone further in ensuring that it was more forthright in its interim judgment.

In his separate declaration on the South Africa versus Israel judgment, ICJ judge Xue Hanqin wrote: “In the past 109 days, the world was shocked to watch what was unfolding in Gaza. According to United Nations reports, hostilities between Israeli military and Hamas have caused tremendous civilian casualties, unprecedented in history.”

He said that “among the victims, most are children and women. The situation in Gaza remains horrendous, catastrophic and devastating”. “No ceasefire is in sight”.

Despite the sentiments, he would not go as far as calling for a ceasefire even in his independent declaration. But the declaration by Judge Xue is intriguing because he references a previous case before the ICJ.

Xue wrote: “Over 60 years ago, when Ethiopia and Liberia instituted legal proceedings against South Africa for breach of its obligations as the mandatory power in South West Africa, the court rejected the standing of those two applicants for lack of legal interest in the cases.

“This denial of justice gave rise to strong indignation of the member states of the United Nations against the court, severely tarnishing its reputation.”

While colleagues in the legal fraternity would point out that Judge Xue made the observation in the context of the international legal principle of “erga omnes”, the credibility of the court is also at stake when perceptions exist that the court dispenses justice selectively and, as some political commentators have suggested, judges rule according to the foreign policy of the governments in their native countries.

As a side note, Judge Xue’s emphasis on the principle of “erga omnes” and his nationality, Chinese, must not be lost, given China’s firm policy of non-interference.

The principle of “erga omnes” simply means that, as Judge Xue highlights, “in international law there are certain international obligations owed to the international community as a whole; by the very nature of their importance all states have a legal interest in their protection. They are obligations ‘erga omnes’.”

Recently, International Relations and Co-operation Minister Dr Naledi Pandor relayed how she enquired from the lead prosecutor why the International Criminal Court (ICC) had not yet indicted Israeli Prime Minister Benjamin Netanyahu as it did in the case of Russian President Vladimir Putin. Apparently, there was no response.

An indictment by the ICC would be influenced by a resolute determination by the ICJ. The international community therefore has “certain international obligations”, as pointed out by Judge Xue, in his independent declaration.

However, the international community is also dependent on the ICJ and the ICC to rule on such obligations. Even more so, the UN Security Council, as the implementing agent, must be up to the task of ensuring equality and justice for all in the international community.

While Pandor remains resolute that the interim ruling of the ICJ spells ceasefire, she might have learnt by now that, without deliberate decisions and communication, resolve is often lost through the cracks of diplomacy.

As with the Reagan administration and the apartheid regime in Pretoria, pussy-footing and spin will not isolate the apartheid regime in Tel Aviv. The international community must communicate clearly that it will uphold the rule of international law. For this to happen, the credibility of our international courts is paramount.

Dr Wesley Seale holds a PhD in international relations