Picture: Picture: Oupa Mokoena / African News Agency (ANA) – United Nations Secretary-General António Guterres.
By Dr André Thomashausen
South Africa, last Wednesday, announced in an official statement: ‘’Israel has committed war crimes and needs to be held responsible for its actions by the International Criminal Court and the international community as a whole.’’
The Department of International Relations and Cooperation (Dirco) further stated: ‘’We call on the prosecutor of the International Criminal Court, Karim Ahmad Khan, to immediately signal his intent to investigate this and other war crimes, and the crime of genocide in this conflict, and to include in his investigation the liability of those aiding and abetting these crimes.’’
The statement was released while the BBC and other major news channels, including India Today, were presenting and discussing why Israel would have targeted a hospital and risked losing the international understanding it gained after the October 7 attacks on its territory.
South Africa’s original BRICS partners are more cautious before attributing blame. Brazil, Russia, India and China have emphasised their condemnation of the acts of terror that Hamas unleashed on October 7. Iran has refrained from mobilising its Hezbollah forces in support of Hamas.
None of Israel’s neighbours welcome or endorse the renewed terror attacks by Hamas. The Palestine government has refrained from associating itself with them, but its ambassador in South Africa, Hannan Jarrar, nevertheless made the astonishing claim on a local radio station on October 9 that an oppressed people fighting for its liberation would be allowed under international law to use whatsoever means of violence.
Nothing could be further from the truth. The international law rules governing the use of force in conflicts prohibit unconditionally the harming of “persons taking no active part in the hostilities” and orders to protect them from “violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture; taking them hostages; or offending their dignity, in particular humiliating and degrading treatment”. These are commonly known as “war crimes”.
The prohibition of war crimes applies to “all parties” to a conflict, irrespective of whether they act as oppressors or as the oppressed. The original horrendous war crime was the nuclear bombing of two large cities in Japan, Hiroshima and Nagasaki, in August 1945. Neither posed a military threat or harboured any military installations.
The 1949 Geneva Conventions expressed the universal rejection of a conduct that solely targeted the civilian population.
Palestine committed, in April 2014, without reservations, to the 1949 Fourth Geneva Convention (Relative to the Protection of Civilian Persons in Time of War), as well its 1977 Additional Protocols I and II. The Protocols extend the Geneva rules or the rules of “humanitarian law”, as they are also known, to conflicts without an international or cross border participation and to all non-state actors in a conflict.
Palestine had also, on January 1, 2015, joined the “Rome Statute” and submitted to the jurisdiction of the International Criminal Court.
As a consequence, war crimes committed by the State of Palestine or on its behalf or with its acquiescence can and should be investigated and prosecuted by the ICC. In a February 5, 2021 decision, the Prial-Trial Chamber of the ICC determined, for the purposes of ICC prosecutions, that Palestine is a State under International law, comprising the territories of Gaza, the West Bank and East Jerusalem.
The ICC prosecutor can investigate whether the missile that, on October 17, destroyed the al-Ahli Baptist hospital, killing several hundred civilians, was fired by Hamas or not. The Palestine government, as a member State of the ICC, can specifically request such an investigation. This could open an avenue to de-escalate the conflict and show a commitment to the observance of humanitarian law.
Israel is receptive to de-escalation. On the insistence of the EU’s Commission chairperson, Ursual von der Leyen, Germany’s Chancellor Olaf Scholz and US President Biden, the threatened ground offensive into Gaza and expulsion of its northern inhabitants have not taken place.
For the debates to remain rational, it is important to understand and realise the frustrating limitations of international law and the lack of the means to enforce it. An ICC jurisdiction in respect of Israel and its officials and nationals does not exist in international law. Israel has not signed the Fourth Geneva Convention nor the Convention’s Protocols. It has also not joined the Rome Statute Treaty that established the ICC.
The ICC does not have universal jurisdiction like a national court within a particular State. The jurisdiction of the ICC, like any jurisdiction in international law, is limited and based on the consent of States. Because all States are equally sovereign, none can be subjected by other States to any particular authority or jurisdiction unless it so consents, as required by article 12(3) of the Rome Statute.
The Rome Statute established an important exception for cases where the UN Security Council resolves to refer a possible crime of international aggression to the ICC. The referral by the UN Security Council necessitates consent by its five veto members. Such consent is deemed to constitute a universal determination to override the sovereign rights of a particular State in a particular instance.
No UN Security Council resolution referring Israel to an ICC prosecution exists, and none is likely to come about. The five veto members (China, United States, France, United Kingdom, Russia) do not believe that the Palestine conflict could be resolved by the findings of prosecutors and judges.
The chances to build the required universal consensus through a reform of the UN Security Council are nil in an increasingly divided and confrontational world.
The realistic conclusion is that the Palestine conflict cannot be resolved by current international law and its institutions. Legal standards can hopefully influence the conduct of the conflicting parties, but a morally and legally acceptable conduct cannot be enforced.
Israel and Palestine remain unable to co-exist and prosper within one and the same jurisdiction in a single secular and modern State. As a consequence, both continue to fight for the same limited resources and land.
A small enclave (Gaza), inhabited by over two million people without prospects or developmental future, surrounded by an impenetrable 45km long and a 9 metre high wall, is an inhumane and intolerable status quo.
The situation regarding the main territory of Palestine, the so-called West Bank, termed more aptly in French as Cisjordanie, is also unsustainable. Nearly half the Palestinian people do not live either in Gaza nor in Cisjordania. They subsist as international aid recipients in refugee camps situated mostly in Jordan, where they are denied freedom of movement or the right to work.
Successive generations of world leaders have failed to find a solution. The gruesome war cries to “wipe out the State of Israel” are not an alternative that any thinking person could seriously wish for. All other approaches require the support and buy-in of Israel’s neighbours.
The UAE and Saudi Arabia have demonstrated that sufficient capital and skills can be applied to turn desert lands into fertile, prosperous, and highly productive areas of human civilisation. There are vast areas of land available to secure a safe and a prosperous future for both Palestine and the Israeli nations.
Sadly, international law and the conflicting perceptions of just legal claims and historic injustices have become obstacles in the pursuit of viable and feasible solutions to a perpetuated conflict. It is time to accept that the Palestine conflict is not just a legal contest between Israel and Palestine. It is a regional divide between uncompromising interests that are competing for limited development opportunities.
The interventions of the world’s major powers in this conflict should be re-focussed on the right to development of all nations, to be supported by the emerging new multipolar and collaborative principles of international law.
*Thomashausen is a German Attorney and Unisa Professor Emeritus for International Law.
