JOSIA MOYO AND ANESU DHLIWAYO
South Africa has launched a case with the United Nations (UN) International Court of Justice (ICJ) under the Genocide Convention, in account of acts committed by Israel in Gaza.
The ICJ is the highest judicial organ of the UN. Unlike the International Criminal Court (ICC), which conducts proceedings against private individuals, the ICJ deals with legal disputes between states.
Chapter XIV of the United Nations Charter allows the UNSC to enforce orders and rulings of the ICJ. Contrary to popular belief, the UNSC has no veto over ICJ judgments, but under article 94(2) of the UN Charter, the Security Council can "decide upon measures to be taken to give effect to the judgment". Thus, the UNSC is authorised to ensure compliance of ICJ orders and rulings by convicted states.
South Africa describes Israeli aggression as genocide on the legal order submitted to the ICJ. The claim is informed by various statements that have been made by Israeli authorities, which South Africa believes have genocidal intent.
The Israeli government has already responded by calling the claims "baseless" and a "blood libel" and accused the country of collaborating with a terrorist regime. However, In the same application, South Africa highlights its condemnation of Hamas’s crimes and reiterates that those crimes do not justify Israel’s genocidal response.
Although the Israeli-Palestine conflict did not start on October 7, 2023, South Africa strongly supports the ICC’s investigation on all atrocities committed on both sides of the spectrum. (p 28 ICJ, 2023).
South Africa’s stance and its case at the ICJ reflects on self-awareness in foreign policy to past horrors of apartheid. South Africa’s case coincides with moral obligation to stamp out any ounce of violence based on identity.
The case also resembles a surgical review of the rules-based international system in preserving peace and security in an anarchical system. International instruments that have a mandate to act as guarantors of peace and security can only face the test of time, detecting system errors.
The unequal application of the law in the wake of superpower politics in the UNSC impedes the theoretical function of the rules-based international order. In the case that Israel is found guilty, the outcomes are almost certain given the lack of consensus among the big five (US, China, Russia, United Kingdom & France) in the UNSC to whom the power of enforcement is bestowed, given the anti-ceasefire sentiments by the US-and-allies. The stance raises eyebrows as to what extent the US is willing to conform to the orders of the ICJ given its strong support for Israel.
The stalemate in decision-making in the Security Council begs the question of whether the multi-polar system would have been effective as compared to a uni-multipolar system where the interests of the US and allies take precedence over the spirit of collective global peace and security.
Since October 7, 2023, the US and its allies have predominantly voted on UN resolutions in alignment with Israel against the overwhelming majority of member states, including ceasefire resolutions.
Moreover, the US has been providing arms to Israel, bypassing its own domestic laws that prohibit the provision of military equipment to countries that are not party to the Non-Proliferation Treaty.
This is partly why South Africa’s foreign policy has always reiterated the need to reform the structure of the international system and its institutions that should guarantee peace and security for each member state that has purposely delegated sovereignty to achieve domestic and global security.
The piece reverts to the globalist security utopia where security and peace can be achieved by destroying nationalism which cultivates intrinsic motivations that work against global peace and security.
The foundation of the international system appreciates power politics rather than the rule of law which cements the ideals of legal practice, that purports the blindness of the law. The so-called rules-based international system is (more) often than not overridden by competing interests which mutates into military strategies in achieving political outcomes.
The nature of the rules-based international order permits the existential existence of the “Might Make Right” doctrine. In recent times modern conflicts are often characterised by the endurance of wills in achieving political objectives due to the nature of the system that seems to adopt the might make right doctrine.
The soft conviction of law and order maintains the confidence and relevancy of the system to the bulk of the general members who possess little to no influence and power. The confidence in the system to deal with aggression has dismally depleted with successive conflicts that remain unjustified and accounted for.
In a rules-based order, confidence in the effectiveness of the mechanisms is the currency on which states delegate sovereignty to maintain territorial integrity against others in an anarchical system.
The South African genocidal case against Israel ultimately seeks to achieve provisional resolutions that stop the carnage. The order as it is spirited to achieve the common good, is likely to suffer a futile death, not yielding any desired results because any sort of positive outcome would signal the official establishment of ceasefire resolutions.
Therefore, it is problematic to offer litigation as a solution through the ICJ to a politically motivated conflict fuelled by competing geo-political interests among the enforcers of the system. However, despite our argument that the UNSC will fail in ensuring that Israel complies with the outcomes of the ICJ if found guilty, it would be utterly misguided to assert that the case will not have effect on the ground, given that lives are lost daily in this conflict.
If found guilty, it is without a doubt that this case will cause legal and diplomatic embarrassment for Israel and its allies in this war. Such outcomes would likely sway international public opinion even further in favour of a ceasefire.
The lingering question relates to the willingness of the US and its allies to compromise realpolitik in pursuit of the integrity of the rules-based order international system.
Josia Moyo is a Masters student in International Relations at North-West University and Deputy Director of Research & Policy Development at SABYA. He writes in his personal capacity.
Anesu Dhliwayo is a graduate in MA Strategy & International Security, at the University of Hull, United Kingdom
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