International Criminal Court Prosecutor Karim Khan. (Photo by Lev Radin/Pacific Press/LightRocket via Getty Images)
NEWS ANALYSIS
International Criminal Court (ICC) Prosecutor Karim Khan’s application for arrest warrants for Israeli and Hamas leaders this week ostensibly marks a critical step towards a rules-based global order. But the response is a reminder of how remote such a world can seem when Western interests are implicated.
Washington’s rejection of the charges of war crimes against Israeli Prime Minister Benjamin Netanyahu and his defence minister, Yoav Gallant, carries no surprise. Nor does South Africa’s lauding the decision by Khan to indict a leader of an inalienable US ally for the first time in the history of the tribunal.
Israel’s other traditional allies have differed in their responses. France voiced support for the ICC’s independence and fight against impunity, but Foreign Minister Stéphane Séjourné swiftly qualified this during a visit by his Israeli counterpart by saying Khan’s step should not establish “an equivalency” between a terrorist group and a democratic state.
As the ICC’s first prosecutor, Luis Moreno Ocampo, pointed out, no such comparison was implied because the charges are different. Netanyahu is accused of deliberate starvation as a means of warfare, and Hamas leaders of killing civilians, taking hostages and perpetrating sexual violence against those held.
Germany, which faces internal pressure for arms sales to Israel, initially also condemned “the inaccurate impression of an equivalence”, but the chancellery on Wednesday said Netanyahu would be arrested if he set foot on German soil.
This is an existential juncture for a country long defined by a dichotomy of, on the one hand, earnest support for a rules-based world order and, on the other, a commitment to Israel’s security — so firmly held it is frequently called a Staatsraeson (matter of state), born out of guilt for the Holocaust.
It is hardly original to note the hypocrisy all around, political analyst Ebrahim Fakir said, but worth reflecting on how this both hampered an even-handed response to war crimes and spawned the demons South Africa and the United States face in elections contested by seditious former presidents.
Fakir described France, with its large Jewish population amply represented in political and intellectual circles, as taking sides while pretending not to.
“Its side is Israel, so they have chosen the side of impunity, they just cannot say so,” he said. “They need to balance it out but you don’t need to balance it out, you can actually take a stance and justify it.
“And your public intellectuals will come around because, for all their cleverness, how do you still insist that there is a conflation of religion with race and race with identity and identity with ethnicity and the loop is closed?”
Fakir believes that Britain and several European nations would never close their doors to Netanyahu, contrary to Spain, Ireland and Norway who have recognised Palestinian statehood.
“The practical implications are that he will still go to the citadels that he needs to get to. There is no practical impediment, the US will make sure of that,” he said.
“The real political import here is this: America is just making it very clear that there is no such thing as rules-based global order.
“And they are also saying there is no such thing as the rule of law. Worse, what they are saying is no rule by law … or that it can only exist to the extent that they can use it as an instrument to restrain and constrain whoever they want.”
When the same contempt for law or constraints on power inevitably also permeated domestic politics, the result was state capture or elections that are about interests rather than ideals.
“If you take that to a domestic context what they are doing and saying is the kind of political posture that is adopted by people like Jacob Zuma, one of no restraints on power, of no separation of powers. The bottom line is: might is right.”
Khan this week told CNN: “I’ve had some elected leaders speak to me and they were very blunt. ‘This court is built for Africa and for thugs like Putin,’ was what one senior leader told me.”
He then added: “We don’t do it like that.
“This court should be the triumph of law, over power and brute force: grab what you can, take what you want, do what you will.”
South Africa’s ambivalence towards the ICC has always been angled as a complaint that it acted selectively to suit Western powers.
In 2017, the Zuma administration tabled a bill to repeal the implementation act of the Rome Statute, intending to withdraw from the ICC, after his government was rebuked both by the high court and The Hague for failing to arrest then Sudanese president Omar al-Bashir two years earlier.
The draft law was declared unconstitutional and shelved after he was succeeded by President Cyril Ramaphosa, with the administration reasoning it would work from within towards a fairer multilateral dispensation.
But last year, it once again mulled amending the act or, as a last resort, withdrawing from the treaty when it wanted to host Russian President Vladimir Putin, who faces an ICC arrest warrant for abducting Ukrainian children to Russia, at the 15th Brics summit.
Court papers revealed that the government initiated proceedings with the ICC under Article 97, invoking obstacles to carrying out an arrest. It would, the president argued, have constituted “a declaration of war”. In the end, Putin was disinvited as diplomatically as possible.
Three months after the summit, South Africa co-signed a referral to the ICC to investigate war crimes and crimes against humanity in Gaza.
Fakir said that like the United States, South Africa deserved criticism for inconsistency.
“Here is the contradiction, when it is doing something it likes, it supports the ICC and when the ICC is doing something it does not like, for example to one of its friends, then like America, it also wants to repudiate it.”
“So South Africa has to get better at being more consistent,” Fakir said.
Three months after the summit, South Africa co-signed a referral to the ICC of the situation in Palestine.
The following month, South Africa brought a landmark civil case before the International Court of Justice (ICJ) alleging that Israel is committing genocide against Palestinians in its siege on the enclave.
The case sees Israel accused under a convention drafted in 1948 in the wake of the Holocaust and has been described by Palestinian leaders as a test of the credibility of the international justice system.
Human rights lawyer Nicole Fritz said the litigation marked a shift in South Africa’s troubled history with multilateralism and has significantly influenced discourse on the war in Gaza.
“It is an important potential resuscitation of the responsibility to protect doctrine and I think the people of Gaza are very much deserving of the type of responsibility to protect obligation.”
Though a ruling may be years away, the court in January issued an interim order for Israel to limit harm to Palestinians in Gaza. Ramaphosa welcomed this ruling as a decisive victory for the international rule of law.
A week ago, South Africa asked the court for additional protective measures, including an order that military hostilities in Gaza cease. On Friday, the court instructed Israel to immediately halt its ground assault on Rafah.
If only the government had been as scrupulous in its defence of the law at home, Fakir said, South Africa’s recent history would really have been a different story rather than the revisionism ANC leaders are attempting on the campaign trail.
“The ANC leading government goes on about the rules-based order, about multilateralism, about behaviour being constrained by rules, and that is entirely appropriate but you cannot say that this must apply in the international context but at home you can behave with absolute impunity.
“This is the problem this ANC faces, you cannot project one face outside, no matter how laudable, but then something else inside. So if you want your moral stature, the stance you audaciously and bravely take, to have some moral legitimacy, then it must apply at home too.”
State capture was proof that it did not, he said.
“You would have needed neither the Zondo commission nor prosecutions after the fact, nor would you have the conundrum you now face with Zuma.”
Fritz agreed.
“I think that’s right,” she said, adding that the government left it to the courts to vindicate the rule of law when it has been routinely threatened by Zuma.
Fritz said there was symbolic symmetry in news of the application for arrest warrants coming on the same day the constitutional court ruled that the prison sentence it imposed on Zuma for violating the authority of the court, disqualified him from standing for parliament.
“The courts have had to expend a lot of time and energy and potentially reputation in fighting that fight because the politicians negligently and irresponsibly left them with that burden.”
“But they have imperfectly but generally managed in respect of Zuma and his contempt cases and have held up the standard of equality before the law.”
She cautioned that the government should be scrupulous about upholding the standards of equality in the arena of international law at a moment when, as one of its lawyers said: “It is being asked whether law is an antidote to war.”
Ramaphosa has, for the past six months, mostly made a point of condemning Hamas’ 7 October massacre of 1 139 people in southern Israel in the same breath as the brutality visited on civilians in retaliation.
Ten days after the attacks, his office and those of Justice Minister Ronald Lamola and International Relations Minister Naledi Pandor denied a claim by Hamas political bureau leader Ismail Haniyeh, whose arrest Khan is seeking, that she had expressed support for the attacks.
Behind the scenes, there was anger that Pandor had entertained a call Haniyeh played for propaganda.
But Fritz noted that when South Africa approached the ICC the following month, it mentioned various specific crimes but not those committed on 7 October, which may have been an ill-judged corrective to glaring pro-Israel bias.
“I do think that if it wants the status and the prestige and the respect on the international stage, and if it is going to compellingly push against this selectivity that states like the United States, the UK and Germany are going to be insisting upon, then the counterweight cannot be a reverse bias on South Africa’s part.”
Last week’s hearings before the ICJ again saw Israel argue that its application was “blood libel”, aimed at enabling Hamas.
It was routine invective, Fritz said, but one claim was more specific — that on 11 May, South Africa hosted a Hamas delegation to discuss a coordinated strategy against Israel, including in court.
“The structure of the legal argument didn’t permit a reply and in any case, SA’s motivations are irrelevant to determination of the legal questions before the court.”
Fritz believed it demanded a public rebuttal, particularly at a point where the legitimacy of the international order was being questioned, but this time there was none.
She recalled Khan’s warning that if the law was seen as being applied selectively, this would create the conditions for its collapse. The result, he said, would be the loosening of the “remaining bonds that hold us together” and the loss of the safety net to which all victims looked.
Fritz said the onus rested not only on institutions like the ICC. “It is a requirement that must be equally and fastidiously upheld by those, like SA, who seek to avail themselves of its processes. And that is the critical risk of this moment, that we don’t do so.