/ 28 January 2024

ICJ ruling ruptures international order

Icj Set To Issue Ruling On South Africa's Request In Israel Genocide Case
Foreign affairs minister Naledi Pandor makes statements to press members after attending a session on the day of the International Court of Justice (ICJ) rule on the Gaza genocide case against Israel made by South Africa in the Hague, the Netherlands on January 26, 2024. (Photo by Selman Aksunger/Anadolu via Getty Images)

The rupture of the international system as we have known it since the end of the Second World War is well and truly under way. The judgment of the International Court of Justice (ICJ) in the case brought to it by South Africa was a massive blow to Israel and its allies.

The ICJ’s orders, which saw 15 out of 17 of the judges agree on four of the six orders against Israel, indicates a seismic shift in the global balance of power. This shift is clearly tilting towards the Global South, with countries like The Gambia and now South Africa having appealed for the ICJ’s intervention with success.

The fortitude of these African countries to bypass the stalemate of the United Nations Security Council (UNSC) which has always been held hostage by the big players with their veto power is inspired.

The so-called “international system” and “rules based order” that is supposed to uphold human rights for all has never done so and the West’s appalling stance on the destruction of Gaza and the organised mass murder of its people have shown that it is incapable of reforming itself.

But we now find ourself in a sudden movement of possibility. The defeat for Israel at the ICJ has shown that the West is not invulnerable. It has also shown that not everyone and not all institutions can be bent to the will of politicians. Both of these developments open the door to the possibility of major changes to the global order.

Many had thought that the sizeable number of Western judges on the ICJ bench would mean an outright dismissal of South Africa’s application, in line with the views of most European capitals. This did not come to pass, with all the Western judges voting in favour of South Africa’s orders.

This might have been a miscalculation by Israel and its allies, who arrogantly dismissed South Africa’s ICJ application as “meritless” and “unfounded”. The judgment shows that even when politicians do not have the moral backbone to stand for what is right, the world’s top legal minds can and will look at each case on its merits and will stand on the side of justice. Western capitals lined up behind Israel but Western judges did not.

Israel and its backers in the West, along with the majority of the Western media, seem to have also failed to grasp the shift in the global political winds, a shift that will not leave the geopolitical system unchanged. This shift is shedding the need for approval from Western capitals and the assumption that weaker states must unquestioningly align with those views.

Western leaders have also failed to understand the massive abhorrence at Israel’s actions against the Palestinian people and their governments’ implied and explicit endorsement of Israel’s genocide among their own people, abhorrence that is leading to considerable protest and dissent. That dissent has moved beyond opposition to oppression and genocide and now includes widespread commitments to supporting the Palestinian people’s right to self-determination. In a significant development, large numbers of young Jewish people in the United States are deeply concerned by Israel’s actions and seek a just resolution of the conflict.

The defeat for Israel and its backers in the West opens the door for further legal action, including the possibility of sanctioning Israel and issuing criminal charges against its leaders. Already the Center for Constitutional Rights (CCR), a US civil liberties group, has filed a lawsuit in a California federal court against US President Joe Biden, Secretary of State Antony Blinken and Secretary of Defence Lloyd Austin for being complicit in Israel’s “genocide” in Gaza. The CCR is asking the court to find that “the defendants have violated their duty under customary international law, as part of federal common law, to take all measures within their power to prevent Israel from committing genocide against the Palestinian people of Gaza”. Jurists in the US will now have their integrity tested.

It is hugely significant that it was South Africa, a country with its own history of dispossession, state violence and mass resistance against oppression that stood up and gave leadership on the global stage. The courage that this has taken must not be underestimated. Much more powerful countries, including those with left governments, such as Brazil, failed to act in a similarly decisive manner.

The West has suffered a profound blow to its legitimacy and its claim that its “leadership” of the world is a force for good. The decision by the ICJ has made it clear that it is morally culpable for failing to stand up for the Palestinian people and preferring to side with a government that includes figures who see Palestinians as “vermin” to be “exterminated”.

It is now crystal clear that the West was in violation of international law as well as ethics while it armed and defended the genocidal regime in Tel Aviv as it destroyed Gaza neighbourhoods and killed more than 26 000 people, 70% of whom are women and children. The West even stood by and watched as the Israeli Defence Force (IDF) continued to target, shoot and kill civilians holding up white flags. A white flag is an international symbol that has since time immemorial been recognised as a sign of peace and it has always been considered a crime to shoot an unarmed person carrying a white flag.

Even the Geneva Convention and the Rome Statute implore combating sides to not attack individuals who have shown the intention to surrender, i.e. holding a white flag. Despite these and other international humanitarian law practices the IDF has shot and killed Palestinian civilians holding up white flags, seeking safe passage. Indeed, they have even shot and killed their own citizens, escaped or released hostages, holding white flags and shirtless to show that they are unarmed.

Some of these incidents have been caught on camera, but how many more are not documented? Despite this and the many more atrocities committed in Gaza the Israeli government stood at the World Court and proclaimed to the world that it is doing everything to protect civilians. The jurists of the ICJ saw through these lies and ordered the IDF not to commit genocidal acts and to protect rather than target civilians.

South Africa has been vilified at home by the pro-Western lobby and abroad. Members of the US Congress came out strongly against Pretoria’s decision to stand, at risk to itself, for justice for the endangered people of Palestine. They threatened South Africa’s continued participation in AGOA and called Pretoria’s case against Israel “grossly unfounded and defamatory” and a “deeply hostile stance”.

It remains unclear whether these members of Congress will change their minds given that the ICJ did not find South Africa’s case meritless, but actually endorsed most of the orders that South Africa had asked for. In true American fashion they will probably dismiss the ICJ as being irrelevant and portray only their views as correct and just. That is, after all, what their evangelical constituencies who view Palestinians as barbaric want.

This hypocrisy and failure to enforce the rules of the international system without fear, favour or prejudice is eroding the West’s hold on the global system. It is the actions of the West and not China, Brics nor any other Global South initiative that is collapsing the “rule-based international system” and undermining the almost century-old hold that America and its allies have had on world affairs.

The West’s selective imposition and enforcement of international law, always in its allies’ favour, even if they are wrong, has weakened its standing and moral hold on the global system. Berlin, London and Washington’s disregard for the ICJ ruling by continuing their blanket support for genocidal Israel will hurt them more than Tel Aviv’s contempt for the court. It will unequivocally expose their hypocrisy rendering their future interventions against states that defy the ICJ useless.

South Africa, a small country at the foot of the African continent, had the courage to stand and act in the face of immense domestic and international pressure. The Global South unlike the West has been willing to take bold, righteous and unpopular decisions damned be the consequences. History will judge South Africa’s stand for the people of Gaza, as one that was on the side of good.

Nontobeko Hlela is a research fellow with the Institute for Pan African Thought & Conversation and a PhD candidate in the Department of Politics and International Relations at the University of Johannesburg.