NICOLE FRITZ: Institutions of global order such as ICC are under sustained attack

The prosecutor of the International Criminal Court (ICC), Karim Khan, made the widely anticipated but nonetheless controversial announcement on May 20 that his office would seek arrest warrants for senior Israeli leaders — Prime Minister Benjamin Netanyahu and defence minister Yoav Gallant — and three senior Hamas leaders, including head Yahya Sinwar, for war crimes and crimes against humanity.

That announcement drew fierce protest from Hamas but no-one imagines that such opposition will endanger the ICC. Israel’s frenzied response and that of states such as the US, UK and Germany present a far graver danger to the court.

Alongside the attacks on the International Court of Justice (ICJ), now seized of a matter brought by SA, which charges Israel with violations under the Convention against Genocide, and on the UN itself — Israel’s ambassador last week calling it a “terrorist entity” — the institutions and structure of the global order are under ferocious, sustained attack.

Whatever complaints SA has with the current international framework, and there are several it might validly make, its obvious immediate and long-term interests are in upgrading and perfecting this framework, not aligning itself with those global forces that would collapse the now constituted international order.

It sought to avail itself on May 16 of the mechanisms of that order: seeking additional protective measures from the ICJ on the situation in Gaza, including an order that military hostilities cease.

These efforts by SA are a compelling demonstration of how the international system should work — insisting that organs that have otherwise appeared detached and decrepit be fully exercised with unfolding crises. SA’s efforts at the ICJ can also be read as a potentially powerful resuscitation of the responsibility to protect doctrine.

Whatever hopes and enthusiasm that doctrine initially generated rapidly curdled to grave suspicion when it was used to justify Nato military intervention in Libya — an intervention that amounted to regime change.

Civilians killed

But the doctrine was not intended only to justify military intervention. It arose in recognition of the glaring failings of our international human rights system, which requires that people press their claims against and look for fulfilment of their rights from domestic states. But where does relief and redress lie when it is often that very domestic state that so ruthlessly tramples on those rights?

As is abundantly clear the people of Gaza suffer grievously. Huge numbers of innocent civilians — disproportionately women and children — have been killed in Israel’s attacks. Infrastructure that supports daily life, including healthcare facilities, has been deliberately destroyed. Aid has been purposefully withheld so that starvation is endemic and famine has taken hold.

The population of Gaza is peculiarly vulnerable in that they have no state of their own to which they can appeal for protection. Despite an Israeli withdrawal in 2005, Israel remains the de jure occupying power and is the actor inflicting this suffering. As for the de facto authority, Hamas, quite apart from its liability for the crimes it committed on October 7 2023, it is hard not to believe that it at least shares responsibility for many of Israel’s war crimes.

As Aryeh Neier, a doyen of the international human rights movement, wrote recently: “Hamas leaders knew when they planned the attack that Israel had the most right-wing government in its history, at immense cost to the civilian population of Gaza. Hamas’ operatives do not wear uniforms and they have no visible military bases. Hamas has embedded itself in the civilian population of Gaza ... Even if Israel’s bombers were intent on minimising harm to civilians, they would have had difficulty doing so in their effort to destroy Hamas.”

Caught as they are between one authority, which appears to target them systematically, and another that wilfully places them in harm’s way, the civilian population of Gaza is in desperate need of champions. For this reason above all, SA’s endeavours to secure them recognition and protection from the ICJ are to be hailed.

Robust rebuttal

Yet last week’s hearings before the ICJ threw up some disquieting accusations from Israel, which SA has curiously left unaddressed. There was the invective to which SA must now have become accustomed: that SA perpetrates a blood libel, that it is prompted by anti-Semitic leanings, that it is “the legal arm of Hamas” and that it seeks to obtain it “military advantage”.

But there was also this time at least some level of striking detail: the contention that as recently as May 11, SA hosted a Hamas delegation in Johannesburg to discuss their “co-ordinated campaign against Israel at the court and on the ground”.

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. But in the interests of public perceptions of SA’s role in this process and the legitimacy thereof, and indeed the legitimacy of the international system itself at this time of heightened attack, a robust rebuttal seemed called for. It hasn’t come.

SA welcomed Khan’s announcement on Monday that he would seek arrest warrants for senior Israeli and Hamas leaders, noting that “the law must be applied equally to all to uphold the international rule of law”. It follows a referral SA made to the ICC, with several other states, in November 2023, of the situation in Palestine. But while particular reference is made to various specific crimes, there is no mention of the crimes on October 7 2023.

In the context in which Israel demands that only the suffering and violation of its people matter, US President Joe Biden insists that the application for arrest warrants against Israeli leaders is “outrageous”, and in which US secretary of state Antony Blinken indicates that this will earn ICC officials US sanction, many may feel that a corrective to such glaring bias is a reverse bias.

But it is worth keeping in mind this part of Khan’s statement of Monday: “Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse. In doing so, we will be loosening the remaining bonds that hold us together, the stabilising connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.”

This demand — that we subject all to the same legal standard — is not only to be made of organs such as the ICC. It is a requirement that must be equally and fastidiously upheld by those, such as SA, who seek to avail themselves of its processes. This is particularly so when, as SA, our concluding argument before the ICJ last week was that “our shared humanity compels” us to act.

A shared humanity requires scrupulous observance of the same, not different, standards.

• Fritz is a human rights lawyer with a background in international criminal law matters.