By R.W. Johnson
Naledi Pandor, the South African foreign minister, has accused Israel of ignoring the orders of the International Court of Justice and accordingly she appeals to “the global community” to “stop such acts occurring not just with Israel but any party in the world”. If nothing happens, she says the question to be asked is “Do these conventions (ie. the ICJ) mean anything ?” – and she suggests a reform of the UN Security Council to enable it to “enforce peace”.
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There is a whole series of issues here. Let’s start in the middle. Do these conventions mean anything, indeed, is there really such a thing as international law ? It’s a moot point. For a start, the countries that have refused membership of the ICJ include the USA, Russia, China, Israel, Iraq, Yemen, Libya and Qatar so the three most powerful countries in the world don’t accept the court’s jurisdiction. This isn’t so surprising. Why would any of these great powers agree to follow the dictates of a court whose judges almost invariably do whatever their own governments tell them to do ? That would simply mean giants agreeing to be ruled by pygmies. Who, after all, could be surprised that all the Muslim judges on the ICJ ruled in a pro-Palestine direction ? Or that the sole Chinese judge voted the way Beijing preferred ? Anyone who knew the ICJ’s composition could have accurately predicted their decisions well in advance. To pretend otherwise – that the ICJ’s decision is a victory for “justice” or human rights – is simply nonsense.
So, there is certainly no equality under the law as far as the ICJ (or the International Criminal Court) go: its writ doesn’t run in huge parts of the world with around two billion inhabitants. And their judicial decision-making is intrinsically political which, of course, vitiates the whole notion of justice. Indeed, why have judges at the ICJ at all when governments are really making the decisions ? The answer to that, embarrassingly, is “so as to maintain the pretence that this is a proper court”.
Israel, of course, knew all this in advance but decided to go along with the ICJ judicial process for political reasons. They knew that they were bound to lose but hoped to make their case to the only audience that matters to them – the electorates of the major Western countries. Israel makes the point that it is absurd for it to be tried for genocide after being attacked by a terrorist movement (Hamas) and argues that South Africa was acting “in the service of a genocidal organisation”. Ms Pandor may not realise that she has actually given support to that notion by phoning Hamas after the October 7 massacre without condemning it and by referring to her colleagues in the ANC government who “have direct contact with Hamas”.
Israel, of course, is not bound by any orders issued by the ICJ. It may choose to ignore them: it is not subject to its jurisdiction. But it is playing a canny hand, not actually declaring its position. The ICJ has ordered Israel to report back to it. We shall see whether it actually does.
Ms Pandor assumes that the UN is committed by the decisions of the ICJ. This is not so. And the idea of the Security Council being “reformed” so as to “enforce peace” is preposterous. Reforming the UN is a conversation without end, for it comes up against the simple fact of Great Power dominance. Enforcing peace would often mean taking armed action against transgressors and that is always bound to be controversial. And there is zero chance of the Security Council agreeing to surrender its veto powers. Ms Pandor talks naively of how there must be a way of preventing Israel from doing what it wants or “any party in the world” from doing the same. Does she, one wonders, also want a way of stopping Hamas or Hezbollah from launching attacks on their neighbours ? Or Russia, whose egregious attack on Ukraine was wholly unprovoked ? Yet in that case, as we know, South Africa has sided with the aggressor.
Like most members of the “Global South” Ms Pandor assumes that the final authority is the UN – because, of course, the Global South dominates the General Assembly. But the reality is, of course, that the Great Powers have long since realised that this makes the UN useless for most of their purposes so they deliberately side-step it. In some cases – e.g. the action in the Balkans to stop Serbia from slaughtering Muslims – the US has got NATO to act in an area that NATO was never meant for. More frequently the US has mustered a “coalition of the willing” – e.g. in both Iraq wars and in Afghanistan. The common point is that neither NATO nor such coalitions require any sort of UN mandate to do what they wish.
But the other Great Powers are the same. Russia has conducted a war with Georgia, snatched away the Crimea and now set up puppet republics in Eastern Ukraine. In no case has it tried to involve the UN or seek its agreement to any of these actions. Putin now openly threatens Moldova and the Baltic states and even Poland, blithely ignoring the UN Charter. Similarly, China has fought wars with India and Vietnam without ever bothering the UN with such matters. It has also unilaterally tried to grab the whole of the South China Sea despite the protests of Indonesia, Malaysia, the Philippines, Brunei, Vietnam and Taiwan. When the (UN) Permanent Court of Arbitration at the Hague completely dismissed China’s claims in 2016, pointing instead to the UN Convention of the Law of the Sea, China, although a signatory to the treaty which established that tribunal, simply refused to accept its authority. China said the court’s verdict was a worthless piece of paper and “null and void”. Accordingly it has entirely ignored the court and presses ahead with this huge territorial grab.
Russia and China simply act as Great Powers do” they bully and they act unilaterally. Western countries, on the other hand, rely on coalitions, for example the coalition to support Ukraine against Russia. It is a vast coalition – the USA, Canada, Australia, Japan, South Korea, the UK and 27 EU countries – but it is not authorised by the UN, let alone by any court. Similarly, the coalition to suppress the Houthis’ attempts to attack Red Sea shipping consists of the US, UK (the two operational members), Canada, Australia, the Netherlands and Bahrain. Again, this coalition did not approach the UN or any court.
What is striking about these Western coalitions is that they usually depend a good deal on the Anglosphere – the US, UK, Australia and Canada are almost invariable members. In part this grouping still rests upon the fact that it played a primary role in winning the Second World War and then establishing an international rules-based order. Accordingly, it benefits from a degree of international trust unmatched by any other grouping. Moreover, it benefits from the world’s strongest intelligence network, the Five Eyes (the fifth member being New Zealand). It’s worth mentioning this because, of course, South Africa could easily have been part of this grouping had it not chosen its current foreign policy. Forty years ago South Africa had the strongest armed forces and diplomatic and intelligence services in Africa. Once apartheid was gone it would have been eagerly welcomed into the Five Eyes, providing it with a major new strategic dimension. Clearly, this would have been the choice of Jan Smuts’ South Africa, but the ANC has clearly never considered this option. Yet membership of this Anglosphere grouping would have made South Africa immensely more influential than it now is, so its foreign policy choices have actually seen South Africa choosing relative impotence.
Instead South Africa has chosen to take the side of the Global South, an empty populist gesture. For, as we have seen, the Global South is a No Man’s Land of countries with very different interests, often at war with one another or rent by internal civil wars. It has not generated any international institutions which might be the basis of an alternative international order. Instead it seems content with making unrealisable demands for UN reform, the complete revision of the IMF and World Bank and a general anti-Westernism. The Global South has almost no powers of implementation so its protests are often just empty gestures.
Ms Pandor also angrily attacked Israel for its accusation that more than a dozen employees of the UN Relief and Works Agency had participated in the October 7 massacre. For her this was “part of a deliberate campaign of negative action against the people of Palestine”. This doesn’t deal with the fact that the evidence of UNRWA involvement has already been sufficient to cause many Western countries to suspend their payments to UNRWA. Ms Pandor claims that South Africa will fill the resulting financial gap from “its own resources” and from others in the Global South. This seems extremely unlikely. Moreover, the Israeli government says that UNRWA has been completely infiltrated by Hamas and that “the UNRWA mission has to end”. (Israel also claims that South Africa’s case at the ICJ depended on charges laid by UNRWA officials who were Hamas sympathisers.) While agreeing that aid has to be provided to the Palestinians of Gaza, Israel wants this task to be entrusted to one of the many alternative aid organisations. This may well be the end of the matter: it is hard to see how UNRWA can continue to operate in Israel if the Israeli government wants it out.
Finally, Ms Pandor demands an immediate and permanent ceasefire in Gaza and says that South Africa will continue to work for a two state solution. The problem is that both Hamas and Hezbollah are dedicated to the complete destruction of Israel. That is their raison d’etre. They are not interested in a two state solution. Moreover, they are not interested in a permanent ceasefire. Hezbollah is firing salvoes at Israel on a daily basis and long before October 7 Hamas was regularly firing rockets into Israel. Both organisations want to carry on doing that, indeed their foundation charters require them to do so.
What Ms Pandor means, of course, is that Israel should cease fire. But despite the regular Hamas rocket attacks Israel was observing a ceasefire until October 7. In other words if Ms Pandor – or the ANC more generally – is really serious about wanting peace in Israel, it has some serious work to do in convincing Hamas and Hezbollah to change their spots, stop attacking Israel and instead negotiate for a two state solution. Until now the ANC has made no move to do this at all and often its activists use the formula “From the river to the sea, Palestine shall be free” – which implies the complete destruction of Israel.
So Ms Pandor, and the government more generally, needs as a matter of urgency to decide what its policy really is towards Israel. Ms Pandor and President Ramaphosa have enjoyed using this issue in a populist fashion, claiming the moral high ground at the same time that they make bitterly partisan points against Israel. If they want to be taken seriously on this issue they will have to stop making populist attacks on one side and instead confront the real complexities and difficulties of this complicated issue.
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