Why we must support legal action against Israel
• Apart from saving children’s lives in Gaza, much else is to be gained from the case brought by SA at the International Court of Justice in The Hague
After the killing of at least 22,000 civilians in Gaza amid looming mass starvation and disease Israel stands accused of war crimes. Tens of millions of people, and celebrities ranging from Jordan’s queen Raina to Australian cricketer Usman Khawaja to conservative Afrikaners on Facebook, are sufficiently outraged for some sort of action to have become necessary now.
The sense that this is a crucial moment for all of humanity underlies much of the commentary, and on the face of it, the Ramaphosa government can only be commended for grabbing the bull by the horns and charging Israel at the International Court of Justice (ICJ) under the Genocide Convention.
Yes, Pretoria’s foreign policy, managing to embrace Hamas while fighting its ideological brothers in Mozambique, or helping war criminals such as Vladimir Putin and Omar alBashir escape sanction, is pathetic and embarrassing. Yes, part of the motivation is to advance the narrative that world judicial bodies are biased and racist, a story that only benefits dictators in the developing world. And yes, Hamas is a death cult, a practitioner of what philosopher Achille Mbembe calls necropolitics, governing through getting its own people killed.
But the spoonful of Ramaphoria left prompts one to believe the main motivation is sincere outrage at the horror of atrocities being committed in our sitting rooms, so to speak, with near total impunity. As for Hamas, the case is equally an opportunity for the light to be shone on its own myriad political and war crimes. And if SA, out of hubristic ineptitude if nothing else, will be putting itself on the stand, this can be no bad thing. Who knows what Israel and its allies in the CIA might dig up over Pretoria’s ties with Moscow, for instance.
What must be understood is that the matter is now a judicial one, it is out of the politicians’ hands. The 84-page application with its 574 footnotes is an outstanding document in its comprehensiveness, focus and legal sophistication. It comes from a stellar human rights tradition built by scores of activist lawyers who were the unsung heroes of the demolition of the apartheid regime. One cowriter of the document, John Dugard, is a stalwart of those times and another, Tembeka Ngcukaitobi SC, a rising star.
I am not fond of the legal fundamentalism underlying most calls for the rule of law, since the exorbitant costs levied by the system will ensure that justice for all remains a distant dream. But I can perhaps offer a personal take on why this case can be so crucial for humanity and why the SA team must get all the support we can offer.
In the years before and after a landmark event in global human rights culture, the establishment of the International Criminal Court (ICC) in 2002, I had the good fortune to attend human rights moot court competitions in African countries such as Uganda and Ghana, run by the Centre for Human Rights, which was set up at the University of Pretoria by my friend Christoff Heyns. There, I had great conversations with lawyers and activists from all over the continent.
I also spent time with Luis Moreno Ocampo, the first prosecutor of the ICC during a visit to Johannesburg to try to explain how it worked. Later, Ocampo was one of the main subjects of the riveting movie Argentina, 1985, which won a Golden Globe for best foreign language film and an Academy Award nomination in 2022.
The ICC was such a great advance because it was the first permanent global mechanism for the prosecution of internal crimes by governments, and of individuals. It is quite clear that the Dirty War by the Argentinian juntas against their own people, infamously “disappearing” about 30,000 of them, and the difficulties in bringing the generals to justice, have informed the way the ICC operates. In turn, the Dirty War trials, Ocampo explained, took on lessons learnt from the legal calamities after the civil war not long before in Greece, when the generals avoided prosecution for their crimes by mounting a coup d’etat.
The movie dramatises the then Argentinian chief prosecutor Julio Strassera’s vacillation in agreeing to take on the trials, not because of any cowardice, but because he was apprehensive that a failed process would set back the advancement of human rights in the country. Most of his personnel were vulnerable to compromise in one way or another, some having worked for the junta government, while others had families who had already suffered from death threats.
Strassera hit on the idea to hire graduates fresh out of university, or not-yet-settled young lawyers such as Ocampo. Apart from the energy of youthful idealism, most were still unmarried and did not have children that the military could intimidate or abduct.
This background helped me to gain the first of several outsiders’ insights on the international practice of human rights: how precarious the project is. And after all those years global human rights are still very much a work in progress. It is a case of beg, steal and borrow from various codes, laws and treaties on anything from children’s rights to antilandmine legislation. At the latest count, the ICC had 102 crimes it can prosecute on its books, based on definitions and treatments extracted from several countries.
The worst obstacle the global human rights project has to contend with is economic starvation. Heyns liked to compare the finances of the UN’s Human Rights Council with the New York City fire department, whose budgets are the same. Governments’ reluctance to have effective human rights regimes is near universal, and they achieve that by financial suffocation.
My second great insight was on the dangers and traps of legal equivalences. When I asked Ocampo in Johannesburg why the ICC was gunning for JeanPierre Bemba, at the time the vice-president of the Democratic Republic of Congo (DRC) and a man with a powerful militia that could upset the fragile balance of forces in the country, and not Joseph Kabila and other leaders as well, he cited the budgetary problems.
They had to go for the clearcut, winnable case. But above all else, the ICC had to act expeditiously against somebody, he said, otherwise the ethos of impunity reigning at the time in most of Africa would become too strong and entrenched.
I believe he was right. The DRC, apart from its still volatile east, is much more peaceful today. Obviously, the UN’s peace force has played a great part, but its leaders now know that giving their militias a free hand will rebound on themselves. It is hard to say Bemba’s conviction is having a similar effect elsewhere in Africa, but the precedent will surely be cited by any lawyer hired by a “Big Man” with ambition.
In the current atrocities committed by Israel and Hamas, the ICC has limited effectiveness because Israel is not a signatory to the Rome Statute that had set it up, and neither is its main ally, the US. Similarly, though Hamas is a state party to the statute it is not a properly independent government, and its repression of freedoms makes evidence hard to come by. But Israel, due to the horrific history of the Holocaust, had hardly been able to avoid signing the Genocide Convention and this opened the door for someone involved in the Gaza atrocities to be charged.
The third of my outsider’s insights was that entities such as the ICC provide a service, not to governments, but to their victims, to ordinary people like you and me. In 1985 Ocampo and his fellow prosecutors put the individual victims on the witness stand for the first time. This could only be done by having them face away from the generals sitting in a scowling row on the defendants’ bench. Only when the movie appeared in 2022 were the witnesses’ faces shown for the first time, juxtaposed to those of the actors in the final credits.
This service aspect is crucial to understand the furore over purported bias by the ICC towards the West and the bad faith from those countries that make such claims, including the ANC government. While the US has refused to accede to the ICC, it does have a virulent civil rights culture with global icons such as Martin Luther King Jr. Its people do not need the ICC.
US systems are far from perfect, and were unable to stop a monstrosity such as Guantanamo Bay, but war crimes have a great chance of being prosecuted. The My Lai criminals from Vietnam were convicted, as were the Abu Ghraib torturers from Iraq. Similarly, Israeli citizens can and do take the government to court over human rights abuses and have protested violently in their thousands against Prime Minister Benjamin Netanyahu’s attempts to bring the courts to his heel.
Those developing countries that do have human rights statutes on their law books frequently lack the legal logistics and infrastructure to allow citizens to sue their governments. This is especially the case in Africa, the only continent where less than half of the countries have signed the Rome Statute. By accusing the ICC of bias against the very people it is putting at the top of its list for help, the SA government is disingenuous in the extreme, and is strengthening the hand of dictatorial regimes in Africa.
That brings to mind another insight: while the victims of murderous regimes are usually deceased and the crimes against them have faded into the past, sometimes decades before, human rights are purposed for the future. The smallest of violations are like canaries in the coal mine, they warn of worse to come down the tunnel.
Act against the torture of a dissident in an obscure rural police cell, and you might prevent a civil war 10 years on. Had Israel acted sufficiently against the guilty after its ostentatious judicial inquiries into military transgressions, the situation might have been less dire in Gaza.
The future focus has been well understood by the enemies of human rights, as most governments are. So much so that many for decades now they have been developing “lawfare” as key to military strategy, in which the canaries are trained to sing about human rights activists and prosecutors waiting further on in the tunnel. Especially US governments have been distorting and undermining the development of human rights regimes as guidance for international affairs.
The Israel-Hamas conflict is the chief US legal laboratory. The war propaganda being disseminated by Israel and its lobbyists the world over suggest that the disproportionality, the killing of thousands of children, is collateral damage, “deeply unfortunate” but worthwhile sacrifice for the sake of a future peace. Moreover, great care is taken, say the apologists, to ensure that it is all legally correct.
However, disproportionality is not the exception for the Israeli Defense Forces (IDF), but has been part of its military doctrine since the 2006 war with Hezbollah in Lebanon, according to London architect and rights activist Eyal Weizman. He refers to the then chief of the northern command, Gen Gadi Eisenkot, who told a reporter from Ha’aretz in 2008: “We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction .... This is not a suggestion. This is a plan that has already been authorised.”
Elsewhere these plans were elaborated at an Israeli institute as “a disproportionate strike at the heart of the enemy’s weak spot, in which efforts to hurt launch capability are secondary”, which is military speak for attacks on civilians. Weizman called it by its name, state terrorism: “The logic of this approach — articulated so often in the language of marketing as ‘establishing a price tag’ or of psychology as ‘searing the consciousness’ of the Palestinians — is to inflict such pain on the inhabitants of Gaza as to force them in turn to exert political leverage on Hamas.”
In 2009 Israel applied the doctrine in Gaza for the first time, when 1,300 people were killed in 22 days and 15% of its buildings destroyed after the abduction of an Israeli soldier.
Lawfare, as pioneered by US military lawyers, is seen as a “force multiplier”. It is preemptive, in that it tries to forecast future counteraction by the enemy, including the use of international law. US theorists quite openly state this means that the ICC is the enemy. The law needs to be adapted or interpreted afresh to keep military personnel out of human rights courts.
Such legal manoeuvres mean lawyers are now combatants in battle events — they are used to legitimise horrific violence as “collateral damage, self-defence, proportionality, or necessity”. In Israel this is demonstrated by the “knock on the roof” practice, which was devised by lawyers in their new role as military tacticians.
The reasoning is: since Hamas has already been condemned by human rights bodies for using civilians as human shields, every Palestinian is a potential transgressor when military infrastructure gets concealed, as is the case with the Hamas tunnels. Those “willingly” acting as human shields have to be distinguished from innocent bystanders to protect soldiers from prosecution under Israel’s own laws and from possible ICC action.
The Israeli forces do this by dropping empty shells on the roofs of targets before the real attack or making calls to home telephones, and in recent times by distributing maps on X to indicate locales for imminent attacks. Those who stay put, are deemed to have been “outed” as willing participants, and therefore combatants.
If this is done by the letter, it could conceivably work, but on the ground everything that can go wrong promptly does: people can’t evacuate quickly enough, phones don’t work, few are on X or panic-stricken civilians simply have nowhere to go. Israeli commanders have cynically and murderously used the knock on the roof as legal cover for indiscriminately firing on and bombing ordinary Palestinians — and in at least two cases they have acknowledged themselves, killing Israeli hostages and an Israeli citizen who had just heroically saved two people.
These rough and ready applications of already dubious tactics have turned Israel’s deliberately disproportionate retaliations into collective punishment, as close to direct genocide as one can get. And Hamas does its bit in the legalising of it by declaring innocent victims such as children to be martyrs to its military cause.
In these circumstances the ICC is far from a strong, independent body to be cajoled and castigated, as the SA government has done. As the main enemy of Israeli and US lawfare it is under attack itself and needs all the unconditional support it can get. Coming with all sorts of prescriptions and demands for “evenhandedness” merely plays into the hands of the lawfare generals.
In terms of its mandate, the best the ICC can do anyway is to work with Israeli and US activists to sharpen their existing laws and judicial mechanisms for pursuing war crime prosecutions. Indeed, Israeli lawfare has now become internal — it is common cause that Hamas’ October 7 attacks have strengthened Netanyahu’s hand immeasurably in his battle to destroy the independence of the Israeli judiciary.
This is where foreign governments can make a difference. Netanyahu may be a war criminal, but millions of Israelis who haven’t voted for him are not. In terms of the latest international affairs doctrines, the SA government has every motivation under R2P (“responsibility to protect”) to intervene in the internal affairs of another country. The SA government’s darting through the window of opportunity by taking Israel to the ICJ is sure to strengthen the hand of the many Israeli dissidents who live in agony over the right wing’s and the generals’ genocidal approach to Gaza.
At the very least the trial will teach Israel and the US that the best form of lawfare is to stop killing civilians.