Introduction
In December 2023, the South African government filed a case of genocide against Israel https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf at the International Court of Justice (ICJ) accusing it of committing genocide against Palestinians in Gaza. The legal basis for the South African case is the violation of the 1948 Genocide Convention. The case comes at a critical juncture in the history of modern international law. As such, the case carries significant and far-reaching implications. In this piece, I highlight only two. The first is on the role and agency of the Global South in the ongoing transformation of the international system. The second implication centres on the sanctity of the rules-based international order, whose legitimacy is being eroded. Together, these foreshadow the necessity of Global South agency, Africa in particular, in a new international order. The rest of this piece expands on these points, highlighting the case itself, its importance for African and Global South agency, and why it might be a defining moment for the future role of international law in a new international context.
South Africa accuses Israel of genocide
When South Africa filed the case, some were surprised, others not so much. Those that were surprised saw South Africa as just another African country with no significant agency in international affairs. However, others understood the South African government’s decision from a historical perspective. South Africa has a well-documented history of colonialism and apartheid. The latter was declared a crime against humanity by the United Nations General Assembly in 1966 and was further defined as a crime punishable under international law by the Apartheid Convention in 1973. Apartheid saw the large-scale systematic and violent oppression of South Africa’s black majority by a white settler minority. Therefore, the systematic oppression of Palestinians deeply resonates with many South Africans. The African National Congress has strong ties to the Palestinian Liberation Organisation. For many ordinary South Africans, the Palestinian issue is reminiscent of apartheid. Consequently, if South Africa were to remain silent in the face of the egregious violations committed against the Palestinians, the country would have betrayed its own struggle against apartheid and those who supported it.
Global South and African agency
There is consensus that the international system is transforming – that it is transitioning from a unilateral to a multilateral system. However, there is debate on the role of the Global South in this transformation. I argue that African countries have a duty to play in shaping the new international order. This is a necessity for two main reasons, the first is that African countries were mainly participants in the international order that began with the end of the Second World War. Secondly, the future is African – the demographic make-up of the continent compels Africa to insist on a just and inclusive international system. The ambivalence and sometimes disdain of some African countries towards the Palestinian genocide and the South African case against Israel is unsettling. This is a symptom of the inequality that characterises the international system where African countries are locked in asymmetrical relations with Western powers. This is a situation that does not bode well for African agency in a new international order.
Yet we know very well that Africa has the potential to play a central role in the formation of a new global order. At independence, African nationalist leaders articulated the kind of international system they envisaged for the newly independent states. These early nationalists were keenly aware of the inequality that characterises the international system. These leaders stipulated, with much urgency, the values and ideals that would guide Africa in international society. South Africa is leading by these ideals – deeply expressed in the values of ubuntu (humanity). Nothing prevents other African countries from supporting this universal African value. In doing so, they would not only be exercising their agency but also pushing back against an international system that has completely exhausted its ethical principles.
Whither the rules-based international order?
The shortcomings of the liberal rules-based international order have become apparent. In recent times, the main architect of this order, the United States of America has led the charge to dismantle the nearly 80 years of the liberal world order. The international rules that were agreed upon at the end of the Second World War, central to which was the prevention of deadly violence and the treatment of all sovereign states as equals https://education.cfr.org/learn/video/what-liberal-world-order ,are in a process of disintegration. International laws have been openly flouted. We see this in the Russian invasion of Ukraine, in the Israeli led and Western supported genocide in Gaza, and more recently in the Israeli-US attack on Iran and Israel’s invasion of Lebanon. These cases demonstrate the hypocrisy that has developed regarding agreed-upon international rules where others are seemingly exempt from obeying them, while others are held accountable to them.
Amid this disorder, the South African case against Israel demonstrates that it is possible to reimagine international law, outside of the retreating liberal order. South Africa has consistently and continues to advocate for a multilateral approach in the international system. There is hope that international law, can be salvaged, or at least, that it can be preserved and can continue to function, albeit under different norms. The number of Global South and Global North countries, such as the Hague group https://thehaguegroup.org/home/ , that have joined the South African case at the ICJ, suggests that it is yet possible to promote and inject an ethical dimension to international law. These countries have potential to form the basis of the shift in the practice of international law.
It is my view that the South African case against Israel represents a critical juncture in how international law is conceptualised and practiced. The liberal and democratic assumptions that underpinned the past 80 years of international law, have been proven deeply unethical and unjust. The world is at a pivotal moment where international law needs to be reimagined. It is in this moment that Third World Approaches to International Law must take centre-stage. Africa has a history of a normative laden system that previously informed intra-Africa relations but were gradually eroded through the imperial experience and the subsequent triumph of the liberal order. The present moment, therefore, should galvanise to action African countries and others who envision a restructured international system that is founded on an interpretation of international law that is just and ethical, and benefit all equally.
