Julie Billaud, Geneva Graduate Institute
Antonio De Lauri, Chr. Michelsen Institute
Abstract :
International law has historically been manipulated to render acceptable the suspension of liberal normative standards when it comes to violence and suffering perpetrated against non-Western populations. Yet the litigation initiated by South Africa against Israel at the International Court of Justice illustrates the Global South’s unwavering commitment to challenge the international world order through legal means. Can the case of Palestine propel the ‘return’ of the political project of the Third World on the international stage and revive its insurgent and decolonial spirit at the very moment when genocidal erasure looms in Gaza?
In international diplomatic arenas as well as in institutional cultural environments, Western countries tend to consider themselves as the protectors and promoters of human rights, responsible for showing non-Western countries the path toward ethical and democratic behavior. The doctrines devised during the colonial era to establish a distinction between ‘civilized’ sovereign states and ‘uncivilized’ non-sovereign ones (Anghie 2007) continue today as a way to create exceptions that render acceptable the suspension of liberal normative standards when it comes to violence and suffering perpetrated against non-Western populations. The imperial wars waged by European countries and the United States around the globe, from Vietnam, to Afghanistan and Iraq (to mention but a few) have historically contradicted the West’s pretense to encapsulate the values of international law. These contradictions are once again exposed in the context of the ongoing massacres in Gaza.
Since the creation of the United Nations, and in line with the civilizing mission’s rhetoric used to justify colonialism, racist arguments about Africa as halting, obstructing, defying and subverting accountability for mass atrocities have been rehearsed in major political and academic circles in the West (Clarke 2019). By bringing Israel before the International Court of Justice, the world’s highest international court, with the objective of putting an end to these atrocities – while many Western countries continue to side with and provide military supplies to the oppressor – South Africa together with its Global South allies is not only challenging the West’s moral high ground but is also pushing debates on the legacy, sentiments and politics of postcoloniality to a new scale and scope. It is simultaneously exposing the historical roots that define the West’s unfailing support to Israel as an outpost serving the double objective of guaranteeing privileged access to natural resources in the Middle East while holding off ‘barbarians at the gate,’ to use a classic colonial trope (Nesiah 2023).
In fact, it is not the first time that the Global South plays an instrumental role in the protection and promotion of international law. According to Joseph Slaughter (2018), as soon as the Universal Declaration of Human Rights was drafted and until the neoliberal rollback of the 1970s, the Third World – not conceived here as a geography but as a political project pursued by a small group of recently decolonized states – was central in shaping the human rights agenda, notably by advocating for a conception of self-determination as inseparable from individual freedoms. Whereas many Western states at the time tried to diminish and constrain the new international system so as to be able to maintain colonial domination, with France, Belgium and Britain seeking to exclude their colonies from the rights granted in the UDHR based on the argument of ‘different levels of civilization,’ the Third World championed sovereign equality, racial and economic justice, and cultural liberation and framed colonialism as a human rights violation. The Third World’s proposal for a New International Economic Order expressed a collective desire to restructure international trade so as to bridge the gap between political sovereignty and economic independence. By challenging the rules of global trade that kept the world system intact in spite of formal political decolonization, the Third World promoted a vision of internationalism anchored in transnational solidarities and sovereign equality. Interestingly, the causes that unified members of an otherwise politically heterogenous Non Aligned Movement during that period was a commitment to the liberation of South Africa from apartheid and Palestine from Israeli colonialism (Rao 2024).
If one has to think of a single nation that has invested high hopes in international law institutions and the broader project of human rights, Palestine stands as the perfect example. As Lori Allen demonstrates in her historical and anthropological researches on human rights advocacy and commissions of inquiry in Palestine (2013; 2020), Palestinians have become entangled with international law and their political sensibilities have been deeply shaped by it. Through the work of investigative commissions, the UN Human Rights Council, the International Court of Justice and the International Criminal Court, international law has become part of Palestinian civil society actors’ habitus and common sense. The seductive power of such institutions, their continuous appeal in spite of their complicity in maintaining Palestine in a condition of ‘international legal subalternity’ (Imseis 2023), primarily lies in the liberal ideology that informs their mode of action: their use of the expert language of the law to articulate universally applicable moral obligations while eliminating meaningful political exchanges in favor of ‘legalized discourses that never address the hierarchies by which “political order” is defined and enforced’ (Allen 2020, 25). As critical legal scholars have shown, the language of international law often tends to delegitimize the language of resistance, replace political negotiations by technical-legal proceedings that fail to address conflicts’ root causes and ‘divert attention and energy from the collective work required for political change’ (Allen 2020, 29).
While the International Court of Justice case of “South Africa vs Israel” does invoke a spirit of Third World solidarity, the global picture is complicated by a contemporary geopolitical map (e.g. India’s alliance with Israel) and an international legal map (the immediate precedent for South Africa’s actions against Israel was the equally pivotal actions of Gambia against Myanmar, not a country that has the support of the global North), that make the predicament of solidarity and alliances volatile (not only in the case of Palestine). In this context, can international law dislodge its liberal-imperial foundations to become a truly inclusive and meaningful international normative order? Can those excluded by the racial hierarchies that international law contributes to reproduce creatively use elements of that law to challenge it on its own terms? Can the case of Palestine propel the ‘return’ of the Third World on the international stage and revive the insurgent and decolonial spirit of the 1955 Bandung conference at the very moment when genocidal erasure looms in Gaza?
The current International Court of Justice advisory opinion proceedings offer a good illustration of how existing legal tools can be used in a counter-hegemonic way to reframe Palestine’s contingent status in the international legal system. It is symbolically significant that of all the 193 United Nations member states, it is South Africa, a country that has made the painful experience of apartheid, and therefore understands too well that ‘our freedom is incomplete without the freedom of the Palestinians’ (Mandela 1997), that initiated the litigation. The ICJ sessions of January 11 and 12, 2024 were marked by an unmissable racialized geopolitical atmosphere. While a mixed team from South Africa spoke mostly in South African and Irish accents, on the Israeli side a group of exclusively white people spoke in Australian, British, US, and Israeli accents (Rao 2024). Initially, the South African position was backed by Malaysia, Turkey, Jordan, Bolivia, the Maldives, Namibia, Pakistan, Colombia, and Brazil. However, at the time of this writing, the 120-member Non-Aligned Movement, the twenty-two-member Arab League, and the fifty-seven-member Organization of Islamic Countries (OIC) have also endorsed the position. The US, the UK, and Germany have all openly condemned the case, and few other Western powers have backed it. The color line that divided the room mirrored the geopolitical one that currently cuts across the world.
‘In extending our hands across the miles to the people of Palestine, we do so with the full knowledge that we are part of a humanity that is at one.’ It is with this quote from Nelson Mandela that Justice Minister Ronald Lamola opened South Africa’s statement before the court, perfectly encapsulating the essence of his country’s intervention. Because what stood out in South Africa’s involvement was precisely its humanity. Each member of the South African legal team went beyond presenting a legal case and, instead, offered a genuine expression of sympathy for the suffering of the Palestinians and solidarity with their struggle.
But beyond this obvious manifestation of Third World solidarity, what South Africa achieved through its strategic use of the law was a politics of presence. The law’s performative power, its capacity to name was mobilized to hold a portrayal of a set of wrongs and to bear witness of Israel’s politics of extermination. Whereas most human rights mechanisms limit the room for proper contextualization and discussion about root causes of conflicts, South Africa emphasized the importance of placing the events of October 7th, 2023 in a longer history marked by ongoing denial of self-determination and right to return, an apartheid system of division and inequality, military occupation and siege in Gaza, all of which have led to the slow but incessant suffocation of Palestinians and prepared the ground for genocidal acts to take place. South Africa explained that the genocidal acts by the State of Israel formed part of a continuum of illegal acts perpetrated against Palestinian people since 1948. It stated that decades of impunity had emboldened Israel to intensify its crime.
As Germany committed to take a stand and support Israel in front of the Court, Namibia, which at the beginning of the 20th century suffered the Herero and Namaqua genocide inflicted by the German empire, cautioned Germany to reconsider its decision. ‘No peace-loving human being can ignore the carnage waged against Palestinians in Gaza,’ the Namibian presidency declared. In the case of “Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany)”, the ICJ found that the circumstances do not require the exercise of its power to indicate provisional measures. Yet, this also emphasized how patterns of solidarity and positioning with Palestine can overlap with the idea of a reconfiguration of the international order. To be sure, whereas such processes might occur through the channels and institutions of the international legal system, there is no automatic correspondence of these with respect for human rights at the local level nor with enhanced mechanisms of protection of political and civil rights. Therefore, Nicaragua’s challenge posed to the role of Germany in the humanitarian catastrophe in Palestine coexists with the ongoing severe human rights violations perpetrated against political opponents and Indigenous People inside Nicaragua. It is along these ambivalent and complex lines that global instances of postcoloniality are redefined.
But the legal moves undertaken by South Africa and Nicaragua cannot be simply brushed aside as mere political manipulations from countries with poor human rights records. Indeed, such expressions of cynicism signal a struggle for control over the symbolic order and for the maintenance of an exclusionary conception of humanity. In 1963, Franz Fanon, concluded his essay The Wretched of the Earth, by saying: ‘If we wish to live up to our peoples’ expectations, we must seek the response elsewhere than in Europe’ (1963, 315). This statement can be read as a prediction of the role South Africa has taken at the ICJ and other initiatives by non-Western countries. Fanon’s call to ‘look elsewhere’ in the quest for a true humanism, where concern for humanity is no longer eclipsed by the interests of dominating nations or the identities of conquering peoples, is reflected in today Global South’s outstretched hand to Palestinians at the very moment when Western hypocrisy is no longer tolerated.
On the 26 of January 2024, the ICJ accepted the case presented by South Africa and ordered Israel to take immediate measures to prevent the genocide of the Palestinians in Gaza. As of today, Israel has ignored the ICJ’s request. Even though a lasting ceasefire remains a complicated objective that can be disrupted at any moment by several actors, from the warring parties to external powers, the Court has acknowledged some key facts that many Western countries still fail to fully recognize, namely the high number of civilian casualties, including thousands of children, the forced displacement of the majority of the population of the Gaza Strip, and the systematic destruction of infrastructures, homes, schools and health facilities, which has made Gaza ‘uninhabitable,’ as Martin Griffiths, the UN undersecretary general for humanitarian affairs, recently said.
South Africa’s case against Israel goes well beyond the legal aspects linked to the United Nations Convention on Genocide (which remains nevertheless important). What is at stake today is the very meaning of the principle of humanity. The violence, instability and destruction that the so-called humanitarian wars, the attempts to export democracy and the War on Terrorism have produced around the world are historical crimes with which Western countries must be able to come to terms. The former colonized are now emerging or in many cases widely consolidated global powers that not only question the Western rhetoric of a moral superiority proclaimed while supporting the massacre of Palestinians, but act by redefining (or in other cases denying) the values and principles of international law and human rights, which Europe and the United States have claimed to uphold – but failed to do so.
Global hierarchies are changing and if there is much uncertainty about the prospects for peace in different regions of the planet, the challenges we all have before us require a change of mindset, not only contingent actions. Demonstrations of solidarity with the people of Gaza are taking place around the US and Europe but political leaders remain untouched by the cry of thousands of innocent civilians. A repressive climate persists in which intellectual freedom is seriously questioned. The idea of ‘humanity’ has been often used to mark the separation between those who are afforded social protection and those who are excluded from society and can be killed with impunity (Agamben 1998). The notion of humanity is ‘as much entrenched in the enactment of social divisions and exposure to violence as it is in aspiring to imagine a coherent, secure, and unified social whole’ (Romeo 2020). It is a key historical moment in which the possibility of a revived ‘Third World’ could ignite a renewed understanding of the concept of humanity, no longer an expression of global asymmetries and hierarchies, but the source of a postcolonial humanism.
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