Does Anyone Really Care? International Law and South Africa’s Appeal to the International Court of Justice

The effectiveness of international law is in question with International Criminal Court (ICC) chief prosecutor Karim Khan seeking arrest warrants against Sinwar and Netanyahu on charges of war crimes. Netanyahu immediately harshly criticized the warrant particularly for equating him with “mass murderers.” Unsurprisingly, his words were echoed by U.S. high-ranking officials, including President Joe Biden, igniting the ongoing controversy on the effectiveness of international law and its enforcement mechanisms. Similar criticisms were raised against South Africa’s application of the Convention on the Prevention and Punishment of the Crime of Genocide. Here, the argument against international law is straightforward: as international law lacks strong, consistent, and appropriate enforcement mechanisms, most countries, especially powerful Western states like the U.S., tend to disregard it.

This argument is difficult to counter. Without proper enforcement mechanisms, international law is likely to remain in the eye of ordinary person a realm where everyone talks the talk, but no one walks the walk. The question then becomes, “Does anyone really care about international law, and if no one does, then, why did South Africa bother to appeal against Israel at the International Court of Justice (ICJ)?” 

First and foremost, international law is a unique body of rules with decentralized enforcement mechanisms. Put simply, this means that members of international society often apply their own enforcement measures, either individually or collectively. Thus, international law is out there and binding, but it functions in a distinctly different way than municipal law, as the anarchical structure of international relations necessitates. 

Second, in most cases, states comply with international law concerning their sovereignty rights, border relations, joint actions against international crime, and trade relations. This list can be extended. Violations of international law, whenever they occur, become a prominent issue in global politics. The violating country, in fact, often attempts to justify its actions with a reference to international law. This is exactly the case when it comes to Israel’s defense of its actions: the country claims that these actions fall within the scope of self-defense.

These two particular characteristics of international law are of utmost importance regarding South Africa’s appeal to the ICJ. South Africa’s case against Israel would establish the legal ground for the decentralized enforcement of international law. Furthermore, South Africa’s case illustrates that there are no privileged members in the international society, but rather, decentralized enforcement is both a right and a duty of all members of international society. The absence of centralized enforcement mechanisms does not diminish the value of international law, nor does it necessitate silence in the face of clearly unlawful actions. Insisting on naming and shaming wrongdoers is almost as crucial as stopping their actions. 

Contemporary international society is not and should not be solely defined by the United Nations Security Council, nuclear powers, UAVs, tanks, and machine guns. Its essence as a society of states lies in the values, morals, and responsibilities shared by all humanity. 

South Africa’s appeal to the ICJ is extremely important in this context. It highlights the true essence of international society as a community founded on common values, not merely on interests. Moreover, South Africa’s action is paramount to underscoring the normative foundation of international society, given the country's history of fighting against apartheid and championing human rights. The case becomes even more significant, bearing in mind that South Africa claims a political leadership role on the African continent, particularly since the continent has witnessed similar atrocities, often instigated by external powers. 

As the modern international system began to take shape in the late 18th century, states emerged as the primary political organizations representing individuals on the international stage. On the one hand, this development is beneficial at the individual level as without strong political organizations like states, it is nearly impossible to maintain security and rights in a harsh international environment. In other words, states – at least in theory - protect individuals from abuse. On the other hand, states are significantly more powerful than individual human beings and groups such as communities, ethnicities, and nations. When a state decides to harm such groups, they have very limited means to protect their security and rights. This is one of the most striking, important, and pressing dilemmas of our time: to what extent will international society act based on solidarity around commonly held norms and values? Who is the true bearer of rights, states or human beings?

South Africa’s case against Israel serves as a catalyst for the international community to contemplate a shift towards a more solidarity-based approach, acknowledging human beings as the ultimate bearers of rights and safeguarding them against genocidal threats. International law and the steadfast commitment to it by members of international society will ultimately determine whether contemporary international relations diverge significantly from our haunting historical traumas, encompassing atrocities like the genocide of Nazi Germany and the horrors of Rwanda.

The views expressed here are those of the author.