States must all be subjected to same legal standard

SA’s efforts at the International Court of Justice (ICJ) can be read as a potentially powerful resuscitation of the responsibility to protect doctrine. ‘Whatever hopes and enthusiasm that doctrine initially generated curdled to grave suspicion when it was used to justify Nato military intervention in Libya – an intervention that amounted to regime change. But the doctrine was not intended only to justify military intervention. It arose in recognition of the glaring failings of our international human rights system, which requires that people press their claims against and look for fulfilment of their rights from domestic states.’ These words, by human rights lawyer Nicole Fritz, follow the ‘widely anticipated but controversial announcement’ by International Criminal Court (ICC) prosecutor Karim Khan that his office would seek arrest warrants for Israeli leaders Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant; and three Hamas leaders – including head Yahya Sinwar – for war crimes and crimes against humanity. Writing in Business Day, Fritz says whatever complaints SA has with the current international framework – and there are several it might validly make – its obvious immediate and long-term interests are in upgrading and perfecting this framework, not aligning itself with those global forces that would collapse the now constituted international order. ‘The population of Gaza is peculiarly vulnerable in that they have no state of their own to which they can appeal for protection. Despite an Israeli withdrawal in 2005, Israel remains the de jure occupying power and is the actor inflicting this suffering. As for the de facto authority, Hamas, quite apart from its liability for the crimes it committed on 7 October 2023, it is hard not to believe that it at least shares responsibility for many of Israel’s war crimes.’ She says caught as they are between one authority – which appears to target them systematically – and another that wilfully places them in harm’s way, the civilian population of Gaza is in desperate need of champions. ‘For this reason above all, SA’s endeavours to secure them recognition and protection from the ICJ are to be hailed.’

Fritz says SA has welcomed Khan’s announcement that he would seek arrest warrants for senior Israeli and Hamas leaders, noting that ‘the law must be applied equally to all to uphold the international rule of law’. It follows a referral SA made to the ICC – with several other states in November 2023 – of the situation in Palestine. ‘But while particular reference is made to various specific crimes, there is no mention of the crimes on 7 October 2023.’ Fritz points to Khan’s recent statement: ‘Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse. In doing so, we will be loosening the remaining bonds that hold us together, the stabilising connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.’ Fritz responds: ‘This demand – that we subject all to the same legal standard – is not only to be made of organs such as the ICC. It is a requirement that must be equally and fastidiously upheld by those, such as SA, who seek to avail themselves of its processes. This is particularly so when, as SA, our concluding argument before the ICJ last week was that “our shared humanity compels” us to act. A shared humanity requires scrupulous observance of the same, not different, standards.’

Full opinion piece in Business Day