Conventions and treaties: Conforming with the principles of justice and international law

May 1st, 2024
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Picture source: Getty/iStock

By Haroon Aziz

Former president of the International Court of Justice (ICJ), Joan E Donoghue, delivered on 26 January 2024 a majority six-point Order that should be implemented by powerful countries – in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel).

As the ICJ has no coercive power of implementing its Order it is dependent on the five permanent members of the United Nations Security Council (UNSC) for its implementation. The five members, namely, China, the United States, France, the United Kingdom, and the Russian Federation wield unethical veto powers. The Order has a tactical persuasive element to it so that none of the UNSC members exercise the veto.

The Charter of the United Nations and the Statute of the International Court of Justice (1945) is the basis of international jurisprudence. One of the four purposes of the United Nations (UN) is ‘to maintain international peace and security’ (Article 1 of Chapter 1). Article 3 obliges its members ‘to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’ (my italics).

Ensconced in between the 1945 UN Charter and the 1969 Vienna Convention on the Law of Treaties are the 1948 UN Universal Declaration of Human Rights and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Declaration universally protects fundamental human rights that has resulted in the adoption of more than 70 human rights treaties. The Convention criminalises genocide and seeks to prevent it and punish its perpetrators. It condemns genocide and seeks to liberate humanity ‘from such an odious scourge’ and encourages international cooperation in the liberation process.

The Vienna Convention (1969) strengthened the UN Charter (1945) and helped in the maturation of international jurisprudence in the epoch of historically young modern nation-states. It considers the fundamental role of treaties in the history of international relations. It recognises the ‘importance of treaties as a source of international law’. It notes good faith and the formula of ‘agreements must be kept’ (pacta sunt servanda) as universal principles. It affirms the settlement of treaty disputes in ‘conformity with the principles of justice and international law’. It establishes ‘conditions under which justice and respect for the obligations arising from treaties … can be maintained’. It bears ‘in mind the principles of international law embodied in the [UN] Charter’, particularly, ‘the prohibition of the threat or use of force’. It codifies the law of treaties to promote the purposes of the UN Charter to maintain international peace and security. It affirms ‘that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention’.

The key to international jurisprudence and the implementation of international law is the principle of good faith and pacta sunt servanda. When human beings are subjected to ongoing genocide and their homes to urbanicide (forcing residents out of their home by military means) there should be no latitude for the interpretation of the law. The primary purpose of the ICJ Order is to stop the genocide and allow humanitarian aid. The judges anticipated disputations on interpretations and created diplomatic space for politicians to achieve peace and security, inductively. It is the legal and diplomatic obligation of all UN members to elevate the UNSC, United Nations General Assembly, ICJ as a dynamic nexus and function with speed. Another human life should not be injured, lost, or disappear. First comes prevention and then punishment follows.

South Africa’s legal experts were astute enough in drafting their first six provisional measures not to use the politicised word ‘ceasefire’ directly, probably, because the four legal instruments referred to do not use that word. The proposals deal with military, genocidal, and humanitarian matters. They comprehensively call on Israel to desist from killing, doing bodily and mental harm, physical destruction, and prevention of births. They further call for an end to ‘expulsion and forced displacement from their homes’ and ensure access to food and water, humanitarian assistance (fuel, shelter, clothes, hygiene, sanitation, and medical supplies and assistance) and an end to the destruction of Palestinian life in Gaza.

The provisional measures are within the purview of the USA’s stance on not calling for ceasefire but calling for an end to mass bombardment, indiscriminate bombing, avoidance of civilians, shift to ‘targeted operations’, and allowing humanitarian assistance. The United States (US) will find it difficult to veto the provisional measures. South Africa planned well for a diplomatic checkmate. It succeeded in placing Israel on terms to account within one month of the Order to the 153 state parties to the Genocide Convention otherwise both Israel and US would be seen to be complicit in genocide in a world that abhors it. Hence, the sharp differences between US President Joe Biden’s administration and Israeli Prime Minister Benjamin Netanyahu’s coalition.

The infancy of international jurisprudence

The 17th century was one of expanding colonialisms, globalisation, geopolitics, industrialisation, and science and technology. It resulted in the Eighty Years’ War between Spain and the Netherlands and the Thirty Years’ War in Germany. Over a period of four years a treaty between Spain and the Netherlands was negotiated and finally signed as the Peace of Westphalia in 1648 in the then Holy Roman Empire at the expense of eight million human lives. The feudalistic princely principalities were incipiently collapsing into infant capitalistic nation-states under the impact of belligerent colonialisms and capitalisms. The binary antagonisms between Roman Catholicism and Protestantism were the complicating emotional factors of geopolitics. Both served as combative ideologies of rival colonialisms and capitalisms as raison d’etre to fight over worldly goods of the colonies. Injustice to the colonised was the strongest element of the fight ‘in the name of God, country, and queen/king’.

What complicated this historical milieu further was that during the Eighty Years’ War the Dutch government had privatised and outsourced colonisation to the Dutch East India Company (DEIC); the British Crown had done a similar thing for the British East India Company (BEIC). Both companies enjoyed similar powers –

  • to plunder colonies;
  • raise and deploy military armies;
  • construct trading-military fortifications;
  • imprison, punish, and execute captives;
  • engage in commercial and slave trade;
  • arm their fleets of ships; and
  • establish international supply chains.

The DEIC and BEIC fuelled the Anglo-Dutch Wars (1652-1784). Although profits from commercial and slave trade went to the account of DEIC it did not have to bear the costs of war (Kim Martins ‘Dutch East India Company’ (www.worldhistory.org, accessed 1-4-2024)).

The British Crown went further and sanctioned ‘Prize Charters’, which formed a key element of the constitutional and jurisprudential bases of BEIC plunder of India in the mid-18th century. The ‘Prize Charters’ or royal charters or legal rules, which were established by legal authority ‘confirm[ed] the original royal rights and subsequent rights by armed personnel … in hostilities and war’ (Rahul Govind ‘A new book examines the jurisprudence of plunder and British imperial expansion in India’ (https://scroll.in, accessed 1-4-2024)). The ‘royal letters-patent granted to the Company [BEIC] at their request in 1756-57 enabled the company not merely to appropriate prize and plunder, but simultaneously both treaty with as well as conquer native polities’ (Govind (op cit)). The ‘Prize Charter’ was a respectable legalese for war booty as the constitutive element of international relations. The war booty mutated into ‘lawful prizes by right of war and conquest’, over which the Crown in England and not the Supreme Court of Bombay had proper jurisdiction. While the BEIC plundered India it also participated in the development of international jurisprudence from the royal perspective (Rahul Govind The King’s Plunder, The King’s Bodies: Prize Laws, the British Empire and the Modern Legal Order (Tulika Books 2023)).

The historical need to settle on sharing the spoils of war gave rise to infant international jurisprudence for the development of nation-states and their respective sovereignties – with injustice and war as its key constitutive elements. First there were wars and then followed jurisprudence of the unjust. The ancient ‘jurisprudence’ of the Greeks and Romans was outdated, and the new infant jurisprudence had to be built on the ancient. The infant had to nurture ‘harmonious’ trade, economic practices, colonial plunder, political relationships, royal authority, maritime and land routes, royal jurisdiction, queen’s or king’s rights of conquest, and establish the laws of war.  

Widening the public use of ICJ space

South Africa has opened up ICJ as a new site of struggle for the poor and weak nations against the rich and strong. South Africa and Israel are almost on par in terms of their respective shares of world gross domestic product: South Africa 0.44 (2021) (www.theglobaleconomy.com) and Israel 0.51 (2021) (www.theglobaleconomy.com). But when the Israeli data is seen as a partnership with USA’s 24.34 (www.theglobaleconomy.com) then Israel/USA are rich and strong who control Eurocentric international jurisprudence. In its now ‘adolescence’ stage this jurisprudence is a replication of the pattern of its infant stage. It provides simultaneously the opportunity for the feet-on-street to struggle for the transformation of the jurisprudence to a ‘universal’ one. When the UN Charter, Human Rights Declaration, and the Genocide Convention were adopted by the UN there were only about 58 member states. Because of subjection to paternalistic colonial rule there were very few states from Africa, Asia, and Latin America.

The UN Human Rights Council on 27 May 2021 adopted a resolution on ensuring respect for international human rights law and international humanitarian law in the Occupied Palestinian Territory, including East Jerusalem, and in Israel. It emphasised ‘that long-standing and systemic impunity for international law violations has thwarted justice … that warrants action in line with international law and relevant [UN] resolutions.’ The Council is an effective gatherer of evidence on the ground. It aims to end impunity and arms transfer and to mobilise humanitarian support and ensure its unimpeded delivery.

As the ICJ Order widens global space for more feet-on-street, international civil societies need to dovetail their solidarity activities into the hopes and aspirations of all Palestinians. Their demands are for unconditional sovereignty; Al-Quds as their capital; return of the land from the river to the sea; alleviation of suffering; restoration of United Nations Relief and Works Agency funds; immediate cessation of militaristic aggression; lifting of the 17-year siege; protection of West Bank people; release of prisoners; the withdrawal of Israel Defense Forces from Gaza; shelter for the homeless; reconstruction of destroyed buildings and infrastructure; construction of an inclusive modern nation-state with multiple national identity; protection of the sanctity of al-Masjid al-Aqsa; and the right of return.

International civil societies should keep the feet-on-street mobilised to pressure their recalcitrant governments for the unhindered delivery of humanitarian assistance, food, water, and medical equipment and medicine in order to prevent death by wilful starvation, dehydration, and disease. All civil societies acting in concert should build international unity around justice for all. They should transcend political dichotomies and religious binaries.    

The ICJ order adds extra flesh to the question – what is international law? It strengthens ‘rules-based international order’, ironically, conceptualised by Washington DC. It makes it systemic to the concept and makes power-relations between strong and weak states more negotiable as political equals. It further re-legitimises accountability. It prevents impunity. International law cannot be applied solely from the perspective of any hegemonic world power. It now makes it difficult to apply it with vengeance to perceived enemy states.

Human history has witnessed since World War I how the imposed politics of precariousness and manufactured inequalities have eroded human compassion and how the intertwined politics of prejudice and mistreatment of the poor and weak has corroded it. Humanity has become alienated from its natural compassion. The abhorrent genocide has raised political and legal consciousness of humanity, deepened their conscience, and awakened compassion from its apparent dormancy.

South Africa’s daring case is its Africentric assertion of international law within the context of the centrality of rules-based peaceful civilised global order, accountable to the UN. The Order is a new powerful legal instrument in the hands of weak nations and reinforces the sui generis nature of the UN system and its own unique legal independence. It is the antonym of unus multorum, which means one of many. It prevents perfidy. It considers internal individual factors and external societal factors. It optimises the structural consensual functionality of the UN system.

After the Sharpeville Massacre of 1960 no other massacre in the world went unreported. After this Order no other genocide in the world would go untelevised.

Haroon Aziz is a retired physicist, author, and researcher and is part of the leadership collective of the Apartheid Era Victims’ Families and Support Group.

 This article was first published in De Rebus in 2024 (May) DR 33.

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