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South Africa and Malaysia will launch a campaign to protect and uphold the rulings of the international court of justice (ICJ) and the international criminal court (ICC) in the face of what they describe as defiance of ICJ orders and attempts by US Congress to hit the ICC through the use of sanctions.
The aim of the nine-nation Hague Group – which includes Colombia, Bolivia, Chile, Senegal and Namibia - is to defend the institutions and rulings of the international legal order.
The move comes as both the ICC and ICJ face unprecedented challenges to their authority in cases relating to the wars in Gaza and Ukraine and people-smuggling in the Mediterranean.
Ronald Lamola, South Africa’s international relations minister, said the campaign was aimed at ensuring compliance with international law and protecting the vulnerable.
“The Hague Group’s formation sends a clear message: no nation is above the law, and no crime will go unanswered,” he said.
South Africa brought a case against Israel at the ICJ alleging genocide in Gaza. Israel has fiercely rejected the claim.
The group say the focus is not to punish Israel, but its approach to the global court rulings, which the Malaysian prime minister, Anwar Ibrahim, said “strike at the very foundations of international law, which the global community has a duty to defend”.
The steps to be outlined by the group reflect the growing anger in the global south at what is seen as the double standards of western powers when it comes to international law.
The UN secretary general, António Guterres, issued a report on what member states could do to ensure Israel complied with ICJ rulings, notably the finding that Israel’s continued presence in the occupied territories is unlawful and that it should leave within 12 months.
Switzerland has been tasked with convening a conference in March of the 196 signatories to the Geneva conventions, focused on the obligation to respect international humanitarian law in the occupied Palestinian territory. A conference will also be held in June in New York to discuss a two state solution.
The ICJ has also been asked by the general assembly to give an urgent advisory opinion on the obligations Israel has as the occupying power, to provide humanitarian relief.
Critics will say such countermeasures are pretty minimal. Israel has shown no interest in abiding by the rulings of the ICJ or ICC. Moreover, if the Biden administration appeared conflicted about international law, the Trump administration has no such scruples.
The US secretary of state, Marco Rubio, has backed a bill currently before Congress for any individual or entity who had contact with an ICC investigation against an American or US ally to be subject to sanctions, which would include family members.
Equally worrying for the ICC is the erosion of its authority elsewhere. Vladimir Putin, subject to an ICC arrest warrant, has visited the UAE and Saudi Arabia, two states that like Russia are not party to the ICC’s founding Rome statute, while signatory Mongolia rejected two requests from the ICC to arrest the Russian president when he visited in August last year. Mongolia claimed that Putin as a head of state enjoyed immunity – it was rejected by the ICC but a precedent was set.
In the case of the Israeli prime minister, Benjamin Netanyahu, European states have been badly divided over whether they would act on the arrest warrant issued in November, with some, including Italy, Romania and Hungary, insisting it would be ignored if he was on their territory.
Poland permitted Netanyahu to travel to Auschwitz for the 80th anniversary of its liberation, but in the end he did not come.
Another recent erosion of the ICC’s authority was in Italy after the police acted on an arrest warrant for a notorious Libyan people smuggler. The judiciary put him on to a plane back to Libya for a hero’s welcome. Furious that its investigation into war crimes in Libya had been upended, the ICC then released the evidence against the Libyan, including his role in overseeing the deaths of migrants.
The ICJ arguably is more used to seeing its orders ignored, but such has been the profile of South Africa’s genocide case that Israel’s apparent defiance of the court’s interim orders is more glaring. Oxfam said in a survey of NGOs this week that 89% of the agencies found provision of aid into Gaza has worsened since the six ICJ orders covering aid and prevention of genocide were issued on 26 January last year.
“We have the power to turn the tide if we want to,” said Oona Hathaway, a professor of international law at Yale. “But at a certain point, the rules are going to become so eroded that it’s going to lose all legitimacy, and the United States is going to lose all legitimacy. We’re going to find that we’re going to be past the point of no return, and those rules are no longer going to be salvageable. And I think that would be a real tragedy.”
