Despite major political shifts in all corners of the globe, the international global order itself has not changed much over the last 70 years. The global powers still largely resemble the post-World War II victors and they continue to be the dominant players shaping global politics. The decision by the United States to rescind visas for personnel of the ICC is but one indicator that many of the global powers prefer to operate outside of the norms and rules provided for by International law.
Some South African analysts have criticised South Africa’s diplomatic stances in relation to Palestine, Venezuela and the Western Sahara. One of the critiques on the South African stance on Western Sahara was penned shortly after some think-tanks travelled to Morocco and met with key individuals linked to the Moroccan government. An analyst also suggested that South Africa is ‘siding with the devil’ in relation to its stance on Venezuela.
In the light of this clear mobilisation of bias against the positions taken by South Africa its worth re-stating what informs South Africa’s positions in these situations. With regards to Western Sahara and Palestine, South Africa’s positions are guided by the fact that both Palestine and Western Sahara are occupied territories in terms of international law. The same international legal framework also classifies Palestine and Morocco as occupying powers in relation to these occupied territories.
With regards to the situation in Venezuela, South Africa is also guided by international law. As indicated in South Africa’s Explanation of Vote at the United Nations Security Council (UNSC), South Africa is not indifferent to the humanitarian situation in Venezuela and will work with all stakeholders to ensure that humanitarian aid reaches those most in need. What South Africa is cautioning against, is the overt attempt by the US, some European and Latin American countries to use the humanitarian crisis as a means to effect an unconstitutional change of government which is illegal under international law. The use of force and the threat of the use force is also illegal under international law outside of the provisions in Chapter VII of the UN Charter. Any use force in the situation in Venezuela would not meet the thresholds for legality.
Those critical of the stances of South Africa in relation to the three situations mentioned above are in essence critical of guidance provided by international law.
A foreign policy position guided by international law provides for a level of certainty on how to engage in volatile and complex situations. Hegemony focused foreign policy stances that side-step international law frameworks makes the pacific resolution of conflicts more difficult.
State action by powerful countries such as the US have arguably always foregrounded the use of hard power to achieve its foreign policy goals. This is often done through illegal use of force and unilateral sanctions. Both are commissioned with impunity and disregard for international law.
To illustrate the intersection of power, international law and global accountability its useful to look at the US stance on universal jurisdiction. In an article entitled, “The Pitfalls of Universal Jurisdiction” written in 2001, Henry Kissinger, a former US Secretary of State suggested that measures that seek to make Heads of State and senior public officials accountable for potential criminal actions was akin to reducing heads of state to the level of common outlaws.
Kissinger’s key concern is that law and the process of law in seeking to deliver justice should not replace the role of politics and politicians. For Kissinger one of the key instruments for political engagement is recourse to war. The views of Kissinger who has shaped US foreign policy for decades can be regarded as a proxy for the views of the successive US administrations.
It’s in the context of states acting in their own interests without undue concerns about the legality of their actions being questioned or their leaders being held accountable in ‘foreign courts’ under ‘foreign jurisprudence’ that Kissinger explains the United States opposition to universal jurisdiction and in particular, the International Criminal Court (ICC).
This approach seeks to strengthen the preference for a global political system wherein global justice is exclusively meted out by the world’s power brokers where notions of what is just and what is legal is determined solely by those powerful states. In Kissinger’s world-view institutions such as the ICC and legal frameworks such as universal jurisdiction are unwelcome intrusions into the independence and sovereign right of powerful states to engage in the world in an unfettered manner.
For South Africa, universal jurisdiction and other instruments of international law is acceptable provided that it takes place within a certain set of known and agreed rules, which are applied uniformly and fairly. The South African position privileges a set of rules that would protect the sovereignity of smaller nations from adhoc and opaque actions by more powerful states.
The major power brokers have generally preferred to operate within the context of non-treaty based extra-territorial actions, as it provides them with a measure of impunity for their actions in the international arena. The dominant role that they play within the UNSC enables these preferences for unilateralism except in the spaces where they wield disproportionate power and influence.
Given this status quo, it is perhaps best for South Africa and member states of the African Union to temper the actions of the more powerful nations by participating and transforming all treaty bodies that can reduce the power and influence of the UNSC on issues related to peace and security.
The overall objective should be to transform the institutions of global governance so that they become more equal with regards to membership, participation and decision-making so that be useful in reducing conflicts, reducing impunity and fosters equality within and between states.
* Zane Dangor is the Special Adviser to the Minister of International Relations and Cooperation.