MASILO LEPURU | ICJ ruling on Palestine is a question of power, not law

The recent outcome of the International Court of Justice (ICJ) regarding the Israeli war against Palestine has taken international law to the centre stage of world politics.

There are legal scholars and political analysts who are of the opinion the South African legal team was unsuccessful. Others argue that from a moral perspective, the team won something.

The South African political landscape has recently been characterised by the dominance of lawfare. Lawfare entails the attempt to resolve fundamentally political problems through law and the courts.

So, when the South African legal team decided to take the State of Israel to the ICJ, it was not a surprising move given the domestic political landscape.

 Domestic lawfare is one of the variables that influenced the submission to the ICJ.

The distinction between law and politics has always been a thorny jurisprudential issue. There are legal scholars who argue that law is distinct from politics both in theory and practice. There are political commentators and scholars who argue on the other hand that law is fundamentally political. Politics is about power and the basic distinction between a friend and enemy.

Politics becomes in this sense an extension of war. While there are several theories about the nature of international politics, the most convincing one, in the current context of the global political dispensation, is that which centres war as a norm of international relations. In terms of this “realistic” understanding, war is a continuation of politics by other means. Politics at the international level is based on the antagonism between a friend and enemy. At the core of this antagonism is the exercise of power.

Military power as informed by the desire to conquer and dominate is normal in European history and culture, making war the underlying instrument of politics. While conquest is no longer a legitimate mode of acquisition of territory in international law, those with the necessary military power like Israel can use it effectively and violate international law. International law was created by European powers to regulate their struggle to control the world, beginning with the so-called journeys of discovery. International law is nothing but the legalisation of European culture and history.

European powers competing for outside territories, which became colonies, created this law to curb their crude greed to accumulate material wealth and glory. The doctrine of discovery, agreed upon by European powers is a good example. This authorised the invasion, conquest and occupation of lands not occupied by any European power, thus settler colonialism.

While there are other scholars and thinkers who believe that international politics is based on well-functioning institutions that can result in Kantian “perpetual peace”, the history of the European-dominated international world-system is about war as a form of politics.

Those with power, use war to advance their national interests. This explains why it has not complied with the ICJ ruling. Because power trumps law and the political precedes the legal, then it is pointless to use lawfare. Only equal power as opposed to the “rule of law” can resolve the political crisis in Palestine.

The war in Palestine of course involves genocide but it is in essence a question of power. To frame it as a question of law is to miss the point about the “realistic” nature of international relations and politics.

Those nation-states like the US and Israel with enough power can afford to ignore international law. As war underlies the relations of nation-states, it is logical to conclude that there is no such thing as “international society”.

This European philosophy of history and existence is what undergirds international politics. Israel is participating in this philosophy.  The legal idealism, which informs international law adjudication, without this historical context of the nature of European culture will always come up short.

African nation-states and leaders must draw a lesson from the war in Palestine and be ready for anything. This is why Marcus Garvey taught us the significance of power as the Afrikan race.

• Lepuru is researcher and founding director of the Institute for Kemetic and Marcus Garvey Studies.