Mogoeng on Israel: Bad faith and ‘impunified disregard’ for international law?

COMMENT

In 2018 Chief Justice Mogoeng Mogoeng was unequivocal in a judgment, written on behalf of the Constitutional Court, which declared that by participating in the suspension of the South African Development Community (SADC) Tribunal and signing a 2014 protocol limiting its jurisdiction, President Jacob Zuma had violated his constitutional obligations to uphold international law (as the court understood them), including the obligation to refrain from “undermining or subverting the authority of the tribunal”. 

Zuma had also “failed to act in good faith”, Mogoeng added. In chastising the president for his conduct, the chief justice warned: “That signature of the singular most powerful constitutional being in our country … is symbolic of a warm welcome by South Africa of the stealthy introduction of impunified disregard for and violation of fundamental rights [and international law]. 

“It inadvertently but in reality reassures all others that we would turn a blind eye to human rights abuses and non-adherence to the rule of law in their jurisdictions … ”

The Constitutional Court had rallied to the defence of the SADC Tribunal at the behest of the Law Society of South Africa, former “landowners in Zimbabwe” and various amicus curiae or friends of the court. The story of how and why this somewhat unlikely trinity came together is complex and will likely be contested. 

Nevertheless, they all agreed, for both its symbolism and effects, that Zuma had violated his constitutional obligations by undermining international law and its institutions.


The issues raised in respect of the Israel-Palestine conflict are also complex and contested, to say the least. Nevertheless, when it comes to international law, and its institutions, there are certain facts that are incontestable, regardless of what one thinks of either the conflict or international law more generally. 

The first is that in December 2019 the office of the prosecutor of the International Criminal Court (ICC) formally decided, after undertaking a “thorough, independent and objective assessment of all reliable information”, that “there is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza strip” and that there “are no substantial reasons to believe that an investigation would not serve the interests of justice”. 

The second incontestable fact is that the Israeli government has officially announced that, from Tuesday this week, it will begin to unilaterally “annex” areas of the West Bank (the state equivalent of a “land grab”); in doing so, Israel will be violating the fundamental principle of international law, which states that territory cannot be acquired by force,and its leaders may be responsible for committing the international crime of aggression. 

This is because, since 1967, the West Bank has been consistently recognised as “occupied territory” by the United Nations’ general assembly, security council, and International Court of Justice, as well by Israel’s own courts and government.

While we can and must be critical of international law and its institutions — I have come to be critical of both, and the ICC in particular — it is important to do so in good faith, whether as individuals, organisations or as holders of high office. 

To invoke the principles of international law to valiantly defend the SADC Tribunal and “landowners in Zimbabwe” (facing threats to their institutional security and existing legal rights, respectively), but to ignore or actively undermine those same principles when it comes to the ICC and Palestinians, is an act of bad faith. Not least because, like the SADC Tribunal in 2014, the ICC today faces a significant threat to its institutional viability as a result of the recent United States’ “sanctions”, adopted in response to the ICC’s “assertions of jurisdiction over personnel of the United States and certain of its allies”, that is, Israel. 

For the head of South Africa’s judiciary to state publicly that there is one country he cannot criticise is one thing. 

For him to do so at the present moment — when the ICC is under unprecedented attack, in part because its prosecutor has determined there are reasonable grounds to believe international crimes have been committed in “occupied Palestinian territories”, and the Israeli government has publicly stated it will shortly commit significant and indefensible violations of international law — is something quite different. 

It is difficult to see how this is not the same (not so) “stealthy introduction of impunified disregard for and violation of fundamental rights [and international law]” that the chief justice warned us about in the SADC Tribunal case. 

In other words, conduct by a “powerful constitutional being” which “inadvertently but in reality reassures all others” — and in this case the government of Israel —

 that the chief justice “would turn a blind eye to [its] human rights abuses and non-adherence to the rule of law”.

I have great respect and admiration for the chief justice, who has been forthright and consistent in expressing the importance of his religious beliefs. 

As such, I hold out hope that he was simply unaware of the ICC’s investigation, or of Israel’s plans to annex parts of the West Bank in the coming days; or, admittedly even less likely, that (like me) he has developed serious doubts — independent of the present matter — about the ability of the ICC to deliver justice generally. 

If the former is the case, then the chief justice should state this publicly, and walk back his comments. If the latter is the case, then he should take us into his confidence and explain why, as an international institution, the SADC Tribunal is different from the ICC and let us know when and why the ICC fell out of his favour (and is no longer what he labelled an “appropriate justice-dispensing platform”), considering he has expressed support for this institution in the past. 

He will then have to do the same for the other international bodies that have made clear pronouncements on the illegality of Israeli annexation, starting with the International Court of Justice, whose jurisprudence the chief justice expressly relied on in the SADC Tribunal case. 

Such views would then need to be reconciled with the office he holds, as one of the “most powerful constitutional being[s] in our country”, who sits at the apex of the judiciary. 

It is not only Mogoeng who owes us an explanation. In the SADC case, both the Law Society and various “friends of the court” rallied to the defence of the tribunal, international law and the rights of the individuals directly affected. 

In fact, since 1994 our courts have never been short of friends in the legal profession, civil society and legal academia willing to rally to the defence of international law or the ICC (and former “landowners in Zimbabwe”, one might add). 

These same organisations must now publicly reaffirm that they remain friends of international law and the ICC, and friends of the Palestinians facing the imminent threat of Israeli annexation, by speaking out publicly. 

So too must my colleagues in the legal academy who were vocal in denouncing the government’s failure to arrest then Sudanese president Omar al-Bashir and surrender him to the ICC, labelling it not only legally incorrect, but contemptuous of the international “rule of law”. 

Anything less would amount to professional bad faith and “impunified disregard” for international law.

Christopher Gevers teaches international law at the University of KwaZulu-Natal. He has officially been a “friend of the court” on two previous occasions: in a matter before the US Supreme Court concerning the question of corporate liability for aiding and abetting human rights violations; and in a matter before the Israeli High Court of Justice concerning the application of human rights in the West Bank. He writes in his personal capacity

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Christopher Gevers
Christopher Gevers teaches international law at the University of KwaZulu-Natal. He has officially been a ‘friend of the court’ on two previous occasions: in a matter before the US Supreme Court concerning the question of corporate liability for aiding and abetting human rights violations; and in a matter before the Israeli High Court of Justice concerning the application of human rights in the West Bank. In 2012, he advised the applicants in the ‘Zimbabwe Torture Docket’ case, and since 2011 has worked with the families of victims of apartheid-era crimes and civil society organisations who continue to seek criminal and civil redress under domestic and international law.

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