/ 26 June 2020

Chief Justice’s views on Israel are guided by religion, not the Constitution

Chief Justice Mogoeng Mogoeng
In last week’s webinar on global racial tensions hosted by The Jerusalem Post Chief Justice Mogoeng Mogoeng expressed support for the state of Israel guided by his Christian beliefs and biblical texts. (Madelene Cronjé)

In last week’s webinar on global racial tensions hosted by The Jerusalem Post Chief Justice Mogoeng Mogoeng expressed support for the state of Israel guided by his Christian beliefs and biblical texts. He stated his disappointment with the South African government’s position vis-à-vis Israel and its tacit support for the Palestinian side, calling for it to rather promote peace guided by its rich experience of reconciliation. 

In a display of judicial overreach he criticised South Africans and others who condemn Israel for its policies on Palestinians but still embrace their former colonisers. In typical blustering style and a mix-up of past and present, he said: “Have we cut diplomatic ties with our colonisers? Have we disinvested from our former colonisers and those responsible for untold suffering in South Africa and Africa? Did Israel take away our land or the land of Africa, did Israel take our mineral wealth?” 

And with this Democratic Alliance federal council chairperson Helen Zille was outdone as the leader of the exclusive pro-colonial legacy club.

Our judge president glibly recognised that the Palestinians are the natives and victims of a modern day European colonial project that historically involved ongoing land and resource theft, brutal ethnic cleansing, massacres, detention without trial of thousands including children, torture and living under Israeli occupation deprived of basic human rights. Gaza is an open air prison in which thousands of civilians die because of regularly bombed by the Israeli regime and peaceful protesters being shot by snipers. 

In recognising the political status of the Palestinians as a colonised people, he is then guided by his religious beliefs and a convoluted perspective of history that calls on us to support and enable the Israeli regime to continue its colonial genocide, unopposed, because South Africa and other African countries have good relations with their former colonisers. 

Most startling is that the chief justice does not allow himself to be guided by the highest law of the land, the Constitution and Bills of Rights, let alone international law. In relation to the Palestinians, the Israeli regime violates every single one of their fundamental human rights. But this is ignored. He seems to be oblivious to the global context of the Black Lives Matter movement protesting against the racist murders of black people in the United States and the public discussion and response against the legacy of colonialism and racism in countries all over the world. For him, the brutal racist oppression of Palestinians by the Israeli regime is not only acceptable but should be supported and Israel forgiven for its colonial genocide of the natives. 

But let us remind the judge president of relevant international law and the legal position of the Palestinian people, especially relative to our South African experience of apartheid. 

That Israel/Palestine is an apartheid state is evident to us as South Africans. In “Israel proper”, more than 50 laws discriminate against Palestinian Israeli citizens on the basis of citizenship, land and language. More than 90% of the land is reserved for Jewish occupation only. Such humiliations in apartheid South Africa were termed “petty apartheid”. “Beyond the green line”, the West Bank and Gaza are what in South Africa were termed Bantustans which, as economically unviable areas, failed to meet the international criteria as independent states.  

That the Israeli government’s conduct towards Palestinians meets the legal criteria of apartheid has also been extensively documented internationally, including by the former special rapporteur for Palestine, Professor John Dugard of South Africa. In fact, the “nation state law” enacted in 2018 has made Israeli apartheid not only de facto, but also de jure.

After decades of Israeli military occupation, the so-called “two state solution” is a non-starter.  It has also been made moot by US President Donald Trump’s “deal of the century” and by Israeli Prime Minister Benjamin Netanyahu’s intentions after July 1 2020 to annex parts of the West Bank (as well as East Jerusalem). In defiance of the United Nations and its numerous resolutions, these areas are occupied by an estimated 700 000 Israeli citizens.

Annexation of land is illegal in international law. It is prohibited by article 2(4) of the UN Charter and the Fourth Geneva Convention. In addition, the Kellogg-Briand Peace Pact of 1928, which preceded the UN and which prompted article 2 (4), outlawed both the use of war and annexation of conquered land.  Ironically, the enacting legislation is still in the US statute books.

Although South Africa may have coined the term “apartheid,” the practices of apartheid as a crime against humanity are no longer limited to South Africa, but now also have international application in terms of article 7(1)(j) of the Rome Statute of the International Criminal Court (ICC). Palestine is a member of the ICC. In turn, the ICC is examining whether to prosecute Israeli leaders for genocide in terms of article 6, crimes against humanity in terms of article 7 and war crimes in terms of article 8.

Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.

As South Africa, we now have a serious dilemma where our chief justice implicitly supports a modern day colonial genocide with disregard for the human rights of the native Palestinians. In concrete terms what are the implications for our judiciary where the highest official of the land is guided by religion in his political opinions and actions? How could this possibly not influence crucial cases that land up in the Constitutional Court — many of which relate to the unfinished business of spartheid and colonialism such as the land question, housing, discrimination? What are we to expect on other issues relating to the right to life and abortion or the death sentence? More specifically, there are cases relating to Israel-Palestine in our lower courts such as the Palestine Solidarity Campaign vs the Labia Theatre destined for the equality court and the South African Human Rights Commission and the Jewish Board of Deputies vs Cosatu and Bongani Masuku, which could end up in the Constitutional Court. Will Mogoeng recuse himself? 

Perhaps the Judicial Services Commission and public protector should step in, investigate and act?

Heaven help us.

Martin Jansen is the chairperson of the Palestine Solidarity Campaign in Cape Town.