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SA before the ICJ – popular not populist 

Hassen Lorgat

The liberal establishment as represented by the DA, ACDP, Patriotic Alliance and their ilk have railed against South Africa’s stand to expose gross violations of human rights, ethnic cleansing and what could amount to genocide. A few rightwing members of civil society like the Institute of Race Relations and Brenthurst Foundation have joined this bandwagon.

The Brenthurst Foundation argues  that ‘ action at the International Criminal Court of Justice (ICJ) has exposed the African National Congress. The ruling party is clearly no friend of liberal values”. See, SA’s ICJ Action — the Critical Problem of a Populist Foreign Policy (16 january 2024)·  

What has brought on those attacks? The right to use democratic legal and peaceful means to fight the massacres of thousands in Palestine is a fundamental right under liberal democracy. Early in January  South Africa filed a 84-page charge sheet against the state of Israel for violating the 1948 Genocide Convention, which was drawn up in the aftermath of World War II and the Holocaust.

Both Israel and South Africa are signatories to the United Nations Genocide Convention, which gives the ICJ – the highest UN legal body – jurisdiction to rule on disputes over the treaty.

The Brenthurst Foundation further argued that the ICJ case has ¨doubtful legal merit¨ arguing that the the outcome will likely be driven by politics in any event.¨ In a disparaging tone, they argue that the ANC’s friends in Hamas¨ will continue to be ¨pondered by Israel.¨ as the case will have little effect in reality.¨ By taking up the case, they believe it will be at the expense of our socio economic challenges which have not been adequately addressed. Their argument is that the case was a deflection from our real problems and to use their words:¨by paying back party funders and the desire to shift focus from dire domestic issues (unemployment, load shedding, crime, party infighting) to those outside as an election catastrophe looms.

 Their piece also lambasted as usual the country’s international alliances, Here, they singled out Venezuela, Iran, Cuba ‘ Brics etc,  but they feel that the ¨Scandavians or Ukraine, did assist and possess relatively immaculate struggle credentials but now find themselves on the other side of SA’s contemporary foreign policy course. 

Finally as a parting insult that talks of “ party stalwarts grandstanding in their SA scarves and keffiyehs”  who they say now “ feel smugly better about their role and their struggle mission. It is also likely to change the fortunes of South Africans — but only for the worse”.

The other sycophant of liberal capitalism is Frans Cronje who on a radio station called the ICJ propaganda which the ANC learned from the Vietnamese liberation leader General Giap. 

Let me state upfront that the Brenthurst Foundation which for years served the liberal interests of the Oppenheimer mogul, seen by them as one of the greatest statesmen of this country. In reality he was a colonialist following in the footsteps of Cecil John Rhodes. Harry Oppenheimer was also an illiberal man or a conservative liberal  who was very keen on a qualified franchise, that is not granting all black people, citizens the franchise / vote if they did not have the requisite levels of  education and property ownership. He built his wealth on cheap black labour and as a leader of Anglo dominated the South African economy which during the eighties was said to be around 25% of South Africa’s GDP and an estimated 60% (or more) of the Johannesburg Stock Exchange.

In addition, the Anglo American Corporation, a leader in the Chamber of Mines, deliberately denied full democratic trade union rights to black workers – despite their struggles almost 6 decades later, than that granted their white counterparts.

I will address some of these smears briefly before talking about the significance of this case before the ICJ. Whilst they praise Ukraine for its role and condemn elitist Russia, it is undeniable that Ukraine was not yet born as an independent country when they supported the struggle for liberation in South Africa. So, it is good to know that the BF by praising Ukraines struggle credentials indeed praise and support for the role the USSR and the Warsaw Pact countries played in isolating South Africa.

The USSR was an active agent in the isolation of SA and also in passing resolutions at the UN such as the now revoked resolution which was adopted by the United Nations General Assembly Resolution 3379, adopted on 10 November 1975 that “Determines that Zionism is a form of racism and racial discrimination”  which Zionist groups put down as being part of the Soviet-Arab Cold War anti-Israel campaign.

The significance of the ICJ case for me is that it could be felt widely and in many unexpected places. I was at a funeral, the gym and remembered a few people recalling Mandela’s commitment and our indelible bond to Palestine. But the take-away is this: South Africa’s case against apartheid Israel has shown up the fault lines of the international justice system and the applicability of international human rights law. It is a matter of the Global South vs the Global North and South Africa has played a decisive role harnessing the fight-back from below. There is nothing about populism about it as the Brenthhurst foundation alleges.

As I write, Indonesia and Slovenia have joined in and Isaac Hertzog has faced criminal complaints at the World Economic Forum (Davos) for aiding and abetting ethnic cleansing and violence against palestinians. South Africa as one of the 153 signatories of the Genocide Conventions which includes both South Africa and Israel acted consistent to our history in taking up this case. The Convention acknowledges that  Convention, genocide is a crime that can take place both in time of war as well as in time of peace.In Article II of the Convention genocide as a crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part. 

The obligation on states to stop this supreme crime is what South Africa has chosen to uphold, and it cannot be criticised but it has been widely praised throughout the world but particularly in Asia, Africa and Latin America and citizens of the UK,  Europe and the USA.

They have joined the wretched of the earth as well as their allies in the Global North with massive marches in places which hitherto were not even heard of. The countries that have joined the ICJ case against Israel number 32 and growing, more or less the same number as those that supported Ukraine, but they are not the same countries.The presence of the Global North, is absent in the former and present in the latter. All in black and white.

The countries that have welcomed South Africa’s case not necessarily becoming party to the case are nevertheless significant. They include: the 57 member block of Organization of Islamic Countries (OIC) which includes the diverse groups like Pakistan, Saudi Arabia and Morocco largely seen to be in military alliance with the USA as well as Iran and others vehemently opposed to US hegemony. Malaysia, Turkey, Jordan, Bolivia,Colombia and Brazil and the Maldives. The Arab League in their own right and representing their 22 members, some who are members of other fora and platforms also backed the case.

The leaders of the western liberalism, the Conservatives of the United Kingdom and the Social Democratic Party now in power in Germany have been accused of duplicity. The namibians pointed out that the Germans seek to become a party of the ICJ case against Israel, which probably brought tears of joy in the eyes of Frans Cronje, Helen Zille, and the authors of Brenthurst Foundation. But it was tiny Namibia through its president who exposed the hypocrisy of the Germans arguing that Germany committed the first genocide of the 20th century between 1904 and 1908 and that it was ignoring the lessons of its past atrocities by turning a blind eye to Palestine. In 2015 Germany stands accused and admitted that it was involved in the massacres – in todays language a genocide – of more than 70,000 of indigenous Herero and Nama people during their colonial misrule.

Despite the domestic challenges over this issue with CSO, the prime minister of Namibia showed tremendous courage in his statement as it marks a greater political confidence amongst the Global South leaders to demand real justice. Before this statement the government appeared to be in a weak position as they engaged in talks with the German government which excluded CSOs and particularly the affected communities of Herero and Nama people and their leaders. This is what the Germans wanted and they largely dictated the terms of the engagement. So, liberalism sometimes does not run deep enough to listen to the victims. Whatever the shortcomings of this process it is undeniable that the Germans did indeed apologise for genocide.

Photo credit

Heidemarie Wieczorek-Zeul, Germany’s development aid minister speaking at a ceremony to commemorate 100 years after the genocide.

She said: “We Germans recognize our historical, political, moral and ethical responsibility and guilt,” it is believed that the German soldiers forced the surviving Herero into the Omaheke desert and blocked access to all water sources and as a result many thousands died   ¨a painful death from starvation and thirst¨ according to German media. They continued to list a figure lower than other sources but confirmed that these were Herero and Nama people which  German General Lothar von Trotha at that time swore to “wipe them out with rivers of blood.” 

An emotional German Development Minister Heidemarie Wieczorek-Zeul was quoted as saying:”I respectfully commemorate your ancestors who died in the fight against their German oppressors.

 “Blinded by colonial delusion,” she said, the colonial Germans brought  “violence, discrimination, racism and destruction.”  ¨today, she added this crime  ¨would have been genocide¨ and von Trotha would have been brought before a criminal tribunal¨. She ended thus ¨in the name of our common Lord, I ask for your forgiveness.”

Historians have contextualised General Lothar von Trotha´s role in this genocide followed the killings of a 100 Germans, happened in 1904 after the Herero people revolted against oppressive German colonial rule. The general was intent on wiping out the warring tribes.

Two years ago, 2021 the German announced their trade package of development aid, which would include a package for research, remembrance and reconciliation projects. This has not gone down well with many.

What is more damning for the liberalism or the duplicity of liberalism is the support for countries like Germany and the UK in other cases in particular Myanmar but they have opposed the most transparent genocide or ethnic cleaning ever ‘ that of Palestinians.

Since 2017 over a million Rohingwa were forced to flee their homes because of a campaign of violence engineered by the Myanmar regime. Ofcourse, it did not just comeabout overnight, but was preceded by years of vilification and denial of their rights, dignity and citizenship rights. Subsequently in 2018, a U.N. fact-finding called for senior generals be investigated and prosecuted for crimes against humanity and genocide.

The Guardian reported that the UK prepared ¨the 21-page “declaration of intervention” jointly with five other countries, but it is not supporting South Africa as it prepares to try to convince the ICJ on Thursday that Israel is at risk of committing genocide against the Palestinian people¨.

These human rights neutrals of today were presumed to be principled activists yesterday and they are:

Canada, the Kingdom of Denmark, the French Republic, the Federal Republic of Germany, the Kingdom of the Netherlands, and the United Kingdom of Great Britain and Northern Ireland. 

This case involved Myanmar’s atrocities against the Rohingya in Rakhine State which was interestingly supported by the Organisation of Islamic States as well.  Assessing these two cases, a country like Iran is more consistent on the issue of human rights than both Germany and the UK. They were supporters of the case brought by the Gambia and once again, have stepped up for the South African case against Israel.

In their submission the applicants supporting the Gambia, quoted approvingly 

“In Krstic, the ICTY Appeals Chamber found that: “the offence of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part. Even where the method selected did not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent.”

What South Africa has shown is far in their creative and voluminous presentation but the big powerful Europeans, the UK and the USA have been found lacking.

But let me end with a good story. When the case first appeared before the ICJ, it is reported that Rohingya refugees joyful and exuberant pumped their fists in the air, chanting “Gambia, Gambia!” The joys of South Africans when their legal team returned as well as  the thank you letters, poems and songs from Palestinians dedicated to our country was a high point for those of us who value human solidarity.  

If the powerful continue to think the ICJ must act in its image, then, it will be the end of international justice and human rights law. The ball is in their court…in the court of public opinion they have already lost.

Hassen Lorgat