Justice Mogoeng Mogoeng. Photo: Bonile Bam/African News Agency
Justice Mogoeng Mogoeng. Photo: Bonile Bam/African News Agency

Mogoeng goes down a perilous path

By Shannon Ebrahim Time of article published Jun 26, 2020

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The Chief Justice of South Africa Mogoeng Mogoeng descended down a dangerous path this week when he chose to criticise the foreign policy of his own country by quoting Bible verses and defending Israel in a Jerusalem Post webinar.

This at a critical juncture when Israel is about to annex massive swathes of Palestinian land, continues to violate international law and numerous UN resolutions, and denies Palestinians their basic human rights and freedoms. 

Mogoeng is not an ordinary South African citizen, he is the head of the apex institution - the Constitutional Court - that safeguards the rights and freedoms of our citizens. But despite his role as the chief guardian of rights and freedoms in South Africa, he has failed to recognise that Palestinians also have human rights. His failure to criticise Israel’s violation of those rights is an attempt to protect the oppressor, using religion as his justification.

The advancement of human rights, freedoms, and the rule of law are the foundational values of our democracy. The role of the state is to promote those values. Our foreign policy is centred on human rights, and as a country we have  an obligation to respect and defend international law both at home and abroad.

International law played an important role in South Africa’s struggle for freedom, and it continues to play a critical role in the struggle of the Palestinians for freedom. 

Israel consistently shows a total disrespect for legality and justice. Israel’s settlement policy is a violation of the Fourth Geneva Convention, and the International Court of Justice has ruled that Israel has contravened the laws of occupation. The Fourth Hague Convention prohibits an occupying power from transferring its people to the territory it is occupying, but this is what Israel has consistently done through its settlement building projects - in total violation of international law.

States have an obligation under international law not to recognise acts of wrongdoing by other states, and South Africa is bound by that obligation as much as any other country. South Africa cannot defend what Israel is doing when we are bound by the following legal obligation: “All states shall cooperate to bring an end through lawful means to any serious breach of international law.”

Mogoeng acknowledged that the policy direction taken by South Africa is binding on him, but he claims that as a citizen he is entitled to criticise his country’s policies. But what he says informs his criticism are Bible verses such as that in Genesis 12:1-3 that says, “If I curse Abraham and Israel, God will curse me too…” Mogoeng then goes on to argue that “hatred by me or my nation for Israel can only attract unprecedented curses on our nation.” Coming from Mogoeng, this is a dangerous mix of politics, religion and the law.

Mogoeng is fundamentally wrong when he infers that South Africa “hates Israel,” or that it “curses Israel.” That is absolutely untrue, and nowhere can he point to our foreign policy or our government as being haters of Israel, or having cursed Israel. On the contrary, South Africa has always wanted good relations with Israel, but at the same time it is deeply concerned by its violation of the rights of the Palestinians. But it has consistently argued that Israel has a right to exist in safety and security, side by side with a viable and contiguous Palestinian state established along the 1967 borders, in keeping with a host of UN resolutions.

What South Africa has taken exception to is that Palestinians endure systematic discrimination. While settlers living in settlements - deemed illegal under international law - are provided with services and allowed civil liberties such as freedom of movement and the issuance of building permits, these are denied to Palestinians.

The land and property of Palestinians are routinely seized, and Palestinian men, women, and children are detained and assaulted daily. The humanitarian situation continues to deteriorate in the Gaza strip, the movement of the residents are restricted, and they have limited access to water and electricity, and are deprived of their basic human rights. 

Under the system of apartheid in South Africa, one people were assigned a higher value than another people, and that is what is happening today in Israel and the occupied territories. Palestinians do not have equal rights or opportunities, and do not enjoy the human rights that South Africans spent decades fighting for. 

As the guardian of human rights in South Africa today, we would have expected our Chief Justice to speak out in defence of those living under occupation whose rights and freedoms are being denied. What message is he sending to those who are bravely fighting for their rights to freedom, self-determination and sovereignty, and what message is he sending to those that oppress and deny those rights? Sadly he has chosen only to defend the occupying power while closing his eyes to justice.

* Shannon Ebrahim is Independent Media's group foreign editor.

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