Dr Nazreen Shaik-Peremanov
An illustration for understanding: A pregnant woman nearing childbirth drives to the hospital at 90km per hour in a 60km suburban zone and is stopped by the police. When stopped by the police, she is given a fine for exceeding the speed limit and told that she committed a civil offence. A crime is a crime.
No crime should go unpunished. Upon arrival at the hospital, almost immediately she gives birth to a healthy baby. A few weeks later, she is court summonsed to appear for the offence of reckless driving on a suburban road and endangering lives. Upon taking the stand to give her version of the events, the magistrate listens carefully to her narration of events and sets the fine aside.
Having applied the contextual theory of interpretation, the court considered the fact that the woman experienced a medical emergency; thus, she exceeded the speed limit and broke the law. The medical emergency excused her offence. Nothing occurs in a vacuum.
October 7 witnessed the Hamas attack on Israel that resulted in damage and loss of life, and the world reacted with both disgust and sympathy. Hamas committed a crime. A crime is a crime. No crime should go unpunished. Hamas’s attack on Israel is a crime and remains a crime. On the one hand, the world heavily criticised Hamas for breaking international humanitarian law (laws of war) and committing a crime that seriously impacted the lives of innocent civilians. On the other hand, the world recognised the fact that Palestine has been occupied for decades with almost negligible assistance from the world. Atrocities such as war crimes and crimes against humanity were persistently and consistently perpetrated by Israel against Palestinians without discernment. The latter reaction was acutely mindful of the fact that there is context to the attack. Nothing occurs in a vacuum.
Does context matter? Should a court of law consider the decades of events preceding the attack? South Africans, at large, experienced the inhumane, draconian crime of apartheid, which impacted the lives of many, resulting in murder, death, innocent prosecution, detention, and mostly the psychological impact on much of the nation, which appears almost impossible for recovery.
Minister of International Relations Naledi Pandor recently spoke of the crime of apartheid committed against Palestinians by Israel, and this must be applauded at the very least. Since the atrocities against Palestine have ensued over decades, the Rome Statute granting the International Criminal Court the power to preside over particular crimes such as war crimes, the crime of apartheid, crimes against humanity, and genocide came into being in 2000 with immense support from South Africa.
South Africa and South Africans understand the crime of apartheid firsthand, yet this is an understatement. The forced move of South Africans into Bantustans and other areas spearheaded by the Group Areas Act is notoriously known. More than any other nation in the world, South Africans understand the crime of apartheid. In terms of international law, South Africa is a State Party to the Rome Statute. As such, the South African government can make a State referral to the International Criminal Court’s Office of the Prosecutor to investigate and prosecute the crime of apartheid. This duty towards the upholding of human rights and ensuring what has traversed into humanitarian law is aimed at accountability and peace. Vested with the power of State Referral, the South African government is empowered to approach the ICC’s Office of the Prosecutor stating its case resolutely and calling for an investigation and prosecution of the crime of apartheid perpetrated by Israel against Palestinians.
Unfortunately, the legal notion of State Referral is tainted by political will and political pragmatism that seemingly triumphs over the rule of law and meting out justice. South Africa is an inordinately special case in the world arena in that the crime of apartheid was included in the ICC’s Statute precisely because of South Africans apartheid experience. As such, the ICC is most likely to seriously consider a state referral from South Africa.
Justice Navi Pillay has headed an inquiry on the Palestinian “situation,” and she reported in her lecture at the University of KwaZulu-Natal on November 30 as well as to the United Nations General Assembly that her team and their investigation collated an overwhelming amount of evidence that was presented to the UN General Assembly. Unfortunately, she also reported that the United States “abused” her and the team. Political pragmatism and the controllers of the coffers dictate predetermined processes and outcomes despite veracity or justiciability.
The report is to serve before the International Court of Justice in February 2024 for a determination on unlawful occupation by Israel and self-determination for Palestine. Judge Pillay was positive and reaffirmed the team’s commitment to ensuring justice, yet cognisant of the fact that the Palestinian situation has been before the ICJ and the UN for decades. Still, perseverance must reign.
If South Africa, during the euphemistic onslaught of apartheid, laid back with a much ado about nothing attitude and the few international organisations that consistently spoke out against the inhumane apartheid crime, we South Africans would probably have still been stuck in the Bantustan ghettos, and I would not be imbued with my right to set this scene for your eyes. It is the commitment to human rights, the booking of the perpetrators of violations of international humanitarian law, and the abuse of power that drives South Africans.
On these two fronts, South Africa has a legal obligation to act. South Africa has to make a State Referral to the ICC’s Office of the Prosecutor. South Africa also has to make a submission to the International Court of Justice. In both instances, South Africa should state her opinion from first-hand experiences gleaned and known, though repeated before these two fora.
Not only does South Africa have a legal obligation to act, but the moral obligation is most critical. After all, morality informs the law. Now that the scene has been set, in brief, South Africa’s position is known. You do the math.
*Dr Shaik-Peremanov is a Senior Lecturer in Law at the Nelson Mandela School of Law at Fort Hare University
**The views expressed do not necessarily reflect the views of Independent Media or IOL