South Africa’s Referral Of Israel To The ICC: Will Justice Be Delivered?

Empowering Weak & Oppressed

Imran Khan

Jumada' al-Akhirah 19, 1445 2024-01-01

News & Analysis

by Imran Khan (News & Analysis, Crescent International Vol. 53, No. 11, Jumada' al-Akhirah, 1445)

South Africa has referred the Israeli regime to the International Criminal Court (ICC) stating that war crimes are being committed in Gaza. The government’s action must be evaluated in light of the ANC conduct, past and present from the Freedom Charter to the 1996 Constitution, the Gaza Docket, and the two-state solution for colonized Palestine. Pretoria’s vacillation to sever relations with Israel must also be considered.

The first clause of the 1955 Freedom Charter states that South Africa belongs to all who live in it, black and white. This transparent declaration of non-revolution further diluted the 1923 Bill of Rights and the 1943 Africans’ Claims in SA which demanded land, justice, freedom and equality before the law.

By April 16, 1969, East and Central African States adopted the Lusaka Manifesto. On August 21, 1989, the Organisation of African Unity (OAU) published the Harare Declaration. By that time, then ANC president had already invested significantly in lobbying African governments to support the declaration. The CODESA commitments adopted from the Harare Declaration omit reference to land.

In assessing the Balance of Forces at the end of the 1980s, the ANC acknowledged that changes in Southern Africa made armed struggle increasingly difficult. The international community was also renewing attempts to impose a settlement. Hence, the ANC’s National Executive Committee (NEC) resolved that armed struggle to seize power was not viable.

The end of the Cold War and demise of the ‘evil’ Soviet Empire meant that the National Party (NP) could no longer parrot anti-communist rhetoric. The ANC also lost support for Umkhonto weSizwe (MK) and armed resistance. Hence it presented negotiations as a victory for the movement, a defeat of apartheid and began a negotiated transition.

The NEC functioned as a collective. An overview of the ANC’s decision-making process after it was unbanned in February 1990 indicates that its 48th National Conference had assembled a broad cross-section of supporters: fighters, its underground structures in SA, the MK camps, Women and Youth Leagues, its missions abroad and 450 foreign guests from 57 countries in Europe, the Americas, Asia, Africa and the Antipodes. It was the culmination of a democratic process characterized by untrammeled debate and open discussion of every issue in the minds of its members.

“It was the clearest demonstration of our commitment to democracy.” Differences in opinion were resolved. The NEC on October 22, 1991 endorsed the compromise when the NP proposed a bicameral Parliament and the ANC argued that the new constitution be written by elected representatives of the people. An aberration in this culture of collective decision-making appeared when Nelson Mandela claimed “the ANC, not the NP or De Klerk started this process (CODESA). I have been discussing with Kobie Coetzee and top government officials since July 1986 when I was still in prison.”

On October 25, 1991, 92 organizations against apartheid formed the Patriotic Front (PF). Two months later (December 21), 228 delegates from 19 political parties committed to negotiations and signed the Declaration of Intent. Despite Pan Africanist Congress (PAC) and Azanian People’s Organization (AZAPO) agreement on September 25, 1991 to join the ANC as part of the Patriotic Front, the PAC withdrew from CODESA days earlier citing “negotiations should be held outside SA under the UN or the OAU”. The PAC accused the ANC and the NP of secret agreements thus violating the spirit of the PF.

CODESA-1 opened the path for multi-racial discussions. Disagreements caused CODESA-2 to fail and drew US intervention to have the ANC and the NP resolve their differences resulting in the Multi-Party Negotiation Process (MPNP). Despite commendable intent and commitment in theory “to improve the quality of life through economic growth, human development, equal opportunities and social justice for all South Africans,” like the Lusaka Manifesto and Harare Declaration, CODESA negotiators omitted direct mention of land (although, arguably, it is indirectly incorporated) and naively relied on the oppressor to honor its commitments.

The TRC was based on the 1995 Promotion of National Unity and Reconciliation Act. Its jurisdiction was to provide support and reparation to victims and their families and compile a full and objective record of apartheid’s effects on society. Its main objective was forgiveness; there would be no retaliation in the new SA.

Unfortunately, it was not accepted by all parties to the conflict nor did it focus on the economic beneficiaries of apartheid. Senior politicians in the apartheid regime and top security officials did not cooperate while foot soldiers and those imprisoned or facing charges did. Liberation fighters argued that they fought a “just war” so their actions did not constitute gross human rights violations.

Considerable effort went into persuading them to participate. Witnesses gave testimony about secret and immoral acts committed by the apartheid regime, the liberation forces including the ANC and others. By October 28, 1998, its report condemned both sides for committing atrocities. TRC was slow to implement its recommendations, including reparations and few individuals were prosecuted. Failure to prosecute meant that the aggressors and beneficiaries of apartheid escaped largely unaccountable.

The SA constitution is a product of the balance of forces that existed after the Cold War and the end of USSR, which also meant that neo-liberalism and US hegemony dominated. The Soviet demise disoriented liberation movements that had to negotiate formally and informally with their political and economic oppressors—the apartheid regime and corporate SA respectively.

Informal negotiations led to the ANC conceding to neoliberalism and, to avoid civil war, CODESA was followed by the MPNP that produced the constitution. It included social and economic rights such as access to education, health care, food, water, social security, a clean environment, housing and land expropriation for public purpose or in the public interest. That the constitution fails “Black Africans” or “African Sovereignty, i.e. African aspirations, concerns, ideals and values” lacks evidence.

The constitution should be criticized for its moral liberalism and granting the Reserve Bank cart blanche by stating “…it must function independently and without fear, favor or prejudice, but there must be regular consultation between the Bank and the Cabinet member…” The baseless assertion appears useful to cover up government failures to redress socio-economic issues due to lack of political will, incompetence, corruption, mismanagement, inefficient bureaucracy, and disdain for civil society and court decisions. The role of any constitution is to facilitate and enable political and civic participation in setting a directional course, vision and values through broad guidelines and rules.

Let us now return to the ICC. The Gaza Docket has technically been enroute to the ICC since 2008. Pretoria has taken no action pertaining to at least 70 suspected South African war criminals enlisted in the Israeli Genocidal Forces (IGF) despite the 15-year-old application by the Media Review Network, etc. calling the National Prosecuting Authority to investigate SA zionists in the IGF during Israel’s Operation Cast Lead. Charges filed under section five of the Rome Statute of the ICC allows prosecution of suspected war criminals of any nationality in the country signatory to it.

The docket contains boasts by zionist SA citizens contravening the Regulation of the Foreign Military Assistance Act. At that time, SA citizen Colonel David Benjamin of the IGF’s Military Assistance Core was in SA and three urgent applications to arrest him were not acted upon.

On November 21, 2023, expressing the voice and aspirations of the citizens, Parliament resolved that government close the Israeli Embassy in SA and suspend all diplomatic relations with Israel until it agrees to a ceasefire and commits to UN facilitated negotiations. Adding insult to genocide, 10 days later the Minister in the Presidency shamelessly said “cabinet has not decided to close the Israeli Embassy. We are not in a hurry to have that discussion yet.” Rubbishing suggestions that the ambassador had been expelled, she continued “we never had the intention to do so.”

The ICC is supposed to investigate and try individuals charged with genocide, war crimes, crimes against humanity and the crime of aggression committed on or after July 1, 2002. It prosecutes cases when States do not, are unwilling or unable to do so genuinely—an indictment on the SA government’s inability and unwillingness.

On December 20, 2019, then ICC Prosecutor said “war crimes have been or are being committed in the West Bank, East Jerusalem and Gaza.” What has been the outcome of pursuing justice through this institution, described as a “neo-colonial venture” with a penchant to go after Africans particularly and anti-Imperialists generally?

Recently, ICC Prosecutor Karim Khan’s pro-Israel bias and consistent disregard for Palestinians showed its ugliness when he welcomed Israeli “victims” to the ICC headquarters. He then rushed to Israel to meet more “victims” and condemn crimes attributed to Hamas, thus bolstering perceptions that the ICC is a tool of imperialist powers. In these atmospherics, SA’s referral of the Israeli regime to the ICC is merely an attempt to lure voters before the upcoming elections.

Thus far, Pretoria’s lack of political will and disdain for civil society has been demonstrated. Given these miserable results, what should Muslims do? People are accustomed to painting walls, flying flags, displaying paraphernalia and issuing statements. Are these enough?

There is widespread misunderstanding among Muslims by treating the zionist problem as a Palestinian-Israeli conflict instead of a global problem. Defying the nation-state paradigm, it is not a nationalistic issue where Muslims substitute struggle to regain our first Qiblah and third Haram for statements about Palestine that are divorced from our Islamic responsibilities towards members of our Ummah.

The realization that zionist aggression is everywhere must dawn on Muslims so that an intensified struggle against the zionist Israeli cancer everywhere replaces statements of rhetoric and tokenism.

CODESA-1 ensured that SA will be a united, democratic, non-racial and non-sexist state where sovereign authority is exercised over its whole territory and the constitution will be the supreme law. Similarly, unthinking Muslims advocate for a secular state in Palestine. This has to change. Muslims must advocate for an Islamic State which guarantees autonomy to its citizenry of other religions.

Muslims in SA claim liberty to practice Islam fully. As such, we should progress beyond carrying begging bowls to a government that exists through a process described in February 1992 by the African People’s Democratic Union of Southern Africa as “a conspiracy hatched by the Imperialists, giant local factory and mine owners, banks, the NP, the ANC and other lesser forces. The purpose is to ensure that capitalism and imperialism in Southern Africa are safeguarded through stability. As a by-product, ANC officials can occupy government posts, including the presidency, and be duly rewarded for cooperation with capitalists and imperialists.”

The urgent step for the Islamic Movement—as the liberators of the oppressed and the implementers of justice—is to commence a purposeful political education program knowing full well that these responsibilities can only be fulfilled by direct state control. Muslim experiments of past decades with ideologies alien to Islam and the bitter outcomes therefrom should awaken them that without the guidance of Allah as implemented by His Prophet, humanity will continue to limp aimlessly from one catastrophe to the next as has been the case in SA and the Holy Land.

Amid attempts by revisionists to exclude certain “icons” from the historical process and the culture of collective decision-making that has brought us here, we must not lose sight of their involvement lest experimentation with “their ideas” delay reconsideration of the Islamic alternative. It is time to extend a helping hand to the oppressed people and implement the Divine message beyond theological expressions.