Judging the ANC's anti-Israel gambit at the ICJ

Koos Malan says the ruling party has invested in long-term misfortune for itself with its case

On January 26, the International Court of Justice (ICJ) delivered its verdict in the ANC’s - South Africa's - genocide application against Israel.

Of course, the ruling has legal implications. Closely intertwined with this are also immediate but more importantly also long-term political consequences for both parties. For us here in South Africa, it is important to gauge the domestic and international implications.

The parties and “our” application

First, however, we must clarify who the parties, more precisely the applicant in this case, are.

On paper, the parties are the South African state and Israel. Viewed from the South African point of view, however, it is important to understand that the application gives expression to the ANC's policy against Israel. This is a policy that the Jewish community in South Africa, several opposition parties and civil society over a broad spectrum unequivocally condemn.

It is therefore, by no means “our” all-embracing South African application. This is the ANC's application, and it gives effect to the ANC's decades-long revulsion in Israel and its growing alliance with Israel's archenemies, who want to annihilate Israel, more specifically Hamas and Iran.

The findings

The court made findings that suggest that Israel arguably may be guilty of acts of genocide. This is harmful to Israel and enables the ANC to claim that it has been successful and is a welcome handout for the beleaguered, generally failing ANC on its way to the elections later this year.

Israel is also ordered to refrain from acting in a manner that may amount to genocide (and war crimes). Contrary to what the ANC asked for on behalf of South Africa, Israel was not ordered to stop its military action against Hamas. Israel's military action may therefore, continue, provided that it is carried out within the limits set by the court to avoid committing acts of genocide.

Naledi Pandor, the Minister of International Cooperation's statement that the Court ordered Israel to stop its military action is, therefore, obviously nonsense. Pandor knows that and is livid about it, which accounts for her vociferous bluster against Israel.

It is to Israel's disadvantage that the court reproached it over senior government spokesmen's belligerent statements against the Palestinians. These are statements which are susceptible to the interpretation that Israel arguably could intend something of the nature of genocide. This should be a lesson for Benjamin Netanyahu and his government to also act more responsibly in their own interest.

These references from the court can cause the ANC to beat the drums, as the South African legal team relied precisely on statements of this kind in seeking to prove genocidal intent.

The manner of compliance with the measures ordered by the court against Israel falls squarely within the discretion of the Israeli government and army and, therefore, leaves Israel's sovereignty largely untouched. There is no agency of the UN or anything alike to oversee the Israeli government's compliance.

The Israeli government must report to the ICJ in a month's time on what it is doing to carry out the court's orders, and the ANC, on behalf of South Africa, may respond again after a further month, that is, on 26 March. Then the ANC gets the chance again to parade as a supposed great international actor.

ANC claims

The ANC pretends its application is motivated only by the purest possible human rights intentions. It is concerned about the carnage and suffering in Gaza and simply wants to help the poor people there. Furthermore, as a faithful servant of international law and justice, it is but faithfully fulfilling its obligations under the Genocide Convention.

In this pretense, the ANC is completely false.

The ANC will be judged by its record

With these claims and pretenses, the ANC has laid down the standards by which it wants to be judged locally and internationally. However, in this, it is bound to fail spectacularly to its own permanent disadvantage because the ANC is by all accounts not a servant of human rights and patently perfidious to international law and justice.

What is more, the ANC has now made redoubtable enemies on the international stage: Israel itself, the USA, Western Europe, etc. They are going to pillory the ANC - where it belongs - and they are going to punish it. To that end, they will relentlessly, of course, with the help of the rising domestic forces, denounce the ANC like never before, and in that way pave the way to the ANC’s inevitable demise.

They are going to expose the ANC for the hypocritical impostor that it is: a hypocrite with no concern for human rights and with no principled commitment to international law and international justice. This is an easy task because the ANC's dubious record speaks for itself.

First, the ANC does not care about human rights

The evidence that the ANC has no concern for human rights and has actually never been concerned about rights is overwhelming. From the vast evidence, only a few items are mentioned here.

Under former president Thabo Mbeki, the ANC government stubbornly refused to provide antiretroviral drugs to HIV-positive persons, resulting in approximately 365,000 preventable deaths.

Under the ANC, basic infrastructure was neglected and destroyed, resulting in South Africa now being on the path of de-industrialization and neo-primitivism. Neglect of the power grid, rail and road transport, harbours and water systems deprives millions of people of basic rights every day.

Foolish economic policies have brought growth to a near-complete halt and reduced millions dependent on government grants to an undignified existence instead of an income through paid work.

Millions of teenage children, at the mercy of the state school system, cannot read and lack basic numerical skills.

The state's health system is battered. In some provinces, the annual claims for medical negligence at state hospitals exceed the budget for medical services.

The homicide rate is sky-high, and violent crime is endemic. ANC-South Africa boasts of 75 murders per day.

While the ANC feigns concern about pugnacious statements by Israeli government officials, Julius Malema incites violence against whites with his "Shoot the Boer" slogan. This comes against the background of approximately 2500 murders of farmers since 1994. Yet, this bothers the ANC and its leaders so little that when Cyril Ramaphosa visited the USA in 2018, he denied on Bloomberg that there is any such thing as murders of farmers.

Ronald Lamola, who is now propagating the prosecution of Israeli politicians for war crimes, threatened whites a few years ago that if they did not voluntarily give up their real estate, their safety could not be guaranteed.

Secondly, international law and justice is of no concern to the ANC either

Under successive ANC leadership since Thabo Mbeki, the ANC has supported the Zimbabwean tyrant, Robert Mugabe. This was despite his outrages against Zimbabweans; farmers who were violently driven from their farms and the land subsequently distributed to party cadres; terrorizing opposition parties and politicians, stealing elections; the general humanitarian crisis caused by the Mugabe regime, which led, among other things, to three million Zimbabweans leaving – fleeing - the country for South Africa. For the ANC, it was more important to support its fellow "freedom fighter" rather than trying to protect ordinary people from the consequences of Mugabe's reign of terror. And Ronald Lamola? He declared on national TV that Mugabe is a hero.

In 2015, the ANC government blatantly obstructed the course of justice when it allowed the Sudanese dictator Omar al-Basihir to escape an arrest warrant from the International Criminal Court (ICC) by hastily smuggling him back to Sudan from South Africa. Al-Bashir is accused of being responsible for a genocide with a death toll of 300,000 people in Darfur in Sudan. The ANC thereafter ranted against the ICC and attempted to withdraw from it. Now that it is warring against Israel, the ANC has suddenly gone through an opportunistic conversion to the Criminal Court.

Over the past decades, the ANC has accumulated a dubious record for repeatedly refusing to condemn human rights abuses by violent regimes in the UN Human Rights Council. On 17 January 2024, Jushua Meservey of the Hudson Institute reported extensively on this egregious record of the ANC.

Where does this leave the ANC?

With its case, the ANC achieved a temporary propaganda victory against Israel and aroused a tingling hubris in its own mind. Even though it is messing up South Africa as it is doing, at least for a moment, it may let itself believe it is virtuous and important.

Now, however, it has made Israel an arch-enemy as well as putting its already strained relations with the USA and several other Western powers under greater pressure. The ANC is already showing anxiety that it has caused harm to itself, but it consoles itself that in BRICS, it is in a close alliance with great powers such as China, Russia and India. It deceives itself. BRICS is not a tight political phalanx against the West. It is an economic grouping in which India in particular, but also Russia and China, work pragmatically rather than, like the ANC, making ideologically motivated enmities and looking for trouble. This also applies to these three powers' pragmatic relations with Israel.

The opportunistic ANC has invested in long-term misfortune for itself with its case against Israel. It has unleashed great forces against itself and does not have the ability or alliances to cope with these forces.

Unfortunately, there is a danger that the general public in South Africa will suffer along with the ANC. We, the ordinary citizenry, have been increasingly implementing plans over the past years to make ourselves state- and ANC-proof. These strategies will also have to be extended to foreign relations outside the ANC-affected South African state. Fortunately, this is already coming off the ground.

Koos Malan is a constitutional jurist.

This article was first published last in Afrikaans in Netwerk24 and Beeld.

Malan’s publications include:

Politocracy – An assessment of the coercive logic of the territorial state and ideas around a response to it Pretoria: Pretoria Univ Law Press 2012 (Also in Afrikaans) (The publication is freely available on the Internet);

There is no supreme constitution – a critique of statist-individualist constitutionalism Stellenbosch: African SUN Media 2019;

Studente-inleiding tot die konstitusionele reg with Ilze Grobbelaar-Du Plessis. Pretoria: FAK 2022.