The ANC's reckless gamble at The Hague

Koos Malan says that long after the sugar rush of cheap praise has passed, SA will pay a steep price


"Our" case before the International Court of Justice

On Friday, 26 January 2024, the International Court of Justice (ICJ) ordered provisional measures against Israel in the ANC’s - South Africa's - genocide case against Israel. The case concerns Israel's military action against Hamas in Gaza, following Hamas' comprehensive terrorist attack on southern Israel on October 7, 2023, in which approximately 1139 people were killed and approximately 250 people were taken hostage. At the time of writing, 132 people are still being held hostage by Hamas. Several of those hostages have died.

The litigation application is under the Convention on the prevention and punishment of the crime of genocide (the Genocide Convention) of 1948. Any state party under the Convention (the applicant state) may litigate before the ICJ against any other state party allegedly guilty of genocide, conspiracy to commit genocide, incitement to genocide, attempted genocide or complicity to genocide (the respondent-state).

Unlike most other interstate disputes, in which the parties must first consent to the court's jurisdiction, the ICJ automatically has jurisdiction under this convention to hear genocide-related cases. All that is required is that there must be an actual dispute between the two parties: that, for example, they have tried unsuccessfully to resolve their disagreement, but that there is no way out other than approaching the court.

In the present matter the court ruled that there is sufficient evidence for a finding that Israel is possibly guilty of acts of genocide and ordered several measures against Israel to prevent (further) acts of genocide; to refrain from any action that may amount to the incitement of genocide; and to investigate and punish such actions, where they do occur.

The court also made specific mention of belligerent statements by senior Israeli government officials, apparently aimed not only at Hamas, but at Palestinians in general. These are statements that may be related to the intent to commit genocide.

The court ruling inflicts significant reputational damage on Israel. More seriously, it puts Israel's relations with its staunchest allies, chiefly the USA, under pressure. The US government can expect local and international pressure to curtail its close ties, especially its military assistance to Israel, over whom the cloud of suspicion of genocide now hangs. In fact, a case of this nature has already made its rounds in an American federal court.

The ruling also puts the Netanyahu government, which is already in trouble locally, under heavier pressure.

However, unlike what the African National Congress (ANC) had asked for, the court did not give any order regarding the continuation of Israel's military operations. Israel's military action therefore continues, provided that it is carried out within the limits set by the court to prevent acts of genocide (and war crimes).

Complying with the measures ordered by the court against Israel falls within the discretion of the Israeli government and military and therefore leaves Israel's sovereignty essentially intact. There is no UN or like body to oversee the Israeli government's compliance.

The Israeli government must report to the ICJ after a month on what it has done to implement the court's orders, and the ANC on behalf of South Africa can respond to it again after a further month.

A short-term political victory for the ANC

The ruling is good news for the beleaguered ANC, notorious for its widespread and growing failure as government over the past three decades since it came to power in South Africa in 1994. The ANC believes it can now show off as some moral paragon and boasts success at the ICJ. This will be seen as a welcome boost for the party on the way to the South Africa's general election later in 2024.

Two months after the verdict (and a month after Israel reports to the court), the ANC on behalf of South Africa may respond to the Israel’s report, thus affording the ANC the opportunity to appear before the ICJ again, which may once again benefit the ANC ahead of the impending election.

After the verdict, the ANC's minister for international cooperation, Naledi Pandor, was full of bravado. She stated that the court had in fact ordered Israel discontinue its military action. This is patently false. However, this statement by Pandar betrayed the ANC's real objectives with its application namely, to crash Israel's war effort and benefit Hamas - Hamas which still fires missiles and still holds Israeli hostages.

The ANC's Minister of Justice, Ronald Lamola, explained a day after the verdict what steps he was taking steps to get Israeli government officials summoned before the International Criminal Court to stand trial for war crimes.

However, it would seem that the ANC's interest in the war between Israel and Hamas is by no means simply to rush to the aid of Palestinian civilians in Gaza, as it claimed when filing its application with the court.

On the contrary, the ANC declares itself a sworn enemy of Israel and by its actions lends increasing credibility to the analysis that it is in close alliance with regional actors commonly regarded as Israel's greatest enemies, namely Iran, Hamas, and other forces who’ve expressed in one form or another a desire to end or destroy the state of Israel.

With its struggle against Israel, the ANC plunged South Africa into the worst international dispute since it took office thirty years ago. Yet, the ANC seems not to grasp the severe repercussions of this - repercussions which are bound to hurt the ANC, but that will unfortunately also adversely affect the South African public. Most importantly is the risk of worsening trade relations with South Africa’s foremost important trading partners, and a further downturn of foreign investment.

A Bill now under discussion in the US House of Representatives, calling for the reconsideration of US relations with South Africa, following the serious neglect of infrastructure in South Africa, as well as what is viewed as the South African government’s hostile behaviour towards the US and the West, underscores this point. This demonstrates the weakening of relations between the US and South Africa under the ANC and is likely but the first sign of South Africa’s weakening international relations.

Consequently, it is essential that groups and institutions in South Africa remain persistent in opposing the ANC, keep all relevant foreign actors informed of this opposition and forge sound relations with these actors wherever possible.

To that end Heinrich Matthee's plea that civil society groups in South Africa should embark on their own constructive diplomacy initiatives, independent of the ANC government, is particularly apposite.

That is fortunately already under way.

When surveying the current case before the ICJ, it is therefore important to clearly understand who in concrete terms is the applicant before the court. Formally it is the South African government, on behalf of the South African state. In concrete terms it was the African National Congress – the ANC. It was not "our" application; it was the ANC's application.

Amid this domestic politics of fragmentation, the ANC will come under increasingly sharp scrutiny from important alternative spheres of authority and influence. It can expect to be nailed to the pole of shame locally and internationally as its grip on South Africa weakens further weaken.

The ANC’s not-so-veiled ideological objectives

The ANC pretends to be nothing but a benign do-gooder with its ICJ application. It only wants to act as a faithful servant of international law. It is concerned about the humanitarian situation in Gaza and simply wants to its treaty obligations under the Genocide Convention to protect the Palestinians.

This pretence of morality, humaneness and service to the rule of law is sheer fraud. Measured by its record, the ANC government has very little regard for human suffering and human rights both domestically and in its foreign relations. It is not a faithful servant of international law; it is a callous breacher of it.

What the ANC is trying to achieve is three completely different objectives:

1.    try to show off on a world forum as an apparently important international human rights advocate and shining moral agent;

2.    intensify its fight alongside Hamas and Iran, who are out to destroy Israel; and

3.    divert attention from the unparalleled misrule of South Africa over the past three decades.

The ANC’s dismal track-record.

The ANC is no human rights bastion.

On the international scene the ANC has repeatedly supported and protected brutal dictators to escape from justice. This it did even though it was favourably positioned to influence these dictatorial regimes to the contrary and thus protect the citizens against the dictators in question.

Under successive ANC leadership, since former president Thabo Mbeki, the ANC government has refused to denounce Mugabe's atrocities against Zimbabweans and the looting of that country. Gullible commentators claimed that Mbeki and his successors were practicing so-called silent diplomacy with Mugabe.

In reality, the ANC supported its fellow "freedom fighter" in Zimbabwe, making it easier for Mugabe to execute his destruction frenzy; expelling farmers from their farms and distributing the land to his party cadres; terrorizing opposition parties; rigging elections; and triggering humanitarian crisis in Zimbabwe, which caused millions of Zimbabweans to flee the country to South Africa, where these people are now facing mounting enmity fuelled by senior spokespersons of the ANC government. Here in South Africa, the very same Ronald Lamola, who now speaks highly of his and the ANC's concern for human rights in Gaza, then declared that Mugabe was a hero.

In 2015, the ANC government indulged in a miscarriage of justice, when it allowed the Sudanese dictator Omar al-Basihir to escape an arrest warrant of the International Criminal Court (ICC), by slyly smuggling him back to Sudan from South Africa. The ANC then attempted to withdraw from the Criminal Court. Now that it targeting Israel, it has suddenly and patently opportunistically emerged as a supporter of the Criminal Court.

Over the past decades, the ANC has built up a dubious record in the Human Rights Council) of the UN, repeatedly refusing to condemn human rights abuses by violent dictatorships. As a study by Joshua Meservey of the Hudson Institute shows, this now keenly taken notice of.

Domestically, the ANC's local human rights record is even worse. It involves a lamentable story of which I highlight only a few aspects. Adekeye Adebajo recently in Global Africa: Profiles in Courage, creativity and cruelty reminds of Africa's "philosopher-king," former president Thabo Mbeki's government’s stubborn refusal to provide antiretrovirals to HIV-positive persons that is believed to have been responsible for some 365,000 preventable deaths in South Africa.

After initial years of apparent success under the ANC after 1994, the country has been relentlessly deteriorating over the past fifteen to twenty years owing to the ANC's toxic mix of corruption, mismanagement, self-enrichment and policy folly. The effects on basic living conditions, including human rights, are increasingly depressing.

The state's health services are steadily deteriorating. In some provinces, the annual claims due to medical negligence at state hospitals exceed the annual budget for medical services.

Large parts of public education are in a sorry state with teenage children who are unable to understand what they are "reading".

Damaging economic policy leads to a constant capital flight from the country, with capital outflows exceeding inflows by far.

There is no economic growth – per capita GDP is in steady long-term decline; repeated threats, especially since 2018, against private property rights; growing high unemployment and excessive youth unemployment; eighteen million of the country's sixty million inhabitants receive state grants amid state coffers running empty due to embezzlement and corruption.

The country has one of the highest homicide rates in the world. During 2023, close to 28 000 people were murdered in South Africa – 75 murders per day. This has been the case for three decades in South Africa under ANC watch.

At the same time that the ANC has given up trying to combat escalating violent and organized crime in South Africa and is contributing to the lawlessness by its own corruption and self-enrichment, it is meddling with the affairs of Israel.

Certain communities in particular suffer from violent crime. Among them are the murders of white farmers. Since the ANC's takeover of power in 1994, around 2500 people have been killed in violent farm attacks. Despite this, Cyril Ramaphosa declared during a visit to the USA in 2018 that there were no murders of farmers.

Opposition politician, Julius Malema is notorious for his murderous cry "Shoot the Boer", " Shoot to kill” and similar hate speech and murder incitement (“Boers” carries the meaning of agriculturalists as well as the white Afrikaans population of South Africa). In a hate speech hearing about the slogan, the ANC assisted Malema, who was still the party's youth leader, in the case as a co-respondent. In recent case law, the South African courts have refused to find that this incitement of violence by Malema constitutes hate speech. Malema is still carrying on with this murderous incitement.

The ANC government maintains a conspicuous silence on this.

Ronald Lamola too, who is now so concerned about human lives in Gaza, threatened violence amidst continuous murders of farmers, Whites, and more specifically Afrikaners. In 2012, while serving as Malema’s deputy in the ANC Youth League, Lamola stated:

"I am just giving a warning to white South Africans: They must voluntarily bring back the land, and voluntarily bring back the mineral resources ... there will be a moment when these service delivery protesters will invade the land of Mr. van Tonder and Mr. van der Merwe and we can no longer be able to guarantee the continued safety of Mr. van der Merwe..." (Van der Merwe and Van Tonder are two well-known Afrikaans surnames.)

Unprecedented state decay and corruption, which under ANC control have become one of South Africa's defining characteristics, are causing incalculable damage to society. The bottom line is that South Africa under the ANC is on a continuous downward path and the ANC government has no clue how to overcome this growing problem. The public suffers.

The ANC's own domestic and international record shows that it has no credibility as an advocate for human rights. On the contrary, the ANC ranges from apathy to contempt for human rights.

Posing now as an advocate for human rights in relation to Gaza is sheer hypocrisy.

The ANC is intensifying its old resentment against Israel and strengthening its growing solidarity with Israel's enemies.

The ANC's revulsion against Israel is not new. The genocide application is a further step in its support for Hamas and close relations with Iran, which is a staunch supporter of Hamas and archenemy of Israel. Its application is a classic case of acrimonious Lawfare, that is, to enlist the court as a tool for its loathing of Israel and abetting of the enemies craving for Israel’s annihilation.

In 2018, the ANC called on all citizens to demonstrate to the world that they consider the Israeli government and army to be a disgrace and a stain on humanity. Three years later, South Africa attempted to end Israel's observer status at the African Union. After the outbreak of the current conflict between Hamas and Israel in October 2023, the ANC accepted a motion to close South Africa's embassy in Israel. On this, the National Assembly on 21 November 2023 accepted a motion from the notorious violence instigator, Malema 's Economic Freedom Fighters (EFF) for the closure of the Israeli embassy in South Africa and the termination of diplomatic relations with Israel.

The ANC government has also appealed to the International Criminal Court to issue a warrant for the arrest of the Israeli Prime Minister, Benjamin Netanyahu. After the verdict of the ICJ, the prosecution of Israeli government officials apparently became Lamola's highest priority.

Meanwhile, the ANC has long maintained close relations with Hamas, which is the government in Gaza and is widely regarded as a terrorist organisation. Already in October 2015, relations between the ANC and Hamas reached a peak when a high-level delegation from Hamas visited South Africa at the invitation of the ANC. After that, the relations between the two organizations continued to flourish. For example, Hamas delegates met senior ANC representatives in Johannesburg on 6 December 2023. The close ties between Hamas and the ANC are also understandable in view of the ANC's own freedom fighting and terrorist history. (Cf. Anthea Jeffery Peoples War: New light on the struggle for South Africa; and here) .

Armed with a genocide finding from the ICJ against Israel, South Africa and other arch-enemies of Israel hope to turn up the heat on Israel. Efforts will be aimed at Israel's great ally and aid provider, the USA. The thinking is that the US, because of its supply of weapons and other aid to Israel, is guilty of complicity in genocide. Equipped with an ICJ finding that Israel is guilty of genocide, the American government can be pressured to stop its aid to Israel, or else be branded as an accomplice to genocide.

This is evidently the strategy of people like Professor Francis Boyle of the University of Illinois, who in all likelihood is acting in close collaboration with certain South African legal activists such as Professor John Dugard and the ANC. (Cf. on this https://www.youtube.com/watch?v=ypxiFjrM8RA ). With that in mind, the ICJ could possibly be approached again with an application, this time against the USA. On the initiative of the ANC, South Africa can once again make itself available as an applicant.

The ANC parades on the international stage to hide embarrassment for its local failures

The ANC of Nelson Mandela came to power in 1994 amidst worldwide praise. The constitutional transition in South Africa, together with the ANC's rise to power, was at that time the biggest world event. Under ANC rule over the past thirty years, South Africa has again elicited international notoriety but this time not for its achievements but precisely because of its failures.

The ANC has no clue how to manage a modern dispensation. Infrastructure is constantly deteriorating. ESKOM, the national electricity supplier, which once generated and distributed a surplus of electricity, is constantly deteriorating. Thousands of kilometers of railway lines and railway stations are destroyed and ports are in a dismal state. Roads are deteriorating. There are increasing problems with water supply.

The civil service is deteriorating in almost every way. Most of the country's ANC-controlled municipal authorities are in a battered condition. Service delivery has deteriorated greatly. Sewage in the streets, taps without water and potholes in the roads are the distinctive signs of the ANC's presence. The media carry daily reports on the ruins of the once leading country in Africa. Corruption and nepotism run rampant under the misleading banners of black economic empowerment and affirmative action. Meanwhile, the majority of the black population is not drawing any benefit from the ANC’s rule. Yet a small, enriched clique of ANC connected cadres does benefit from its scams.

The essence of the ANC government's failure is that they do not understand that continuous capital formation, maintenance and specialization are the threefold conditions for the establishment and maintenance of an advanced dispensation, as a result of which they are running South Africa into decline and failure.

Due to the deterioration of the public service, public facilities, state enterprises and infrastructure, the ANC is increasingly losing the instruments of government. Several of these are being taken over by a variety of civil institutions and the private sector that are increasingly taking over functions previously associated with the government and the state. The bottom line is that South Africa is already in the midst of constitutional disintegration and a fundamental dispensation and regime change.

The process will gain further momentum as the government and state institutions weaken further and civil society and the private sector come to the fore more strongly. No wonder that anxiety for regime change is increasingly gripping ANC politicians not realizing that they are themselves the major agents of regime change.

President Cyril Ramaphosa stated during the court proceedings in The Hague that he is very proud of the South African legal team. It may be so. Beyond that, however, there is nothing more he can be proud of.

The best efforts to parade Palestinian scarves interlaced with scarves in the colours of the South African flag in the international forums cannot hide or compensate for the worsening failure on the South African home front. On the contrary, it only causes the spotlight to fall more brightly on the local failure and thus to reveal these failures to international audiences. In this way, the ANC could perhaps, in the eyes of some, briefly shine on a global stage with its ICJ application, but what lies ahead is for it to endure widespread embarrassment and humiliation in the eyes of international audiences.

The ICJ application is not going to contribute to reaching a settlement and it puts the ANC out of step with BRICS

Ultimately, there must be a lasting settlement between Israel and the Palestinians. For several decades already, the accepted formula for a settlement has been the so-called two-state solution, in terms of which there will be an independent Palestine and an independent Israel. However, working out the details of this, such as the border demarcation and the process towards reaching that solution are extremely difficult. Moreover, many Palestinians have never been prepared to recognize Israel, it being, in their eyes, a so-called colonial or apartheid state. Hamas is openly committed to the destruction of Israel. Its desire, it said, is to carry out many more attacks of the kind of October 7, 2023.

Over the recent weeks and months, the two-state formula has also taken a hit in Israel. Benjamin Netanyahu now apparently wants only one state, over which Israel must exercise sovereignty, apparently in order to prevent conspiracies that resulted in attacks like the one on October 7.

What makes a settlement therefore even more difficult is the fact that the so-called middle ground has collapsed both in Israel and among the Palestinians. The political leadership on both sides has hardened and lacks the disposition to compromise and settle. Add to this that both communities - Israelis and Palestinians - are deeply outraged and even more deeply traumatized and feel threatened.

The essential fact is that both Israelis and Palestinians are present in large numbers in the area. That reality must be dealt with pragmatically and accounted for in a settlement. Attempting to reach a settlement based on whose historical claims - ancient or recent - are the strongest, is out of the question. This will prematurely crash a settlement, instead of moving closer to it.

The ANC would of course also like to play some part in a settlement, thus trying to save something of its tarnished reputation. The ANC is all too fond of a little showing off. It makes it feel important in spite of its failures. Last year, for example, Cyril Ramaphosa led an African delegation to Ukraine and Russia to promote a settlement between Russia and Ukraine. Apart from the fact that the South African government's travel arrangements were a complete fiasco, the mission was short-lived and of course a complete failure.

In the dispute over Israel and Palestine, South Africa will play no role. With its hot-headed bias, it has completely disqualified itself from any constructive role. If it was at all politically mature, it would have noticed that China, Russia and India are dealing with the Israel-Palestine dispute in a fair-minded way. Apart from domestic considerations in the states concerned, which prevented them from any rash bias, they evidently position themselves in such a way that they could indeed play a role in relation to a settlement.

In recent years, the ANC has already severely harmed its own reputation in the USA and Western Europe. It is known for its corruption and ineptitude. However, by associating with Hamas and Iran in its diplomatic war against Israel, the ANC has now also distanced itself from China, Russia and India.

The ANC has apparently not yet noticed that these powers are much more pragmatic than it is.

The ANC misjudges BRICS and more specifically, Russia, China and India. BRICS is by no means an unqualified anti-Western alliance. India and the US have maintained close military ties over several decades. And amid the current conflict in Israel / Gaza, both China and India maintain healthy relations with Israel. China is a major investor in infrastructure in Israel and trade between the countries is active. There is also significant trade between India and Israel and currently many temporary Indian workers are flocking to lucrative capital projects in Israel. Russia and Israel have maintained mutually beneficial political relations over the years.

The ANC's impression that BRICS would be a single-minded anti-Western phalanx is totally wrong.

China, BRICS' biggest player, has also already shown discomfort with South Africa under the ANC. Last year during the BRICS summit in Johannesburg, Chinese spokesmen vented their discomfort over the ANC's measures for so-called black economic empowerment.

About Koeberg (South Africa’s only nuclear power station), the Chinese wondered aloud what happened: Koeberg was working well twenty years ago. The Chinese made suggestions about how they could intervene to fix some of South Africa's railways. The South African government did not respond. The ANC is apparently oblivious of the frustrations it is causing to China.

Apparently, the ANC also does not realize that with its fraternization with Iran and Hamas, it is also offending other BRICS states such as Saudi Arabia, Egypt and Ethiopia.

In conclusion

The humanitarian situation in Gaza is deplorable. We should all be concerned about that and hope that this nightmare will soon be over. One's heart also goes out to the hostages who are still being held by Hamas. In the end, however, the ANC's actions before the ICJ have little to do with the humanitarian situation.

The sensational hubris of its Hague excursion has for a moment struck the ANC with boisterous amnesia for its local shames and failures. At the same time, it fails to understand that in the long run it has seriously damaged its international position. With its ICJ application, it revealed itself locally and to the world as a fraudulent hypocrite, who cannot be trusted.

It is a human rights subversive, not a human rights bastion and, in the view of its own record, it is not a champion but an underminer international justice. Moreover, the ANC is now, as never before, making formidable enemies for itself in the West and deviating from steadier BRICS diplomacy, thus risking relative international isolation and ensuring for itself long-term troubles. It does not have the ability or alliances to cope with its difficulties and domestic fragmentation leading to de facto regime change has already begun to haunt it.

The citizenry in South Africa is already on a large scale busy making themselves state-proof through independent action. This will now also increasingly have to happen in the field of foreign relations. Organisations and institutions will increasingly have to start conducting their own diplomacy outside the state in order to mitigate the consequences of the ANC's loss of international standing and relationships. Let the ANC’s follies be its follies; its enemies its enemies and its battles, its battles. They do not have to be ours.

Prof Koos Malan is a constitutional jurist from Pretoria.


His publications include: Politocracy – A survey of the coercive logic of the territorial state and thoughts for an answer to it Pretoria: Pretoria Univ Law Press 2012 (Also in English) (The publication is freely available on the Internet);

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

Student introduction to constitutional law 2022 with Ilze Grobbelaar-Du Plessis.