The trouble with Mogoeng’s stance on Israel, and why SA must ...

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The trouble with Mogoeng’s stance on Israel, and why SA must back Palestine

Even if it had not been complicit in apartheid, one would think the Israeli state is deserving of censure

Liam Minné
Chief Justice Mogoeng Mogoeng has been said to be 'implicitly critical' of those in SA who condemn Israel over its policies towards Palestinians.
Troubling Chief Justice Mogoeng Mogoeng has been said to be 'implicitly critical' of those in SA who condemn Israel over its policies towards Palestinians.
Image: Gallo Images/Foto24/Mary-Ann Palmer

On June 23 2020, the chief justice of SA took part, on invitation by the Jerusalem Post, in a webinar entitled “Two Chiefs, One Mission: Confronting apartheid of the heart”.  The title refers to the fact that the chief rabbi of SA, Warren Goldstein, was the other invited panellist. Goldstein’s support for Israel’s policies towards Palestinians is well known, as is his disavowal that the occupation is illegal under international law.

Much has been said about the chief justice’s comments, including addressing issues around the propriety of judges engaging in political issues or the accuracy of his doctrinal beliefs. There has, however, been little response to the substance of his claims. Before turning to the comments made by the chief justice during the event, some context is necessary.

Towards the end of 2019 and during his pre-election campaign, Israeli Prime Minister Benyamin Netanyahu promised to annex the Jordan River Valley and parts of the Dead Sea. These tracts of land make up almost a third of the Occupied Palestinian Territory known as the West Bank. The annexation of these portions of the West Bank seeks to fulfil a strategic policy objective long held by Israel. That is, the end of a viable Palestinian state.

Netanyahu, himself mired in a criminal trial and various controversies concerning corrupt activities, has argued that such annexation is vital for the growth of Israel. Along with being incredibly fertile and strategically placed as an “eastern buffer” between Israel and Jordan itself, the area is also home to around 11,000 Israeli settlers, all of whom occupy the area in violation of international law.

The plan to annex portions of the West Bank has been met with widespread criticism. On June 23, a joint letter was published by 1,080 European parliamentarians that strongly condemned the annexation plan. They cautioned that such a move will be “fatal to the prospects of Israeli-Palestinian peace” and will effectively promote “permanent Israeli control over a fragmented Palestinian territory, leaving Palestinians with no sovereignty”.  Further criticism has come from the current United Nations secretary general, world leaders in the region, a retired Israel Defence Forces major general along with organisations comprising ex-military security experts and, most importantly, Palestinians themselves.

Closer to home, even those who have resisted the comparison between Israel and SA’s apartheid regime are starting to think differently. SA-born Israeli writer Benjamin Pogrund, who has staunchly resisted such a comparison, has now admitted that annexation is likely to change his mind. As recently quoted in the Times of Israel:

“[At] least it has been a military occupation. Now we are going to put other people under our control and not give them citizenship. That is apartheid. That is an exact mirror of what apartheid was [in SA].”

In the midst of international isolation, the State of Israel was one of the few Western nations that maintained a strategic partnership with apartheid SA.

It is within this context that one must try to understand the comments made by Chief Justice Mogoeng Mogoeng. Over the course of the webinar, the chief justice remarked on the current government’s decision to “downgrade” diplomatic relations with Israel. As subsequently reported by the Jerusalem Post, the chief justice was said to be “implicitly critical” of those in SA who condemn Israel over its policies towards Palestinians. He is quoted as saying:

“Have we cut diplomatic ties with our colonisers? Have we disinvested from our former colonisers and those responsible for untold suffering in SA and Africa? Did Israel take away our land or the land of Africa, did Israel take our mineral wealth?

“We would do well to reflect on the objectivity involved in adopting a particular attitude towards a particular country that has not taken as much and unjustly from SA and Africa as other nations that we consider it to be an honour to have diplomatic relations with us.”

The full discussion can be seen here. The gist of these comments suggests that it is hypocritical to condemn the State of Israel for its treatment of the Palestinians when no criticism is levelled against SA’s former colonisers. Further, that unlike those countries, Israel was never complicit in the dispossession and untold suffering of the indigenous population that was integral to colonial conquest in SA.

When taken on its own terms, this stance is particularly unsettling. At best it seems to misunderstand what Israel is being condemned for; and at worst, it amounts to “whataboutery”. It would seem obvious that if a former coloniser, say the Netherlands, was currently in the process of occupying the land of another people, in violation of international law, and had set up a system of discriminatory and punitive laws, that it should rightly be condemned. But that is not the case, and even if it were, the failure to condemn that country along with Israel could never absolve the latter of its sins.

The chief justice further urges that we take a “principled position” and a “broader perspective” in SA’s treatment of Israel. Involved in this reflection is the question of “diplomatic ties”, “disinvestment” and “strong campaigns” against those that vocally supported apartheid. By this the chief justice is referring to those neo-liberal forces that continue to ensure the marginalisation and impoverishment of the black majority in SA.

We can all join together in saying that more should (and must) be done in this regard. But again, this does not let Israel off the hook. Even more so, because the support that Israel gave the apartheid regime is well documented. In fact, in the midst of international isolation, the State of Israel was one of the few Western nations that maintained a strategic partnership with apartheid SA. This involved a covert military relationship, in contravention of the international arms embargo, and included the offer to sell nuclear armaments to the apartheid regime.

But even absent this complicity in our own experience of apartheid, one would think, in adopting the “principled position” called for by the chief justice, that Israel is deserving of censure for its policies towards Palestinians. Not least from a legal perspective, considering the abundance of unjust and discriminatory laws exercised by the State of Israel in the Occupied Territories and Israel proper.

Netanyahu’s pre-election promise is now set to become a reality with today, July 1 2020, being earmarked as the notional date with which to begin the unilateral annexation of the Jordan River Valley. For many, this spells the end of any solution to the conflict and solidifies a new apartheid in the region. The comments by the chief justice, understood with this in mind, are therefore troubling. As numerous SA struggle veterans have remarked of the unnerving similarities between Israel today and the SA of the past, now is not the time to “build bridges”, but rather to stand on the side of the oppressed. Our common history and shared humanity demand nothing less.

Liam Minné, a lawyer living in Johannesburg, has been involved in organisations that advocate for an end to the Israeli-Palestinian conflict.

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