Open letter to Chief Justice Mogoeng on his utterances on Israel
26 June 2020| 04 Dhul Qadha 1441
Mr. Chief Justice. We have had a long relationship and have always been candid with each other. It is with a heavy heart that I give you my opinion. Your comments on Israel on the online platform on 23 June were misinformed, repugnant and disgraceful. I am sharing my views on what for me were mind numbing comments.
Let me start by saying, as I know judicial ethics, I understand a judge that might elect to put their hand on their scripture and swear to uphold the Constitution. I have never heard about a judge putting their hand on the Constitution and swearing to uphold their scriptures. When I look at our Constitution, and judicial precedents, some of which you penned, I see a rich reference to human rights and international law. And international law has a litany of pronouncements on Israeli apartheid, war crimes, crimes against humanity, torture, and various other gross human rights violations. Human rights are not only for South Africans. They are universal in their application. That is what you proclaimed in your Zimbabwe judgment. And the universality of human rights can never be negated by any kind of religious interpretation. I understand that you did not utter those statements in a court. It would be extremely troubling if you did not believe in the higher norms of international human rights when you were not suited in your judicial robes.
As I further understand judicial ethics, in surveying democratic practice, in the annals of comparative constitutional law, I have never seen or heard of any Chief Justice, nor any judge that publicly questions and rebukes their government’s foreign policy and sides with a foreign power against their own government. I thought it was treasonous when AfriForum and other right-wing elements turned to President Trump and other foreign powers to further their political agenda. Your conduct as the Chief Justice is even more troubling.
Your message that Israelis and Palestinians can learn from South Africa is correct. But alas, your message is devoid of moral clarity. Instead, it sides with the brutal oppressors. You could perhaps have taken a leaf from the instructions Nelson Mandela gave to an audience in New York City, a city that has powerful support for Israel. Madiba stated simply and eloquently that South Africa can never be free if Palestine is not free. That is the starting message that an oppressive regime should have heard in terms of a lesson, if one truly wished to impart something positive. And to that I will add what Archbishop Desmond Tutu said:
“if you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse, and you say that you are neutral, the mouse will not appreciate your neutrality.”
In short, the first message that Israel can learn from South Africa is moral clarity, something that your communication conspicuously lacked.
You claim Israel has not harmed South Africa. A country does not have to harm or invade South Africa to be held accountable for its atrocious human rights record. That is what you said in your Zimbabwe judgment. However, your message about Israel’s clean hands vis a vis the struggle in South Africa is both ahistorical and flat out wrong. Israel and apartheid South Africa worked hand in hand like no other two countries on joint military strategies, arms development, and the building of the nuclear bomb. For what reason, to nuke Black South Africans? They worked together to evade sanctions. In a nutshell, Israel was apartheid South Africa’s strongest supporter in the oppression and exploitation of the Black majority. In the words of an African diplomat, apartheid South Africa and Israel were in the same leaking boat and they went fishing together. Israel is the only country in the world that recognized the homelands as “independent states”. International law characterized the homeland policy as a crime against humanity. In short, Israel was the only country to actively and de jure legitimate this crime against humanity. It is astonishing that you absolve Israel from any and all blame with respect to protecting and fortifying apartheid. And you give Israel a pass based on an odious reading of scripture. For the record, Israel is deeply culpable in the support and fortifying of the apartheid state and the brutalization of the Black majority.
Many Israelis make biblical claims for a Jewish state that excludes Palestinians from citizenship, human dignity, and equality. Israel is on the cusp of annexing most of Palestine just like apartheid South Africa annexed South Africa for whites and confined Blacks to the homelands. Your interpretation of the scripture that God tells you to be kind to Israel, ignoring their transgressions and human rights violations makes common ground with the grotesque and racist. Mogoeng, how different is that lesson you purport to take from the scriptures any different from the odious teachings of the Dutch Reformed Church that stated under their interpretation of their scriptures, Black people were the cursed children of Ham (and I encourage you to read how the Israelis characterize the Palestinians), and the Dutch Reformed Church’s doctrine that South Africa was given to the white people by God?
That does not negate your point about the hypocrisy of giving a pass to foreign leaders that come from countries that committed atrocities in the past. That record must be set straight, which is one-part part of the “Black Lives Matter” struggle that is sweeping the world. But there is a qualitative difference in terms of time. Israel and apartheid South Africa share certain similarities, which resonate with us. Leaders with moral stature like Bishop Tutu and others have emphasized the similarities between Israel and apartheid South Africa, including but not limited to a settler population that dispossessed and continues to dispossess the indigenous population of their land and dignity. They discriminate against the indigenous population just like apartheid and create fenced areas for Palestinians akin to the homelands. Like the Dutch Reform Church theology, Israel justifies its practices based on religious justifications. And in the case of Israel, those practices are current and ongoing.
We have known each other for thirty-six years. We were together in the Black Consciousness movement. I know we both carried ourselves with the utmost principle during the 1980’s. Words cannot describe my profound sadness and disappointment at your utterances. I hope you can reflect on your utterances with good conscience and righteousness.
Professor of Law
Howard Law School