The Law of Unintended Consequences

South Africa went to The Hague to make international law travel. It travelled. On 20 August it arrived back in Pretoria, carried by a Southern African movement asking for a reasoned South African answer.

Disclosure: I advise the Mthwakazi Republic Party, Office of the President, on recognition doctrine and sovereignty. I am also a doctoral candidate in Holocaust and Genocide Studies. Both interests are recorded here plainly.

On 20 August the Mthwakazi Republic Party submitted a formal consolidated submission to the South African Parliament’s Portfolio Committee on International Relations and Cooperation. It bears the Party’s own reference, MRP/SA-IL/2026/01, and names the Committee Chairperson and Secretary.[6]

It does not ask Parliament to recognize an independent Mthwakazi. It says so at the outset and repeats that limitation throughout.

It asks South Africa to explain South Africa.

The submission collects Pretoria’s own written statements to the International Court of Justice, its own Constitution, its own position on Somaliland, its own treatment of Western Sahara, and the African Union’s own inherited-border doctrine. It sets them side by side. Then it asks for the legal test that produces those different results.

That is the law of unintended consequences operating at the level of a state’s foreign policy. South Africa spent years building universal arguments at The Hague — in Chagos, in the Palestine advisory proceedings, and then in its contentious case against Israel. The consequence is that the language of those pleadings can now be carried home.

First, the finding that does not exist

One matter should be settled before anything else, because it has been obscured by nearly three years of political argument.

There is no judgment of the International Court of Justice finding that Israel committed genocide in Gaza.

South Africa instituted proceedings under the Genocide Convention in December 2023. The Court issued orders on provisional measures. It has made no determination on the merits, and the case remains pending. Provisional measures are not a verdict. An allegation is not a finding.

The point is not a technicality, and it does not rest on my characterization. Joan Donoghue, who presided over the Court when the January 2024 Order was delivered and who read that Order aloud, said afterwards that the Court did not decide that the claim of genocide was plausible. What the Court found plausible were the rights asserted — the right of Palestinians to be protected from genocidal acts — which is a different proposition entirely. She described the confusion between the two as a widespread misreading.[1]

That is the present procedural position.

What follows is opinion, and I mark it as such. As someone who has spent four decades on the documentary record of one genocide and who studies the field formally, on the public record presently available I do not believe the Convention’s specific-intent threshold — the intent to destroy a national, ethnical, racial or religious group as such — has been established. Others disagree. The Court will decide, in its own time, and I am content to be judged by that outcome.

But here is what I want to put to Pretoria, and it is the reason this article exists.

The argument that follows does not depend on that opinion being correct. It does not depend on the case being won or lost. Pretoria cannot escape it by prevailing at The Hague.

Pretoria chose the word

The most consequential language in this affair was not written in Bulawayo. It was written by the Republic of South Africa, and filed with the world’s highest court.

In its 2023 written statement in the advisory proceedings on the Occupied Palestinian Territory, South Africa described self-determination not as a Palestinian claim but as a right of “all peoples in the world.” It characterized the right as peremptory, said it bore an erga omnes character, and stated that all States hold a collective legal interest in its realization and protection.[2]

Five years earlier, in the Chagos proceedings, Pretoria had gone further. It called self-determination a fundamental human right and a jus cogens right. It identified the African Charter on Human and Peoples’ Rights among the instruments in which that right finds its roots. And it told the Court, in a sentence that is now very difficult to contain:

“Without self-determination, decolonization cannot be realized.”[3]

In the same statement South Africa said that self-determination goes hand in hand with territorial integrity, and discussed the realization of the right internally and externally. It described colonialism as an archaic remnant of a world order that considered some peoples more worthy than others. It described itself as an active and strong proponent of fully realizing the decolonization of all peoples.

All peoples. The same universal register appears in two advisory proceedings, five years apart, before a court whose records are public.

Mqondisi Moyo read the pleadings.

The document Pretoria now has to answer

What makes the submission difficult to dismiss is that it argues the other side first.

It places uti possidetis — the inherited-border doctrine — on its own face. It quotes paragraph 75 of South Africa’s Chagos statement, where Pretoria pleaded that regardless of pre-colonial boundaries, the boundaries existing at decolonization should remain. It quotes paragraph 12, where South Africa described a territory conquered by Britain and thereafter validly ceded. It includes Katanga, where the Commission rejected the independence claim, and Cabinda, where no political right to secede was submitted for determination but the Commission nevertheless supplied materially adverse Article 20 reasoning. It includes the African Union’s February 2026 Declaration on Somalia and the Peace and Security Council communiqué behind it. It states expressly that South Africa is not estopped, that Mthwakazi is not automatically entitled to independence, and that historical distinctness alone overcomes none of the adverse authority.

There is no trick in the filing. The counter-argument is sitting in the document, waiting for Pretoria to pick it up.

And that is precisely the difficulty. Because once the adverse authorities are on the table, the question that remains is not whether South Africa can say no. It is what South Africa has to say in order to say no.

The Court confronted the contradiction

In the Frontier Dispute between Burkina Faso and Mali, the ICJ Chamber examined the inherited-border principle that anchors the modern African settlement. At paragraph 25 it said that the principle, “at first sight,” conflicts outright with the right of peoples to self-determination. It then explained the resolution: African States had judiciously consented to respect colonial frontiers, and to take account of that consent in interpreting the principle of self-determination.[4]

At paragraph 26 the Chamber went further. It said that African States selected uti possidetis, among all the classic principles, by deliberate choice.

A deliberate choice is a decision taken by governments for stated reasons of stability, and the governments invoking that choice can reasonably be asked to state how those reasons apply.

That deliberate choice, recorded in the Court’s own judgment, is what makes the Mthwakazi question capable of reasoned legal examination rather than dismissal by slogan. Nobody is obliged by that judgment to reopen an African frontier. But a government invoking inherited borders can reasonably be asked to explain how it reconciles that rule with the universal self-determination propositions it has itself placed on the international record.

Israel prompted a fresh restatement

There is an irony inside the irony, and it belongs in the record.

Israel’s recognition of Somaliland on 26 December 2025 brought Africa’s inherited-border doctrine into unusually sharp contemporary focus.

Within weeks the Commission Chairperson, the Peace and Security Council at ministerial level, and finally the Assembly of Heads of State and Government had formally restated and applied a doctrine whose roots long predate the controversy, reaffirming Article 4(b) of the Constitutive Act and the 1964 Cairo principle. Pretoria supplied its own gloss three days after the recognition: decolonization restores sovereignty; secession dismantles it.

Israel did not cause Africa to invent the rule. The Union has described its position as longstanding and consistent, and it is. What the recognition did was prompt African institutions to state, defend and apply that rule afresh, in writing, at the highest political level, within a single season.

That newly concentrated written record is the instrument now being read against other African frontiers. There is no indication that Addis Ababa or Pretoria intended that consequence. It is the clearest illustration available of the principle this article is named for.

And Ramaphosa supplied the sentence

On 14 August, six days before the filing, President Ramaphosa delivered the SADC Summit public lecture at the University of KwaZulu-Natal. Speaking of the Community’s engagement with Madagascar, Mozambique and the eastern Democratic Republic of Congo, he said: “Our task is not to prescribe outcomes to the people of any Member State. It is to hold open the space within which they may determine their own.”[5]

In the same lecture he said that colonialism did not merely conquer and occupy. It deliberately fragmented the region, and it divided communities.

I do not offer either sentence as a legal concession, and neither does the submission. The President was addressing regional political processes, not the Matabele claim, and he made no determination that Mthwakazi is a people. But a government that says colonialism divided communities, and that its task is to hold open the space in which people determine their own outcomes, has made it harder to dismiss, without explanation, a peaceful request to state the category into which such a claim falls.

Three days later, on 17 August, that President was elected Chairperson of the Southern African Development Community.

There is no cost-free exit

Consider what Pretoria can now do.

It can stand by the universality of its Hague language. Consistency then requires it to state the test by which the same right is identified and satisfied elsewhere, and to apply it.

It can narrow the language and say it was meant only for classic decolonization cases. It should then define the category, and explain why the definition places Western Sahara inside it, Somaliland outside it, and where South Africa says Matabeleland falls.

It can say territorial integrity ends the discussion. But its own pleading says territorial integrity and self-determination operate together, and the Court that upheld the inherited-border principle called the tension between them an apparent contradiction resolved by deliberate choice.

It can say the matter is internal to Zimbabwe and too political for legal treatment. But in the Chagos advisory proceeding South Africa argued that political implications, domestic matters and contentious issues did not, by themselves, prevent the Court from exercising its advisory jurisdiction over the legal question before it.

It can retreat. Governments may change legal positions, and there is no dishonor in it. But every qualification Pretoria writes now to limit those universal propositions when they are invoked in Africa will sit permanently beside the unqualified language it chose when the object of scrutiny was Israel.

Or it can say nothing. The submission anticipates that too. Silence, it states, is not consent, not estoppel and not proof of any legal violation. It creates only a documented record that the Republic was asked to state the rule it applies, and did not.

There is no Mthwakazi victory concealed among those options. There is simply no option that leaves Pretoria’s earlier positions untouched.

Responsibility

None of this is responsibility for Matabeleland’s history. The conquest of 1893 and the killings of 1983 to 1987 long predate this South African government, and nothing in the submission suggests otherwise.

The responsibility is narrower and entirely current.

The Government of South Africa chose to place its legal positions on the international record, first in advisory proceedings and later through contentious litigation. It chose which principles to elevate into written submissions. Its counsel chose the formulations. It chose to tell the world’s highest court that self-determination belongs to all peoples in the world, that it is peremptory, that all States hold a legal interest in it, and that decolonization cannot be realized without it. Those were deliberate decisions by officials acting in the name of the Republic. Their legal and political consequences belong to the government that made them.

A government that spends nearly three years insisting the world must not avert its eyes cannot now complain that other peoples have read its pleadings.

The submission does not threaten Pretoria, and no purpose would be served if it did. Its consequence is documentary. The record now contains a stamped DIRCO receipt for the instrument of 6 August, and preserved email transmissions for the letters of 11, and 12 August — the latter to African Union Chairperson channels and the SADC Secretariat registry. The submission of 20 August adds a single consolidated request for one institutional response. The earlier instruments also place on record that any non-response will be recorded and published with the relevant transmission details.

That is not a threat. It is a calendar.

The principle survived the flight home

South Africa argued for international law capable of crossing borders. It invoked principles in universal terms and insisted that grave legal claims should receive scrutiny even when politically inconvenient.

The reciprocal consequence is that those principles can be invoked elsewhere.

The Mthwakazi filing will not dissolve a single African frontier, and it does not ask to. What Pretoria has changed is subtler and potentially more durable: the ability to treat an inherited border as the end of the inquiry rather than as a rule whose relationship with self-determination may have to be explained.

South Africa may well have a coherent rule that produces its position on Palestine, its position on Chagos, its position on Western Sahara, its position on Somaliland, and its silence on Matabeleland. If it does, Parliament should obtain it, and the Republic should be commended for stating it.

If it does not, then the most consequential unintended consequence of Pretoria’s Hague campaign may not be the Gaza litigation at all.

It may be the doctrine Pretoria now has to live under.

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1. Joan E. Donoghue, former President of the International Court of Justice, interview, BBC HARDtalk, broadcast 25 April 2024. On the pending status and the provisional-measures orders, see ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Case No. 192, https://www.icj-cij.org/case/192
2. ICJ, Written Statement of the Government of the Republic of South Africa, Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, doc. 186-20230725-WRI-14-00-EN, 25 July 2023, paras. 9, 47–48 and 50–51. https://www.icj-cij.org/node/203596
3. ICJ, Written Statement of the Government of the Republic of South Africa, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, doc. 169-20180301-WRI-12-00-EN, 1 March 2018, paras. 4, 6, 9, 12, 55, 60, 63–65 and 75–76. https://www.icj-cij.org/node/105675
4. ICJ, Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, 22 December 1986, I.C.J. Reports 1986, p. 554, paras. 25–26. https://www.icj-cij.org/case/69
5. The Presidency, Public Lecture by President Cyril Ramaphosa on the occasion of the 46th SADC Summit, University of KwaZulu-Natal, Westville Campus, 14 August 2026. https://thepresidency.gov.za/public-lecture-president-cyril-ramaphosa-occasion-46th-sadc-summit-university-kwazulu-natal
6. Mthwakazi Republic Party, Formal Consolidated Submission MRP/SA-IL/2026/01, 20 August 2026, with annexes. https://static-cdn.toi-media.com/blogs/uploads/2026/08/MRP_SA-IL_2026_01_Submission_with_Annexes_2026-08-20.pdf