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Sayed Dhansay, The Electronic
Intifada, 21 August 2009
The international condemnation over Israel's
winter invasion of Gaza and allegations of war crimes has made it
increasingly uncomfortable, if not difficult, for members of the
Israeli military to travel abroad. A recent incident in South Africa
reveals the power and limitations of attempts to enforce
international law and to hold war criminals accountable.
At the beginning of August, accused international war criminal
Lieutenant Colonel David Benjamin visited South Africa. Benjamin, a
native South African who obtained his law degree from the University
of Cape Town in 1989, was scheduled to address Limmud, a Jewish
cultural and educational organization. Limmud takes the form of an
annual conference, and is widely viewed as a highlight on the local
Jewish calendar as it usually offers a star-studded lineup of South
Africa's most prominent Jewish academics, business leaders and
political heavyweights.
This year however, the conference was mired in controversy due to
Lieutenant Benjamin's participation. After completing his studies in
South Africa, Benjamin moved to Israel, where he has been serving as
a legal advisor to the Israeli military for the past 17 years. Aside
from this being in violation of South Africa's Foreign Military
Assistance Act, he is also credited with being one of the architects
of Israel's winter invasion of Gaza, which killed nearly 1,500
persons.
In a Bloomberg news interview on 22 January, Benjamin is quoted as
stating that "The Gaza campaign was a long time in the works, and we
were intimately involved in the planning. Approval of targets which
can be attacked, methods of warfare ... it has all gone through us."
In the report, Benjamin was described as being part of the "Military
Advocate Corps," which acted as the Israeli army's legal advisor
during the winter onslaught.
Thus, Benjamin is directly implicated in what several mainstream
human rights organizations have called war crimes. He is also
credited with authorizing the use of white phosphorous on civilian
targets in Gaza -- an action deemed a war crime under international
law.
Several local human rights activists, including some members of the
Jewish community, voiced their objection to an accused war criminal
being given a platform at the conference, and pushed for Benjamin's
withdrawal from its program. The organizers of Limmud however
responded that Benjamin would provide a first-hand perspective of
the policy of the Israeli military, including their view of what
happened during the three-week assault dubbed "Operation Cast Lead."
They also countered that well-known Israeli human rights lawyer
Shlomo Zachary would be on the same panel, and that it would be
chaired by prominent South African High Court Judge Dennis Davis,
making it a balanced discussion.
Unsatisfied with the explanation, two local non-governmental
organizations announced legal proceedings against him. A few days
after Benjamin arrived in South Africa, the Media Review Network
(MRN) and Palestine Solidarity Alliance (PSA) announced in a press
conference that they were launching legal proceedings against 70
individuals with South African links who were suspected of
involvement in alleged war crimes committed by Israel in the Gaza
operation.
At the press briefing in Johannesburg, former Intelligence Minister
Ronnie Kasrils, who backed the initiative, stated that "The request
appeals to the authorities to investigate, and if appropriate
prosecute, in South Africa individuals involved in war crimes and
crimes against humanity during Israel's Operation Cast Lead." The
PSA and MRN are listed as the complainants in the affidavit handed
to South Africa's National Prosecuting Authority.
As they are suspects, the names of the 70 individuals listed on the
affidavit have not been released. Benjamin was the only person
named, as he was present in the country at the time. The PSA and MRN
called for his immediate arrest, and their legal teams made three
urgent applications to the National Prosecuting Authority to do so.
The complainants filed the charges under section five of the Rome
Statute of the International Criminal Court, which was domesticated
through South Africa's Criminal Court Act of 2002. The Rome Statute
allows for suspected war criminals of any nationality to be
prosecuted in countries that are signatories to the Statute.
Meanwhile, staff and students of Johannesburg's University of the
Witwatersrand (Wits) organized a peaceful protest on their campus as
the Johannesburg leg of Benjamin's speaking tour was to be held at
the Wits Medical School. After failing to get the university's
vice-chancellor to dissociate the institution from Benjamin and
cancel his talk, students organized a peaceful sit-in to protest his
presence on their campus.
However, on the day of his talk, students who arrived to protest
against Benjamin found themselves denied access to their own campus
by a private security firm. Students who attended the protest allege
that they were harassed and subjected to blatant racial and
religious profiling. Some students report being obstructed from
entering the campus, while many were also intimidated by the private
security guards, and told by university management to "get off
campus immediately or face the consequences."
In a public response to the debacle, the university vice-chancellor
has come out strongly in his personal capacity stating that "anybody
who justifies the Gaza massacre would certainly not be welcome in my
home." Many students believe that while he has spoken out in his
personal capacity, he failed in his official capacity as custodian
of the university to uphold its values which oppose racial profiling
and allow the right of protest.
Due to its incorporation of the Rome Statute into the local judicial
system, South African authorities are legally bound to investigate
suspected war criminals like David Benjamin. Many, however, saw this
process as more of a test of South African foreign policy.
Unsurprisingly, six days after the charges were filed, South African
police informed the complainants that Benjamin would not be
arrested. The legal teams representing the two non-governmental
organizations are still waiting for the police to provide their
reasons for refusing to arrest him.
In the meantime, the PSA is pursuing the case against the remaining
70 individuals, with assistance from South African legal expert
Professor John Dugard, who is the former UN Special Rapporteur on
the Occupied Palestinian Territories. Attorneys for the organization
visited Gaza in January and collected more than 3,500 pages of
evidence, including evidence from Human Rights Watch, that implicate
South Africans in war crimes committed in Gaza.
While it is disappointing that a suspected war criminal could visit
our country with impunity, a precedent has been set. Lieutenant
Colonel David Benjamin and his ilk are now aware that their crimes
will not go unchallenged in South Africa. Though Benjamin managed to
leave the country without facing prosecution this time, he and any
other suspected war criminal will have to think very carefully
before setting foot on South African soil again.
Sayed Dhansay is a South African writer and political activist who
volunteered for the International Solidarity Movement (ISM) in the
Israeli-occupied West Bank in 2006-2007. |
