By Max du Plessis
(source: The Cape Times – S.A)
There has been important and courageous work done by South African lawyers in response to Operation Cast Lead and the violations committed by Israel and Hamas. Three individuals stand out: Navi Pillay, John Dugard and Richard Goldstone.
Pillay was the South African judge on the International Criminal Court (ICC) before taking up her position as United Nations High Commissioner for Human Rights. She was one of the first leading figures to speak out about the violations during the conflict, and was quoted by Reuters at the time as being "concerned with violations of international law", and suggesting that certain reported incidents of the IDF should "be investigated because they display elements of what could constitute war crimes".
At a special session of the UN Human Rights Council held on the Gaza crisis, she publicly, demanded an independent investigation into whether war crimes have been committed, and called for accountability for any violations of international law by either Israel or Hamas. Her call has not been ignored. The Arab League of States established in February 2009 the Independent Fact Finding Committee on Gaza. The committee was tasked with investigating and reporting on rights violations during Operation Cast Lead and collecting information for the commission of international crimes. The committee comprised a number of independent experts. Prof Dugard – South Africa's leading international lawyer – was the chairman of the committee. In compiling its report for the Arab League, Dugard's committee spent from February 22-27 in Gaza. The committee met with a wide range of people and visited the sites of much of the destruction. Unfortunately the committee received no response from Israel to its requests for co-operation. The committee found that the IDF was inter alia responsible for the war crime of indiscriminate and disproportionate attacks on civilians. Most recently Goldstone – previously a justice of the Constitutional Court in this country and for a number of years the chief UN prosecutor at the international criminal tribunals for the former Yugoslavia and Rwanda – was appointed head of a United Nations Human Rights Council fact-finding mission to probe rights violations during the conflict. Like the Arab League's committee, which had a mandate to investigate the crimes committed by both sides during the conflict, Goldstone insisted that his committee would investigate all violations that might have been committed at any time and by any side. It is surely not insignificant that Goldstone is himself Jewish. As he put it at a press conference in Geneva: "it certainly came to me as quite a shock as a Jew to be invited by the president to head this mission. I've taken a deep interest in Israel, in what happens in Israel, and I have been associated with organisations that have worked in Israel… Let me assure you it was not an easy decision. It took many days and some sleepless nights in mulling the invitation, but I decided to accept it because of my deep concern for peace in the Middle East, and my deep concern for victims in all sides in the Middle East." Goldstone's team released their 574-page report on September 15. His team too, was denied any support or co-operation from Israel. The report concludes both Israel and Palestine appear to have committed war crimes that may amount to crimes against humanity during Operation Cast Lead. The report also found that Israel failed to look into alleged misconduct by its soldiers and used white phosphorous munitions in violation of international law. These individuals – Pillay, Dugard and Goldstone – each in their own separate ways are drawing attention to unlawful actions of Israel and those of Hamas. They are doing so in a manner that is both brave and critically important. Brave because it is difficult to speak truth to power in relation to Israel. Consider the bile that has been directed at Goldstone following his report. The rhetoric is vicious, and the slurs reckless and hurtful. He is in good company: Archbishop Desmond Tutu no less has been accused of "anti-Jewish and anti-Israel slurs" by the Zionist Organisation of America and the Anti-Defamation League referred to him as an "Israel basher". Similar froth has been directed Dugard's way. Because of their stature in the international fraternity, it is critically important that Dugard, Pillay, Goldstone and others speak these truths. The victims of the crimes deserve their support. And their work reminds Africans that international criminal law is not some collection of rules used only by the West against Africans – a complaint currently floated by the African Union in response to the ICC's arrest warrant for President Omar al-Bashir of Sudan – but is a set of norms which apply universally. It is also critically important for them to speak these truths because what they say may contribute towards accountability. The difficulty is that the UN is gridlocked when it comes to the Israel/Palestinian conflict. So long as the US wields the veto to protect Israel, the UN will fail in its role of maintaining international peace in Israel-Palestine. But that gridlock is why the work of people like Dugard, Pillay and Goldstone is so essential. It reminds the world there must be – and are – other avenues of response. What took place in Gaza raises pertinently the spectre of international criminal law. In early October 2008 Major General Gadi Eisenkot, former Israeli military secretary, is reported to have said that the IDF "will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction". The issue is therefore not of indiscriminate use of firepower. Rather – the reports by Dugard and Goldstone make it clear – the issue is the quite discriminating use as a matter of policy in populated areas. Both Dugard and Goldstone have suggested that states exercise universal jurisdiction over those responsible for war crimes in Operation Cast Lead. There are foreign examples. On September 1, 2005 Major General Doron Almog spent some time in his aircraft seat at Heathrow before being forced to return on the same aircraft to Israel. He had been tipped off that he was facing arrest by British police after a decision by a senior District Judge to issue a warrant for his arrest on suspicion of committing war crimes, a criminal offence in the UK. It is telling that the warrant was issued in relation to Almog's role in four war crimes scenarios while he was commander of the Gaza strip from 2000 to 2003. And on Tuesday last week, British lawyers for 16 Palestinians sought to obtain an international arrest warrant for the Israeli defence minister, Ehud Barak, in a London court over alleged war crimes in the Gaza Strip. The accusations against Barak are based, in part, on Goldstone's report. Reaction in Israel reveals Israeli citizens are already anxious about being apprehended during foreign travel. One law commentator cautioned in the Israeli press that "from now on, not only soldiers should be careful when they travel abroad, but also ministers and legal advisers". As these examples demonstrate, universal jurisdiction might be exercised by states under their domestic law to bring alleged war criminals before their domestic courts. What about South Africa? South Africa has incorporated the Rome Statute of the ICC into its domestic law and has in the process accorded itself expansive universal jurisdiction. South African courts have jurisdiction over our nationals, and effective universal jurisdiction over any person who commits international crimes even if that person is a non-national and even if the person committed the crime abroad, whether it be Zimbabwe or Gaza. The only condition is that the person makes himself present in our territory after committing the crime. On August 3, 2009 two NGOs used South Africa's ICC Act to present a dossier to the South African prosecuting authorities. The dossier requests the investigation in South Africa of foreign nationals and South Africans allegedly implicated in war crimes during Operation Cast Lead. In parallel with their South African request, the complainants handed the dossier over to the ICC's prosecutor in early September. The prosecutor is studying the dossier. International criminal law is thus slowly taking shape; its contours becoming visible, and its presence being slowly felt. Israeli soldiers know of its possibilities, even if they have not yet felt its sting. The work done by Pillay, Dugard and Goldstone is engaged work, and it is courageous work. Judge Johann Kriegler recently had occasion to say there are moments when one chooses to challenge conduct, or criticise behaviour, in the knowledge that you will be attacked, even vilified. That was certainly true during apartheid. It is evident in the worrying and wild name-calling and racial rhetoric increasingly characteristic of post-apartheid politics. And it is true also in respect of Israel's response to any criticisms of its conduct in Gaza. Moral courage demands people of principle and conviction must do what they believe is right. Pillay, Dugard and Goldstone have done so notwithstanding the politics of deflection and denial that are by now symbolic of the Israel/Palestinian conflict. Protection comes, as Judge Kriegler so movingly put it, by wrapping oneself in the blanket of duty. It is a blanket that has served them well in the ongoing struggle for international human rights. Max du Plessis is Associate Professor of Law, UKZN, Senior Research Associate, ISS and a Durban advocate. This is an edited extract from a speech given at Wits in honour of Prof Dugard on October 3.
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