By Raphael Ahren
South Africans who served in the IDF said this week they would continue visiting their home country despite attempts to prosecute them there for serving in a foreign army – which South African law prohibits. Many see the effort, spurred by war crimes allegations emanating from Operation Cast Lead and initiated in the main by pro-Palestinian NGOs, as mere "saber-rattling." At the same time, soldiers and activists said those concerned should be careful not publicize evidence of serving in Gaza and to stay informed about new developments.
"Of course I’ll be going back for visits," a 23-year-old IDF combat soldier from Johannesburg told Anglo File last week. "If something big would happen and I’d be in danger, I’m sure my friends and my parents would’ve told me." Advertisement
A former soldier now living in Johannesburg added: "I am not scared about being prosecuted." Fearing repercussions, many former and current South African soldiers declined to be quoted in this article, even if promised anonymity.
Many South Africans are aware of the law forbidding them to serve in foreign armies, yet most paid little attention to it or interpreted it to exclude them from culpability.But after the Palestinian Solidarity Alliance and Media Review Network approached South Africa's National Prosecution Authority a few weeks ago with a list of some 75 South Africans who allegedly fought in Gaza, some community activists sounded the alarm. "We believe there is prima facae evidence against all of them," Feroze Boda, the spokesman of a group of South African lawyers representing the NGOs, told Al Jazeera earlier this month. According to a television report by the Qatar-based network, the lawyers are Muslim but say their religion didn't influence their activism. Rather, it is the prospect of war crimes that has propelled them to make their case with South Africa. 'Not a Muslim- Jewish thing' "This is not a Muslim-Jew thing," said Boda. "No religion condones the killing of 1,400 people, or the use of white phosphorus on a civilian population." Besides testimonies by U.N. staff, human rights professionals, journalists and physicians – as well as photos of soldiers posted on Facebook – the group claims to "have informants from South African police stations… who have pinpointed which of their fellow South African police force reservists went to Gaza to fight in the war," Boda said. A spokesperson for the South African prosecution authority, Mthunzi Mhaga, told Anglo File it referred the matter to the police's Crimes Against the State unit and would not comment on ongoing investigations. But the threats are not only coming from the NGOs. In September, Luis Moreno-Ocampo, a senior prosecutor at the International Criminal Court in The Hague, told Newsweek he was considering an investigation Lt. Col. David Benjamin, a South African-born IDF officer, for war crimes committed during Cast Lead. He said he believed he had enough evidence and could prosecute Benjamin as a citizen of South Africa, which is a signatory of the court's 1998 Rome Statute establishing the international court. No other names were published besides that of Benjamin, who in 1989 moved from Cape Town to Israel and served in the army's Advocate General's international law department. "Assuming the South African authorities have no interest in importing the Israeli-Palestinian conflict into their courts, my estimation is that the likelihood of criminal proceedings against South Africans who have served in the IDF is low," Benjamin told Anglo File last week. "However, since one cannot entirely preclude the possibility of partisan political agendas holding sway over objective good sense, one cannot discount the risk altogether. Accordingly, I would advise soldiers, past and present, to get an update on the situation before traveling back." Benjamin, 43, cut short his last South Africa visit in August, when news of a possible indictment became public. Yet he asserted the war crime claims against him were baseless. "No prosecutors in their right mind would touch a case like mine," the Modi'in resident said. "Hence, although I have no immediate plans to visit South Africa, I see no reason not to do so bar any unexpected developments." A Facebook group called "Unveiling the threat to South Africans in the IDF" urges soldiers not to publicize photos of themselves in uniform. "This is serious, and people should know about it," Isaac Moddel, the group's Australian-born administrator, writes. Responding to an Anglo File query, Elizabeth Smith, charge d'affaires at the South African embassy in Israel, reiterated that all South Africans are subject to the ban on foreign military assistance and the Rome Statute. Regarding a possible indictment of South Africans in the IDF, she asserted her government "will abide by any decision by the National Prosecution Authority." A leader of the body representing South Africans in Israel said he doesn't want to speculate about the legal threat posed by the NGOs. "Telfed believes that it is for the Israeli government and the IDF to advise its citizens on any potential threat of litigation resulting from their service in the army," said the group's vice chairman, Dave Bloom. Telfed leaders are following the story closely and will respond "as and when it is appropriate," he added. Mervyn Smith, who heads the South African Jewish Board of Deputies' legal team, called the effort to prosecute IDF soldiers "a serious threat" but would not predict whether the threat could materialize. Speaking to Anglo File via phone from London, he said: "Whether the South African prosecutors are interested in the case and don't have other work on their hands and whether they consider this an important contravention is for them to decide."
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