War Crimes in Focus
by Shafiq Morton
(source: Voice of the Cape-Online)
When Human Rights and AIDS activist, Zackie Achmat, fingered South African-born Israeli Defence Force legal adviser, Lieutenant Colonel David Benjamin, on Facebook in late July for his role ‘in being an architect of war on Palestinian people’ the national Sunday Times picked up on it and ran with the story.
Lieutenant Benjamin, who was capped with a law degree at the University of Cape Town before leaving on aliya for Israel in 1989, had been scheduled to address Limmud – a Jewish cultural organisation – about Israeli Defence Force policies on Gaza and the Occupied Territories in Cape Town, Johannesburg and Durban.
Zackie Achmat, calling on South African Jews who supported ‘democracy, freedom and justice for Palestinians’, had pushed for a withdrawal from the programme, one of the most popular on the local Jewish calendar. In the same Sunday Times story, award-winning cartoonist Jonathan Shapiro had expressed his disquiet to the reporter about a person such as Lieutenant Benjamin attending the Limmud conference.
The response of Limmud’s organisers was that it believed Lieutenant Colonel David Benjamin would provide a first-hand perspective of IDF policy. They added that the well-known Israeli human rights lawyer, Shlomo Zachary, would be on the same panel – one that would have Judge Dennis Davis (another human rights advocate) as its chair.
The South African pro-Israeli blog site, It’s Almost Supernatural, also responded to Achmat’s call, accusing him of sensationalism and being unaware that Lieutenant Benjamin (who served as an adviser in the Gaza Strip from 2001-2005) had been ‘instrumental in having Israel withdraw from Gaza’.
Surely, the blogger asked, Achmat was denying a chance for debate – as opposed to painting the Israeli-Palestinian conflict in black-and-white? Whether it was a case of bad timing or not is difficult to say, but no sooner had Lieutenant Benjamin stepped on South African soil, than he found himself defending allegations of war crimes.
For in the first week of August former Intelligence Minister, Ronnie Kasrils, stepped on to the podium in a chilly Johannesburg for a press conference on human rights in Palestine. It would announce the filing of charges in South Africa against suspects suspected of war crimes and crimes against humanity in Gaza’s Operation Cast Lead. Based on the Rome Statute of 2002 and South Africa’s Criminal Court Act 27 of the same year, Kasrils announced that there was ‘compelling and comprehensive evidence’ to justify the criminal investigation of certain individuals, local and foreign.
What made these alleged crimes of particular concern to South Africa, Kasrils said, was that they had been committed under the ambit of apartheid and colonialism, both specifically mentioned as crimes against humanity in the statute. According to Kasrils, the individuals to be cited fell on the wrong side of this legislation, and had to be indicted.
He added that the South African Human Sciences Research Council had released findings – based on an international fifteen month research project – that Israel systematically practiced both colonialism and apartheid in the Occupied Palestinian Territories.
It was then that the former Minister dropped his bombshell, saying that an urgent and relevant aspect of the request – formulated by local NGO’s, the Palestinian Solidarity Alliance and the Media Review Network – was the immediate investigation of Lieutenant Benjamin. The request covered three key areas: the issue of war crimes, the crime of apartheid and the question of foreign individuals and local ones (holding dual citizenship and serving in the IDF) being involved in war crimes.
To this effect, representations had been made to the National Director of Public Prosecutions, the Directorate for Priority Crimes Investigation and six organs of state, including the office of the President, the Ministry of Justice and the Commissioner of Police.
“The request appeals to the authorities to investigate and if appropriate, [to] prosecute in South Africa individuals involved in war crimes and crimes against humanity during Israel’s Cast Lead,” Kasrils said. He also announced that the South African NGO initiative would retain the services of Professor John Dugard (former UN special rapporteur on human rights in the Occupied Territories) and Professor Max du Plessis (Associate professor of Law at the University of Kwa-Zulu Natal and an expert on the Rome Statute).
Two days after the press conference University of Johannesburg academic, Professor Farid Esack, and Palestine Solidarity Committee members laid formal charges against Lieutenant Benjamin at Brixton police station. According to a PSC spokesperson, Salim Vally, Benjamin had been credited with giving the Israeli army the go-ahead for the use of white phosphorous – its use in civilian areas illegal under international law and banned by the Geneva Convention – in its attacks against Gaza in December last year.
Vally pointed to a Bloomberg News report of 22 January, in which Lieutenant Benjamin had been quoted. The Bloomberg News story – which focused on intensive Israeli hasbara surrounding Operation Cast Lead in which lawyers, text messages and 250, 000 leaflets had been used during hostilities – described what measures the IDF claimed it had taken to avoid civilian casualties:
“The Gaza campaign was a long time in the works, and we were intimately involved in the planning,” it quoted Lieutenant Colonel David Benjamin. He was described as being a member of the “Military Advocate Corps”, which had acted as the army’s legal adviser during Operation Cast Lead. “Approval of targets which can be attacked, methods of warfare…it has all gone though us,” continued Lieutenant Benjamin to the reporter, Gwen Ackerman, in what has become, for many human rights activists, a hugely incriminating statement.
When approached by VOC for comment, Professor Farid Esack said the charges being laid against Benjamin were momentous not just because of South Africa’s understanding of the crime of apartheid, but because it re-affirmed the values those in the anti-apartheid struggle had fought for.
He was, nonetheless, sceptical that the South African government would respond to the charges in a positive manner. “By this I mean taking action against Israel, a willingness to engage in divestment or to seriously further this prosecution,” said Professor Esack. “However, we can place a good bit of hope in the South African legal system, our constitutional dispensation and our broader human rights movement that is very much in place here.” He did agree that it was significant the Palestinian conflict was progressing beyond slogans and rhetoric to specific actions. “This is an attempt to hold Israel accountable, so long shielded by the skirts of the United States,” he said.
Professor Esack concluded by saying that whether the legal action itself was successful or not, the point had been made that South Africans could not just go off and fight in morally questionable conflicts, either as ideologues or mercenaries.There was also the wonderful idea that South Africa was not going to be safe haven for war criminals who would otherwise act with impunity in other parts of the world. “There is accountability, and I think that is the best part of the message,” he said.