South Africa’s legal war over Gaza 1Nov09 November 8, 2009
by Imran GardaÂ -Â Aljazeera -Â 1 November 2009
The Goldstone report on last winter’s Gaza war has become something of a fixture in the media since its publication in September.
But for South Africans, it is another investigation carried out by the distinguished judge Richard Goldstone – a commission that exposed the brutality of Apartheid security forces in the early 1990s – that looms large in their minds.
That investigation, which came as South Africa moved towards democracy, gave Goldstone hero status in the country.
Now a group of South African lawyers are confident that his recent Gaza report has paved the way for a legal case that could see uncomfortable questions about the conflict asked much closer to home.
They want to investigate South African citizens who may have fought for the Israeli army during the war on Gaza in December and January, with a view to prosecuting them on South African soil for war crimes and crimes against humanity.
The lawyers are representing two civic organisations, The Media Review Network and the Palestinian Solidarity Alliance. Working from a Johannesburg office, they are building a case known as the Gaza docket which seeks to bring the South African soldiers to justice for their role in the Gaza war.
The lawyers are all Muslims, but deny they are only taking on the case to defend their co-religionists.
“This is not a Muslim-Jew thing. No religion condones the killing of innocents. No religion condones the killing of 1,400 people, or the use of white phosphorus on a civilian population,” says Feroze Boda, the group’s spokesman.
More than rumours
Boda is well-versed in all 3,500 pages of the Gaza docket and says he has presented the evidence to South Africa’s police and National Prosecution Authority.
“There’s always been rumours within the community in South Africa that local South African citizens fight in the IDF, and you would attend mass meetings for example and you would have spokespersons who would say they were interrogated at a border point or in Jerusalem by Israeli soldiers and that soldier spoke Afrikaans,” he said.
But legal cases, especially ones containing such explosive allegations, need to be based on more than hearsay to succeed.
The docket relies heavily on the testimony of UN workers, human rights groups, journalists, and doctors who treated the wounded. The information was gathered by the lawyers on a fact-finding mission to Egypt and Gaza earlier this year.
It features hundreds of pages that detail the aftermath of the use of white phosphorus in urban areas, eyewitness accounts of civilian casualties, and evidence of UN schools hit by Israel during the war. Crucially, the lawyers say the docket also contains evidence that South Africans took part in the fighting.
“We’ve identified about 75 South Africans who we believe served in the IDF at one point or the other,” Boda says.
“We believe that there is prima facae evidence against all of them. We have informants from South African police stations, whose identity we are currently protecting for their safety, who have pinpointed which of their fellow South African police force reservists went to Gaza to fight in the war. We have pictorial evidence as well.”
The lawyers say some of their evidence can be found on public profiles on social networking sites like Facebook.
Al Jazeera logged on to Facebook and quickly found photographs of South Africans proudly showing off their stints fighting for the Israeli army.
One 23-year-old man from Johannesburg had posted photographs that made it clear he had fought in the Gaza war. And he is not alone.
There is a dizzying array of similar photographs on the website, featuring smiling young men striking gladiatorial poses with weapons that, according to Goldstone, belonged to an army committing war crimes in the Gaza Strip.
Beneath the pictures are captions such as: “These are the presents we sent the Gaza residents daily.”
As a signatory to the Rome Statute, South Africa could theoretically arrest and prosecute these individuals for alleged war crimes and crimes against humanity – which is why lawyers like Boda are confident they can set up a war crimes court in South Africa.
They have the backing of another South African legal heavyweight, John Dugard, the former UN special rapporteur for human rights, who is acting as legal counsel to the Gaza docket team.
One of the high profile targets for the lawyers is South African-born Lieutenant Colonel David Benjamin, who served as a legal advisor in the Israeli Military Advocates Corps during the war.
Luis Moreno Ocampo, the International Criminal Court’s chief prosecutor, has signaled that he too is keen to investigate Benjamin, who gave statements to the media in January hinting that he was one of the legal masterminds behind “Operation Cast Lead”. He has since distanced himself from those remarks.
Even if war crimes and crimes against humanity cannot be proven, there is another more obvious charge for South Africans who fought for Israel. A South African law, the Regulation of Foreign Military Assistance Act, bars any citizen from fighting for a foreign force without express government permission.
South Africa’s most influential Jewish organisation, the Jewish Board of Deputies, strongly condemned the Goldstone report and has been quick to dismiss the Gaza docket.
They gave Al Jazeera a brief statement, insisting that they need time to talk to their lawyers. “While we believe that the ‘Gaza docket’ has no merit, we are investigating this further, and will provide more comment as soon as we have done so,” the statement said.
The war on Gaza may have taken place on a tiny, densely populated strip of land thousands of kilometres away, but Goldstone’s involvement in the subsequent investigations has meant that South Africa has already been touched by its repercussions.
If Feroze Boda and the other lawyers have their way, the next act in the drama of the war’s aftermath will be played out in South Africa’s courtrooms – and the Gaza docket will join the Goldstone commission as a landmark case that South Africans will remember for years to come.