S. Africa: War crime suspects must think twice

War crime suspect Lt. Col. David Benjamin is thought to be behind Israel’s use of white phosphorous against Palestinian civilians in Gaza. (Wissam Nassar/MaanImages)

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.