Three and a half years have passed since Archbishop Desmond Tutu refused to share a platform with Tony Blair, the former British prime minister. The veteran anti-apartheid campaigner believed that Blair’s actions over the war in Iraq were both “morally indefensible” and criminally culpable. Apart from the dreadful consequences of the war, Tutu’s action drew attention to the shocking failures of the international criminal justice system. South Africa’s Directorate of the Priority Crimes Investigation Unit (DPCIU) took a major step last week to address this shortcoming by issuing warrants for the arrest of four senior Israeli military officers for their role in the attack on the Freedom Flotilla ships which were sailing to Gaza from Turkey and Greece in 2010.
Palestinian victims of Israeli crimes have for a very long time sought, unsuccessfully, to activate the principle of universal jurisdiction in order to prosecute suspects in European courts. In almost every instance they have run up against the brick walls of “special immunity” granted to the individuals concerned by complicit governments. This month’s decision by a Spanish court to issue a warrant for the arrest of Benjamin Netanyahu and seven other Israeli officials was at the very least an attempt to reverse that trend.
Naturally, the Spanish and South African moves have infuriated the Israeli government, which described them as “provocative” and “ugly”. With typical arrogance, the Israeli prime minister ordered his foreign minister to work to quash the warrants, with little regard for the jurisdiction of the countries involved.
In South Africa, the arrest warrants followed a four year legal battle by Gadija Davids, who was on board the Mavi Marmara when it was attacked by Israeli commandos in international waters, some 150 km from Gaza. Davids alleges that she was kidnapped and assaulted by Israeli commandos before being imprisoned in Israel. It was on this basis she made a legal complaint in 2011.
In the absence of any serious attempt by the International Criminal Court to investigate and prosecute Israeli officials for international crimes the burden of responsibility has fallen on individual countries. South Africa has thus taken the lead to uphold the rule of law and protect its citizens.
Although the ICC currently has the power to investigate and prosecute war crimes, crimes against humanity and genocide, its powers are limited to crimes committed in the territories of, or by nationals of, the countries that have ratified its statute. Israel has not ratified the Rome Treaty and is unlikely to do so. After all, that would threaten its long-standing custom of acting with impunity. If ordered by the Security Council, however, the ICC will act even against a country that did not ratify the treaty. While it was such a resolution that was used to force through the indictment of Sudan’s President Omar Al-Bashir, it is almost impossible to believe that the same would happen against Israeli officials given the US veto in the Security Council.
As its stands the arrest of Israeli suspects is not imminent. However, the upshot of the arrest warrants is that their freedom to travel may be severely curtailed. To use the words of Gadija Davids, they are now “fugitives from justice responsible to answer for crimes that were committed on the high seas.” Furthermore, they will be forced to think twice before they resort to such indiscriminate and disproportionate use of force in future.
Israeli officials have every reason to be concerned. Their worst nightmare is if the South African move sets a precedent for other African states to follow suit. This is not far-fetched. The African Union has in recent years been very critical of the ICC and has adopted a number of resolutions confirming this. The vast majority of cases which the ICC is currently investigating are related to crimes committed in Africa, and there were crimes. The problem, though, is that Africans see themselves as being singled out for prosecution while other war crimes suspects, such as Israelis, enjoy immunity.
In the same manner that Israel is quick to act on behalf of its citizens as of right, so too will African countries like South Africa be compelled to act to protect the rights of their citizens. Given South Africa’s current chairmanship of the African Union and its political and moral authority on the continent the net is expected to close ever tighter around those Israelis suspected of international crimes. A large number of African states are members of the ICC; its abject failure has left them with no other choice but to utilise domestic channels to pursue universal justice, regardless of the nationality of the alleged perpetrators.