By Has South Africa joined the United States of America and European countries in providing Israel with "geopolitical insulation"? This question arises against the backdrop of an intense week during which international media attention was focused on whether a senior Israeli politician faced the prospect of being arrested upon her travel to South Africa. It also arises because of a perception that the visit by Tzipi Livni had been planned months ago and would only proceed without hitch if the Pretoria government had given it a green light.
The (now cancelled) visit by Israel's leader of the opposition and former foreign minister led to charges for war crimes and crimes against humanity being laid against Livni before the National Director of Public Prosecutions. This is unprecedented in South African history and presents numerous challenges to the judiciary of the country.
South Africa averted an awkward predicament a few months ago with the cancellation of a visit by Sudan's President Omar Bashir, who stands charged by the International Criminal Court for war crimes. If Bashir had landed in South Africa, the government would have been obliged to arrest him.
There was a huge outcry by civil rights organisations when South Africa denied a visa to the Dalai Lama, fearing that during his visit he would expose China's human rights abuses in Tibet. In that case, trade and economic considerations outweighed concern over China's human rights abuses.
Britain, like South Africa a signatory to the Rome Statute of the International Criminal Court, acted to arrest a retired Israeli general, Doron Almog in 2005. He avoided arrest by returning to Israel without leaving the plane that had landed him in London after he was tipped off that an arrest warrant had been issued for him. In September 2009, British activists sought to have Israel's Defence Minister Ehud Barak arrested over his role in the Gaza war, but a court denied the request on the grounds of diplomatic immunity. The Zionist state's Strategic Affairs Minister, Moshe Ya'alon, was also advised by a special inter-departmental team working with ministers to pull out of a planned trip to the UK; then Livni cancelled her trip to Britain for fear of arrest later in the same year. Shamefully, the British government is now changing the law on universal jurisdiction to allow Israelis accused of war crimes to visit Britain without fear of arrest, the power for which will now lie with a political appointee instead of a local magistrate.
It was the ratification of the Rome Statute in July 1998 that established for the first time a permanent criminal court for all persons in any country guilty of the most heinous crimes. This court was not limited by the diplomatic immunity or special status of these individuals no matter what their stature was and was not limited to the nation in which the perpetrator lived, even if his country of domicile was not a party to the agreement. The statute came into force in July 2002 when the ICC was established to try individuals for crimes relating to genocide, crimes of aggression, crimes against humanity and war crimes. The Rome Statute is linked explicitly to the Fourth Geneva Convention relating to its definition and application of the term "war crimes". The Geneva Convention in itself was also ratified to counter the horrors witnessed during the World Wars, arresting and prosecuting Nazi war criminals anywhere in the world.
The UN's Goldstone Report established very serious breaches of the Fourth Geneva Convention by the Israel Defence Forces and the Israeli government during so-called "Operation Cast Lead" in Gaza in late 2008-early 2009.
"The conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killing and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility," Goldstone reported. " During the first four minutes of Israel's devastating winter assault on the Gaza Strip, launched 27 December 2008, over 60 warplanes struck 50 targets, ultimately killing and injuring hundreds by midnight."
Further, "Among 70 targets hit on 1 January 2009 was a police command centre in Rafah. No one was hurt in that airstrike, but 248 members of the Gaza police were killed during Israel's overall assault."
UN Special Rapporteur Professor Richard Falk gave a briefing on universal jurisdiction following Tzipi Livni's cancellation of her visit to Britain. It was the weakness of international institutions that necessitated the idea of universal jurisdiction in upholding international criminal law. "The idea of Nuremberg after World War Two," said Prof. Falk, "was that crimes against the peace, crimes against humanity and war crimes are also offences against the whole of international society. There is an interest on the part of all states in trying to implement those norms of international criminal law."
If the ICC were to apply the law only to prosecute Charles Taylor (Liberia) or Omar Bashir (Sudan), Saddam Hussein (Iraq) or Slobodan Milosovic (Slovenia), he added, "then you discredit, in a fundamental way, the rule of law which really does depend on equals being treated equally."
In the Israel-Palestine context, continued the UN Rapporteur, "universal jurisdiction is part of the struggle against impunity for the Israeli military and the country's political leaders. That impunity has been possible both because Israel itself doesn't impose accountability on those who perpetrate violations of international criminal law and because the US, and to some extent European countries, have given a geopolitical insulation to Israel in relation to its responsibilities as a sovereign state."
Part of this issue of impunity and accountability was also raised by the Goldstone Report and by the international law panel appointed after the Mavi Marmara flotilla incident of 31 May 2010; all of these issues converge to suggest that at this time the most effective way of implementing international law is both through the activism of civil society and through national legal institutions.
The Rome Statute says that all nations "shall be under the obligation to search for persons alleged to have committed or to have ordered to be committed (war crimes) and shall bring such persons regardless of their nationality before its own courts".
There are many credible reports and organisations that attest to the fact that war crimes and crimes against humanity have been committed against the Palestinians. If these criminals are to be allowed to enter South Africa without fear of prosecution, then we will be indirectly complicit in perpetuating other atrocities comparable to Lebanon, Gaza and the Mavi Marmara.
Dr Firoz Osman is the secretary-general of the Media Review Network, an advocacy group based in Tshwane, Republic of South Africa