About 75 South Africans serving in the Israeli Defence Force could face war crimes charges at the International Criminal Court (ICC) if South African authorities decline to prosecute them for involvement in the Gaza conflict.
The Media Review Network and the Palestinian Solidarity Alliance – both based in South Africa – on Tuesday discussed this with ICC Chief Prosecutor Luis Moreno Ocampo in The Hague.
In August the two NGOs asked the South African National Prosecuting Authority (NPA) to investigate charges of crimes against humanity and war crimes against South African citizens who participated in Israel’s offensive in Gaza between December 27, 2008 and January 17, 2009.
About 1 400 people, mostly civilians, were killed in the hostilities.
On Tuesday the two NGOs asked Ocampo to take up the case if the NPA declined to do so.
South Africa is one of only a handful of countries that have domesticated the Rome Statute – which established the ICC – and whose citizens can therefore be prosecuted at home for war crimes committed elsewhere.
Advocate John Dugard, representing the NGOs, handed the ICC a dossier which he says contains evidence that at least 75 South Africans served in the Israeli Defence Force during the Gaza conflict.
But he conceded that, except for one individual, whom he declined to name, there was scant proof that these soldiers actually participated in the fighting.
This was something the NPA – or failing this, the ICC – must establish, he said.
“We discussed proceedings pending before the NPA and the way in which he (Ocampo) could get involved,” Dugard said, describing the meeting as “very useful and helpful”.
According to Anver Suliman, who attended the meeting on behalf of the Media Review Network, the ICC is treating the matter as a “preliminary exploration” and keeping itself up to date in preparation for a possible future prosecution.
Beatrice le Fraper, Ocampo’s spokeswoman, played down the significance of yesterday’s meeting.
She said the information provided would be taken into consideration as part of his ongoing examination to determine whether the court had jurisdiction over alleged war crimes committed in Gaza.
“Our preliminary examination of the Palestinian situation will include submissions from all concerned parties including the presentation today by the two South African NGOs,” she said.
In line with the legal principle of “complementarity” contained in the Rome Statute, the ICC can only prosecute individuals if domestic authorities decline to act.
Dugard suggested the complaint lodged with the NPA was a necessary step to comply with this requirement.
It provided the ICC with an “easier route”, since Israel is not a signatory to the Statute and its citizens are therefore beyond the ICC’s jurisdiction.
He said a South African prosecution would be “first prize”, but stressed that any legal process that “finally prosecuted individuals for war crimes in Gaza” would be welcomed by the group.
Former intelligence minister Ronnie Kasrils caused a stir when he spoke out in support of the NPA application at a media briefing in Johannesburg last month.
South Africans now occupy a central position in the Gaza matter.
Dugard headed the Arab League’s Independent Fact Finding Committee to Gaza earlier this year, which concluded that the Israeli Defence Force committed “serious war crimes and crimes against humanity” during the conflict.
The report stopped just short of accusing the Israeli military of genocide.
Another prominent South African, former Constitutional Court Justice Richard Goldstone, chairs another probe by the United Nations’ Human Rights Council (HRC), which is due to present its report to the UN Security Council soon.
If the NPA goes ahead with the case, it will become the first country outside the region to take legal action against soldiers involved in the Gaza conflict.
It will also become the first country to prosecute its own citizens for war crimes committed elsewhere.