The prospect of prosecutions for grave international crimes is an important weapon in the arsenal of human rights protections. The past two decades have seen important developments in this regard. Today the actions of states and their military forces are regulated by international criminal law, and although not widely recognised, several South Africans have played an instrumental role in developing these criminal justice responses.
It is through the lens of international criminal law that one might view the Gaza conflict and the violations committed by Israel and Hamas during Operation Cast Lead in December 2008 and January 2009. In the name of human rights, and on behalf of victims on both sides, there is a need for an objective account of these violations. There has sadly been too little attention by South African media on the work done by South Africans in response to Operation Cast Lead. Three individuals stand out: Navi Pillay, John Dugard and Richard Goldstone.
Judge Navi Pillay was the South African Judge on the International Criminal Court and is currently United Nations High Commissioner for Human Rights. She was one of the first leading figures to speak out about the violations during the Gaza conflict. At a special session of the UN Human Rights Council held on the crisis, she publically demanded an independent investigation into whether war crimes have been committed, and called for accountability for any violations of international law.
Her call was not ignored. In February 2009 the Arab League of States established the Independent Fact Finding Committee on Gaza. The Committee was tasked with investigating and reporting on rights violations during Operation Cast Lead and collecting information on the responsibility for the commission of international crimes. Professor John Dugard - one of South Africa's leading international lawyers - was the chairperson of the Committee which met with a wide range of persons and visited the sites of much of the destruction. In its detailed report, the Committee found that the Israeli Defence Force (IDF) was inter alia responsible for the war crime of indiscriminate and disproportionate attacks on civilians. It also found that Israel had committed crimes against humanity and that the IDF was responsible for killing, exterminating and causing serious bodily harm to Palestinians in Gaza.
Most recently Judge Richard Goldstone - previously a judge of the Constitutional Court in this country and for a number of years the Chief UN Prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda - was appointed Head of a United Nations Human Rights Council fact-finding mission to probe rights violations during the recent Gaza conflict. Like the Arab League's Committee, Goldstone insisted that his Committee would investigate all violations that might have been committed at any time and by any side.
The Goldstone team's report released on 15 September concludes that both Israel and Palestine appear to have committed war crimes that may amount to crimes against humanity during Operation Cast Lead. The Report also found that Israel failed to look into alleged misconduct by its soldiers and used white phosphorous in violation of international law.
These individuals - Pillay, Dugard and Goldstone - each in their own separate ways have or are drawing attention to unlawful actions of Israel and those of Hamas. They are doing so in a manner that is both brave and critically important. Brave because it is difficult to speak truth to power in relation to Israel. With the vicious rhetoric that has been directed at Goldstone following his report, he finds himself in good company: Archbishop Desmond Tutu, a moral leader of world repute, has been accused of "anti-Jewish and anti-Israel slurs" by the Zionist Organization of America and the Anti-Defamation League referred to him as an "Israel basher." Similar vitriol has been directed Dugard's way.
Because of their stature in the international fraternity, it is important that Dugard, Pillay, Goldstone and others speak these truths because the victims of the crimes deserve their support. It also reminds Africans that international criminal law is not some collection of rules used only by the West against Africans - a complaint currently floated by the African Union in response to the ICC's arrest warrant for President Omar al-Bashir of Sudan - but is a set of norms which apply universally and which may be called into service wherever atrocities occur.
All these efforts share one overarching aim: to hold responsible those who violate the laws of war. They are built on the premise that abusive fighters and their commanders can face justice, even if their government or ruling authority is not willing to take that step.
Both Dugard and Goldstone have also suggested that states exercise universal jurisdiction over those responsible for war crimes to bring alleged war criminals before their domestic courts. South Africa's domestic ICC Act provides our courts with jurisdiction over our nationals, and effective universal jurisdiction over any person who commits a war crime - or crime against humanity or genocide - even if that person is a non-national and the crime is committed abroad. The only condition is that the person makes himself present in our territory after committing the crime. Prosecutors in South Africa have been forced to consider two real examples of this application of universal jurisdiction in the past 12 months: the first dealt with alleged international crimes committed in Zimbabwe; the second with South Africans allegedly implicated in war crimes and crimes against humanity during Operation Cast Lead.
The work done by Pillay, Dugard and Goldstone is courageous. Moral courage demands that people of principle and conviction must do what they believe is right. They have done so notwithstanding the predictable backlash, and the politics of deflection and denial that are by now symbolic of the Israel/Palestinian conflict. Their protection, as Judge Johann Kriegler has recently put it, is to wrap themselves in the blanket of duty. It is a blanket that has served them well in the ongoing struggle for international human rights.
Written by: Max du Plessis,Senior Research Associate, International Crime in Africa Programme, ISS Pretoria and Associate Professor, University of KwaZulu-Natal, Durban