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
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The Palestinians need not only a new leadership, but also a negotiating team and supporting units which do not include anyone who has played a significant role in the failures of the past and failed to make revelations that are equivalent to those being made now. It certainly cannot include individuals who have left the PA or related institutions and are now working for parties that have been part of the problem. Stephen Walt recently argued that not only anyone who has played a role in the peace process while working for the US government is ineligible to provide, now or in the future, their services to resolve this dispute, but he has also argued that peope who worked for 'conceptually'-related stakeholders including the American Task Force for Palestine and many pro-Zionist organizations should also be excluded. If what professor Walt prescribes is good for the US government, I cannot help thinking that the prescription for excluding past failed actors and thinkers must also be the minimum or floor for what is good for the Palestinians. What would make one a past failed actor and thinker needs to be defined now. Certainly, any reasonable definition should also disqualify anyone who has advocated even anodyne conceptions of a one-state solution, much less specious ones. Present and former high- and low-level PA 'loyalists' should certainly be disqualified.
What the PA offered Israel is not very different from the 'conventional' one-state solution. The lack of the right to vote in the PA's offer--it necessarily has to be absent in order to maintain the fiction of having arrived at a two-state solution despite the lack of sovereignty that effectively ensures continued occupation (PA is offering occupation without representation)--is not such a distinguishing or significant factor when one examines the state of affairs that is likely to emerge after a 'conventional' one-state solution is achieved: political and socioeconomic gridlock and unavoidable civil rights and socioeconomic rights struggles due to the economic and geographic stranglehold the former Zionists, elite and commoners, will necessarily have for a few generations at least due to the expropriation of Palestinian land and other forms of unjust enrichment which will be protected by the former Zionist-friendly 'democratic' processes and legal and economic institutions that are almost certainly not going to be changed significantly under the conventional one-state solution. These processes and institutions will likely produce a new Palestinian elite that will share the benefits of governing with much of the former Zionist elite. The appearance of having a meaningful right to vote is all the Palestinians are being offered, unless something is done about the disadvantages and obstacles they and many future generations will face due to the enormous past illegal expropriation, concentration of wealth, and legal and social institutions that will safeguard the Zionist unjust enrichment. The conventional one-state solution is not much better than what the PA or Avigdor Lieberman are offering. What has happened in South Africa and what is happening in Belgium is not very encouraging. I believe that last year Nelson Mandela expressed misgivings about the deal that he worked out and he and certainly others expressed misgiving about whether he had been adequately prepared to reach one.
Whether one wants a one-state solution or a two-state one, one should follow the program described in "An Olive Branch with Thorns" or one almost identical to it. Before one can have a one-state solution one needs to first achieve a two-state solution at least according to the 1967 boundaries, but preferably mostly in accordance with UN Resolution 181. To achieve an equitable one-state solution one first has to get the Zionists to give up what they have taken through aggression, despite their laughter-inducing and silly baseless assertions to the contrary, and to the greatest extent possible vindicate in accordance with the overwhelmingly widely accepted interpretations of international law the violated rights of the Palestinian victims, including the unmitigated right of return and just compensation.
What Condo Rice thinks or the principles one is certain she might espouse to justify not providing the widely accepted remedy for 'bad things that happen to people' are irrelevant considerations under international law as understood by almost all legitimate, objective thinkers. Juan Cole not only pointed out above the real, tangible, and enormous harm done to the Palestinians and that has spanned more than half a century and is ongoing and will affect additional generations until remedied, but also brought up an interesting historical parallel, the Nazi practice of denaturalizing Jews and their efforts to transfer Jews to other countries that preceded their genocidal acts. Many legal highly respected international law scholars including law professor, Francis Boyle, have argued that Israel is guilty of genocide against the Palestinians. The ethnic cleansing and the deliberate and unwitting denaturalization are to some degree the predicates of genocide. In the words of Mahmoud Darwish (I believe he is the original source of the following thought), the Israelis and Zionists did something even worse than making the Palestinian their slave, they made him the slave of others.
On a side note, the resolution opposing Israeli settlements tabled at the UN is most probably not such a good idea if it only includes past US positions on the matter that are most probably not congruent with widely accepted international law principles and if it recommends only a freeze on settlement construction rather than their immediate and unconditional dismantling. The Palestinians and the rest of the world should not be validating US positions that deviate from widely accepted interpretations of international law or fail to take advantage of the opportunity to reaffirm that the the state of affairs in the occupied territories is an ongoing violation that needs to be remedied unconditionally and immediately. Fortunately or unfortunately, Israel cannot make any convincing argument for its continued occupation that is based on security or a state of war considerations. And fortunately, the Palestinians and others can show that Israel is violating Article 49 of the Fourth Geneva Convention despite its and its supporters' baseless assertions to the contrary: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The US State Department has considered and cannot avoid considering Israel as an occupying power, or more accurately, a "belligerent occupant." And boy has Israel been belligerent directly (and indirectly by advocating others fight at least one war on its behalf and promoting a general hostile environment of almost incessant violence and bloodshed for the most specious of (superficially plausible, but actually wrong) reasons)!
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