ICC could help to hold Israel to account

Open Shuhada Street is a secular South African organisation that advocates for the rights of Palestinians seeking freedom from the unlawful occupation of Palestine by Israel. It was formed after a visit by human rights activists to the region, who observed the brutality of the occupation and saw it as being worse than apartheid.

Israel’s sophisticated military and legal machinery has systematically dispossessed Palestinians of their land, dignity and human rights. Israel’s war crimes in Gaza have been well documented by international human rights agencies and many other South Africa delegations have witnessed Israel’s apartheid machinery in action.

South Africa’s first democratic government went to great lengths to ensure international solidarity and to support legal instruments against war crimes. Dullah Omar, a renowned anti-apartheid activist and minister in Nelson Mandela’s Cabinet, championed the way for South Africa to act against international war crimes. He and others in the ANC did so because, had South Africa received greater protection from the international community, the systemic abuse and violations of the rights of black South Africans under the apartheid government would have been prevented and the regime would have met its demise sooner.

Fast forward to 2015 with Palestinian recognition by the United Nations, and in becoming a signatory to the Rome Statute. Palestinians found new instruments to protect their rights and hold those who commit human rights violations to account. Organisations in Palestine submitted a preliminary complaint to the International Criminal Court (ICC) to investigate war crimes committed by the state of Israel against the people of Gaza. The ICC remains probably the only global institution that has criminal prosecution jurisdiction to investigate and prosecute war crimes committed against the Palestinians.

In a twist of irony, when news broke that the ANC government had initiated a process to withdraw from the ICC because it believed the court favoured “Western agendas” and only prosecuted Africans, the Democratic Alliance sought a court order to stop the process.

The government’s position was prompted by a desire to protect Sudan’s Omar al-Bashir, who is wanted for war crimes in Darfur.

This week South Africa revoked its withdrawal from the ICC after the high court ruled that the move was unconstitutional.

This is a positive development and allows us time to interrogate the role of our government in preserving international human rights for various peoples.

The flaws of the ICC are patently obvious, one being its inability to prosecute nonsignatories such as the United States, United Kingdom and Israel, except where such crimes are committed in signatory countries.

In January, a nonbinding AU resolution called for members to withdraw from the ICC. Reform of the ICC is critical while we continue to build the African Union and the African Court to serve such a purpose on our continent.

Our unique history of apartheid gives us a moral authority to call out crimes against humanity. We can only do so by remaining in the ICC.

Recently, ICC prosecutor Fatou Bensouda of The Gambia visited Israel and Palestine to compile her preliminary report on Israel’s 2014 war crimes committed during “Operation Protective Edge”, during which it is estimated that Israeli forces killed more than 1 540 Palestinian civilians in 51 days and displaced hundreds of thousands. This remains the only hope for justice for hundreds of thousands of Palestinian victims.

Palestinian groups such as Al-Haq, the Al-Mezan Centre for Human Rights, Aldameer and the Palestinian Centre for Human Rights have used the ICC provisions, however imperfect, to hold Israel to account.

This request includes testimonies from people in Gaza, who recorded such violations:

“On 20 August 2014 at 04.45am, Israel attacked our home in Deir al-Balah while my family was fast asleep. My son and two stepsons were killed in the attack, as well as my nine-months’ pregnant daughter-in-law and her three children. Our family will never again be complete, and our house is in ruins. I hope that the ICC can acknowledge the crimes that we endured and punish those that deprived us of our loved ones.”

These organisations have also included details of “murder, persecution, torture and other inhumane acts as well as intentional attacks on civilian persons and objects and the extensive destruction not justified by military necessity” and they have themselves asked the “ICC to break the cycle of impunity”.

South Africa can only assist the ICC and Palestinians in this if we remain a signatory. We have a legal duty under our Constitution, and an ethical one, given our dark apartheid past, to make sure our government plays a role to protect the most vulnerable in the world.

The fact that the US, the UK and Israel have refused to join the ICC and face war-crimes prosecution is not a good enough reason for our government to withdraw from the ICC at a moment when there is great danger in the world for those marginalised by military might and power.

In the words of Dullah Omar, let us provide the “reaffirmation of South Africa’s commitment to participating in the world’s effort at eradicating and punishing the worst forms of cruel inhuman conduct imaginable”.

Shuaib Manjra serves on the executive committee of Open Shuhada Street, a Palestinian advocacy group

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