Would SA arrest top Israeli military commanders?

Gadija Davids, a journalist on Cape Town’s 786 radio station, was travelling as part of the Gaza Freedom Flotilla delivering humanitarian aid in 2010 when her Turkey-registered boat was invaded by Israeli forces.

“The morning of the attack, I heard gunshots, and people calling across the intercom, asking for calm, and for the Israelis not to attack – because the people on board the ship were unarmed,” Davids recalled to the Daily Maverick.

“A few hours later, we were told to go up to one of the upper decks. I saw blood on the walls, bodies wrapped in sheets on the floor. I also saw military boats and helicopters surrounding the ships. Heavily armed Israeli soldiers in balaclavas were on board the ship as well, along with several dogs. The injured civilians were taken off the boat. We were made to sit in the sun with our hands tied with cable ties, as the Israelis redirected the Mavi Marmara [boat] to Ashdod.”

Davids was taken off the boat and “processed” by Israeli officials, whereupon she was taken to an Israeli prison and denied contact with the outside world.

“The South African ambassador to Israel was allowed to see me much later, and the next day we were taken to the airport where Turkish airplanes were waiting to take us back to Turkey,” Davids says.

Ten activists were killed in the attack on the Freedom Flotilla, an episode widely condemned by the international community. After arriving home in South Africa, Davids laid criminal complaints over her treatment with the South African Police Service (SAPS) and the National Prosecuting Authority (NPA) in January 2011. Davids has since travelled to Turkey to give evidence about her experience in a Turkish court, where four Israeli commanders were indicted to answer criminal charges over their involvement in the attack.

On Tuesday, it appeared that Davids’ case had taken a dramatic step forward on home soil.

“Warrants of arrest issued by S Africa against four Israeli commanders”, read a statement issued by South Africa’s pro-Palestinian Boycott, Divestment and Sanctions Movement (BDS). The statement claimed that the Hawks had issued arrest warrants against Rau Ashkenazi, Chief of General Staff; Eliezer Marom, Naval Forces Commander; Avishay Levi, head of Airforce Intelligence, and Amos Yadlin, chief of IDF military intelligence. The involvement of the South African Police Service (SAPS), it explained, followed the complaint laid by Davids in 2011. But when contacted, the Hawks claimed not to know anything about the arrest warrants.

“I have consulted extensively,” Hawks spokesperson Hangwani Mulaudzi told the Daily Maverick. “We are not aware of any warrants of arrests that have been issued.” Mulaudzi said that he had also spoken with colleagues at Interpol, who were similarly unaware of the situation.

Zaakir Mayet, of the Muslim Lawyers Association, explained to Daily Maverick that there had been some confusion over how the matter has been framed. The warrants of arrest for the four Israeli commanders were not issued by South Africa, but by a Turkish court in 2014, Mayet clarified But he said that attorneys for Davids have now received a written undertaking – which he has seen – from SAPS, “indicating they will exercise an arrest” if those commanders enter South Africa. Mayet said that he was not at liberty to disclose the name of the SAPS official who had signed the official letter promising to arrest the Israelis.

Mayet explained that the necessary jurisdiction was in place to execute the arrest because of the involvement of a South African citizen in the matter. Mayet said this was an important victory in terms of the utilisation of South Africa’s ratification of the Rome Statute.

However, mention of the Rome Statute will inevitably spark discussion of South Africa’s failure to arrest Sudanese President Omar al-Bashir on his visit to South Africa earlier this year. The government was criticised for failing to uphold its obligations to international law in that matter; what’s different here?

While stressing she was not familiar with the Davids case, the Institute for Justice and Reconciliation’s Kelly-Jo Bluen told the Daily Maverick that the two matters must be viewed separately. In the al-Bashir matter, Bluen says, “South Africa’s legal position was based on head of state immunity in the context of conflicting obligations. So South Africa’s position was to object to the arrest of al-Bashir on account of a conflict of obligations to the International Criminal Court and the African Union; not on account of an objection to arrest warrants per se.”

In other words, Bluen says, the Davids case would be different because it does not involve heads of state, competing jurisdictions, or an International Criminal Court arrest warrant.

In the past, the Hawks have turned down other requests to issue arrest warrants against prominent figures in the Israel-Palestine conflict. In 2011, for instance, the body declined to obtain a warrant of arrest for former Israeli foreign minister, Tzipi Livni, on the grounds that there was not enough evidence to do so, and the necessary investigation would be too complex.

The claims about the South African agreement to arrest the Israeli commanders came on the same day as Spanish news outlets reported that Israeli Prime Minister Benjamin Netanyahu and seven other top government officials are at risk of arrest if they enter Spain, following a case brought against them over the same Freedom Flotilla attacks.

Even if South Africa has committed to arrest the Israelis upon entry into the country, there is no suggestion that the four commanders have any plans to venture this way. “We don’t have any indication that they will be travelling here any time soon,” admits Mayet. “But we’re not the only country to enforce these warrants.”

Davids says she’s grateful for any indication that her case might be progressing.

“I'm happy that the four years of applications and talks with authorities have led to this outcome,” she says. DM

Photo: Thousands of Turkish protestors welcome the Mavi Marmara passenger ship during its return ceremony in Istanbul after Israel's deadly raid on an aid flotilla bound for Gaza Strip on 31 May, in Istanbul, Turkey on 26 December 2010. EPA/TOLGA BOZOGLU

Read more:

• Interrogation the worst – Davids, on News24.