1. Gaza Docket
A case known as the Gaza docket seeks to bring the South African soldiers to justice for their role in the Gaza war. The lawyers are all Muslims, but deny they are only taking on the case to defend their co-religionists.”This is not a Muslim-Jew thing. No religion condones the killing of innocents. No religion condones the killing of 1,400 people, or the use of white phosphorus on a civilian population.
The 3,500 pages of the Gaza docket have been presented as evidence to South Africa’s police, South Africa Police Services (SAPS), and National Prosecution Authority (NPA).
The docket relies heavily on the testimony of UN workers, human rights groups, journalists, and doctors who treated the wounded. The information was gathered by the lawyers on a fact-finding mission to Egypt and Gaza earlier this year. It features hundreds of pages that detail the aftermath of the use of white phosphorus in urban areas, eyewitness accounts of civilian casualties, and evidence of UN schools hit by Israel during the war. Crucially, the docket also contains evidence that South Africans took part in the fighting.
Compiled By: Muslim Lawyers Association, Media Review Network & Palestine Solidarity Alliance
Current Status: Considering review stage
2. Mavi Marmara – The Case of Gadija Davids
Gadija Davids, a South African citizen and journalist, was on board the Mavi Marmara Freedom Flotilla when the IDF raided the boat after Operation Cast Lead. The Flotilla passengers were kidnapped, their personal belongings stolen, the humanitarian cargo pirated by the Israeli Navy when the Flotilla was redirected and ordered to dock at the Port of Ashdod.
From the testimony heard in the Turkish Courts many passengers were physically assaulted, tortured and inhumanely treated. This constitutes crimes against humanity. These egregious offences are all punishable under international law.
Many lawyers representing victims from various jurisdictions have worked tirelessly with the IHH Relief Organisation in Turkey. This organisation was at the time delivering the aid to the Gaza Strip. It utilised and implemented the principles of universal jurisdiction to investigate Israeli war criminals over this attack.
Over the few years that this case has been in the Turkish Court, Davids had also tendered evidence and her legal team has participated and contributed in the topical discussion on universal jurisdiction.
A referral by the State of Comoros initiated by IHH is also presently underway at the International Criminal Court
David’s legal team had lodged her case domestically under the auspices of the South Africa’s adoption and ratification of the Rome Statute in terms of the International Criminal Court Act 27 of 2002.
Organisations Part of Gadija’s Case: Muslim Lawyers Association, Palestine Solidarity Alliance & Media Review Network
Status and Outcome: A decision regarding jurisdictional requirements and a decision to investigate was made in November 2012 jointly by the Priority Crimes Litigation Unit (PCLU) of the National Directorate of Public Prosecutions (NDPP) and South African Authorities SAPS Directorate of Priority Crimes Investigation Unit (DIPCI).
The Turkish court has sent a request to Interpol to issue international arrest warrants for the four men. The arrest warrants have been issued for the former IDF Chief of Staff Gabi Ashkenazi, military intelligence chief Amos Yadlin, IAF intelligence chief Avishai Levi and naval forces commander Eliezer Marom. By Nabila Ismail
The case (law suit presented by Spanish citizens who were passengers on the Mavi Marmara: Laura Arau, Manuel Tapial, David Segarra against Israeli leaders) has been closed due to the change (in the Spanish law of) universal jurisdiction does not allow Spanish court’s to investigate a matter if the accused are not in the territory of Spain. The judge’s request that the police inform him if the accused enter Spain in order for him to reopen the case has been removed from his decision to close the case. The matter has gone on appeal to the Supreme Court to overturn this removal and permit the notification of the judge of the presence of the accused in Spain. If this application is successful and due to the extradition agreements between states, the decision will be a valuable tool to pursue the accused.
The Israeli government is seeking immunity for former Israeli Minister of Defense Ehud Barak in a civil lawsuit filed last October by the parents of Furkan Doğan, an American teenager killed on May 31, 2010 by Israeli commandos who violently raided a six-boat flotilla in international waters. The flotilla carried over 700 civilians from nearly 40 countries who sought to deliver humanitarian aid to Palestinians suffering under the Israeli government’s illegal closure of the Gaza Strip and to break the blockade. The Israeli commandos killed 10 civilians, including 18-year old Doğan, while dozens more were injured. To date, there has been no meaningful accountability for the victims following the attack.
In a letter recently sent to the U.S. State Department, the Israeli government calls the case against Barak “part of an orchestrated and politically motivated effort to invoke and abuse the judicial processes of other nations, including of the United States, to achieve political ends antagonistic to the interests of the State of Israel,” and requests that the U.S. government file a “suggestion of immunity” on his behalf. Barak’s lawyers attached the letter as an exhibit in their motion seeking to dismiss the case.
Evidence of the brutal and criminal nature of the raid is substantial: a United Nations report found that Doğan was shot five times, including one shot to the face “at point blank range,” and the International Criminal Court found that war crimes were committed during the raid. (The prosecutor declined to move the case forward towards full investigation – a decision currently on appeal.) The Doğan case is not the only recent effort to seek accountability for these crimes. Earlier this year, four civilians who were injured on the U.S.-flagged ship Challenger I during the raid– and thus on what is considered U.S. territory – also filed civil suit against the government of Israel.
While to date the U.S. government has yet to express its position on the case against Barak, it has a dismal record of supporting impunity for Israeli officials, even when it concerns the serious injury or killing of American citizens. The U.S. government has previously supported immunity for Avi Dichter, the former director of Israel’s Internal Security Agency, in a war crimes case arising out of his approval to drop a one-ton bomb on a Gaza apartment building, killing 15 people – including eight children – and injuring over 150 others. The U.S. also supported the dismissal of a case against Caterpillar corporation. The case alleged the company aided and abetted war crimes by providing Israel specialized bulldozers that it knew were used in the demolition of houses in the Occupied Palestinian Territory, and that civilians had been killed and injured during these operations. It was brought by the parents of American peace activist Rachel Corrie, who was crushed to death by a Caterpillar bulldozer while protesting the demolition of Palestinian homes in Gaza, and four Palestinian families who had members killed or injured during home demolition operations.
Through Freedom of Information Act (FOIA) litigation, the Center for Constitutional Rights has sought to find out what the U.S. knew about the flotilla attack, and what actions it took in the aftermath. This litigation has compelled the production of more than 15,000 pages, including documents demonstrating that despite the killing of an American citizen and the forceful boarding of U.S.-flagged ships by a foreign military, the United States declined to conduct an independent investigation into Furkan Doğan’s death and directly blocked efforts for accountability.
The illegal closure of the Gaza Strip continues to this day, forcing over 1.9 million people to live in what amounts to an open-air prison and in conditions that have quickly deteriorated since the 2014 Israeli military attacks that destroyed entire neighborhoods and killed over 1,500 Palestinian civilians.
Through the Doğan case and the Challenger I lawsuit, U.S. courts could be the place where the cycle of war crimes followed by impunity is stopped— or at least seriously challenged. That is, unless the U.S. steps in and asks for the cases to be dismissed. Let us hope that history will not repeat itself, and that the U.S. allows the cases to proceed to be decided on their merits.
By Katherine Gallagher, Zachery Morris