Genocide charges at the Hague, yet stalled investigations and prosecutions at home
By Paul Hendler and Martin Jansen.
South African authorities could have investigated and prosecuted South African volunteers to the IDF, as well as enablers of their recruitment, for their participating in the current and past genocidal moments, and other violations of international humanitarian law (IHL) and international human rights law (IHRL) (domesticated in local legislation) through attacks on Gaza.
Over the past 16 years, the Palestine Solidarity Alliance, the Palestine Solidarity Campaign Cape Town and the Media Review Network have submitted substantial evidence (over 900 pages of legal argument corroborated by largely self-incriminating social media posts) about participating in genocide, war crimes and acts violating IHL and IHRL of over 100 South African volunteers for the IDF. These individuals as well as Zionist institutions facilitating their recruitment, likely violated a number of local laws.
The Regulation of Foreign Military Assistance Act (RFMAA) requires recruitees as well as institutions aiding and abetting the recruiting process to the IDF to obtain ministerial authorisation, which may not be granted if it would result in the infringement of human rights and fundamental freedoms. Responding to a recent Provision of Access to Information Act (PAIA) request, the state indicated that no applications for authorisation to serve in the IDF had been received between 2006 and 2023.
Specific acts identified in South Africa’s submission of the charge of genocide to the ICJ, as well as acts identified during two previous attacks on Gaza, namely Operation Cast Lead (2008/2009) and Operation Protective Edge (2014) fall within the definition of terrorist activity as defined by the Anti-terrorist and Related Activities Act (ATRAA): e.g. systematic and arbitrary use of violence, endangering life of a number of persons, causing serious risks to public health and safety, wanton destruction of economic, social and basic services infrastructure, etc.
The repetitive and ongoing nature of the recruitment-to-the-IDF process, justifies categorising these activities as organised crime and racketeering as defined by the Prevention of Organised Crime Act (POCA), which combats organised crime primarily through acting against money laundering and gang activities, by inter alia creating an obligation to report certain information, criminalising certain activities, and the civil forfeiture of criminal assets that have been used to commit an offence or assets that are the proceeds of unlawful activity.
Specific individual acts and institutional functions referred to above, likely fall within the definition of crimes dealt with by the International Criminal Court (ICC), set up by the Rome Statute. The International Criminal Court Act provides a framework to ensure the effective implementation of the Rome Statute of the ICC in South Africa, and that South Africa conforms with its obligations set out in the statute, to implement charges of contravening international law against such persons/institutions, and to take appropriate action, including trying them in South Africa or if that were not possible to cooperate with the ICC to try them.
Serving in the IDF is marketed through a network of local Zionist organisations, linked to Israeli state apparatuses that recruit and place the volunteers in designated IDF units (see diagram on overleaf).
Snapshot of NPA non-response to Zionist violations of the law (pdf)
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