ICC may try IDF officer in wake of Goldstone Gaza report
South African-born commander David Benjamin authorized which targets troops should strike during war.
By Yotam Feldman Tags: Goldstone report Israel news Gaza warA senior prosecutor at the International Criminal Court in The Hague said Monday that he is considering opening an investigation into whether Lt. Col. David Benjamin, an Israel Defense Forces reserve officer, allowed war crimes to be committed during the IDF's three-week offensive in the Gaza Strip this winter.
The officer - a dual citizen of Israel and South Africa, where he was born - served in the Military Advocate General's international law department, which authorized which targets troops would strike before and during the operation.
Newsweek magazine released an interview Monday with ICC Prosecutor Luis Moreno-Ocampo of Argentina in which he said he is convinced his office has the authority to launch an investigation into Benjamin's actions.
The ICC has until now refrained from trying IDF officers, as it lacks authority to do so, since Israel is not a signatory to the 2002 Rome Treaty that founded the court. South Africa, however, did sign the treaty, so the ICC is authorized to indict its citizens.
Moreno-Ocampo's remarks are in line with the recommendations of a UN fact-finding commission on the Gaza war headed by South African justice Richard Goldstone. Last week, that panel urged the UN Security Council to refer both Israel and the Hamas leadership in Gaza for prosecution in the ICC unless both launched fully independent investigations into alleged war crimes by the end of this year.
The ICC began looking into Benjamin's case after receiving material from pro-Palestinian organizations in South Africa. The material included a transcript of an interview Benjamin gave to the web site Bloomberg.com, in which the officer recounted his involvement in legal consultations with the IDF ahead of army operations.
"We were intimately involved in planning," Benjamin said, including "authorizing the targets that could be struck, war materiel - everything passed by us."
Benjamin served for many years as legal adviser to the GOC Southern Command, and later headed the Military Advocate General's department on international law.
In August, he visited South Africa to attend a conference organized by the local Jewish community on international law during wartime, with special reference to the Gaza war. Benjamin later described the trip as a "personal hasbara [public diplomacy] trip."
The pro-Palestinian organizations promptly asked South African state prosecutors to open an investigation into suspicions that Benjamin had committed war crimes in Gaza. To avoid a potential confrontation with local authorities, Benjamin left South Africa several days earlier than he had planned.
At the conference, Benjamin rejected claims that the IDF committed war crimes in Gaza, as well as demands that Israel's wartime conduct be subject to an external investigation.
Dennis Davis - a South African district court judge and international law lecturer at the University of Cape Town, who directed the conference - said he firmly opposed the remarks delivered by Benjamin, who was once his law student. Davis added that were Benjamin still his student, he would "fail him."
Benjamin resigned from the IDF in late January of this year, though his official retirement vacation began in November 2008. When the Gaza operation began, however, he returned to his former position in the Military Advocate General's office.
But Benjamin says he was not directly involved in planning operations during the war. He told Haaretz yesterday that during the Bloomberg interview, he was speaking not of himself personally, but of the army, and the Military Advocate General's office, as a whole.
"I spoke in the name of the army, and of the Military Advocate General, so I told them what we're like in the collective sense," he said. "We authorized and we carried out, but I wasn't [directly] involved in Gaza."
"What's important is that the State of Israel doesn't need Goldstone to tell it what needs to be done," he added. "There is a human rights agenda in the world, but those who work with this agenda have the luxury of not needing to balance human rights needs and security needs, and we do need to have that balance."
"Presumably the military advocate general, who personally authorized the IDF's actions, will himself be investigated?" he continued. "There is a supervisory mechanism - the attorney general is above the military advocate general, and he can intervene. The High Court of Justice can also intervene."
The IDF Spokesman's Office said yesterday that "Lt. Col. David Benjamin is a respected officer who served for many years in legal positions in the IDF, and assisted the military in managing its activities in accordance with the rules of international law."
"Although during Operation Cast Lead, Lt. Col. Benjamin was on retirement vacation abroad, he returned to Israel on his own initiative in order to aid the military in its public diplomacy efforts," it continued. "Any attempt to initiate legal proceedings, as described in the article, is perverse and driven by political motives, and ultimately [the allegations] will be revealed as baseless."
Col. (Res.) Pnina Sharvit-Baruch, who headed the Military Advocate General's international law department during the Gaza War, refused to comment on Moreno-Ocampo's remarks.
The ICC Office of the Prosecutor said officials had examined the material the court received as part of a preliminary investigation intended to determine whether it has the authority to hear cases on war crimes allegedly committed in Gaza.
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History repeats itself when the Arabs/Muslims don,t learn from past mistakes such as the war of independence 1948,the 6 day war 1967 the yom kippur war 1973and other conflicts .This intran sigent mentality will disappear when Islam itself fades into obscurity not long from now,goodbye and good riddance to backwards 9th century ideology .
Hey Cynic the same logic applies to Hamas and it,s leadership ,which is responsible for heinou s crimes against humanity ,so quit the propaganda as we aint buying it.Your brethren sent thousands of Qassams into residential(civilian) towns Sder ot and Ashkelon ,for what purpose seeing as Israel withdrew from the area (Gaza )in 2005.Does Hamas operate as a legitimate army or a dysfunctional Arab/Muslim rag tag bunch of killers ,criminals ,thugs ,thieves etc.Don,t show your bias ,ignorance as you don,t have anything new to add?
Wbism ,all Hamas members from the top to the bottom are terrorists ,so don,t talk nonsense .They are legitimate targets for assassination as they don,t adhere to normal ,civilised codes of the 21st century ,and tell us why they sent thousands of Qassams into Sderot and Ashkelon civilian towns ,not military or police barracks? If your ilk won,t behave like civilised people then you must pay the consequences ,sorry for you
Hey Jennie don,t show your true colours with your nauseating bias .The only war criminals you need to know about are those in the Hamas leadership who directed their thugs to shooting tens of thousands of Qassams at civilians (Israeli)in Sderot and Ashkelon ,long after Israel withdrew from the territory in 2005 ,to be exact.Your knowledge of what transpired is zilch just like your knowledge of international law so tell us what ,s happening with the butcher of Sudan and why isn,t he locked up in the Hague ,waiting his day with destiny on war crimes and other charges against humanity ,or are Arab/Muslims exempt from the HRC of the UN.
To Jonathan in Netanya who is going to spill the beans on Hamas during operation ,cast lead ,not the so called fighters themselves ,or the Hamas leadership ,neither the doctors in the main Gaza hospital or the UNRWA representatives in the areas of the conflict.?You like most of us realise that all Hamas war crimes like hiding in UN warehouses ,taking hostages from the civilian population ,using the main hospital as a command centre ,mosques and schools as weapons storage facilities ,smuggling army fatigues on UN convoys ,bombing civilians with tens of thousands of Qasssams ,in Sderot and Ashkelon ,transporting Hamas op ,eratives in ambulances and other war crimes will be swept under the carpet by the Arab funded UN watch dog,the same organisation that can,t or won,t arrest the butcher of Sudan and his Muslim Janjaweeed militia responsible for millions of deaths in Darfur.Hopefully this will clear up the misconception and lies told by Arab propagandists on this blog.
Well said Slavo ,who exactly is going to capture the butcher of Sudan and bring him to the Human Rights Council for crimes against humanity?What about Mullah Omar and all the criminal ,killers of the Taliban ,the equally murderous Al-Qaeda ,the Pakistani and Afghani intelligence services cohorts who act on the orders of their bosses in Waziristan ,the Swat valley and other Muslim outposts ?Is Obama the Nobel prize winner going to arrest these criminals ,some how i don,t think so as the UN is run and funded by these same criminals who spend so much time condemning Israel and it,s right to exist and live in peace .
Hey Vladek don,t preach about things you don,t know,rather tell us about the butcher of Sudan,Om ar Bashir ,who with his Muslim Janjaweed militia slaughtered millions of infidels(non -muslims)in Darfur and is still roaming free protected by his Arab/Muslim brethren ,the Arab League and others,you hypocrite.
To no.31 what rubbish do you talk about when you s hould be asking why ,after Israel pulled out of Gaza in 2005,leaving behind 1000,s of green and hot houses for growing food etc and 1000,s more unemployed Gazans,did Hamas shoot tens of thousands of Qasssams into Sderot and Ashkelon,civilian towns not ,army (military) barracks.In other words there was no Israeli presence anymore in Gaza ,only Egyptian ,who turned a blind eye to weapons smuggling etc from Egypt.Those Qasssams and other weapons came from where or are you just plain ignorant of the facts
Where was the conscience of the MIGHTY Israeli forces when they had no qualms in killing women and children waving white rags; intentionally destroying water supplies; United Nation's food supplies; farm land, thousands of olive trees and Palestinian homes should be brought before an international court of justice and found guilty. The events that took place in GAZA brings to mind the brutal and savage conduct perpetrated by the Nazis during WWII. The civilized world should say "NEVER AGAIN TO ANOTHER GAZA, SHATILLA AND SABRA REFUGEE CAMP SLAUGHTER.
You ask "Will Hamas be tried?" Israel assassinates members of Hamas without trial. In fact it assassinates many who only become "terrorists" after they are murdered.
"Come and prosecute us!" Be careful what you wish for.
Bad food, lousy climate Maybe Israel should have some of the Old British Officers that enforced the Mandate put before the Hague, they sure had it coming to them
To AA--great post! i agree--I will present myself at the ICC for prosecution, as a lawyer who categorically supports David Benjamin, and finds the Goldstone report reprehensible and a mockery of my fundamental right to live in a world free from terror and the hypocrisy of these ridiculous institutions and their paper pushers.
.. and if he relinquishes his So Africa citizenship?? Again what evidence of specific behavior does ICC agent have of any war crime by officer ??
War crime trials give the accused their opportunity to present evidence justifying their actions. Despite Israel's attempts at cover-up, there were significant violations in the Gaza invasion by Israel. The world has seen the videos, news reports and metrics. If the USA and Israel stomewall, than other nations need to take the initiative,
"This officer will find he has very few destinations to choose for his vacations" He'd do well not to attempt to go to England for his holidays. Remember the IDF officers with London travel plans were warned that if they set foot in London they would be arrested for war crimes. Of course, they changed their plans!
Nobody is saying trhe ICC has jurisdiction in Israel. However the individual being investigated is a citizen of South Africa. Which does come under the jurisdiction of the ICC. It really is a very simple concept to understand.
Did Gaza really think they would be allowed to continue their firing of rockets with impunity? Hamas was told time and time again to cut it out or suffer the consequences
Slowly, incrementally, the forces of evil do their work against the Jewish people, and (hardly) anybody dares say: hypocrites. In a world where brutal dictators commit atrocities every day, where terror organizations declare openly their responsibility for the killing of civilians, where the head of a country responsible to some of the worst atrocities in our time is allowed to speak to the UN general assembly, ICC wants to prosecute who? Lt. Col. David Benjamin! So from now on, all Israelis are David Benjamin. Come and prosecute us!
Either you try all war crimes perpetrators or no one. All war crimes must be punished not just those committed by Israel.Iran is responsible for Hamas/Hezbollah war crimes and must be treated the same way as Israel. Btw,when will ICC try Ahmadinejad or mullahs for the crimes against humanity committed in Iran?
Grab one, and the rest will fall.
"Last week, that panel urged the UN Security Council to refer both Israel and the Hamas leadership in Gaza for prosecution in the ICC unless both launched fully independent investigations into alleged war crimes by the end of this year." There's the answer. The Israeli legal authorities should request any evidence against this officer and based on that launch or not launch an investigation.
The United States will veto any calls for an official investigation like the one against Serbia for instance. However the ICC hasthe power to pursue individuals and that is the difference in this case. Because this IDF Officer has dual nationality we do not even need the co-operation of Israel. As South Africa is a signatory to the ICC. More than one way to skin a cat you know.
Your only worry is if Hamas goons would be able to place money channeled through UNRWA in Sviss vaults ,just like their Fatah bretheren have been doing for decades.
Yes the UNSC needs to send claim to ICC. US and others will veto such act from occurring. US already has said it would not agree to vote for so oing as report so basically flawed.
Here we go again! Going to back to 1933? Can't call us legally "dirty Jew", so they (the anti-Semites)calling us dirty Israelis? The word is obsessed with the us, what else is new? G-d forbid that IDF fights the terrorist, it is war crime, but the world was silent when the terrorist were blowing up the Israelis, the world is silent when the billions of dollars aid money sent to Palestinians "disappear" in the bank accounts of few? When the world will realize that without IDF Abbas won't last a week and Hamas would "eat him alive" as fast as they can swallow him. Anybody remember Gaza? How long it took Hamas to rout Fatah?
What about before??, I thought that the Israeli government 'investigated' every case of anomalies that took place by IDF troops on Palestinians?? Were they just lying to our faces?
This officer will find he has very few destinations to cjoose for his vacations. The ICC will be looking at the many Israelis with dual citizenship who tokk part in this act of barbarism and chasing their tails to bring them in chains to be tried for their crimes against humanity. For Joan---it does not have to the UNHRC that indicts them---the UNSC can do so. Joan my dear---your war crime days are over. It is time to pay the piper. I will enjoy these thugs being dragged before the ICC and then going to jail for the rest of their miserable lives.
do your worst.
The military establishment is in a hurry to cover its backside and hope to have the responsibility pinned on one person. No sir, responsibility is collective. It also includes the political level.
Chutzpah!!!
Why Goldstone did not find Shalit? I could ask, why the mighty IDF did not find him? Why to blaim somebody who had no possibilities to do so?
He must have learned during the days of South- African Apartheid how to deal with "second class human beings"....
If anything it is Israel that will judge the ICC!
Killing women and children in camps must be punished.
Instead of prosecuting an Israeli/ South African, why not ask Goldstone why he didn't find Gilad Shalit. My only complaint is the few hostages we took in the Gaza war. We should have taken many and Gilad would now be home with his family.
Benjamin says there was othing wrong with Cast Lead but is keen to emphasise that he perseonally was much less incolved than others.
The ICC clerk does not know what the IDF officer did specifically and has no legal basis to do anything. In any event there was no war crime committed except by Hamas. UNHRC has no authority to initiate any legal proceeding.