Israeli Arms Exports to South Sudan Are Lawful, State Tells High Court

State prosecutor seeks to reject a petition to open a criminal investigation on suspicion of war crimes

An Israeli-made Galil ACE rifle, right, being held by a fighter in South Sudan.

The state has taken the position before the High Court of Justice that there is no evidence any Israeli individual or entity has committed a criminal offense by exporting weapons to South Sudan.

The assertion came in response to a petition seeking a criminal investigation into Israeli arms sales to the East African country, and suspicions that this was a war crime and crime against humanity.

The petition, filed by 54 Israelis, concerns the sale of Israeli-made Galil ACE rifles sold to a militia associated with the South Sudanese government. The militia used the weapons for an assault on members of the Nuer tribe in the country in 2013, marking the outbreak of the civil war. The petitioners, through their lawyer Eitay Mack, claim that Israeli officials who dealt with the issue should have understood that there were risks associated with the rifles’ export.

South Sudan gained its independence from Sudan in 2011. The civil war broke out after President Salva Kiir of the Dinka tribe accused his former deputy, Riek Machar of the Nuer tribe, of planning a coup. Both sides have been accused of committing war crimes including massacres, gang rapes and the burning of women and children in their homes.

“Is there a single employee at the foreign and defense ministries to whom it sounds reasonable that the president of a country would place a ‘private order’ of rifles for his private militia?” the petitioners asked.

On Tuesday, the state issued its response, saying the petition should be dismissed. The response is based on a letter written by Rachel Matar, head of the criminal division in the State Prosecutor’s Office.

“No evidence has been found of any defect in the judgment of the relevant parties,” Matar wrote. No evidence was found, either, that “the acts of any Israeli party whatsoever constitute suspicion of the commission of a criminal offense,” Matar wrote, “certainly with respect to [Mack’s] claim that those responsible for the claimed security exports were accessories to war crimes or crimes against humanity, inasmuch as such an offense requires an awareness and even the aim of assisting the primary offender.”

Matar noted that the Defense Ministry had provided information to the State Prosecutor’s Office on exports to South Sudan after it was asked to produce “any material that could be relevant” to the claims raised by Mack. “I came to a general conclusion, to which the state prosecutor agrees, that there is no justification, under the circumstances of the issue, to open a criminal investigation against any Israeli party,” the response stated.

Matar also cited prior High Court decisions regarding military exports to South Sudan, which are under gag order but indicate that the court did not invalidate the export policy. Matar added that military exports are to be judged on “considerations of the protection of human rights and the political situation in the relevant region.”