Well, is their indecision final . . .

Wednesday, 16 May 2012

In June 1998 the United Nations General Assembly convened a five-week diplomatic conference in Rome to finalize and adopt a convention on the establishment of an international criminal court. This came after years of negotiations aimed at establishing a permanent international tribunal to prosecute individuals accused of genocide and other serious international crimes, such as crimes against humanity, war crimes and crimes of aggression. By the close of the conference on 17 July 1998, the "Rome Statute" as it is now popularly known was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People's Republic of China, Qatar, the United States, and Yemen.

South Africa was one of the countries voting for the Rome Statute in 1998, and we entered it into our law ten years ago with The Implementation of the Rome Statute of the International Criminal Court, Act 27 of 2002.

Five years later, on 27 March 2007 in Harare, Zimbabwean police reported to be acting under orders from the ruling Zanu-PF party, raided the headquarters of the opposition Movement for Democratic Change (“MDC”). More than one hundred people were arrested and taken into custody, among them MDC supporters and officials, as well as persons who worked in near by shops and offices. Those affiliated to the MDC were detained for several days. Several independent observers have concurred that the detainees were continuously and severely tortured.

The Southern Africa Litigation Centre, an NGO which provides technical and monetary support to lawyers and organizations in litigating human rights and rule of law cases in the region, took the view that because South Africa was legally required to investigate war crimes, crimes against humanity and genocide, regardless of whether they were committed in South Africa or by South African nationals, those responsible could and should be held accountable under South African law designed for this very purpose.

The SALC accordingly incorporated the evidence into a detailed dossier and on 14 March 2008 hand-delivered it to the Priority Claims Litigation Unit, the entity responsible for the investigation and prosecution of crimes contemplated in the ICC Act, as part of the National Prosecuting Authority.

The docket identified the Zimbabwean officials responsible for the raid and relevant torture; provided an overview of torture as a crime against humanity; detailed South Africa’s legal international obligations and jurisdiction to investigate and prosecute international crimes contemplated in the ICC Act; outlined the obligation imposed on the authorities responsible for the administration and enforcement of the ICC Act; and, requested the responsible authorities to institute an investigation with the view to prosecuting those responsible.

(I'm quoting extensively from court documents at this point, so please excuse the long sentences.)

What followed was an elaborate game of "pass the buck." The PCLU sent the docket to the National Director of Public Prosecutions who sent it to the acting National Commissioner of the South African Police Service. Eventually, after much kicking around, they came to an agreement – that they would do nothing.

Their reasoning is somewhat convoluted, but my paraphrased summary is as follows: "We can't investigate crimes in Zimbabwe." "If the criminals come here, we can investigate while they are here but we need to stop investigating when they leave." "It will upset our friends in Zimbabwe with whom we investigate cross border crimes." "The SALC told the Mail and Guardian what they were doing and that's not cool."

Last week, the North Gauteng High Court pronounced on the issue. Judge HJ Fabricius ruled that the refusal to act was unlawful, inconsistent with the Constitution, and therefore invalid. He ordered the PCLU to conduct an "expeditious and comprehensive investigation" of the crimes ordered in the torture docket and only thereafter take a view as to whether or not to prosecute.

Here's why this is significant: Anyone from Zimbabwe who is under investigation will now risk arrest by entering our country. This includes government officials because there is no diplomatic immunity for crimes against humanity.

Not surprisingly, there has been much rejoicing among those opposed to Robert Mugabe's reign. I'm more cautious of celebrating at this point, because this is opening up Pandora's Box. If Judge Fabricius's ruling is taken to its logical conclusion, there is a range of people who will not be able to enter this country without fear of arrest – including the leaders of China, Libya, Israel, Sudan, Syria, and the United States.

I expect the various parties to appeal the ruling all the way to the Constitutional Court. This is necessary. Well-intentioned laws that give us the moral high ground but are practically unenforceable don't help us in the long run. We must have clarity.

Coincidentally, UN High Commissioner for Human Rights Navi Pillay will on 20 May begin the first ever mission by a UN Human Rights chief to Zimbabwe, at the invitation of the Mugabe government. This is unlikely to help the 2007 torture victims but could help prevent a recurrence. I have more faith in the sustainability of diplomacy than that of litigation.