Dalai Lama debacle as a case study on SA foreign policy

On May 28 last year, Washing Post columnist, Michael Gerson coined a phrase which is finding increasing resonance in the international corridors of power: “Whatever the reasons, South Africa increasingly requires a new foreign policy category: the rogue democracy. Along with China and Russia, South Africa makes the United Nations impotent. Along with Saudi Arabia and Sudan, it undermines the global human rights movement. South Africa remains an example of freedom — while devaluing and undermining the freedom of others. It is the product of a conscience it does not display.”

Yesterday we looked at the balancing act required in respecting the wishes of a major trading partner while doing the right thing with regard to promoting human rights. In isolation we could weigh up this measure of expedience against the downside of alienating the international community by refusing to support its quest to assist the people of Tibet. The problem is that it is anything but a one-off with all too often South Africa, over the past couple of years, siding with some of the world’s most despotic regimes in the United Nations and steadfastly refusing to support human-rights initiatives in that forum.

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On Human Rights Day last year, South Africa refused to support a declaration by the United Nations General Assembly calling for the decriminalisation of homosexuality. Mail and Guardian

Moreover having refused the Dalai Lama a visa, it is interesting to note that the government has provided succour to Mengistu Haile Mariam and refuge to ousted Haitian president, Jean-Bertrand Aristide. Where some justification might be found for the Dalai Lama there is no basis whatsoever for assisting the other two and it simply leaves the global community with the impression that South Africa always does the wrong thing. In 1999, Human Rights Watch wrote letters to the South African government urging it to arrest Mariam who travelled from Zimbabwe — where he has been granted refuge by Robert Mugabe — to South Africa for medical treatment. There was neither acknowledgement nor response from the government to these letters from an esteemed international human-rights organisation.

Here is the text of those letters:

Letters sent on November 24, 1999 to South African ministers of justice and foreign affairs from Peter Takirambudde, executive director, Africa division, Human Rights Watch:

Dear Minister Penuell Mpapa Maduna,

We write to urge that South Africa bring Mengistu Haile Mariam to justice for crimes against humanity committed during his rule in Ethiopia. We understand that Mengistu is currently in South Africa seeking medical treatment.

As you are probably aware, from 1974 to 1991, Mengistu’s ‘Dergue’ regime was responsible for human rights violations on a massive scale. Tens of thousands of Ethiopians were tortured, murdered or ‘disappeared’. Tens of thousands of people were also killed as a result of humanitarian law violations committed during Ethiopia’s internal armed conflicts. Many others, perhaps more than 100.000, died as a result of forced relocations ordered by Mengistu’s regime. A background paper on Mengistu is attached. His crimes are more fully documented in our 1991 book-length report Evil Days: 30 Years of War and Famine in Ethiopia.

Ethiopia has in the past sought Mengistu’s extradition from Zimbabwe. Zimbabwe refused the extradition requests. Mengistu is the leading defendant in trials of 2,000 former officials that began nearly five years ago in Addis Ababa. Two men were sentenced to death in absentia this month in these trials. Because of our concerns about the fairness of the Ethiopian trials, and the use of the death penalty, we do not recommend Mengistu’s return to Ethiopia.

We do urge, however, that South Africa investigate Mengistu before its own courts. The South African Constitution (article 232) expressly incorporates customary international law. Under customary international law, all countries have a right and a duty to exercise jurisdiction over crimes against humanity and a right to exercise such jurisdiction over torture. Alternatively, South Africa could extradite Mengistu to a country which is willing to prosecute him and guarantee a fair trial.

Given the scale of Mengistu’s crimes) we believe that South Africa would set a terrible precedent if it failed to bring this terrible tyrant to justice. Human Rights Watch would be pleased to provide any information concerning Mengistu and his crimes which your government might find useful. We also believe that this case underscores the need for South Africa to enact domestic legislation implementing its obligation under the UN Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment, which South Africa ratified in 1998, to prosecute or extradite accused torturers who enter its territory. South Africa should also enact legislation to establish its jurisdiction over genocide, crimes against humanity and war crimes committed anywhere in the world, as required under customary international law.

Please let us know if we can be of assistance in this matter. Thank you in advance for your consideration.

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Dear Minister Nkosazana Zuma,

Although we have not received a response to our letter, we have read statements in the press, attributed to Foreign Ministry spokesman Khangelani Mongwane, that South Africa will not bring Mengistu to justice because he is a ‘refugee’, because South Africa does not have an extradition treaty with Ethiopia, and because it would be inconsistent to insist on Mengistu’s prosecution, given South Africa’s reconciliation process. Respectfully, we would like to address each of these assertions.

First, Mengistu Haile Mariam is not deserving of the international protection offered to refugees, pursuant to the 1951 Convention relating to the Status of Refugees. As you know, that Convention specifically excludes from protection ‘any person with respect to whom there are serious reasons for considering that … he has committed a war crime, or a crime against humanity’. Similar terms are used in the 1969 OAIJ Convention governing the specific aspects of refugee problems in Africa. South Africa is a party to both these conventions. Mengistu is accused of both war crimes and crime against humanity. From 1974 to 1991, Mengistu and his subordinates were responsible for atrocities on a massive scale. Tens of thousands of Ethiopians were tortured, murdered or ‘disappeared’ – Tens of thousands mote were killed as a result of war crimes. Many others, probably well in excess of 100,000, died as a result of forced relocations ordered by Mengistu’s regime.

Second, in our letter, we did not recommend that South Africa extradite Mengistu to Ethiopia, because of our concerns regarding his right to a fair trial and the application of the death penalty. We did urge, however, that South Africa investigate Mengistu before its own courts. The South African Constitution (article 232) expressly incorporates customary international law. Under customary international law, all countries have a right and a duty to exercise jurisdiction over crimes against humanity and a right to exercise such jurisdiction over torture. We also note that South Africa in 1985 ratified the UN Convention against Torture and Other Cruel, Inhuman or degrading Treatment or Punishment, which requires South Africa to prosecute or extradite accused torturers — such as Mengistu — who enter its territory. South Africa has not, however, met its treaty commitment by enacting implementing legislation to incorporate this.

Finally, we believe that it is a disservice to the South African truth and reconciliation process to use that carefully-devised mechanism as a pretext to provide impunity to one of the most blood-stained tyrants of modem times, a man who has never told the truth about his crimes, who has never sought nor received an amnesty and whose government wishes to prosecute him for crimes against humanity. In South Africa, amnesty from prosecution was predicated on truth-telling, which Mengistu has not done. In addition, the route to reconciliation is not something for others to decide but for each country to determine for itself—Ethiopia has clearly decided that reconciliation is best achieved through justice — a fair assessment given the horrendous atrocities committed. South Africa should not seek to impose its model on a fellow country.

South Africa is regarded as a country which places the highest value on human rights. Our organization has had the privilege of working with your government in developing an effective International Criminal Court to bring to justice those accused of the worst atrocities. We believe that South Africa has an opportunity to break the unfortunate cycle of impunity that has developed in many parts of Africa by bringing Mengistu to justice before its courts and providing him with a fair trial.

Thank you in advance for your consideration.

Postscript

According to Human Rights Watch, no official response was received to these two letters. This silence is particularly poignant when one considers how so recently the ANC in its struggle against apartheid invoked human rights and international legal principles in its demand on governments to place principle above profit or other “political” motives to cease trade ties with, and impose economic sanctions against, apartheid South Africa or cut diplomatic and other (like sporting and cultural) links. Yet in government the ANC itself has seemed no more ready than Thatcher’s Britain to govern by principle. Consider how the post-apartheid regime snuggled up to the Indonesian government at the expense of its one-time fellow East Timorese freedom fighters. It refuses to this day to act against Morocco in its continued denial of the rights of the Polisario movement in Western Sahara, another former ANC ally. It has stood silently by and retained diplomatic ties with the government of Sudan while it continues with its genocide directed at the non-Islamic African majority in the south of that country.

In the absence of an official explanation, one can only speculate as to the government’s motives, Perhaps it was the result of a prior arrangement made with Mengistu’s host, the increasingly fascist Mugabe regime, or perhaps there was no need for such a deal as some close to government have suggested, the ANC does not move against those that supported it in its exile past. Mengistu’s Ethiopian government was one such ally. While understandable at a superficial level, there can be no morality in a stance which places considerations of friendship above those of law and justice.

Whatever the case, the result is the South African government’s shame and the losers — the relatives of those countless thousands of victims of Mengistu’s terror who have again been denied their day in court.

The South African government has been just as supportive of Aristide.

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The DA foreign affairs spokesperson, Tony Leon, in summing up the voting record of South Africa during its recent two-year tenure as a non-permanent member of the UN Security Council, said the ANC was increasingly distancing itself from the Barack Obama administration on human-rights issues; the question is: why?

In a disturbing essay on the website of the South African Institute of Race Relations, John Kane-Berman provides his assessment in the context of the South African government’s support for Robert Mugabe. The information he provides seems to indicate that Thabo Mbeki’s ANC not only supported and protected Zanu-PF but deliberately sabotaged its opposition, the Movement for Democratic Change — thus undermining the will and the rights of the people of Zimbabwe.

SA Institute of Race Relations

“The question is, ‘Why?’ The usual answer is that there is an unwritten rule that one liberation movement does not criticise another. But there is a more worrying possibility. This is that our government and ruling party share with Mugabe a belief that liberation movements have a perpetual right to rule. Mugabe intensified his crusade against democracy only when there were clear signs that his people were turning against him and he faced the prospect of defeat at the polls. Our government, in other words, does not wish to be hypocritical and condemn Mugabe when in its heart of hearts it endorses his desire to stay in power at all costs.”

“The implication is that democracy in South Africa is safe only for as long as it works for the ANC.”

The refusal by the South African government to grant a visa to the Dalai Lama may thus be interpreted as part of a long pattern of either complicit silence when human-rights abuses occur or outright support for the perpetrators of those abuses.

In little more than a decade the ANC has squandered the credibility South Africa earned during the Mandela era — and the free world has taken cognisance of this. Time magazine, in its October 6 issue last year said: “The days when the ANC commanded widespread respect are long gone,” and, in its latest report on international corruption, Transparency International has dropped South Africa 11 places, from 43rd to 54th.

Accordingly it is time to start the long overdue exercise of clawing back South Africa’s respectability and credibility within the international community.