South Africa, the Rome Statute, Zimbabwe and torture

By Clare Ballard

“Law is nothing unless close behind it stands a warm, living public opinion.” – Wendell Phillips

So accustomed have we become to reports of atrocities in war-ravaged, post colonial Africa that I believe we’d be forgiven for associating the term ‘impunity’ with the perpetrators of these crimes, even though the nature of the crimes to which the unlucky oppressed are subjected frequently fall into the category of “crimes against humanity”: torture, genocide, slavery. So we sat up and took notice when, on March 14 2012, the International Criminal Court (ICC) handed down its first verdict. It convicted Thomas Lubanga of conscripting and enlisting children under the age of 15 and using them to participate in hostilities. This was a first. True, the Special Court of Sierra Leone and the International Criminal Tribunal for Rwanda have handed down a number of convictions (and acquittals) but, like their predecessors, the International Criminal Court for the former Yugoslavia and even the Nuremburg and Tokyo trials, these were established for the purpose of trying crimes committed within a certain time frame and in relation to a specific conflict.

The ICC, the world’s first permanent international criminal court, was established on July 1 2002, the date on which its founding treaty, the Rome Statute, came into force. The adoption of the Rome Statute was the final point of decades of negotiations arising from the internationally perceived need to be able to prosecute individuals responsible for crimes against humanity, genocide and war crimes, but who were able to shield themselves by invoking the doctrine of sovereign immunity. Like other special courts and tribunals, the establishment of the ICC occurred without too much controversy, for, as Lord Browne-Wilkinson reminds us in the famous Pinochet case, “International law provides that offences in violation of certain pre-emptory norms may be punished by any state because the offenders are common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution.”

The ICC can exercise its jurisdiction only over state parties, and even then, only if the state is unable or unwilling to prosecute locally. To date, 120 countries are state parties to the Rome Statute. Thirty-two countries have signed, but not ratified it. Zimbabwe is one of them, and thus not subject to the jurisdiction of the ICC. Zimbabwe is also one of those African countries frequently associated with politically motivated violent incidents: police brutality, raids, illegal detention, and torture.

The Southern African Litigation Centre (Salc) responded to a particular incident in 2007. In March of that year, Zimbabwean police raided the MDC headquarters and arrested over 100 MDC supporters, many of whom were subsequently detained and tortured. Salc compiled a detailed dossier of these events, including affidavits from the victims themselves and supporting papers from lawyers and medical practitioners confirming the torture, and presented it to the NPA. As odd as the idea of asserting domestic authority over non-nations for alleged crimes that occurred beyond our borders sounds, there are a number of very good reasons why the NPA could be expected to, and should have, initiated the investigation and prosecution of Zimbabwean officials responsible for the torture.

Firstly, South Africa is a state party to the Rome statute and, furthermore, a particular clause in the implementing legislation (the ICC Act) states that for the purpose of securing the jurisdiction of a South African court, a crime committed outside the country is deemed to have been committed within our borders if the alleged perpetrator of the crime is in the Republic after the commission of the crime. Accordingly, Zimbabwe’s being a state party to the Rome Statute is irrelevant to the purpose of initiating a prosecution in South Africa. Secondly, South Africa is obliged to prosecute domestically. The ICC Act states: “It is the duty of the state to exercise its criminal jurisdiction over those responsible for international crimes.” In addition, one of the ICC Act’s stated objectives is “to enable, as far as possible … the national prosecuting authority of the Republic to prosecute and the High Courts of the Republic to adjudicate in cases brought against any person accused of having committed a crime in the Republic and beyond the borders of the Republic in certain circumstances.” Thirdly, the ICC Act designates as “priority crimes” those in violation of the Rome Statute. This, as the applicants correctly point out, means that the South African government recognised that such crimes “deserve special attention”. Fourthly, given the collapse of the rule of law in Zimbabwe and the fact that the officials allegedly responsible for the torture of MDC supporters are known to visit South Africa from time to time, South Africa is well situated to investigate, arrest and prosecute them under the ICC Act.

Sadly, it took months for the NPA to respond to Salc, and then only to say that the matter had been referred to the SAPS for investigation. After another six months, Salc was informed that the SAPS had decided not to investigate the matter. Salc instituted review proceedings in the high court, arguing that the refusal to investigate and prosecute the torture allegations amounted to, amongst other things, a failure on the part of the respondents (the NPA, SAPS, the director-general of the department of justice) to apply their minds to the matter. The reasons proffered for the decision not to investigate, once they had eventually been delivered, included (incorrectly) that the SAPS and NPA were not permitted under the ICC Act to investigate such crimes, as well as the bald assertion that if an investigation were to be initiated, it would impact negatively on South Africa’s diplomatic relations with Zimbabwe, and we would be seen to be “criticising the Zimbabwean government”.

There is no doubt that the prosecution of Zimbabwean officials by the respondents would have some sort of impact on South Africa’s relationship with Zimbabwe. It would be naïve not to realise that this kind of prosecution is extremely complicated, even dangerous. Perhaps it would threaten the safety of opposition party members still in Zimbabwe. But the bottom line is that our legislation requires that where there is evidence of a crime, a prosecution must ordinarily follow unless it would be “in the public interest” not to do so. The respondents have not delivered any even remotely compelling reasons as to why they should not proceed. Which is why Salc has a strong case.

As multiple reactions to the Kony 2012 campaign tell us, pinning down perpetrators of international crimes is a complicated business. If only it were as easy as buying a wristband. But a really good start, I think, would be abiding by legislation our own government saw fit to create.

The Salc matter is currently being heard in the North Gauteng High Court.

Clare Ballard is an attorney of the High Court of South Africa. She is currently a researcher at the Community Law Centre at the University of the Western Cape. Her expertise lies in constitutional law, criminal justice and corrections.