The Zimbabwe Torture Docket and SA’s ICC Act: Q & A about the Case

March 25, 2012

1.       What is this case about?

 

1.1.   This case concerns obligations South Africa assumed when it ratified the Rome Statue of the International Criminal Court (Rome Statute). The Rome Statute is the product of the international community’s commitment to prosecute perpetrators of war crimes, crimes against humanity (which includes torture) and genocide. It requires states to take the lead through the domestic investigation and prosecution of these crimes. In recognition of its obligations South Africa passed the Implementation of the Rome Statute Act of the International Criminal Court (ICC Act) incorporating the provisions of the Rome Statute into its domestic law.

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1.2.   This case is five years in the making. It began with a detailed dossier submitted by SALC to the Priority Crimes Litigation Unit (PCLU), a specialist unit within the National Prosecuting Authority (NPA) responsible for the investigation and prosecution of international crimes. The primary events, which the dossier chronicles, relate to events occurring in March 2007 when Zimbabwean police raided the MDC’s headquarters and detained and tortured scores of activists. The dossier made the the case that torture was committed in a widespread and systematic way in Zimbabwe against political opponents of ruling party ZANU PF – that the torture amounted to crimes against humanity — and that South Africa’s ICC Act gave SA authorities powers to investigate and prosecute crimes of persons who were present in South Africa after committing those crimes (even if they weren’t SA nationals and the crimes had been committed outside SA). SALC maintained that the Zimbabwean officials named as perpetrators in the dossier travelled into SA on a regular basis and so could be subject to prosecution.

 

1.3.    After more than a year the NPA and the South African Police Services (SAPS) notified SALC that they would not initiate an investigation. Because we believed that they had not dealt with the dossier properly and lawfully, SALC together with the Zimbabwe Exiles Forum (ZEF) asked the High Court to review and set aside the decision on the basis that the NPA and SAPS did not apply their mind to the decision and failed to take South Africa’s international law obligations into account in reaching their decision.

 

2.      Why has it taken so long to have this matter heard in a court?

 

2.1.   Unfortunately litigation is a slow and technical process and progression of the matter was beyond our control.

3.      What outcomes are SALC and ZEF hoping for?

 

3.1.   If successful the case won’t itself usher in investigations and prosecutions, but it would open the way for these to happen and will result in several significant outcomes.

 

Relief relating to the NPA’s/SAPS’ decision

 

3.2.    The High Court has been asked to make a finding that SALC’s request was not properly considered and that the NPA and SAPS failed to give effect to South Africa’s obligation to investigate and prosecute international crimes. SALC and ZEF ask that the Court set aside the decision and order the NPA and SAPS to reconsider SALC’s request.

 

Interpreting South Africa’s obligations to investigate and prosecute international crimes

 

3.3.   If the Court upholds SALC and ZEF’s arguments the Court would underline the importance of South Africa’s international obligations vis-à-vis the International Criminal Court (ICC), the high principles at stake and the care and importance South Africa must accord charges of crimes against humanity, war crimes, genocide. It will be the first time a South African Court is asked to make a determination regarding South Africa’s ICC Act and globally would serve to affirm the ongoing importance of universal jurisdiction laws. It will also point to the fact that international criminal justice is not only secured in the international realm but, perhaps more importantly, within domestic jurisdictions.

 

3.4.   In a nutshell SALC and ZEF hope that the Court will provide practical content to South Africa’s international and domestic obligations to prosecute serious international crimes not only committed in Zimbabwe but in any country in which these crimes occur.

 

Deterrent against Future Acts of State Sponsored Torture

 

3.5.   A positive decision may not only be the first step in securing justice for the victims of the Harvest House Raid, it may also serve to deter future perpetrators from engaging in acts of torture. This decision will send out a clear message that perpetrators of international crimes will not be accommodated in South Africa, and the impunity that so many enjoy ends at the Zimbabwean, or other countries’, borders.

 

Send out a Message that South Africa is not a Safe Haven for those attempting to evade justice

 

3.6.   By upholding South Africa’s international criminal law obligations the Court would send a clear statement that South Africa is not a refuge for international fugitives accused of committing international crimes.

4.      The victims of the torture were members (or perceived to be members) of the opposition political party in Zimbabwe, the MDC, and the perpetrators were officials of the ZANU-PF government – is this case politically motivated and are SALC and ZEF aligned to a particular party?

 

4.1.   The case involves incidents of state-sponsored violence, and crimes of this nature inevitably have a political component as they are generally committed against political opponents by organs of state in an attempt to suppress dissent.  However, the applicants’ support for the victims of this state-sponsored torture is not political, and the political alignment of either the perpetrators or victims is unrelated to the applicants’ decision to support the victims.  The applicants’ intention in bringing the evidence to the attention of the NPA was solely to ensure justice for victims of human rights violations.

 

5.      Does this case have implications for the current state of affairs in Zimbabwe?

 

5.1.   The outcome of this case will not directly impact the current state of affairs in Zimbabwe.  However, if elections are to be held this year there is a real apprehension that they will be marked by violence and intimidation in the same way that previous elections have been.  In the past there has been impunity for those responsible for state-sponsored acts of violence directed against political opponents.  The applicants hope that a decision in their favour in this case will help to send a clear message to would-be perpetrators that their protection from prosecution will end at the Zimbabwe border and that South Africa will take seriously allegations of state-sponsored violence surrounding the buildup to any planned elections.

 

  1. 6.      Are the names of the perpetrators and victims known to the applicants and to the respondents?

 

6.1.   The applicants submitted a full list of perpetrators and victims to the NPA in their dossier.  However, for the purposes of these legal proceedings the names have been removed for security reasons.  This is to ensure their protection and to prevent jeopardizing any future investigations and prosecutions.

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