South Africa’s International Criminal Law Obligations – PILG Panel

July 20, 2012

The Public Interest Law Gathering held at Wits University from 11-13 July 2012 was a collaborative event, hosted by a number of highly respected and committed human rights organisations.  SALC was one of the host organisations and also presented two panels: one on ‘Litigating Against Loitering Laws: protecting the rights of marginalised populations’ and another on South Africa’s international criminal law obligations. The international criminal law presentation discussed potential prosecutions of international crimes both in South Africa and abroad. This was particularly topical, coming soon after the North Gauteng High Court declared that South African officials were obliged to investigate certain allegations of crimes against humanity in Zimbabwe. The key question was what the implications of legal action in countries other than where the crimes were committed – an ‘exporting’ of jurisdiction – were for South Africa.

The South African experience, spanning particularly the immediate and long term post-apartheid periods, provided an interesting case study.  South Africa’s response to the question of how to deal with crimes committed by all sides during apartheid was the Truth and Reconciliation Commission (TRC). There is no doubt that crimes against humanity were committed in South Africa but the TRC process envisioned a compromise: amnesty in return for truth.  However, a vital element of the agreement was that those who did not apply for, or were not granted, amnesty would be prosecuted for their involvement in the crimes.  The lack of prosecutions following the conclusion of the process was the focus of the panellists’ presentations.

Adv. Gilbert Marcus SC, ideally placed to offer opinions as he regularly represented the TRC during the hearings, discussed what he sees as the flaws in the TRC process.  He explained that a number of state initiatives have resulted in amnesty being granted “through the back-door”: the presidential pardons and a 2005 Prosecutorial Policy document are examples of the state, in effect, seeking to grant apartheid-era perpetrators amnesty without them having to provide the truth about their crimes.  Marcus believes this represents the state attempting to subvert the purpose of the TRC as the victims and their families get neither truth nor justice. Another betrayal of the TRC process is the failure to prosecute those who were not granted amnesty (either because their applications were refused or because they did not apply). The TRC was never supposed to confer blanket amnesty on perpetrators of apartheid-era crimes and the sense was that the goal – amnesty for truth – could only be effectively attained if prosecutions followed for those that did not provide the truth. There have been virtually no post-TRC prosecutions and Marcus believes there is little political will to change this which has led to victims and survivors believing that alternative jurisdictions for prosecutions of these crimes will need to be sought.

Marjorie Jobson of Khulumani Support Group provided information on the wide-ranging work her organisation does in supporting victims and survivors of apartheid crimes. One aspect of their work has been the litigation brought in the United States where corporations are being sued for aiding and abetting apartheid. For so many victims and their families the failures of the post-TRC process, and the disillusion created by the attempts mentioned by Gilbert Marcus SC to subvert its purposes, led them to seek justice elsewhere. Although the cases brought in the US are civil suits, they provide examples of victims seeking alternatives jurisdictions in which to bring cases which seems to strengthen the view that there is a lack of political will in South Africa to address crimes committed in the past. The stiff opposition from the state she described when the group challenged the pardons and the prosecution policy further reinforced this belief. Jobson brought a human element to the discussion and spoke movingly of the impact the failures had on victims’ families, and how few options they have to pursue solutions independently of the state.

Nicole Fritz provided us with an overview of the recent case brought by SALC in the North Gauteng High Court in which the court ordered that the ICC Act compelled the National Prosecuting Authority and Police Service to investigate allegations of torture as a crime against humanity committed in Zimbabwe. This legislation enables South African courts, in certain circumstances, to try perpetrators of international crimes committed outside our borders.  The generally accepted rationale for extra-territorial prosecutions is that the home country is often unable or unwilling to initiate such prosecutions. There does appear to be an irony in that our legislators have identified our ability to try international crimes committed abroad, but have also demonstrated an unwillingness to try our own home-grown perpetrators.   

The panellists provided fascinating insight into both the TRC and ICC Act processes, and provoked interesting thoughts and questions relating to whether a refusal to uphold the TRC agreement to prosecute those not granted amnesty is not only a breach of trust of the victims but also a violation of the country’s international criminal law obligations. In the wake of the encouraging judgment confirming South Africa’s obligations in respect of foreign perpetrators it was disappointing to be reminded that for so many of our own victims – just like for Zimbabwean victims – exporting jurisdiction appears to be the only way in which they may achieve truth and justice.

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