The Supreme Court of Appeal has granted the National Prosecuting Authority (NPA) and the South African Police Service (SAPS) leave to appeal the Zimbabwe Torture Case in which the North Gauteng High Court ordered the NPA and SAPS to investigate crimes against humanity committed in Zimbabwe.

The Supreme Court of Appeal is however likely to limit legal argument to the interpretation of the section 4(1) and section 4(3)(c) of the Implementation of the Rome Statute of the International Criminal Court Act (ICC Act). These provisions deal with the jurisdiction of the South African authorities to investigate international crimes committed beyond South Africa’s borders. The following findings of the High Court will therefore not be challenged: that a reasonable basis exists to believe that crimes against humanity were committed in Zimbabwe; that the NPA and SAPS did not take South Africa’s international obligations into consideration in taking the decision not to investigate; the nature and extent of the obligation of the NPA and SAPS to investigate and prosecute international crimes; the evidentiary threshold for triggering an investigation in terms of the ICC Act;  and the (ir)relevance of political considerations in relation to decisions taken to investigate under the ICC Act.

Hearing dates have not been allocated. More information about the Zimbabwe Torture Case and the Appeal is available HERE. For regular updates on this and other cases follow SALC on Twitter @follow_salc

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Today the North Gauteng High Court dismissed an application for leave to appeal against the judgment delivered in Southern African Litigation Centre and Another v National Director of Public Prosecutions and Others by the National Prosecuting Authority (NPA) South African police (SAPS).

You’ll remember that last month the High Court ruled in SALC’s favour when it found that the NPA and SAPS’ decision not to initiate an investigation into crimes against humanity committed in Zimbabwe was unlawful because they failed to take into consideration South Africa’s international obligations in terms of the Rome Statute of the International Criminal Court and domestic legislation giving effect to these obligations. The NPA and SAPS were therefore ordered to initiate an investigation. They challenged this decision on a number of grounds, all of which were dismissed, and Judge Hans Fabricius concluded that an appeal held no reasonable prospects of success.

Read the press release below:

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ImageSALC and the Zimbabwe Exiles Forum are thrilled to announce that the North Gauteng High Court ruled in SALC’s favour in the Zimbabwe Torture Case. Judge Hans Fabrius ruled that the National Prosecuting Authority (NPA) and the South African Police Service (SAPS) failed to take South Africa’s international criminal law obligations into account when they refused to initiate an investigation into crimes against humanity committed in Zimbabwe, despite SALC providing credible information in this regard. The NPA and SAPS must now revisit their initial decision in accordance with the detailed order of the Court. 

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At the end of March the North Gauteng High Court reserved judgment in SALC’s landmark torture case in which SALC and the Zimbabwe Exiles Forum asked the High Court to set aside a decision of South Africa’s National Prosecuting Authority and police service not to investigate and prosecute high level Zimbabwean officials accused of torture. The case, the first to be brought in terms of South Africa’s domestic Rome Statute Act, raises important questions about the content and nature of South Africa’s obligations to investigate and prosecute international crimes. Although the judgment is only expected in May 2012, the issues raised certainly provide food for thought. 

In this regard, Christopher Gevers of the University of Kwazulu Natal provides an excellent analysis of the case through the lense of universal jurisdiction on EJIL:Talk, the European Journal of International Law blog.

 The blog post is titled The Application of Universal Jurisdiction in South African Law and to wet your appetite, this is Gevers’ overall impression of the case:

Having witnessed the judge’s handling of the case, I would certainly not characterize him as a shrinking violet, quite the contrary. Equally so, it was clear that he had a complete and considerable grasp of all of the complex issues raised by the parties, as well as the significance of the case both from the perspective of the victims, and its broader context. All this augurs well for those of us looking for a wide-ranging, precedent-setting judgment fitting of the inaugural judicial pronouncement on South Africa’s ICC Act.”

 

 

On 26 March 2012 SALC and the Zimbabwean Exiles Forum (ZEF) will go to court to argue that South Africa, through the National Prosecuting Authority (NPA) and the South African Police Services (SAPS), is required in terms of both international and South African law, to investigate and prosecute perpetrators of international crimes.

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Richard Goldstone believes that “the most serious threat to the credibility, and indeed the very essence, of the Tribunals has come from politically inspired delays in the arrest of indicted war criminals.” Indicted Sudanese president, Omar al-Bashir, is testament to this statement. In the past year he has certainly put his passport to good use. Last weekend al-Bashir made yet another ‘arrest free’ trip to Chad, a signatory to the Rome Statute of the International Criminal Court (ICC). Why are African states parties to the Rome Statute so willing to receive a man that places them in direct conflict with their obligations?  In simple terms, perhaps it’s because they can, with repercussions amounting to nothing more than a verbal slap on the wrist and the African Union (AU) supporting and encouraging inaction, the incentive to comply appears to be lacking.  I imagine Chad’s invitation to al-Bashir to attend President Idris Deby’s inauguration going a little something like this:

 Dear President al-Bashir,

It was great seeing you in Chad last year. This weekend I am having my inauguration, yes, I won again. It just wouldn’t be the same without you. I hope you can make it.

Best,

The President of Chad

P.S I know we’re supposed to arrest you, but don’t worry, we won’t. I mean what’s the worst that can happen if we don’t? – Civil society will kick up a fuss, the ICC will shout at Chad and the EU will be disappointed – Been there done that! Plus it’s totally okay with the African Union.

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A country’s refugee and immigration laws should, if administered properly, safeguard its territory from individuals attempting to evade justice for serious international crimes. Domestic and international law specifically identify those that it deems undeserving of the protections afforded to refugees. South Africa’s borders however appear to be somewhat leaky and very little has been done to plug that leak. This leak is clearly demonstrated by Rwandan General and suspected war criminal, Faustin Kayumbe Nyamwasa, being granted refugee status in South Africa.

Concerned about the integrity of South African asylum regime and South Africa’s obligations under international criminal law SALC and the Consortium for Refugees and Migrants Rights in South Africa (CoRMSA) have initiated legal proceedings to judicially review the South African authorities’ decision to grant Nyamwasa refugee status. The basis for the application is that Nyamwasa is ineligible for the grant of refugee status on  account of his alleged involvement in the commission of war crimes and crimes against humanity. Not only does this decision offend international law but it is unlawful under South Africa’s Refugee’s Act which specifically excludes those accused of committing international crimes.

Nyamwasa’s presence in South Africa only came to light after an attempted assassination. One can’t help wondering how many other undesirables are being harboured, knowingly or unknowingly, in South Africa.

For more information see the press release below. Read the rest of this entry »

 

Sanctions, an arms embargo, asset freezing, a travel ban and a Security Council referral in terms of  the Rome Statute.  Security Council Resolution 1970 comes as a welcome change after the initial echoes of condemnation, amounting to nothing more than a firm tongue lashing, seemingly failed to appreciate the gravity of the Libyan situation. And today ICC Prosecutor, Luis Moreno-Ocampo, formally announced the ICC’s intention to open an investigation into the alleged crimes against humanity committed by Gaddafi, his sons and his “inner circle”. Read the rest of this entry »

Here is an interesting article on Rwanda, with just one month remaining to the Presidential elections.  One wonders what’s next from the General’s attempted assassination  to the murder of a local Journalist. 

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Congo’s Rape Scourge

August 13, 2009

Ahead of Hillary Clinton’s vist to the Congo, the NYT and Washington Post published articles on the ever increasing levels of sexual violence in the Congo: the NYT focusing of the increased incidence of male rape and the Post looking at the extent to which Congo’s official army is contributing to this tragedy.
The numbers of rapes perpetrated, the ubiquitous manner in which they’re committed, clearly speak to the fact that crimes against humanity are ongoing in the Congo. But these types of categorisations — the enormity they encompass — often numb us to the individual experience and just how horrendous that is.

From the Post:

As women here do most mornings, Madelena Ngalya left the village around 9 a.m. one recent day and walked alone along a path through the jungle to her farm. The 56-year-old widow had been planting there for about an hour when she saw a soldier at the edge of the field. He walked toward her.
“I started trembling when I saw him,” she said. “I felt unable to cry, even to scream. I said, ‘My son, how are you?'”
The soldier asked whether she was by herself.
“I said, ‘I’m alone here,’ she said. “He said, ‘If you cry, we have many soldiers in the jungle, and when others hear you cry, they will come to you, too.’ My body was like dead. Then he did what he wanted to do.”

And from the NYT:

Tupapo Mukuli . . . said he was pinned down on his stomach and gang-raped in his cassava patch seven months ago. Mr. Mukuli is now the lone man in the rape ward at Panzi hospital, which is filled with hundreds of women recovering from rape-related injuries. Many knit clothes and weave baskets to make a little money while their bodies heal.
But Mr. Mukuli is left out.
“I don’t know how to make baskets,” he said. So he spends his days sitting on a bench, by himself.
. . .
[I]n a place where homosexuality is so taboo, the rapes carry an extra dose of shame.
“I’m laughed at,” Mr. Mukuli said. “The people in my village say: ‘You’re no longer a man. Those men in the bush made you their wife.’ ”