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

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. Read the rest of this entry »

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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With just over two months before the 19th African Union Summit kicks off in Malawi, it is being asked whether Malawi will allow indicted Sudanese president, Omar Al-Bashir, to attend the Summit. It has been reported that Africa’s newest president, Joyce Banda, does not want to host Bashir and has asked the AU to encourage Sudan to send someone else in his place. This decision, at least on the face of it, is positive and certainly the right thing to do.  The way in which she is handling the issue however, is perhaps not what one would expect from an African leader that has, in a very short space of time, proved herself to be a no-nonsense and forward thinking president.

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The new President of Malawi, Joyce Banda, has demonstrated in her first week in charge that her administration will be vastly different to her predecessor’s.  Bingu wa Mutharika had been in power in Malawi since 2004 but his death on 5 April 2012 came in the wake of increased opposition to his leadership and the culture of violent oppression of dissent that he had presided over in the recent past.  Although President Banda appears to have recommitted Malawi to democracy and the rule of law, SALC today wrote to the new president highlighting some of the most pressing matters needing her attention.

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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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SALC is an active member of the African Network of International Criminal Justice, an informal network of African civil society organizations and international organizations with a presence in Africa working on Africa and the International Criminal Court (ICC). The Network has been doing some fantastic work. Its efforts demonstrate the importance of an active civil society in the fight against impunity in Africa. Read the rest of this entry »

Photo: Alternative News

South Africa has been receiving some flack for not responding more quickly and more fiercely in respect of the unrelenting attacks on Libyan civilians by Gaddafi. And indeed there have been some rather strange pronouncements by South African officials. Still South Africa came out unequivocally in support of the United Nations Security Council’s decisive resolution on Libya and cannot be blamed for choosing to issue its strongest statement from the platform from which it wields most influence on the issue of Libya. That seems strategic. There have been several really excellent postings on the significance of the Security Council resolution on Libya. See for instance: Opinio Juris; War and Law; Justice in Conflict and this from the Open Society’s blog.

For more on South Africa’s role and interestingly that this decisive action comes from an arguably more diverse, divided Security Council, see my piece on the Mail and Guardian’s website.

I thought the letter below, published in Business Day today, so interesting, because in substance it is exactly the same argument being marshalled by Omar-al-Bashir of Sudan and his supporters against the International Criminal Court and its indictment of him — essentially, that the court pursues a vendetta against Sudan and its leadership, that it is anti-African, etc.

But if the supporters of Israel’s leadership and those of Sudan’s leadership each believe that they are uniquely being persecuted through the architecture of the international human rights system, there may be no surer sign that they aren’t.

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