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South Africa: War criminals’ holiday destination no more?

South Africa: War criminals’ holiday destination no more?

http://www1.dailymaverick.co.za

11 May 2012, 22:12:58 (South Africa)

Almost overshadowed by the case involving NPA boss Menzi Simelane, a ruling 
delivered on Tuesday by the North Gauteng High Court delivered diplomatic 
shockwaves. It compelled authorities to investigate allegations of 
state-sponsored torture and crimes against humanity in northern neighbour 
Zimbabwe. The ruling also opens the door for other victims of war crimes to 
seek relief through the SA criminal justice system. By OSIAME MOLEFE.

Those accused of war crimes might have to strike South Africa off their list 
of vacation spots, thanks to a ruling on Tuesday in the North Gauteng High 
Court. The ruling compelled the National Prosecuting Authority and the SA 
Police Service, two of the four respondents, to investigate and consider 
prosecuting allegations of torture and crimes against humanity committed by 
members of Zimbabwe’s police force.

The applicants, the Zimbabwe Exiles’ Forum and the SA Litigation Centre, 
brought the case after their request to the NPA for an investigation was 
rejected, seemingly on spurious grounds.

Delivering a lengthy and firm ruling, judge Hans Fabricius said his order 
was simply telling the NPA and the SAPS to do what was required of them by 
law. In this instance, they were duty bound to ensure that the purposes and 
objects of the Implementation of the Rome Statute of the International 
Criminal Court Act, the local law that gives effect to the Rome Statute, 
were discharged. This duty was to be fulfilled in accordance with the 
country’s obligation to investigate and prosecute perpetrators of 
international crimes in light of the information placed before the two 
bodies, he said.

The applicants had provided the NPA and SAPS with thorough and detailed 
information, including harrowing victim testimony, doctors’ letters – the 
legal precedent for an investigation and prosecution – and a list of the 
names of alleged perpetrators.

“In order for the respondents’ decisions to be rational, their decision had 
to be based on accurate findings of fact and the correct application of the 
law,” Fabricius said, before finding that the decision by the NPA and SAPS 
not to investigate was “unlawful, inconsistent with the Constitution and 
therefore invalid”.

The police had said they lacked the means and jurisdiction to investigate, 
and the NPA’s decision to accept that answer had divided the organisation. 
In court papers, Anton Ackermann, head of the NPA’s priority crimes 
litigation unit (PLCU), accused former NPA boss Menzi Simelane of acting 
intentionally to prevent him from making his view of events public, even 
though Ackermann was a named second respondent.

The unit is, by presidential proclamation, responsible for managing and 
directing investigations and prosecutions of international crimes.

Ackermann’s view was that, at the very least, the SAPS should have been 
directed to open a docket and take testimony from the complainants until 
such a time that the practicalities of investigating a crime that occurred 
in another country could be overcome.

The divisions within the NPA culminated in a frustrated Ackermann making the 
unprecedented move of filing his answering affidavit with the applicants’ 
papers because his employer had already filed without involving him.

“This judgment will send a shiver down the spines of Zimbabwean officials 
who believed that they would never be held to account for their crimes but 
now face investigation by the South African authorities,” the litigation 
centre’s executive director Nicole Fritz said in a statement. According to 
her, the ruling sets a broader precedent for South Africa’s duty to 
investigate international crimes wherever they take place.

The ruling theoretically means that, should another aggrieved group approach 
South African authorities with complaints of torture and crimes against 
humanity in their country, the authorities are duty bound to investigate 
and – depending on the strength of the evidence gathered – prosecute.

This may result in some embarrassing situations because diplomatic immunity 
falls away during investigations brought under the Rome Statute. Previously 
untouchable figures could be hauled in for questioning or arrested, creating 
a diplomatic nightmare for South Africa.

But on that issue judge Fabricius was pointed. “In my view it is clear that 
when an investigation under the ICC Act is requested, and a reasonable basis 
exists for doing an investigation, political considerations or diplomatic 
initiatives are not relevant at that stage,” he said.

By agreeing with the argument put forward by the applicant’s lawyer, Wim 
Trengove, the judge also pre-empted the argument that the NPA and the 
litigation unit lack investigative capacity and rely on the SAPS. Trengove 
argued that the litigation unit’s duty was to “manage and direct” under the 
ICC Act. Instead, the NPA abdicated its duty and left it up to the SAPS, who 
made the wrong decision, Trengove argued.

But holiday-making war criminals shouldn’t despair yet. The decision is 
still subject to appeal. NPA spokesman Mthunzi Mhaga said the authority 
would study the judgment, “scrutinise it and then determine what legal 
avenue to explore.”

SAPS spokesman Lindela Mashigo was more direct. He said, “We have observed 
the ruling and we are now studying the judgment with a view of appealing 
it.”

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