A landmark case will begin in South Africa on Monday, which could compel South African authorities to prosecute high level Zimbabwean officials accused of crimes against humanity. It will be the first time a South African court will be asked to provide guidance on the nature of obligations on the authorities by signing up to the International Criminal Court (ICC).
By Geraldine Coughlan, The Hague
The North Gauteng High Court has been asked by the Southern Africa Litigation Centre (SALC) and the Zimbabwean Exiles Forum (ZEF) to set aside the decision of the National Prosecuting Authority and the South African Police Services not to investigate Zimbabwean officials linked to acts of state-sanctioned torture following a police raid on the headquarters of the Movement for Democratic Change (MDC) in 2007.
"The High Court has an opportunity to set an important precedent, which will ensure that South Africa lives up to its legal responsibilities to prosecute the perpetrators of international crimes wherever they are committed," said Nicole Fritz, Executive Director of SALC. She spoke to RNW.
This case is five years in the making. The challenge relates to events in March 2007 when Zimbabwean police raided the MDC's headquarters and tortured scores of activists. Affidavits relating to those events were collected in 2007 and 2008. We made the case that torture was committed in a widespread and systematic way in Zimbabwe against political opponents of the ruling party ZANU PF – therefore, a crime against humanity.
Also, that South Africa's Implementation of the Rome Statute Act for the ICC gave the authorities powers to investigate and prosecute crimes of persons who were present in South Africa after committing those crimes (even if they weren't South African nationals and the crimes were committed outside the country).
We maintained that the Zimbabwean officials named in our dossier as perpetrators travelled into South Africa on a regular basis and so could be prosecuted. We submitted our case when we did in the rather futile hope of it having some deterrent effect on the post-election violence that we anticipated.
So, how hopeful are you now?
We believe we have a very strong case and we're anticipating a positive outcome. After more than a year considering our dossier, the prosecuting authorities informed us that the police did not intend investigating the matter. We then began the process of launching a review application before the High Court, asking that it review and set aside the decision that had been taken. Litigation is notoriously slow and cumbersome and after many rounds of exchanging legal papers we now finally have our court dates.
As it is we think the dates are rather fortuitous - with developments in Zimbabwe suggesting that some of the political authorities are pushing for elections this year in violation of the Global Political Agreement. Also, amid fears that violence again will be used to intimidate and harass and there being no obvious domestic attempts to bring the culture of impunity to an end in Zimbabwe.
The case, rather than just submission of our dossier, may have some appreciable impact (the message at least, to those who committed violence in Zimbabwe - that their impunity ends at Zimbabwe's borders).
What type of precedent does this set?
If successful, the case itself won't usher in investigations and prosecutions but will open the door for these to happen. If the court upholds our arguments, it may order that the prosecuting authorities have acted unlawfully in their treatment of our dossier, that they didn't give it the consideration required and that their initial decision not to investigate/prosecute is set aside.
It would mean that the court would underline the importance of South Africa's international obligations to the ICC and the importance South Africa must grant to charges of crimes against humanity, war crimes and genocide.
It will be the first time a South African court is asked to make a ruling regarding South Africa's ICC Act. Globally it would 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 most importantly within domestic jurisdictions.