What happens when high-ranking government officials from Zimbabwe who committed crimes against humanity travel to South Africa, where the law requires the investigation and prosecution of such individuals?
That is, until now.
Ten years after enacting a universal jurisdiction law allowing for the prosecution of foreign nationals accused of committing serious human rights abuses, South Africa’s North Gauteng High Court issued a decision on May 8 mandating the investigation and prosecution of abuses under that law.
For the past decade, South Africa has served as a travel destination for members of Zimbabwean President Robert Mugabe’s government who stand accused of committing crimes against humanity during the 2007 elections in Zimbabwe. These officials allegedly tortured civilians who they believed to be part of Zimbabwe’s main opposition party with electric shocks, mock executions, and waterboarding.
In 2009, Physicians for Human Rights reported human rights violations at the hands of Mugabe officials, and the disastrous effects the crimes had on the country’s health care system.
Despite the existence of a universal jurisdiction statute that could be used to hold officials to account, South African prosecutors refused to investigate the abuses, citing “political considerations,” among other reasons.
In 2009, the South Africa Litigation Centre (SALC) and the Zimbabwean Exiles Forum (ZAF) filed a lawsuit against South African government officials, arguing that prosecutors had a duty to investigate and prosecute these crimes under South Africa’s Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (“ICC Act”).
In his landmark decision, Judge H.J. Fabricius found that there was sufficient evidence to warrant an investigation into the abuses. As such, he held that by refusing to investigate the abuses, prosecutors had violated South Africa’s ICC Act. The court’s ruling could have significant implications for South Africa’s commitment to accountability for serious human rights abuses.
The decision also raises important questions about the prospects for justice and accountability in South Africa. For instance, will South Africa now investigate and prosecute other foreign government leaders who reside in or visit South Africa? A prime candidate for consideration would be Burma’s Ambassador to South Africa, Myint Naung, who reportedly served as commanding officer of a military battalion accused of committing war crimes in Burma.
According to the Karen Human Rights Group, South Africa has been hosting Ambassador Myint Naung since July 2011 despite evidence of his criminal responsibility.
It has been ten years since South Africa enacted a law granting universal jurisdiction to prosecute foreign human rights abusers. Ten years from now, when we consider the progress made in achieving accountability for human rights abuses, let’s hope that rather than abdicating its responsibility, South Africa instead has made a place for itself in history as a country that stood on the side of justice.