The Zimbabwe Torture Docket and the ghosts of crimes past

by Christopher Gevers

The recent decision of the North Gauteng High Court ordering the
National Prosecuting Authority, together with the South African Police Service,
to properly investigate allegations of torture that took place in Zimbabwe, has
been greeted with both elation and disdain. Civil society has proclaimed it as
a victory for human rights, universal jurisdiction and the rule of law.
Predictably, a ZANU-PF aligned member of the Zimbabwean government decried the
decision as
“a wish by the South
African judge pushing an agenda of former Rhodesians” looking to effect regime
change in Zimbabwe.
While there is little hope of
reconciling these two points of view, there is some value to be found in
setting out exactly what the decision was (and was not) about.

First, this case was not about Zimbabwean politics, at least not
directly. It will no doubt have an effect on the political environment in
Zimbabwe, and perhaps even South Africa’s mediation efforts there, but this was
not its focus. Some might question the selection of these from amongst the
abundance of putative international crimes, but the short answer to this
skepticism is that by proximity alone Zimbabwe is a more likely candidate than,
say, Syria. Moreover, this is not the only attempt by civil society to use
South Africa’s Rome Statute Act in this manner. In 2009
civil society organisations submitted a docket
to the NPA and SAPS concerning war crimes allegedly committed in Israel’s offensive
in Gaza (Operation Cast Lead)
. Before that, civil
society relied on the same Act to dissuade President Omar al-Bashir from coming
to President Zuma’s inauguration (albeit not under threat of domestic
prosecution but rather of arrest pursuant to a warrant issued by the
International Criminal Court in The Hague).

Second, while this case is undoubtedly a landmark one for the
exercise of universal jurisdiction over international crimes, it is possible to
overstate its significance in this regard. South Africa has notionally
exercised universal jurisdiction over such crimes wherever they are committed since the ‘Implementation of the Rome
Statute of the International Criminal Court Act’ was passed in 2002. In this regard, those looking to impugn the
applicants might reserve some of their opprobrium for Parliament – which passed
the Act – and former President Thabo Mbeki – who by Presidential proclamation
created a specialized unit to manage and direct investigations and prosecutions
under the Act in 2003. Moreover, this case did not involve the direct
application of the criminal provisions of the Act (that is yet to come); it was
a review application relating to the obligations of the state under the Act,
the Constitution and international law. All Judge Fabricius did was apply these
laws to the facts before him. The significance of his decision lies in setting
out the responsibilities of the NPA and SAPS under the Rome Statute Act, and
under what circumstances these are triggered.

As such, this case was as much (if not more) about service delivery:
i.e. holding to account state organs that do not fulfill their constitutional
mandates. The court found the NPA and SAPS were remiss in their failure to
properly investigate a docket providing a reasonable basis to believe
international crimes that fell within their investigative remit had been committed
by individuals who visited South Africa.

Seen in this light, the case is only the most recent example of the
NPA’s failure to fulfill its obligations in respect of the prosecution of
crimes that – in the words of Michael Walzer – “shock the moral conscience of
mankind”. Since the Truth and Reconciliation Commission’s work ended in 2003,
the NPA has dragged its feet in respect of its duty to prosecute the
perpetrators of serious apartheid-era crimes who were either denied amnesty or
refused to apply for it. In 2008 the families of victims of apartheid-era
crimes prevented the NPA from shirking this duty altogether by having its
policy – that provided for a second round of amnesties – declared
unconstitutional. However, such prosecutions have still not been forthcoming,
notwithstanding the fact that some would amount to ‘international crimes’ –
placing South Africa under an international obligation to prosecute them. While
the Rome Statute Act’s reach is limited to international crimes that have taken
place since 2002, the NPA has other legal avenues to pursue justice for these
atrocities should it wish to ‘deliver’ in this regard. It can only be hoped
that the Zimbabwe case will wake the NPA from its slumber in respect of these
crimes as well.

There is a broader lesson here. The history of the ‘international
justice’ project (of which these cases form part) is replete with irony.
Hitler and Goering met at a rally in
1922 protesting the demand by the “Entente” that Germany’s military leaders be
extradited to stand trial under the terms of the Treaty of Versailles. Those
trials never took place. However, the horrific events that Hitler and Goering –
along with their contemporaries – unleashed on Europe two decades later brought
about the first international war crimes trials in history at Nuremberg (where
Goering was tried), which form the normative and institutional basis of the ‘international
justice’ project.

Seventy years later, the project’s
penchant for irony remains. In April last year, as six high-profile Kenyan
politicians accused of committing atrocities in the aftermath of the December
2007 elections made their first appearance at the International Criminal Court
in The Hague, victims of British abuses in pre-independent Kenya were finally having
their day in court in London.
It comes as no surprise
then that the current case provides yet another twist of fate: the same week
that the Zimbabwe case was being heard at the Pretoria High Court in March, the
unfinished business of apartheid crimes was being discussed at Wouter Basson’s
professional misconduct hearing just down the road.

These anecdotes teach an obvious lesson that has been shared by
Milosevic, Taylor, Eichmann, Krstic and Mladic: that is, the inevitability of
international justice. While justice often takes its time, its time eventually
comes to those that deserve it.

Therefore, through their recalcitrant efforts to avoid their duty in
investigating the individuals implicated in the torture docket, the NPA and
SAPS did nothing more than slow down justice’s march.  The importance of Judge Fabricius’s decision
is to put the South African authorities on the right path again. However,
unless and until they are adequately addressed the crimes of the past will
continue to cast a long shadow over the pursuit of international justice in
South Africa.

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