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Mail & Guardian
12 November 2021
Atilla Kisla

The Office of the Chief Prosecutor of the International Residual Mechanism for Criminal Tribunals (IRMCT) visited Pretoria on 8 and 9 November to meet representatives of the South African departments of home affairs, police, justice and international relations.

The IRMCT was mandated by the United Nations security council to carry out core functions that the International Criminal Tribunal for Rwanda previously conducted. One of these is the search for remaining fugitives indicted for genocide and other serious international crimes committed during the 1994 genocide in Rwanda.

The reason for their visit is the lack of cooperation by South African authorities related to the transfer of fugitives to the IRMCT.

Although South Africa’s obligations to arrest, extradite or transfer fugitives from justice are clear under international law, South Africa’s practice in that regard appears to be driven by factors other than the law. Examples from the past 10 years illustrate a growing trend to avoid or slow down extradition proceedings to other countries or transfers to international entities such as the IRMCT.

The country’s rising popularity as a safe haven for perpetrators of crimes against humanity, war crimes and genocide is profoundly concerning. It raises the question of how this tacit encouragement for impunity can be addressed.

SA’s obligations under international law

As a state party to various international agreements such as the Rome Statute, Geneva Conventions or the European Convention on Extradition, South Africa bears obligations towards the international community and other state parties to those agreements.

If, for instance, a suspect or perpetrator of war crimes, crimes against humanity or genocide is present in the country, South Africa can be requested to cooperate in the arrest, extradition or transfer of that person. For instance, with respect to the IRMCT, its statute points out that states have to comply with a request for assistance. Looking at South Africa’s various international law obligations, one can see that they are clearly designed to prevent the country being a safe haven.

In 2014, the constitutional court further reiterated the importance of fighting impunity and not being a safe haven in the case of the National Commissioner of the South Africa Police Service v Southern Africa Litigation Centre and Another, a case known as the Torture Docket case. The court held that: “We cannot be seen to be tolerant of impunity for alleged torturers. We must take up our rightful place in the community of nations with its concomitant obligations. We dare not be a safe haven for those who commit crimes against humanity.”

Cognisant of South Africa’s past and obligations under international law, the court formulated a resolute warning. A warning not to become a safe haven. A warning not to contribute to impunity. A warning not to become an unreliable member of the international community again.

The practice of a safe haven?

Looking at examples from the recent past, one might question whether the words of the constitutional court caught on because there seems to be a trend of allowing suspected or convicted perpetrators to reside in the country.

In July 2010, Faustin Kayumba Nyamwasa, a former general of the Rwandan Patriotic Army and suspected perpetrator of war crimes, genocide and crimes against humanity, was granted refugee status in South Africa. In 2012, Spanish authorities requested his extradition based on an indictment that included charges such as international crimes in Rwanda. Despite a renewed extradition request for Nyamwasa in 2021, no noticeable steps were taken to follow the extradition request, and Nyamwasa remains at large.

In December 2017, the Netherlands requested the extradition of Augustinus Maria Kouwenhoven, a person convicted for complicity in war crimes under the regime of Charles Taylor. Kouwenhoven had initially been granted a visa by the authorities to reside in South Africa, which the department of home affairs cancelled in November 2020. In September 2021, the supreme court of appeal (SCA) dismissed Kouwenhoven’s appeal related to the extradition proceedings in two matters. Although the SCA judgment might pave the way for extradition, it remains to be seen whether this will happen.

On 8 June 2021, the chief prosecutor of the IRMCT, Serge Brammertz, reported to the UN security council that South Africa failed to provide the necessary cooperation in the matter of Fulgence Kayishema. Kayishema is suspected of having participated in the 1994 genocide of Tutsis in Rwanda and was granted refugee status in South Africa. Brammertz described the situation as follows: “As it stands today, South African authorities are effectively sending the message that their country is a safe haven for fugitive genocidaires.”

Brammertz’s damning characterisation reflects a cooperation practice that is detached from South Africa’s obligations under international law and, more crucially, from what South Africa, on paper, aspires to be. As the inertia and lethargy to cooperate certainly cast doubts about the state’s commitment to fighting impunity, such behaviour also allows perpetrators of international crimes to corrupt the legal protection provided to individuals in need, such as a refugee status.

Interests of international justice

Very often, it becomes clear that political interests compete with interests of justice. International criminal law, a body of law that is supposed to be free and unadulterated by national politics, seems now to be dominated by it. Even accepting a political dimension to these issues does not justify a position that goes against the core belief of justice and human rights. Foreign relations that are not guided by such core values of humanity are indicative of a state that cannot be regarded as a reliable and responsible partner on the international plane.

Holding perpetrators of international crimes to account is not an easy task. States often have to cooperate to arrest suspects or persons convicted for international crimes. The willingness to cooperate, the dialogue among states and international bodies, and between state authorities and civil society are key in that regard.
But, if a state merely refuses to act on its obligations and follows a strategy of slowing proceedings down, responsible authorities must be held to account. In the example of Al-Bashir or the Torture Docket case, the South African jurisprudence has produced compelling examples that South African authorities cannot be oblivious of such obligations and have to act accordingly.