[This is not the first effort at bringing imperialist “human rights” law against imperialists and the imperialist machinery, and once again it will fail, undoubtedly. But it does have the educational benefit of highlighting the hypocritical “exemption” which bourgeois law grants the international bourgeoisie as a class. Furthermore, the protest campaign against US imperialist foreign policy, while signed onto by the South African neo-colonial (some say sub-imperialist) Tripartite Alliance ruling class, is more a “faux anti-imperialist” fig leaf and a bid for mass confusion and nationalist credibility, than a genuine call to action. It invokes the popular hatred of imperialism, but only for self-serving “populist” ends. See the announcement of the South “ to Protest USA Foreign Policy” during the visit of President Barak Obama, below. — Frontlines ed.]
by Christopher Gevers
On Friday a group of South African lawyers lodged a complaint with the country’s National Prosecuting Authority (NPA) calling for President Obama’s arrest for war crimes, crimes against humanity and genocide when he visits South Africa this month. More specifically, the group – the Muslim Lawyers Association – submitted a docket to South African authorities requesting that President Obama be “investigated, charged, arrested and tried in a South African Court for War Crimes, Crimes against Humanity and Genocide”. According to the group’s Press Release
“The complaint, dubbed the “Obama Docket” encourages South Africa to take seriously its domestic and international obligations and to act against International War Criminals lest they consider South Africa a safe haven and travel here freely with impunity.
In terms of the ICC Act, diplomatic immunity is not a defence and a Head of State is not immune from prosecution for the aforementioned crimes. The Complaint asks for Obama’s arrest when he enters South Africa or the securing of his attendance at a trial by other lawful means.
In the alternative, the complaint requires South Africa as a State Party to the Rome Statute, to refer the case to the Prosecutor of the International Criminal Court at the Hague to exercise Jurisdiction in terms of the Rome Statute.
The Obama administration’s Drone programme which has resulted in massive losses of innocent lives in Pakistan, Yemen and Afghanistan. The programme is responsible for extra-judicial killings both innocent civilians as well as US citizens abroad. The drone strike policy has continued unabated with total disregard for territorial sovereignty and this is cited as the primary reason that Obama should be investigated and tried for War Crimes, crimes against humanity and genocide.
The large number of well documented civilian deaths are said to constitute international crimes and the complaint refers to numerous International Reports which have documented evidence on the USA drone policies. Other crimes cited include extra judicial renditions and torture.”
Having not had sight of the “Obama Docket” its difficult to speculate about its chances of success. Nevertheless, a few preliminary points are worth making:
this is not the first time that civil society organisations have submitted “dockets” to the NPA with a view to triggering investigations into international crimes under South Africa’s ICC implementing legislation
(the ICC Act) – although its certainly the most high profile. To date, dockets have been submitted in respect of alleged war crimes and crimes against humanity in Gaza
. While the first was not successful, the latter two were (to varying degrees). The NPA initially refused the request to open an investigation into the Zimbabwe Docket, but the litigants (the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum) managed to get the refusal declared unlawful by the High Court, which ordered that it be reconsidered (the decision has been taken on appeal). The Madagascar case was more straightforward, the NPA agreed to open an investigation following the submission of the docket without much difficulty. The difference between the NPA’s handling of the two cases can be partially explained by the presence of the suspect in the Madagascan case in South Africa (former President Marc Ravalomanana), whereas the Zimbabwe docket requested an investigation in respect of suspects whose presence in South Africa was ‘anticipated’. The main contention on appeal in the latter case is whether the presence of an accused is a legal requirement in order for an investigation to be opened under South Africa’s ICC Act. (See discussion here
). The short point is that this recent request is not as “left field” as international observers might think; these requests have been acceded to in the past.
The second, related point worth making is that the reason that these requests have been successful in the past is that the evidentiary threshold for triggering an investigation under the ICC Act is quite low: “reasonable basis to believe”. This was one of the upshots of the Zimbabwe Docket litigation, where the High Court found that the same standard applies for domestic investigations as for the initiation of an investigation by the ICC Prosecutor under the Rome Statute (see article 53(1)(a)). This threshold was later applied in respect of the Madagascar docket and was instrumental in its success. Again, while we don’t know what evidence the “Obama Docket” contains, its worth noting that the threshold it needs to meet in order to trigger an investigation is fairly low.
What is more, its worth noting that the High Court in the Zimbabwe Docket case found that
“[W]hen 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 having regard to the purpose of the ICC Act.”
This brings us to the third point which concerns the question of President Obama’s immunity as a serving Head of State. The MLA Press Release blithely notes: “In terms of the ICC Act, diplomatic immunity is not a defence and a Head of State is not immune from prosecution for the aforementioned crimes”. The provision being referred to here is section 4(2)(a) of the ICC Act which states:
“[Notwithstanding] any other law to the contrary, including customary and conventional international law, the fact that a person […] is or was a head of State or government, a member of a government or parliament, an elected representative or a government official […] is neither – (i) a defence to a crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime”.
Most commentators have interpreted this provision as removing diplomatic immunity in respect of prosecutions under the ICC Act. The High Court in the Zimbabwe Docket litigation accepted this interpretation, noting: “the ICC Act itself denies explicitly diplomatic immunity to government officials accused of committing ICC Act crimes”. This, if correct, would place South Africa’s ICC Act in conflict with the ICJ’s Arrest Warrant decision.
However, as I’ve argued elsewhere
, section 4(2)(a) is clearly modeled on article 27(1) of the Rome Statute – which deals with the irrelevance of official capacity as a defence or as a ground for the reduction of sentence – and not article 27(2), which deals with personal immunity. Therefore, while 4(2)(a) of the ICC Act may effectively remove functional immunity, it does not address personal immunity which remains in place under the ICC Act, and in compliance with customary international law.
As far as the substance of the docket is concerned, the Press Release is too general to usefully discuss the merits thereof. However, the reference to the “drone strike policy” as being the “primary reason that Obama should be investigated and tried for War Crimes, crimes against humanity and genocide” is interesting. The use of drone per se is not illegal (quite the contrary perhaps – see Frederic Megret’s interesting essay
on this subject). That said, serious concerns have been raised about the use of “signature strikes” – more specifically the use of certain “signatures” that may well violate IHL – which constitute the overwhelming number of drone strikes by the US. On this point see Kevin Jon Heller’s excellent, new essay
. Rather fortuitously, Kevin is in South Africa at the moment and will be talking about the legality of signature strikes at an event
in Johannesburg on Thursday. Perhaps the NPA should be encouraged to attend.
We will have to wait for more information on the docket to become public, but at this point it is clear that the Obama team should take it seriously given the low threshold it needs to meet in order to trigger an investigation under the ICC Act and the past success of similar initiatives. However, even if it is enough to trigger an investigation President Obama should, on a correct interpretation of the ICC Act, still be afforded immunity from arrest as a Head of State.
19, June, 2013
“ to Protest USA Foreign Policy”
We as South Africans in the form of the South African Communist Party (SACP), the Young Communist League of South Africa (YCL), the South African Students Congress (SASCO), the Muslim Students Association(MSA), the National Education, Health and Allied Workers Union(NEHAWU), the Congress of South African Trade Unions (COSATU), Friend of Cuba Society (FOCUS), Boycott, Divestment and Sanctionsagainst Israel in South Africa (BDS South African), and the World Federation of Trade Unions (WFTU), declare our utmost rejection of visit of the United States of America President, Barak Obama to our country.
Our rejection is based the USA’s arrogant, selfish and oppressive foreignpolicies, treatment of workers and international trade relations that are rooted in war mongering, neo-liberal super-exploitation, colonial racism and the disregard and destruction of the environment, thus making the realisation of a just and peaceful world impossible.
The coming of President Barak Obama to South Africa is the first ever since he was elected head of state. The USA under his leadership has escalated its assault on human rights, militarisation of international relations and continuing galloping of world resources at the absolute expense of the environment and oppressed peoples of the world.
The USA is deeply implicated in the oppression of the people of Western Sahara, the only remaining colonised country on the African continent,colonised by Morocco. And to this day, the release of the Cuban Five and a continuing baseless embargo against the country and peoples of Cuba still seems unmovable issues of commitment for the USA. The call for therelease of the Cuban Five has been an important international campaignsupported even by Nobel Prize winners who released a document calling on their freedom; Zhores Alferov (Nobel Prize for Physics, 2000), Desmond Tutu (Nobel Peace Prize, 1984), Nadine Gordimer (Nobel Prize in Literature, 1991), Rigoberta Menchú (Nobel Peace Prize, 1992), Adolfo Pérez Esquivel (Nobel Peace Prize, 1980), Wole Soyinka (Nobel Prize in Literature, 1986), José Saramago (Nobel Prize in Literature, 1996), Günter Grass (Nobel Prize in Literature, 1999).
The criminal occupation of Palestine by the Apartheid State of Israel, as awell-known fact in our country, has only been made possible by the USA’s financial and political support for the Racist Israeli regime. This is expressed in the main, through both its open support and military donations that come to billions of dollars every year – with USA aid to Israel being more than that of Africa, Latin America and Asia combined.
In addition, the USA has for years been singlehandedly blocking any progress and is totally divorced and isolated from the consensus of the international community. In fact, the USA is the most frequent user of the UN veto: it has used its veto power over 40 times to defend Apartheid Israel. As South Africans, we painfully recall how the US used its veto power to defend Apartheid South Africa, particularly from UN resolutions imposing economic and military sanctions. The USA, under Regan and others, suported Apartheid South Africa and was on the wrong side of history. Why does the USA not learn from its history, and be on the right side of history this time?
Finally, the United States’ policies on the environment, specifically the fact that it is one of the largest contributors to global warming, yet to this day continues to refuse the observing and singing of the Kyoto protocol, is simply unacceptable.
Progressive forces in South Africa have consistently been raising theseissues and many others regarding the role of the USA in the global community. We categorically make it known, that the visit of the USA President to South Africa is an unwelcomed visit that will be protested, picketed and resisted by all justice and peace-loving peoples of this country. Friendship with South Africa must be based on values of justice, freedom and equality and these the USA has offended, undermined and ridiculed through its actions in the global front.
The following issues will be highlighted in upcmoing protests of PresidentBarak Obama:
The championing and maintenance, by the USA, in the militarisation of international relations and co-operation. It is a well-known fact that the USA approaches conflicts in the world through inciting, encouraging as well and championing war, primarily driven by its business interests often masqueraded in the language of defence of human rights. The militarisation of international relations is in the main exemplified by institutions like Africom, NATO, and the continuing double standards around nuclear disarmament that the USA preaches when it comes to countries in the South, whilst continuing to collaborate with on nuclearweapones with Israel.
The continued greed in the guzzling of world resources by the USA epitomised by its encouragement and support of its multinational companies that have no regard for the environment, human rights,progressive labour laws etc.
The USA’s active support and defence of colonial and oppressive regimes. This is the one aspect of USA foreign policy that most exposes its hypocritical character where regimes that support its interest are never opposed; instead they are not only supported but maintained through amongst other things, the USA war machinery. Chief amongst these is Israel, which continues to serve as the USA’s frontline state in the Middle-East whilst suppressing and maintaining its racist apartheid policies on Palestinian people. Another example, is the USA’s support to Morrocco, that is oppressiing and colonialally occuppying Western Sahara, and increasingly the support of oppressive regimes like the onein Colombia.
The USA’s role maintaining the underdevelopment of the African continent and its imperialistinc trade realtions with African countries.
The unjustifiable bloacke on Cuba and unfair imprisonment of the Cuban 5.
The United States of America is the single largest contributor to global warming which is condemning the world into catastrophic environmental disasters.
Members of the public are invited to participate in a National Day of Actionon the 28th of June, with a primary event taking place in the form of a protestmarch from Union Building to the United States of America Embassy in Pretoria:
Date: 28 June, 2013, Friday – 10h00
A demonstration against the decision of the University of Johannesburg to award President Barak Obama an honorary doctorate:
Date: 22 June, 2013, Saturday – 11am; UJAPK, Kingsway road
For more info, contact;
Lucian Segami (NEHAWU): 079 522 0098
Mbuyiseni (BDS-SA): 073 133 3012
Richard Mamabolo (YCLSA): 079 670 0274