Practice Relating to Rule 158. Prosecution of War Crimes
South Africa’s LOAC Manual (1996) states: “Signatory States [of the 1949 Geneva Conventions] are required to treat as criminals under domestic law anyone who commits or orders a grave breach [of the 1949 Geneva Conventions].”
The manual further states:
Grave breaches of the law of war are regarded as war crimes. They shall be repressed by penal sanctions …
Grave breaches are indictable offence[s] under Section 7 of the Geneva Conventions Act, RSA, 1957. South Africa is obliged to search out and prosecute or extradite those who have committed a grave breach. For all breaches (i.e. violations of the law of war), South Africa has an obligation to take steps to ensure that the offences do not happen again … If breaches went unpunished, it would signify the degradation of human values and the regression of the entire concept of humanity.
South Africa’s Revised Civic Education Manual (2004) states: “South Africa is obliged to search out and prosecute or extradite those who have committed a grave breach [of the law of armed conflict].”
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
- Legal liability: Individuals who do not adhere to the LOAC will be charged with war crimes and other offences. (National Courts, International Criminal Court or War Crimes Tribunals).
1.3 Relationship between LOAC and Human Rights Law and Fundamental Protection Provided under LOAC.
Any breach of the LOAC is inevitably that of individuals and they have to answer for their actions. However, it is the State who must punish the offender and rectify the wrongs that were done and, in the end, individuals in the State, such as superior officers and political heads[,] are also held responsible for grave breaches of the LOAC.
The manual also states:
5.1 War Crimes and Grave Breaches of the LOAC
State Responsibility regarding War Crimes and Grave Breaches
- States must enact legislation to provide for punishment for committing war crimes or grave breaches.
- States must search for those that have committed war crimes or grave breaches.
- States must take legal action against or extradite those that have committed war crimes o[r] grave breaches.
5.3 Criminal Liability under the LOAC
The implementation of the [R]ome [S]tatute of the [I]nternational [C]riminal [C]ourt [A]ct (act no 27 of 2002)
- The act gives jurisdiction to sa [South African] courts to try any person who commits a crime (as defined in the  [R]ome [S]tatute) within the rsa [Republic of South Africa].
- The rsa courts also have jurisdiction to hear the case as if such a crime has been committed inside the rsa by a person[:]
- Who is a citizen of the rsa;
- Who is not a citizen of the rsa but is ordinarily resident in the rsa;
- Who is, after commission of the crime, present in the rsa; or
- Who has committed the said crime against a rsa citizen or against a person who is ordinarily resident in the rsa.
- However, no such prosecution may be instituted against a person without the consent of the national director of prosecutions.
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means –
(a) a grave breach referred to in Article 50 of the First Convention;
(b) a grave breach referred to in Article 51 of the Second Convention;
(c) a grave breach referred to in Article 130 of the Third Convention;
(d) a grave breach referred to in Article 147 of the Fourth [Geneva] Convention; or
(e) a grave breach referred to in Article 11 or 85 of [the 1977 Additional] Protocol I.
3) Any person who within the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.
(4) Any citizen of the Republic who outside the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.
5) A person convicted of an offence contemplated in subsection (1), (3) or (4) is liable to a fine or to imprisonment, including imprisonment for life, or to such imprisonment without the option of a fine or to both a fine and such imprisonment.
South Africa’s Prevention and Combating of Torture of Persons Act (2013) states:
Offences and penalties
(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture.
6. (1) A court of the Republic has jurisdiction in respect of an act committed outside the Republic, which would have constituted an offence under section 4(1) or (2) had it been committed in the Republic, regardless of whether or not the act constitutes an offence at the place of its commission, if the accused person –
(a) is a citizen of the Republic;
(b) is ordinary resident in the Republic;
(c) is, after the commission of the offence, present in the territory of the Republic, or in its territorial waters or on board a ship, vessel, off-shore installation, a fixed platform or aircraft registered or required to be registered in the Republic and that person is not extradited pursuant to Article 8 of the  Convention [against Torture]; or
(d) has committed the offence against a South African citizen or against a person who is ordinarily resident in the Republic.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In its judgment in the Basson case
in 2004, the Constitutional Court of South Africa stated that “international law obliges the state to punish crimes against humanity and war crimes”.
In the same case, Justice Sachs wrote in his concurring opinion:
The duty of states to provide effective penal sanctions today for persons involved in grave breaches of humanitarian law, whenever committed, is captured and expressed in Article 146 of the Fourth Geneva Convention of 1949 (articles 146–147 appear with different numbering in all four conventions).
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
In 2014, in the International Crimes case, South Africa’s Constitutional Court stated:
31. The preamble to the  Rome Statute affirms that states parties are determined “to put an end to impunity for the perpetrators of [grave] crimes and thus to contribute to the prevention of such crimes” and it recalls “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”.
32. The need for states parties to comply with their international obligation to investigate international crimes is most pressing in instances where those crimes are committed by citizens of and within the territory of countries that are not parties to the Rome Statute, because to do otherwise would permit impunity. If the investigation is not instituted by non-signatory countries in which the crimes have been committed, the perpetrators can only be brought to justice through the application of universal jurisdiction, namely the investigation of these alleged crimes by state parties under the Rome Statute.
South Africa’s jurisdiction in respect of the international crime of torture
33. South Africa was the first African state to domesticate the Rome Statute into national legislation. This was done in terms of section 231(4) of the Constitution through the enactment of the  ICC Act. …
34. It is clear that a primary purpose of the [2002 ICC] Act is to enable the prosecution in South African courts or the ICC, of persons accused of having committed atrocities, such as torture, beyond the borders of South Africa. …
37. Along with torture, the international crimes of piracy, slave-trading, war crimes, crimes against humanity, genocide and apartheid require states, even in the absence of binding international treaty law, to suppress such conduct because “all states have an interest as they violate values that constitute the foundation of the world public order”. Torture, whether on the scale of crimes against humanity or not, is a crime in South Africa in terms of section 232 of the Constitution because the customary international law prohibition against torture has the status of a peremptory norm.
38. Furthermore, along with genocide and war crimes, there is an international treaty obligation to prosecute torture. …
40. Because of the international nature of the crime of torture, South Africa, in terms of sections 231(4), 232 and 233 of the Constitution and various international, regional and sub-regional instruments, is required, where appropriate, to exercise universal jurisdiction in relation to these crimes as they offend against the human conscience and our international and domestic law obligations.
Is presence a requirement for the investigation of international crimes?
47. The Supreme Court of Appeal undertook an informative examination of comparative foreign and international law, which we need not repeat here. It would appear that the predominant international position is that presence of a suspect is required at a more advanced stage of criminal proceedings, when a prosecution can be said to have started. This position accords with the section 4(3) [of the 2002 ICC Act] requirement of presence for the purposes of prosecution. In regard to presence for purposes of investigation, customary international law is less clear. Scholars point out, however, that presence is generally not required for an investigation and there is no international law rule that imposes that requirement. This reasoning conforms to our Constitution which requires an accused “to be present when being tried”. Accordingly, the exercise of universal jurisdiction, for purposes of the investigation of an international crime committed outside our territory, may occur in the absence of a suspect without offending our Constitution or international law.
48. This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.
49. … South Africa may, through universal jurisdiction, assert prescriptive and, to some degree, adjudicative jurisdiction by investigating the allegations of torture as a precursor to taking a possible next step against the alleged perpetrators such as a prosecution or an extradition request. The contention by the SAPS [South African Police Service] that it could not investigate without a suspect’s presence must therefore fail.
The duty on the SAPS to investigate international crimes
…55. The Supreme Court of Appeal held that the SAPS has the requisite power to investigate the allegations of torture. I would go further. There is not just a power, but also a duty. While the finding that the SAPS does have the power to investigate is unassailable, the point of departure is that the SAPS has a duty to investigate the alleged crimes against humanity of torture. That duty arises from the  Constitution read with the  ICC Act, which we must interpret in relation to international law.
56. The Constitution and the  ICC Act make it clear that, whilst empowered to investigate crime, the SAPS also bears a duty to do so. …
57. The statutory designation of international crimes under the SAPS Act domesticated into our law by the  ICC Act requires the SAPS to prioritise these types of crimes and indeed imposes a duty on it to do so. …
60. The effect of the relevant domestic legal provisions is that–
(b) the SAPS is permitted under international law and has a duty in our domestic law to investigate crime and, in particular, high priority crimes like torture as a crime against humanity and the customary international law nature of the crime of torture underscores the duty to investigate this type of crime.
Limiting the duty to investigate international crimes
61. … [T]he universal jurisdiction to investigate international crimes is not absolute. It is subject to at least two limitations. The first limitation arises from the principle of subsidiarity. It requires that ordinarily there must be a substantial and true connection between the subject-matter and the source of the jurisdiction. And once jurisdiction is properly founded, the principle of non-intervention in the affairs of another country must be observed; investigating international crimes committed abroad is permissible only if the country with jurisdiction is unwilling or unable to prosecute and only if the investigation is confined to the territory of the investigating state. Simply put, we may not investigate or prosecute international crimes in breach of considerations of complementarity and subsidiarity.
62. These considerations require that South African investigating institutions may investigate alleged crimes against humanity committed in another country by and against foreign nationals only if that country is unwilling or unable to do so itself. …
63. The second limiting principle is practicability. Before our country assumes universal jurisdiction it must consider whether embarking on an investigation into an international crime committed elsewhere is reasonable and practicable in the circumstances of each particular case. That decision must be made in the light of all the relevant circumstances. None of these factors alone should be dispositive of the enquiry. Each case must be determined on its own merits and circumstances.
64. Foremost amongst these considerations are whether the investigation is likely to lead to a prosecution and accordingly whether the alleged perpetrators are likely to be present in South Africa on their own or through an extradition request; the geographical proximity of South Africa to the place of the crime and the likelihood of the suspects being arrested for the purpose of prosecution; the prospects of gathering evidence which is needed to satisfy the elements of a crime; and the nature and the extent of the resources required for an effective investigation. In some instances a preliminary investigation to test the reasonableness of undertaking a full-blown investigation may be necessary. …
Analysis of the SAPS’s duty and the applicable test with reference to the facts
73. The SAPS advanced as its first reason that it has no extra-territorial jurisdiction and that the mere anticipated presence of a suspect at some future time in this country was not sufficient to clothe the SAPS with the requisite power and jurisdiction. As set out above, this is a misconception of the SAPS’s domestic legal duty. And, for the reasons stated previously, presence of any kind, even anticipated presence, is not a prerequisite for an investigation into the torture allegations.
74. A second reason given was that any investigation would be potentially harmful to South Africa–Zimbabwe relations on a political front. The cornerstone of the universality principle, in general, and the Rome Statute, in particular, is to hold torturers, genocidaires, pirates and their ilk, the so-called hostis humani generis, the enemy of all humankind, accountable for their crimes, wherever they may have committed them or wherever they may be domiciled. An approach like the one adopted by the SAPS in the present case undermines that very cornerstone. Political inter-state tensions are, in most instances, virtually unavoidable as far as the application of universality, the Rome Statute and, in the present instance, the  ICC Act is concerned.
Conclusion on the merits
78. Given the international and heinous nature of the crime, South Africa has a substantial connection to it. An investigation within the South African territory does not offend against the principle of non-intervention and there is no evidence that Zimbabwe has launched any investigation or has indicated that it is willing to do so, given the period of time since the alleged commission of the crimes. Furthermore, the threshold for the SAPS to decline to investigate, bearing in mind the particular facts and circumstances, has not been met in this case. There is a reasonable possibility that the SAPS will gather evidence that may satisfy the elements of the crime of torture allegedly committed in Zimbabwe.
80. The Supreme Court of Appeal was therefore correct to rule that on the facts of this case the torture allegations must be investigated by the SAPS. Our country’s international and domestic law commitments must be honoured. 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.
81. The SAPS’s decision not to conduct an investigation was wrong in law. The High Court and the Supreme Court of Appeal were correct in setting it aside. … I agree with the reasoning of the Supreme Court of Appeal that the duty to investigate international crimes may be limited by considerations like resource allocation. This judgment formulates limiting principles and finds that anticipated presence of a suspect in South Africa is not a prerequisite to trigger an investigation. It is only one of various factors that needs to be balanced in determining the practicability and reasonableness of an investigation. Therefore, mainly for the reasons the Supreme Court of Appeal gave, though subject to the qualification stated, the appeal must be dismissed.
[footnotes in original omitted]
In 1998, in its report on “gross violations of human rights” committed between 1960 and 1993, South Africa’s Truth and Reconciliation Commission stated:
Those combatants who were killed or seriously injured while they were unarmed or out of combat, executed after they had been captured, or wounded when they clearly could have been arrested were held to be victims of gross violations of human rights, and those responsible were held accountable.
In 2010, in a statement at the Tenth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of the Department of International Relations and Cooperation stated:
I am convinced that this seminar will contribute to Africa’s ongoing efforts to develop a culture of respect for non-combatants and for prisoners of, and persons affected by war. Discussions and debate need to be followed by proper implementation of IHL and its instruments. Following from the implementation of IHL, we should also continue to publicly deplore any violations of International Human Rights and Humanitarian Law, and also bring to justice the perpetrators thereof.
In 2011, in a statement before the UN Security Council during an open debate on children and armed conflict, made partly on behalf of the Group of Friends of Children and Armed Conflict, including South Africa, the deputy permanent representative of Canada stated:
Although the Friends Group applauds the action taken by the Security Council so far in strengthening accountability for persistent perpetrators of grave violations against children, we call for further decisive action in three ways against such perpetrators … Third, we remain concerned with the accountability gap and call … upon national authorities and all parties concerned to take appropriate legal actions against persistent perpetrators.
In 2011, in an opening statement at the Eleventh Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of International Relations and Cooperation stated:
Member States on the African continent have shown a steady support for ratifying international instruments pertaining to IHL. However, we all acknowledge that more can and should be done. In this regard, I remain convinced that the effective implementation of IHL enhances a rules-based international system, which directly ensures the protection of civilians against breaches of IHL and impunity, and ultimately contributes to the creation of a better world for all. We therefore need to ensure that all relevant role-players are properly sensitised to and advised about the importance of IHL, not only during times of conflict, but also during times of peace. Lastly, we should also continue to publicly express our dissatisfaction about serious violations of International Human Rights and Humanitarian Law and remain unwavering in our resolve to bring to justice the perpetrators thereof.
In 2012, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, the deputy permanent representative of South Africa stated:
[W]e wish to underline that it remains the primary responsibility of States to protect civilians within their borders. Armed opposition groups also bear responsibility for ensuring that unarmed civilians are protected, and the failure by both State and non-State actors to uphold that principle should not go unpunished. Accountability must first and foremost be sought at the national level. Failing that, the international community has a collective responsibility to act, using mechanisms at its disposal, including independent fact-finding commissions, commissions of enquiry and the International Criminal Court. On 19 January, the [UN Security] Council adopted a presidential statement on justice and the rule of law (S/PRST/2012/1), which reiterated the Council’s call on all parties to armed conflict to comply with the obligations applicable to them under international humanitarian law and to take the required steps to protect civilians. The Council also reaffirmed its strong opposition to impunity for serious violations of international humanitarian law and human rights law and stressed States’ responsibility in that regard.
In 2013, in a statement before the UN Security Council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, including South Africa, the permanent representative of Canada stated:
Holding perpetrators to account [for] grave violations against children continues to be rare as indicated by the Secretary-General in his annual report, and yet is a crucial element towards protecting children’s rights. The Friends encourage Member States to strengthen national accountability mechanisms and judicial capacities, including by developing child protection legislations that criminalize all grave violations against children. In those cases where national authorities are unwilling or unable to hold perpetrators to account, due to lack of capacity or resources for instance, international justice mechanisms, including through the work of the International Criminal Court, and ad hoc and mixed tribunals, can and should play a complementary role.
In 2014, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, made on behalf of the members of the Human Security Network and on behalf of South Africa as an observer, the permanent representative of Slovenia stated:
States have the obligation to comply with international humanitarian and human rights law and to investigate and prosecute any serious crime committed within its borders. … Impunity is not an option. It encourages perpetrators to continue their atrocious acts. The fight against impunity should be a common effort, in which the affected State delivers and ensures the conditions to bring about justice and the international community provides technical assistance and resources to such States.
South Africa’s Refugees Act (1998), as amended to 2011, states:
4. Exclusion from refugee status
(1) A person does not qualify for refugee status for the purposes of this Act if the Status Determination Committee has reason to believe that he or she –
(a) has committed a crime against peace, a war crime or a crime against humanity, as defined in any international legal instrument dealing with any such crimes[.]
In 2014, in the Twelfth respondent exclusion case, the Gauteng Division of the High Court of South Africa dismissed an application to set aside the decision by the South African Government to grant a respondent refugee status. The Court summarized the background of the case as follows:
3. The following facts are common cause. During February 2010 the twelfth respondent, a Rwandan national, together with his wife and children arrived in the country after fleeing Rwanda. This is after the twelfth respondent fell out of favour with [the] … government to which he had initially belonged to. Their application was referred to the Refugee Status Determination Officer (“RSDO”) who granted the twelfth respondent and his family refugee status on 22 June 2010. …
4. Subsequent to the twelfth respondent and his family being granted refugee status, the applicant [the Consortium for Refugees and Migrants in South Africa, a non-profit organnnization] sent a Briefing Paper to the respondents and other government departments … which [contained] information alleging that the twelfth respondent is implicated in the commission of genocide, crimes against humanity and war crimes in Rwanda. Based on the contents of the briefing report, the applicant requested the respondents to withdraw their decision to grant the twelfth respondent refugee status, which request was declined.
15. In preparing the briefing paper, the applicant appears to have relied on the following:
15.1. during January 2011 the twelfth respondent and others were sentenced, in absentia to life imprisonment by the Rwandan Military court for the grenade attacks in Kigali, Rwanda in February 2010.
15.2. during 2006 a French Judge … indicted nine Rwandans (including the twelfth respondent) for complicity in the assassination of [the] former Rwandan President … However, in 2012 [the] investigation was re-examined by [two] Judges … who found allegations made during [the first] investigations to be false.
15.3. on 6 February 2008 … an investigative judge in the Spanish High Court, based on [the first Judge’s] report, issued indictments against 40 current and former high ranking Rwandan military officials, including the twelfth respondent, for crimes against humanity and war crimes allegedly perpetrated against civilians between 1990 and 2002.
16. The South African government has refused to extradite the twelfth respondent after the Spanish and French governments had sought his extradition.
The Court held:
12. … It is the applicant’s contention that based on the information contained in the briefing paper it prepared and sent to the respondents, the twelfth respondent is suspected of having committed genocide, crimes against humanity and war crimes in Rwanda and does not qualify for refugee status. It is further the applicant’s contention that had the respondents performed their obligations under the [Refugees Act 130 of 1998 (“the Act”)], the twelfth respondent would have been denied refugee status on the ground that he falls under the category of persons excluded from being accorded refugee status. …
18. The Act and regulations thereto regulate the qualification for refugee status, application for refugee status, the rights and obligations of persons who have been granted refugee status and the disqualification of persons from being granted refugee status. In terms of the preamble to the Act, South Africa has assumed obligations in terms of the 1951 United Nations Convention Relating to [the] Status of Refugees (“UN Convention”), the 1967 Protocol Relating to [the] Status of Refugees (“UN Protocol”[)] and the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (“OAU Convention”). In terms of section 6 of the Act, the Act has to be interpreted taking into consideration [the] UN Convention, in particular Article 1F [which excludes persons from refugee status where there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity], the UN Protocol and Article 1 (5) of the OAU Convention. The UN Protocol and the OAU Convention have similar wording to the UN Convention in relation to people excluded from being granted refugee status.
19. Section 3(a) of the Act provides that a person can be granted refugee status if such a person fears persecution in his homeland because of, inter alia, his or her race, tribe, religion, nationality, political opinion or membership of a particular social group. However section 4(1)(a) of the Act disqualifies a person from being granted refugee status if there is reason to believe that such a person has committed, inter alia, a crime against humanity and war crimes.
20. … As indicated above the applicant relies on the twelfth respondent’s conviction in absentia in Rwanda and the indictments issued by the French and Spanish authorities. However, the initial investigation … which led to the first indictment being issued has been discredited by [the] conclusion that [the President’s plane] was shot down by some members of his own army. This conclusion is common cause. Furthermore, the second indictment was based on the discredited indictment. The deponent to the answering affidavit deposed to on behalf of the second, fifth, sixth, ninth, tenth and eleventh respondents has deposed to the fact that when the twelfth respondent’s application was considered, they were aware of the serious allegations as mentioned by the applicant and as required had considered them in assessing whether the twelfth respondent and his family should be granted refugee status. As submitted by counsel for the respondents, the International Criminal Court for Rwanda has charged and convicted the persons it identified as having been involved in crimes against humanity in Rwanda. In none of the indictments was the twelfth respondent cited. In its founding affidavit the applicant has admitted that taking into account the political situation in Rwanda and South Africa’s adherence to the principle of non-refoulement, if the twelfth respondent is extradited to Rwanda he would be exposed to a well-founded risk of persecution due to his alleged opposition to the current president of Rwanda. I am therefore of the view that the twelfth respondent was correctly granted refugee status as he falls within the provisions of section 3 of the Act.
21. I am therefore of the view that the applicant, in view of the information currently available[,] has not shown sufficient cause that there is reason to believe that the twelfth respondent was involved in the alleged crimes. Moreover, the twelfth respondent’s wife qualifies for refugee status in her own right and [the] twelfth respondent would also so qualify as her dependent.
22. In view of the fact that the applicant also sought to [cite] the fourth respondent, it is an acknowledgement on its part that government departments interface and the fourth respondent must have been aware of the allegations against the twelfth respondent and must have communicated same to the other respondents. I am therefore satisfied that the respondents in granting the twelfth respondent refugee status must have taken into consideration the allegation against the twelfth respondent when taking the decision.
[footnotes in original omitted]