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Zimbabwe: A Fight Against Impunity

AIDS-Free World at South Africa's Supreme Court of Appeal

November 15, 2013AIDS-Free World appeared this month before the Supreme Court of Appeal of South Africa, supporting other activists’ position that the government has a duty to investigate crimes against humanity committed outside of its borders.

The case stems from a refusal by South Africa’s police and prosecutors to investigate allegations of horrifying crimes set out in a dossier submitted to them by the Southern African Litigation Centre (SALC) and the Zimbabwe Exiles Forum.  The groups’ dossier detailed torture committed in 2007 by Zimbabwean officials against opposition party members.  SALC argued that the widespread and systematic nature of the torture constituted crimes against humanity, and that under the principle of “universal jurisdiction”, South Africa has both the right and the duty to investigate those most atrocious of all crimes.

No one contests what the international community has agreed: some offenses are so horrendous and so contrary to human decency that all nations have a responsibility to prevent them and punish the perpetrators, regardless of where the crimes occur.  As a signatory to the International Criminal Court, South Africa has incorporated these principles into its national laws, which gives it the authority to prosecute international crimes, such as genocide and crimes against humanity—provided that a perpetrator enters the country.  That condition makes the law realistic: it wouldn’t be feasible to use South Africa’s courts for the prosecution of every mass atrocity.

What is not agreed, however, is when an investigation into such crimes can occur.  South Africa maintains that it is not required to start an investigation until a perpetrator is in South Africa.  Yet this position, as SALC argued, would lead to an absurd situation where an investigation must stop and start when a suspected perpetrator enters and leaves the country.  SALC took the government to court over its decision, and last year a High Court decision found the government’s response unlawful and unconstitutional.  The government appealed the decision, leading to the hearing at the Supreme Court of Appeal.

AIDS-Free World appeared before the Court to provide its own unique perspective on these issues, based on its experience documenting politically motivated rapes that occurred during the 2008 Zimbabwean elections.  AIDS-Free World argued that if a perpetrator’s presence is anticipated in the country there is a duty upon that country to investigate the alleged international crimes.  While this duty is incredibly important for all international crimes, the fight against impunity has particular resonance for victims who are still alive, such as those who suffered sexual and gender-based violence, and who still walk the same streets as their attackers.

A decision by the Court is expected soon, and AIDS-Free World is hopeful that the judgment will reaffirm South Africa’s duty to begin to investigate international crimes even before alleged perpetrators enter the country. That logical, principled decision would strike a strong blow to impunity and provide renewed hope for victims of these most horrible crimes.

 Additional Reading:

  • To read the Heads of Argument submitted by AIDS-Free World (Tides Center) to the Supreme Court of Appeal, please click here