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ICC could step in if South Africa stalls over xenophobia

The ongoing attacks on foreigners have led to calls for the prosecution of the individuals involved — from those carrying out these acts to others with them, spurring them on. 

In addition to labelling these acts as common crimes of assault, murder, robbery, theft and the like, the grammar of international law has been invoked to label them crimes against humanity. 

There is a danger in reducing the problem to individual acts of -violence and ignoring the broader structural causes of xenophobia in our society. We need to go beyond the common (and comforting) senseless acts of violence narrative. 

In this regard, criminal law can have a palliative effect for the rest of society, allowing us to excuse the violence as acts of individual evil, or worse. If this is true, the greater the crime — a crime against humanity itself — the more acute its palliative effect. 

Nevertheless, criminal prosecutions can and should play some role in addressing these issues in the long term, and in the short term the threat of prosecution may serve to deter further attacks and, at the very least, spur the government into action. In this respect, the invocation of international law, and crimes against humanity in particular, is worth considering in more detail.

Crimes against humanity were introduced at the post-war Nurem-berg trials to allow the Allies to prosecute Nazi crimes committed against civilians that were not covered by the existing war crimes regimen. 

Given the Allies’ own war-time atrocities, and the crimes being committed throughout the colonial world, the initial definition of crimes against humanity was understandably narrow. But, since 1946, this crime has been expanded significantly and now includes any inhuman act that is committed as part of an attack against civilians that is either widespread or systematic. 

In particular, two features of the present crimes against humanity ought to be borne in mind by those participating, in whatever form, in the present violence. 

The first is that the inhuman acts that form the basis of crimes against humanity are by no means limited to acts of direct violence (such as murder, deportation or forcible transfer and torture). 

They include the act of persecution, which is to deprive individuals of their fundamental rights by virtue of the fact that they belong to a certain group or collective, including a national group. 

What is more, the Canadian Supreme Court has found that, in some cases, speech alone might amount to a sufficient deprivation of fundamental rights to qualify as a crime against humanity, adding that, in such cases, “whether the persecution actually results in the commission of acts of violence is irrelevant”.

The second is that laws don’t only punish those individuals who perpetrate these acts directly — they include those who order, induce, aid and abet or, importantly, those who “urge, encourage or prompt” others to commit these acts. 

Instigation does not require a direct causal link between the utterance and the crime. In the past, international tribunals have accepted it would suffice to show that such utterances were “a clear contributing factor” to its commission, and that the person in question either intended to instigate the crime or “was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts”.

Although our liberal Constitution affords a measure of protection to free speech, this is not without limits. This protection would extend to simply stupid (or stupidly simple) comments, such as, for example, just about any sentence that tries to simplistically link #Rhodesmustfall and the recent violence. (There is a link between Rhodes and the present malaise, but it’s not the one some are eager to reach for). 

However, stupid racist comments (a pleonasm perhaps) may amount to hate speech if they constitute incitement to cause harm, in which case the Constitution explicitly precludes them from protection. Utterances against foreigners that amount to crimes against humanity would similarly fall outside the bounds of -protected speech, either as hate speech or as incitement to violence. 

Finally, the possibility that crimes against humanity have been perpetrated, or might be in the future, should also give the government further cause for concern. 

Since Nuremberg, international law has also developed international architecture for dealing with international crimes, albeit an imperfect one, at the centre of which lies the International Criminal Court (ICC).

It may too early to be calling for The Hague to step in (as some intellectuals have done on social media). But it is worth pointing out that, if that time comes, South Africa’s juris-diction over such crimes hinges on the National Prosecuting Authority being willing and able to prosecute them. 

Failing which, the International Criminal Court would be able to step in and request the extradition of the alleged perpetrators to The Hague and South Africa, as a party to the Rome Statute, would be legally obliged to accede. 

As the ICC was not in existence at the time, South Africa was able to forge its own solution to the problem of apartheid’s many international crimes (through the Truth and Reconciliation Commission) and avoid the indignity of an international judicial intervention. 

It will not be able to do so today and proactive domestic prosecutions are its only guarantee against ICC intervention.

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Christopher Gevers
Christopher Gevers teaches international law at the University of KwaZulu-Natal. He has officially been a ‘friend of the court’ on two previous occasions: in a matter before the US Supreme Court concerning the question of corporate liability for aiding and abetting human rights violations; and in a matter before the Israeli High Court of Justice concerning the application of human rights in the West Bank. In 2012, he advised the applicants in the ‘Zimbabwe Torture Docket’ case, and since 2011 has worked with the families of victims of apartheid-era crimes and civil society organisations who continue to seek criminal and civil redress under domestic and international law.

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