Daily Maverick
By Atilla Kisla and Owiso Owiso
The case of Fulgence Kayishema, who is wanted by the International Residual Mechanism of Criminal Tribunals for the crimes of genocide and crimes against humanity allegedly committed in Rwanda in 1994 and who was arrested by South African authorities in May 2023, illustrates how a lack of state cooperation can result in unnecessary and inordinate delays of justice for victims and survivors.
Massacre. Slaughter. Fear. Despair. While such words might attempt to describe genocide, the reality of genocide is much worse and inexplicable. Seventy-six years ago, on 9 December 1948, states came together and adopted the Genocide Convention to prevent the crime of genocide from ever occurring again and to hold perpetrators accountable. Rwanda, Srebrenica and Palestine are examples of how the international community failed and continues to break the lofty promise of “never again”.
Last week, during the Assembly of States Parties to the Rome Statute, the member states of the International Criminal Court (ICC) discussed key aspects of how the court can move forward in securing accountability for the most serious crimes, including genocide.
Besides the budget discussions, the overarching theme was the equal application of international law and the importance of state cooperation in enforcing decisions by the court. State cooperation is a key pillar of institutions like the ICC or the International Residual Mechanism of Criminal Tribunals (the Mechanism), as such institutions do not have their own enforcement authority.
While South Africa’s actions before the International Court of Justice (ICJ) and the ICC to protect the rights of Palestinians are welcomed and admirable, the same cannot be said of its relationship with the ICC or the Mechanism in other situations where cooperation has proven difficult.
The case of Fulgence Kayishema, who is wanted by the Mechanism for the crimes of genocide and crimes against humanity allegedly committed in Rwanda in 1994 and who was arrested by South African authorities in May 2023, illustrates how a lack of state cooperation can result in unnecessary and inordinate delays of justice for victims and survivors.
A brief history of (non)-cooperation
On 8 November 1994, the UN Security Council, acting under Chapter VII of the UN Charter, established the International Criminal Tribunal for Rwanda (ICTR) to prosecute persons responsible for the 1994 genocide against the Tutsi in Rwanda, and mandated all UN member states to fully cooperate with the tribunal including by complying with its orders and requests for assistance.
In anticipation of the ICTR winding down its activities, the UN Security Council, again acting under Chapter VII of the UN Charter, established the Mechanism on 22 December 2010 to carry out core functions conducted previously by the ICTR and the International Criminal Tribunal for the former Yugoslavia, and similarly mandated UN member states to fully cooperate with the Mechanism. One of these functions is the search for remaining fugitives indicted for the 1994 genocide against the Tutsi in Rwanda. Decisions by the UN Security Council under Chapter VII of the UN Charter are legally binding upon UN member states like South Africa without exception.
Despite such clear international law obligations, South Africa’s relationship with the Mechanism was dominated by non-cooperation for a long period. The relationship reached a low point in December 2020, when the chief prosecutor of the Mechanism, Serge Brammertz, complained in his briefing to the UN Security Council about “South Africa’s failure to provide effective cooperation over the last two and a half years”.
In June 2021, Brammertz stated: “As it stands today, South African authorities are effectively sending the message that their country is a safe haven for fugitive genocidaires.”
Following such damning remarks, South Africa’s cooperation with the Mechanism improved in the following years and resulted in the arrest of Kayishema in May 2023. While one would have thought that the arrest would have been the end of the story of Kayishema in South Africa, today, more than 18 months later, Kayishema remains in the custody of South African authorities with no transfer in sight. Instead, Kayishema’s case has been characterised by postponements and delays, the last one from October 2024.
Strategic errors and the unknown legal regime of transfer
Kayishema was indicted by the ICTR in July 2001 and an arrest warrant was issued requiring his transfer to the ICTR in Arusha. In February 2022, as the ICTR was winding down its activities, it referred the Kayishema case to Rwanda and ordered that upon arrest, Kayishema should be handed over to Rwandan authorities, an order confirmed by the Mechanism in May 2014.
In March 2019, the Mechanism amended its earlier order to transfer Kayishema to Rwanda and directed that he should instead be transferred to the Arusha branch of the Mechanism upon his arrest. From an international law perspective, the case of Kayishema and South Africa’s obligations are very clear. The UN Security Council resolutions that set up the ICTR and the Mechanism specifically mandate states to cooperate with the Mechanism and, by implication, the statute and rules of the Mechanism become legally binding on states like South Africa.
In theory, the statute and rules of the Mechanism prescribe the procedure that once a fugitive like Kayishema is arrested, such a person must immediately be transferred to the Mechanism. The statute and rules do not mention any requirement for domestic proceedings. Instead, Rule 60 specifically states that national extradition laws or provisions cannot pose a bar to the transfer of individuals like Kayishema to the Mechanism. This is consistent with the binding nature of the UN Security Council resolutions establishing the ICTR and the Mechanism and of the obligations arising therefrom. Therefore, South Africa had an obligation under international law to directly and immediately transfer Kayishema to the Mechanism in Arusha upon his arrest.
In reality, however, the transfer procedure for Kayishema has proven to be more problematic. South Africa seems to have taken the position that Kayishema should be subjected to domestic extradition proceedings. Right after his arrest, Kayishema was charged with violations of the South African Immigration Act, which appears pointless in light of the Mechanism’s transfer order and the indictment for the crime of genocide and crimes against humanity.
Kayishema’s defence team has also raised fair trial concerns if he were to be transferred to Arusha. The fact that Kayishema was not directly transferred to the Mechanism but has instead been thrown like any other ordinary extradition case into the domestic judicial system has caused serious delays in his transfer. As is evident in other international crime cases in South Africa, once in the system, delaying tactics can be employed to slow down and frustrate the process.
As stated above, the obligation to cooperate with the Mechanism, including by complying with its orders, is binding on South Africa. South Africa cannot therefore resort to its domestic law and procedures to frustrate compliance with these UN Security Council resolutions.
Notably, South Africa does not have a domestic law regulating such transfers. However, an argument can be made that UN Security Council resolutions 955 (1994) and 1966 (2010) and the consequent transfer order by the Mechanism have a self-executing character that does not require domestic legislation for such transfers or any other domestic procedure outside the resolutions and the statute and rules of the Mechanism.
Such an argument appears further to be in line with the latest briefing by the chief prosecutor of the Mechanism before the UN Security Council on 10 December 2024, who stated: “Concluding this matter depends on South Africa fulfilling its international obligations to hand Kayishema over to the Mechanism.”
Notably, however, the chief prosecutor has not commented on the domestic proceedings in South Africa. Against this backdrop, the chief prosecutor’s silence on the domestic proceedings speaks volumes about their relevance for the transfer of Kayishema to the Mechanism
Selectivity of genocide cases?
Since late 2023, South Africa has shown through its litigation at the ICJ (South Africa v Israel) and its referral to the ICC of the situation in Palestine how important state actions beyond mere solidarity can be. However, justice for victims of genocide has many frontlines, internationally and domestically. The Kayishema case shows how vital a consistent application of international law and state cooperation is to hold perpetrators of genocide accountable. Once states start to select their support for accountability based on political interests, their actions reveal a double standard inconsistent with the idea of humanity.
Genocide is a situation where laws and norms do not apply any more. It reflects a lack of an innate sense of humanity. A place in time that is governed by inhumane actions to destroy a group in whole or in part. The least that states can do is stand for accountability and justice for the victims and survivors. At the same time, victims and survivors should never have to compete for a state’s attention. International institutions cannot provide accountability by themselves. Justice in this context has to come from, or at least be facilitated by, the states.
International law places a responsibility on the international community and states like South Africa to hold perpetrators accountable. Such responsibility is, however, not limited to a state’s political organs. It includes judicial organs, judges and prosecutors. Unnecessary delays constitute a denial of justice.
As pointed out by the former justice minister Thembisile Simelane on 2 December in her speech to the Assembly of States Parties to the Rome Statute: “For the rule of law to thrive, it must be applied consistently and impartially, to avoid any perception of double standards.”
While Kayishema is only one of many suspected perpetrators of international crimes in the country, it remains to be seen whether South Africa will apply the law consistently and impartially when it comes to holding such individuals accountable, regardless of political interests.
Dr Atilla Kisla is the international justice cluster lead at the Southern Africa Litigation Centre. Dr Owiso Owiso is an international justice adviser at Atrocities Watch Africa.
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