Xenophobic attacks: ICC to probe Zuma, Zulu King
(Nigeria) The Office of the Prosecutor of the International
Criminal Court, ICC, is to probe the xenophobic attacks against
Nigerians and other African citizens in South Africa following a petition by
Socio-Economic Rights and Accountability Project, SERAP.
SERAP’s Executive Director, Mr Adetokunbo Mumuni, made the
disclosure in a statement in Lagos on Tuesday.
SERAP had in a petition dated April 23, 2015 and sent to the Court, requested the
Prosecutor Mrs. Fatou Bensouda to use her “good offices and position to
investigate allegations of hate speech by the Zulu King Goodwill Zwelithini,
which has resulted in killing, violence and discrimination against Nigerians
and other African citizens living in South Africa, as well as the
complicity/negligence of the country’s law enforcement agencies to prevent
these crimes against civilian population.”
In response, ICC in a
letter dated April 28, 2015, by M.P. Dillon, Head of Information and Evidence
Unit of the Office of the Prosecutor, said “The Office of the Prosecutor of the
ICC acknowledges receipt of your documents. This communication has been duly
entered in the Communications Register of the Office.
“We will give consideration to this communication, as
appropriate, in accordance with the provisions of the Rome Statute of the ICC.
As soon as a decision is reached, we will inform you, in writing, and provide
you with reasons for this decision.”
SERAP in its petition had urged Mrs Bensouda to “bring to
justice anyone who is responsible for these international crimes prohibited
under the Rome Statute of the International Criminal Court.”
SERAP said that it
“considers the use of speech by the Zulu King to promote hatred and/or incite
violence against non-nationals such as Nigerians, particularly in the media as
a clear violation of the provisions of the Rome Statute of ICC.
“Grave statements by political leaders/prominent people that
express discrimination and cause violence against non-nationals cannot be
justified under any law. This hate speech generated fear and hatred that
created the conditions for violence and discrimination against Nigerians and
other African citizens. SERAP believes that this has given rise to individual
criminal responsibility under the Rome Statute of the International Criminal
Court.
“The statement by the Zulu King amounts to a harmful form of
expression which incites or otherwise promotes hatred, discrimination, violence
and intolerance. We are seriously concerned that crimes against humanity are
often accompanied or preceded by the kind of statement made by the Zulu King.
“Once the climate of violence has been created, direct and
public incitement to crimes builds on it, exacerbating the situation by further
heating up passions and directing South Africans’ hatred towards non-nationals
such as Nigerians. Hate speech by King Zulu is legally tied to contemporaneous,
large-scale violence and inhumane and discriminatory treatment of Nigerians and
other African citizens.
“The statement by the Zulu King has contributed to a climate
of fear, demonization and dehumanization of Nigerians and other African
citizens, thus violating their human dignity through humiliation and expulsion
from the human community.
“SERAP is seriously concerned that hate speech by the Zulu
King amounts to crime against humanity of persecution and has directly
contributed to an infringement of the right to life, equality and
non-discrimination of Nigerians and other African citizens.
“SERAP considers the statement by the Zulu King and the
apparent complicity/negligence by the country’s law enforcement agencies to
prevent the violence and discrimination as amounting to active encouragement of
South African citizens to develop feelings of contempt for Nigerians and other
African citizens; as amounting to incitement to violence and discrimination
against Nigerians and other African citizens, and to mistreat them; and as
amounting to an appeal for South African citizens to separate themselves from
Nigerians and other African citizens.
“The statement by the Zulu King and the apparent
complicity/negligence by the country’s law enforcement agencies to prevent the
violence and discrimination has contributed to the level of persecution against
Nigerians and other African citizens. According to Professor Bassiouni,
persecution in this instance is “a state action leading to the infliction upon
an individual of harassment, torment, oppression, or discriminatory measures,
designed to or likely to produce physical or mental suffering or economic harm,
because of the victims’ beliefs, views, or membership in a given identifiable
group (such as non-nationals.
“In the Mugesera case, the Canadian Supreme Court held that
hate speech may constitute persecution, even if it does not result in the
commission of acts of violence. In arriving at this conclusion, the court
considered that a link was demonstrated between the speech at issue and the
widespread or systematic attack against the civilian population. Thus, the
post-World War II jurisprudence generally establishes that hate speech not
urging an audience to commit imminent violence can constitute persecution.
“The government does not have the political will to bring
those suspected to be responsible for crimes under international law to
justice. Given the complicity/negligence by the country’s law enforcement
agencies to prevent the violence, killing and discrimination, it is unlikely
that the government will take any serious action to bring perpetrators to
justice.
“Without accountability for these serious human rights
crimes, the victims will continue to be denied access to justice, and impunity
of perpetrators will remain widespread and the result will continue to be a
vicious cycle of violence and discrimination against Nigerians and other
African citizens living in South Africa.
“SERAP believes that substantial grounds exist to warrant
the intervention of the Prosecutor in this case. Under Article 17 of the Rome
Statute, the Court is a court of last resort, expected to exercise its
jurisdiction only if states themselves are unwilling or unable genuinely to
investigate and prosecute international crimes. Also, pursuant to the Rome
Statute, the Prosecutor has power to intervene in a situation under the
jurisdiction of the Court if the Security Council or states parties refer a
situation or if information is provided from other sources such as the information
SERAP is providing in this case.
On the basis of the above, SERAP asks you to:
*Urgently commence an investigation proprio motu on the
allegations of hate speech and the accompanying killing, violence and
discrimination against Nigerians and other African citizens living in South
Africa, with a view to determining whether these amount to international crimes
within the Court’s jurisdiction. In this respect, we also urge you to invite
representatives of the South African government to provide written or oral
testimony at the seat of the Court, so that the Prosecutor is able to conclude
on the basis of available information whether there is a reasonable basis for
an investigation, and to submit a request to the Pre-Trial Chamber for
authorization of an investigation.
*Bring to justice those suspected to be responsible for
serious human rights crimes in South Africa.
*Urge the South African government to fulfil its obligations
under the Rome Statute to cooperate with the ICC; including complying with your
requests to arrest and surrender suspected perpetrators of international
crimes, take testimony, and provide other support to the ICC.
It will be recalled
that while addressing Pongolo community members during a moral regeneration
event recently, Zwelithini reportedly said, “Most government leaders do not
want to speak out on this matter because they are scared of losing votes. As the king of the Zulu nation, I cannot
tolerate a situation where we are being led by leaders with no views
whatsoever. We are requesting those who come from outside to please go back to
their countries. The fact that there were countries that played a role in the
country’s struggle for liberation should not be used as an excuse to create a
situation where foreigners are allowed to inconvenience locals. I know you were
in their countries during the struggle for liberation. But the fact of the
matter is you did not set up businesses in their countries.”
Zwelithini, who spoke from a prepared speech, made the remarks
in the presence of Police Minister Nathi Nhleko.
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