Judge Navi Pillay | SA’s record on international human rights law is concerning

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Former UN High Commissioner for Human Rights, Navi Pillay. (Getty Images)
Former UN High Commissioner for Human Rights, Navi Pillay. (Getty Images)

While South Africa has often played an important role in a number of pressing rights issues, the record makes clear that its engagement with international human rights law is a cause for concern, according to former United Nations High Commissioner for Human Rights, judge Navi Pillay. She delivered the the 15th Annual Human Rights Lecture at the Faculty of Law at Stellenbosch University on Thursday night. Here is her speech.

In January 1995, I assumed my post outside the country as a judge on the United Nations International Criminal Tribunal for Rwanda in Arusha, Tanzania. When I arrived, I was seen as the face of democratic South Africa. I am sure that that was the experience of many other South Africans who were posted outside of our borders. The children on the dusty streets of Arusha would call after me "Mandela" or "Bafana Bafana”". I imagine they are dancing joyously to Jerusalema, today.

The struggle for freedom and fundamental rights in South Africa was won with the collective worldwide support of the international community and civil society organisations, human rights defenders and ordinary people who as children stopped eating South African oranges in support of UN sanctions against the apartheid regime.

Over the years, I received many gratuitous compliments on our country’s achievements: our peaceful revolution, exemplary Constitution and Bill of Rights and our trusted leaders. Judges and lawyers share their enthusiastic approval for our progressive laws and the influential decisions of our Constitutional Court, including on economic and social rights, the abolishment of capital punishment, giving prison inmates the right to vote, providing protection for victims of domestic violence and opening up the production of generic antiretroviral drugs for HIV- Aids relief despite opposition by patent monopolies.

Aids activists told me, with tears of gratitude that the UN World Aids Conference hosted by South Africa in my hometown of Durban was "saved" by two heroes - Justice Edwin Cameron, the incumbent Chancellor of this university and Professor Dr Jerry Coovadia. Because of this rich recent past, as well as the reception and perception of post-apartheid South Africa by human rights advocates, people likewise regularly tell me of their hope and expectation that South Africa will exercise its moral authority, and take the lead on our continent and in the rest of the world for the protection of human rights.

In this lecture I will examine whether we have acted consistently and vigorously to deliver on the Mandela promise, namely, his insistence that: "Human rights will be the light that guides our foreign affairs."

This is, to be sure, a story that predates Mandela, and one cannot begin to understand where South Africa is today only on the basis of where it started in 1994. We must recall that much is needed to be overcome and changed.

South Africa’s foreign policy objectives have included a focus on human rights, peace and security, and economic development. South Africa was a founding member of the United Nations in 1945 with apartheid leader, Jan Smuts, helping to craft the UN Charter’s preamble, including its reference to human rights.

It is remarkable to think that leaders and states actively violating human rights were among those expressing their importance. Of course, as commitment to human rights grew internationally and the horrors of apartheid became more widely understood, South Africa was suspended by the General Assembly for its apartheid policies in 1974 and only readmitted in 1994 after the country dismantled apartheid.

Its history of expulsion and readmission into the United Nations membership has built and reinforced expectations that South Africa would and should hold a principled view and position on human rights on the international scene, and in Africa in particular. The new South Africa was in this sense, born in a "human rights moment".

Human rights and democratic principles became founding principles of our Constitution, a document that has since become the envy - and blueprint - of many states emerging from autocracy into the promise of a democratic and human rights- abiding future.

We likewise situated our country not on an island unto itself, but as a member of a community of states aspiring to make respect for human rights a global norm. The preamble to our Constitution is specific that our place is within "the family of nations". That means we never claim "South Africa first" like Donald Trump’s "America first". Our country can’t go it alone. Divided, as they say, we fall. We must thus instead follow the path of multilateralism.

Our Constitution further enjoins respect for international law. Section 39(1) (b) states that courts "must consider international law" when interpreting the Bill of Rights: And Section 233 states that: "When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law."

Of course, these are mere words. Let me now turn to the action - and to South Africa’s record on turning the rhetoric of its human rights into reality.

South Africa’s external record on human rights protection

Peace and Security

South Africa has played and continues to play an important role within the multilateral system, taking up leadership roles in UN bodies and the African Union, while supporting and contributing towards the peace and security structures in both of these institutions. I will cover each in turn.

The African Union:

South Africa champions African priorities and contributes to the African Union (AU) and Pan African agenda on peace and development. President Cyril Ramaphosa served as the chair of the AU until February this year and pressed for the urgent and equal distribution of Covid-19 vaccines to Covax countries. He condemned the ugly trends of nationalism, greed and hoarding by rich countries of Covid-19 treatment drugs to the detriment of poor countries in Africa in particular.

As a member of the AU’s Peace and Security Council, South Africa is deeply engaged in conflict prevention and resolution of conflict and addressing accountability for serious human rights abuses in the context of the many violent conflicts in Africa.

South Africa is playing a role in peace building, mediation and reconstruction efforts in countries in the midst of, or only recently emerging from, conflicts in Africa. I recall that when I was UN High Commissioner for Human Rights, South Africa requested the help of human rights advisors from my office to work with them in advancing reconstruction efforts in Madagascar. South Africa likewise played a significant role in the UN peacekeeping mission in Darfur, Sudan, before withdrawing after 12 years, in 2016.

In December 2020, South Africa’s ambassador to the UN, Jerry Mathews Matjila, told a press briefing (1) that an AU-led mediating team had met with President Abiy Ahmed Ali of Ethiopia in the context of the ongoing fighting in Tigray and the ensuing humanitarian crisis. The efforts showed South Africa’s commitment to conflict resolution, but sadly, Matjila also noted that President Abiy Ahmed had rebuffed its offer to help negotiate the crisis.

At the same briefing, South Africa reported that the Force Intervention Unit ("FIB"), an initiative of the South African Defence Force, was agile and able to move quickly and robustly in conflict zones and made substantial contributions to peace and security in Eastern Democratic Republic of Congo (DRC), a region that remains volatile and dangerous for civilians who are regularly subject to killings, attacks and rapes. This is the first time that a UN peacekeeping operation was specifically tasked to carry out targeted offensive operations to "neutralise and disarm" groups considered a threat to state security and civilian security.

South Africa is a troop-contributing nation in UN peacekeeping missions, thus ensuring the safety and protection of civilian lives. Rich countries rarely contribute peacekeepers and so the burden falls on developing countries. On a visit to the conflict areas in eastern DRC, I personally met and spoke with our brave soldiers in confrontation with heavily armed rebels, in jungle terrain and facing hazards at great personal risk.

South Africa’s crucial contribution to saving civilian lives in conflicts in Africa cannot be underestimated.

But it must also be acknowledged that accusations have been made against our troops for acts of sexual abuse of children and girls in the countries where they are stationed. These remain uninvestigated, as do alleged crimes committed by peacekeepers more generally. Such complaints must be investigated and suspects prosecuted in an appropriate forum, as opposed to being ignored or actively swept under the rug by troop-contributing states who claim jurisdiction over the actions of their troops, but do little to investigate their alleged crimes.

There is something particularly harrowing about soldiers being sent to protect vulnerable peoples only to become their predators.

South Africa could provide leadership in addressing this pressing issue, perhaps by encouraging the creation of an international body with jurisdiction to investigate the atrocities committed by UN peacekeepers. Likewise, human rights education must be included in the training programmes of soldiers deployed in peacekeeping missions and more women should also be included in the ranks for peacekeeping duties.

UN Security Council

South Africa served as a non-permanent member of the Security Council ("SC") in the years 2007-8; 2011-12; and 2019-2020. It has focused on peace and security in Africa and pushed for greater cooperation between the SC and the AU, as well as the appointment of African envoys and mediators and the inclusion of women and youth throughout the peace and dialogue agenda.

It is a staunch supporter of SC reform in the context of paralysing divisions and fixed geo-political positions adopted by the veto-wielding countries US, UK, France, Russia and China, colloquially referred to as the "P5". In the face of deadlock in dire situations of wartime and atrocities like Syria, the country has joined calls made to the P5 not to use their vetoes when evidence of atrocities are reported. To meet the deadlocks caused by the fractured relationship between the "P2" (Russia and China) and the "P3" (US, UK and France), South Africa formed alliances with elected African and Caribbean members of the SC, termed the "A3+1".

African countries tend to have limited influence on matters affecting their continent. This was evident in June 2019, after the fall of Sudanese President Omar al Bashir in April 2019. The A3 pushed for a SC statement stressing the need for a transition to civilian rule in Sudan. The A3 supported the principle of "the primacy of African-led initiatives in search of a lasting solution of the crisis in Sudan without external interference", but were blocked by Russia and China who had close military ties to the government of Sudan. The Russian objection was that such a Statement interfered in Sudan’s internal affairs.

South Africa’s alliance with the A3 is reportedly guided by what’s best for the continent. Clearly what is not in the best interests of our continent is the failure of South Africa to acknowledge the coronavirus pandemic as a major threat to peace and security in and of itself. UN Secretary General, Antonio Guterres has said: "The fury of the virus illustrates the folly of war. This is why I am calling for an immediate ceasefire in all corners of the world. It is time to put armed conflict on lockdown and focus together on the true fight of our lives." His urgent appeal was not heeded.

A French initiative for a SC resolution addressing Covid-19 was stymied by the insistence of the Trump administration on inclusion of language that referred to the pandemic as the "Wuhan virus", a wanton and racially tinged attempt to apportion blame for the pandemic on China. An initiative by Estonia for a statement from the SC that the coronavirus constituted a threat to international peace and security and calling for greater international cooperation in confronting the pandemic was opposed and overruled by China, along with South Africa.

They argued that the pandemic did not constitute a threat to international peace and security and was therefore not the business of the SC, despite its effects on virtually every live political issue facing the globe. They maintained their narrow-minded position in spite of support for an earlier 2014 SC resolution that declared Ebola a threat to international peace and security and urged the world to send more healthcare workers and supplies to the hardest hit countries, namely, Liberia, Sierra Leone and Guinea.

In siding with China in this instance, South Africa lost the opportunity to serve the interests of Africa and poor countries by engaging the SC’s stamp for international cooperation and action while furthering the democratisation of the international response and recovery from the pandemic.

Covid-19 vaccine:

It is commendable that South Africa, together with India (2) has sponsored a proposal at the World Trade Organisation (WTO) to temporarily waive intellectual property rules related to Covid-19 vaccines and treatments so as to allow for generic manufacturing around the world, warning that at the current pace of vaccinations, most poor nations will be left waiting until at least 2024 to achieve mass Covid-19 immunisation.

A waiver of the rules would help boost global supplies of vaccines for the poorest countries. The proposal is for the waiver to be accompanied by the open sharing of vaccine knowledge and technology and by coordinated global investment in research, development and manufacturing capacity, underscoring that threats to public health are global and global cooperation is vital.

The USA under the Trump administration used their Defence Force Act to boost their own vaccine production, as a consequence of which exports of critical raw materials were stopped. This is hindering and delaying vaccine production in other parts of the world.

The Serum Institute of India working with Novavax, the world’s largest maker of vaccines and a critical supplier of the UN-backed Covax facility, urged President Biden to lift the US embargo on exporting raw materials needed to make the vaccine doses. A victory was achieved when, in May 2021, President Biden decided to issue IP waivers for Covid-19 waivers. However other developed countries, like Canada and Germany, have thus far not thrown their support behind the initiative.

UN bodies

South Africa’s record of interventions for the protection of human rights within UN bodies is inconsistent and often at odds with our constitutional principles of human rights and justice for victims. South Africa has resorted to avoidance tactics such as "non-interference in the internal matters of states" or claiming that to promote human rights would risk "creating dangerous precedents". They have relied on this approach to refrain from supporting human rights protection measures in the context of conflicts, even when credible evidence of massive violations of international human rights law ("IHRL") and international humanitarian law ("IHL") are produced by UN agencies and civil society organisations.

It was painful for me, as High Commissioner, to watch South Africa’s failure to react to the extensive investigations and reports from my office of massive civilian killings, sexual violence and forced displacement during armed conflict in countries like Syria, Iraq, Sudan and Sri Lanka.

Many people in the international community who had collaborated in the anti-apartheid struggle have expressed their bewilderment: How would South Africans have felt if we had sat back and said apartheid is an internal matter and we should not interfere? As we know, and as I have mentioned already, the struggle against apartheid was bolstered and its end precipitated in part because states made the "internal problems" of South Africa their human rights concern. They stood in solidarity with those seeking justice and dignity here. Hence, it bewilders and hurts many that less than three decades later, South Africa does not do the same for those facing chemical weapons attacks in Syria, genocide in Sudan, or ethnic cleansing elsewhere.

During South Africa’s first tenure as a non-permanent member of the SC (2007-8), it did not support resolutions condemning human rights abuses in Zimbabwe and Myanmar, and the inclusion of climate change in the agenda of the SC. The rationale given for such positions at the time was the need to respect the division of roles among the various organs of the UN. In the case of Zimbabwe, South Africa was reportedly instrumental in blocking a SC resolution that resulted in a fact-finding mission being sent to investigate violence following the 2008 elections.

In 2007, South Africa opposed a draft resolution condemning the killing of peaceful demonstrators by the military junta in Myanmar, arguing that condemning the junta’s violence "does not fit with the UN Charter mandate, because of its focus on internal affairs". South Africa claimed that this was a "fundamental"  reason for voting the resolution down and that its stance at the SC proved it had been "true to itself".

On the contrary, their reaction is reminiscent of the opposition from the apartheid government in 1960 when Myanmar (then Burma) moved for a SC condemnation of the Sharpeville massacre. The ambassador for the apartheid government had said that discussion of the massacre would be "a most dangerous precedent".

Yet in my view, the real dangerous -and troubling- precedent is a post-Mandela government offering the same excuse as did the apartheid regime to avoid condemning human rights abuses.

In July 2012, South Africa also opposed a SC resolution for action to protect victims of massive atrocities in Syria, siding with Russia, China and Pakistan, and giving as their reason that the draft was "unbalanced". Few, if any, places have experienced worse violence and displacement than Syria has over the past decade and it is difficult to see how any condemnation of the blatant atrocities committed there could be "unbalanced".

All of this seems to be symptomatic of a deeper suspicion among South African governments about the place of human rights at the UN.

My predecessor as UN High Commissioner for Human Rights, Louise Arbour, was blocked from addressing the SC on human rights abuses, mainly by South Africa, on the premise that human rights were not relevant to the peace and security mandate of the Security Council. Human rights, they insisted, should be raised at the UN Human Rights Council ("HRC") in Geneva. This stretches the imagination and is out of touch with reality. How can the SC exclude consideration of human rights abuses in conflict situations that are often alerts to such conflicts brewing, in delivering on its mandate of peace and security? It can’t. Human rights cannot be isolated from matters of international peace and security. And indeed, the Council has repeatedly touched on issues of human rights as integral to its work and an important part of its reasoning and decision-making in response to political violence and war.

In August 2008, upon my election as UN High Commissioner for Human Rights, South Africa’s Ambassador, Dumisani Khumalo, informed me that Poland was hosting a retreat for incoming members of the SC and wished to invite me to address the retreat, and he encouraged me to accept. This was the entry point I had been hoping for.

During my six-year term as High Commissioner for Human Rights, from 2008-2014, the SC paid increasing attention to human rights and invited me to address the Council more times than all the previous high commissioners put together. I reported on human rights situations in Syria, Libya, Mali, Central African Republic, the Occupied Palestinian Territories, South Sudan and Ukraine. I addressed the SC on prevention of conflict and made clear to states that lack of responsiveness on the part of the Council had led to the loss of thousands of lives, massive displacement, and enormous suffering.

I have urged the SC on a number of occasions to refer situations where war crimes and crimes against humanity are suspected to have been committed, to the International Criminal Court. Regrettably, the international community remains unable to react strongly and quickly to crises, including situations of grave human rights violations with high potential for regional overspill.

Unfortunately, the space that was opened to brief the SC on human rights violations in countries on the SC agenda appears to have been closed. My successor, High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, complained bitterly about being blocked from addressing the SC. South Africa must play a role in increasing the authority of the SC in the field of human rights, and curtailing the use of the veto in situations of mass human rights violations.

The P5, veto-wielding states have done as little in responding to the world health pandemic as they have done in resolving the many conflicts raging in the world. When most needed, international action is often missing: there are informal consultations in closed meetings by the SC, but no meaningful outcomes. The SC must be willing and able to act promptly and collectively as the UN Charter directs, in order to address threats as they emerge, to resolve conflicts and to prevent and punish violations of international humanitarian law and international human rights law.

The pandemic makes clear that, more than ever, multilateralism, and not unilateralism, is the answer for combating the pandemic and building a better new normal. We need to act globally to stem the rising tide of illiberal trends, of nationalism, populism and authoritarianism that threaten our fundamental freedoms and that collectively frustrate progress on providing human rights protections to those without. We need to act in solidarity to safeguard the planet against climate change, against threats to peace and ensure protection and promotion of the human rights of all persons, leaving no one behind.

On the occasion of the UN’s 75th anniversary, SG Antonio Guterres is promoting an ambitious plan to ensure a UN that is "fit for purpose" in the 21st century. The SG told the SC on January 9 2020: "We must return to fundamental principles, we must return to the framework that has kept us together. We must come home to the UN Charter." So too must South Africa.

Governments, more especially ours, must work in consultation with civil society organisations and respect their expertise.

SA’s human rights engagement with the HRC and UN mechanisms

Our engagement with the current constellation of international human rights institutions has been diverse; positive in some instances and questionable in others. For example:

  • South Africa has ratified all major UN human rights treaties. It is a state party to the International Covenant on Civil and Political Rights ("ICCPR"), the International Covenant on Economic, Social, and Cultural Rights ("ICESCR"), the International Convention on the Elimination of all Forms of Racial Discrimination ("ICERD"), the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), the Convention on the Rights of the Child ("CRC"), and the Convention on the Rights of Persons with Disabilities ("CRPD"). It has also ratified most of the Optional Protocols providing for individual complaints procedures in respect of these treaties. Regrettably, however, it has not ratified the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights ("OP-CESCR").
  • In 2001, South Africa hosted the first UN World Conference against Racism, Racial Discrimination, Xenophobia and Related Violence which led to the. the landmark Plan of Action that sets a principled international agenda for the global movement against racism and xenophobia. The implementation of the Action Plan remains of crucial importance in our country and in the world as racial violence and xenophobia are on the rise, leading to protests such as the "Black Lives Matter" movement. South Africa should take the lead in implementation of its action plan.
  • In 2010 the UN General Assembly ("GA") successfully voted to reinstate a reference to sexual orientation into its biannual resolution on extrajudicial killings after the 3rd Committee of the GA had deleted the reference. The African group voted for deletion of the reference. But South Africa broke ranks with them and voted for the resolution restoring the reference - thus adhering to our constitutionally-recognised right to be free from discrimination on grounds of sexual orientation.
  • In June 2011, the Human Rights Council adopted Resolution 17/19 sponsored by South Africa - the first UN Resolution on sexual orientation and gender identity, which expressed "grave concern" at violence and discrimination against individuals based on their sexual orientation and gender identity. The right to sexual orientation is a right under our Constitution and so South Africa’s support is in line with our constitutional values.

This is the good part. But there is a dark side to South Africa’s engagement.

In June 2016, constitutional principles appear to have fallen by the wayside when South Africa abstained from a Resolution adopted by the HRC regarding the appointment of an independent expert on protection against violence and discrimination based on sexual orientation and gender identity. South Africa gave as their reason for their vote: "How the current sponsors have sought to build on the South African initiative of 2011, has added divisive dimensions and created unnecessary acrimony in this Council. ...Maximum consensus... could have been achieved had it not been for the arrogant and confrontational approach adopted". The resolution was adopted by a vote of 23 in favour; 18 against and 6 abstentions, including South Africa.

Other unfortunate developments followed. For example:

  • At the June 2014 session of the Human Rights Council, a resolution on the protection of the family was adopted that did not recognise the various and diverse forms of family. South Africa voted in favour of the resolution and also backed Russia’s attempts to shut down discussion of more inclusive language on the "family"; that would have recognised single parent households, child-headed households, same-sex relationships, couples without children, and other familial constellations in line with the jurisprudence of our courts. 

  • At the September 2014 session of the HRC, South Africa voted in favour of three amendments to the resolution on the death penalty moved by Saudi Arabia and China that would have deleted language relating to the human rights of those facing the death penalty, and inserting language affirming the sovereign right of all countries to develop their own legal system and penalties. The amendments were all rejected and the original draft was adopted.

  • At the March 2014 session of the HRC, South Africa sought to weaken a resolution on the right to free protest in line with Russia, Ethiopia, Saudi Arabia, Egypt and China.

  • South Africa took negative stances on other rights issues too. It abstained from voting on all country situations, including on North Korea, Syria, Sri Lanka and Iran. South Africa has justified its actions by arguing that it does not support work on country specific situations because they are highly politicised and divisive. This is despite the fact that country specific resolutions play a key role in shedding light on abuses and giving a stronger voice to victims. They also allow for the creation of independent UN mechanisms that help expose abuse and pressure rights-violators.

  • In July 2016, the HRC adopted a resolution on the protection of human rights defenders working to promote economic, social and cultural rights by a vote of 33 member states of the HRC to just 6 against and 8 abstentions. Yet South Africa voted against the resolution, explaining, inter alia, that it objected to the generalisation that there is a clampdown on civil society in many countries. It also asserted that in South Africa there is no clampdown of civil society. South Africa also objected to new obligations on states to provide for long-term supportive funding of civil society organisations, new reporting obligations on states on civil society space, and to facilitate favourable banking terms to allow for cross-border transfer of funds for organisations and to provide tax incentives for donors.

Before I retired as High Commissioner, I had prioritised the need for greater democratic space for civil society organisations in the Office’s next 4-year plan of action. This was actioned by High Commissioner Zeid Ra’ad Al Hussein in his report to the HRC at its 32nd session that "clampdowns on public freedoms and crackdowns on civil society activists and human rights defenders are hacking away at the forces which uphold the healthy functioning of societies". Thirty obstructionist amendments to the text of the resolution on human rights defenders were proposed by a small group of states comprising Russia, China, Egypt, Cuba, Pakistan and South Africa - all of which were defeated before the resolution was adopted by a majority of members of the HRC.

The resolution, while expressing concerns, emphasises the positive contribution of independent, diverse and pluralistic civil society to peace, security, sustainable development and human rights and highlights reform to safeguard the ability of civil society actors to fully exercise the rights to freedom of expression, opinion, assembly and association. These rights are entrenched in our Bill of Rights. South Africa should have been championing them and committing to the protection of human rights defenders.

In March 2014, at a Universal Period Review ("UPR") on China by the HRC, China objected to a request from NGO representatives to be permitted to use their own two-minute speaking time to observe a minute of silence for Chinese activist, Cao Shunli, who had been en route to the HRC to present her remarks when she was detained in China and died in custody a week before the HRC session began in Geneva. South Africa joined China in also opposing the request from the NGOs stating that it was "irregular and incompatible with the rules of procedure", and that it would "create a dangerous precedent". Once again, democratic South Africa used the same language as the apartheid regime had done, in years prior, in order to block freedom of speech.

South Africa’s votes on a raft of human rights resolutions are inconsistent and not necessarily in conformity with the ethos of our Constitution. In September 2019, South Africa voted in favour of resolutions condemning violations of human rights in Yemen and Myanmar, but abstained on condemning violations in Venezuela, Burundi and Syria. On the other hand, in a welcome move, it supported the right to development and right to social security and abolition of the death penalty.

International criminal justice.

South Africa is one of the founding members of the International Criminal Court ("ICC"). It signed the Rome Statute establishing the Court on the day it was adopted, 17 July 1998, and ratified it on 27 November 2000. Throughout the process of negotiation and adoption of the Rome Statute, South Africa played a leading role. At the international conference, Justice Minister Dullah Omar said on behalf of the SADC states:

"The establishment of an International Criminal Court would not only strengthen the arsenal of measures to combat gross human rights violations but would ultimately contribute to the attainment of international peace. In view of the crimes committed under the apartheid system, the International Criminal Court should send a clear message that the international community was resolved that the perpetrators of such gross human rights violations would not go unpunished."

This good intent was put to shame by South Africa’s failure to arrest and surrender Omar al-Bashir, former President of Sudan, on a warrant issued by the ICC in June 2015. The decision was declared unlawful by the North Gauteng High Court of South Africa as well as by the Supreme Court of Appeal. South Africa was acting in breach of its obligations under the Implementation of the International Criminal Court Act 27 of 2002 ("the Implementation Act"). South Africa’s failure to act on the warrant of arrest was also found to be in violation of the Rome Statute by the Pre-Trial Chamber of the ICC.

In addition, hundreds of researchers, academics, civil society leaders and human rights advocates were dismayed that a country that had taken a leadership position on International Criminal Law now flouted its obligations to a court it had so eagerly helped to create.

In response to widespread condemnation, South Africa attempted to withdraw from the ICC, giving as its reason, among others, that it considered that both the Implementation Act and the Rome Statute compelled the government to arrest persons who may enjoy diplomatic immunity under customary international law. It also claimed that its obligations to the ICC complicated conflict resolution efforts. You will recall that the High Court ruled that the government must revoke that decision as it was made without the authority of Parliament. If South Africa wanted to withdraw, it would have to do so in a procedurally coherent and legal manner.

At the African Union, declarations have been made indicating that sitting heads of state or government, and other senior states’ officials are immune from prosecutions during their tenure of office. South Africa has not distanced itself from these declarations and, in protecting al-Bashir from prosecution by the ICC, has lent credence to the notion that senior political officials should be immune from prosecution - even in instances where they are alleged to have perpetrated genocide.

It is evident that this idea of immunity for political leaders arose because of the profile of the persons indicted, and not because of the nature of the alleged crimes or the profile of the victims. The notion that political power can be a safe haven for impunity would create an unacceptable double standard for accountability. It is also incompatible with international law and our Constitution.

Currently, South Africa has a Bill before Parliament seeking an amendment to the Implementation Act to permit immunity from prosecution for heads of state and government and senior officials. The Bill has not been acted upon yet, but it is concerning that there has been no move to withdraw the Bill. By enacting the Implementation Act, South Africa accepted responsibility for undertaking prosecution of heinous crimes.

Fortunately, South African courts have delivered judgments that have placed the judiciary at the forefront of domestic implementation of international crimes and have thereby ensured that our country does not become a safe haven for suspected perpetrators of atrocity crimes. These cases also provide hope that justice will be carried out for victims of egregious crimes across the continent. 

I view the recent decision from the government of Sudan to allow Omar al-Bashir to stand trial before the ICC as proof that the arc of history is long and bends towards justice. South Africa should learn from its past blunders, recognise the futility of protecting alleged war criminals, and actively play a role in bending the arc of history in the direction of accountability.

The UN Arms Trade Treaty adopted by the UNGA on 2 April 2013

South Africa played a leading role in pushing for the Arms Trade Treaty ("ATT"), and ratified it in December 2014, on the date it came into force. The ATT prohibits state parties to the treaty from exporting weapons if they know at the time of authorisation that these weapons will be used to commit war crimes, be used against civilians, or violate the Geneva Conventions.

The country adopted the National Conventional Arms Control Act, 41 of 2002 as amended, ("NCACA") and set up an oversight body, the National Conventional Arms Control Committee ("NCACC").

The purpose of the Act is to establish a legitimate, effective and transparent arms control system, for the protection of all people’s "rights to life and security against repression". It adds that South Africa is a "responsible member of the international community and will not trade in conventional arms with states engaged in repression, aggression and terrorism" and that "it is vitally important to ensure accountability in all matters concerning conventional arms".

In practice, the evidence points to failures on the part of the oversight body, the NCACC, to uphold this mandate. It is failing to fulfil the goal of ensuring a rules-based, human rights-oriented approach to the arms trade and is criticised for having neither the will nor the capacity to exercise proper oversight. 

Since the outbreak of civil war in Yemen and between 2015-2016, arms to the value of R7 billion were sold by South Africa to Saudi Arabia and UAE with no checks as to their end use in Yemen. The sales are made through the state-owned enterprises, Rheinmettal Denel Munition ("RDM") and its joint venture with Rheinmettal W Munition ("RWM"), the German arms manufacturer who owns 51% of RDM. RWM was not able to sell the arms directly because German laws prohibited arms sales to Saudi Arabia and UAE. The Saudi led coalition fighting in Yemen was supported by the US and UK.

On 7 September 2015, UN High Commissioner Zeid Ra’ad Al Hussiein reported that attacks by coalition forces had targeted civilians, including air strikes on displaced females fleeing the fighting in Yemen. The human rights report warned that the parties to the war had committed acts, which amounted to war crimes, as well as abuses and violations of international human rights law.

In 2016, massive aerial bombings of the port city of Hodeidah resulted in 60 civilian deaths, hundreds injured and extensive damage to the infrastructure including water units, hospitals and roads. A Security Council-mandated Panel of Experts investigated the attack in January 2019 and uncovered perhaps the most compelling evidence that Rheinmetall or RDM munitions were used in the massacre at Hodeidah.

The panel found that "the mortar used for that attack had characteristics of those produced either by Rheinmetall in Germany or by its South African subsidiary, RDM, which reportedly also produces mortar shells in a factory in Saudi Arabia". The expert panel established that the 120mm mortar rounds used in the attacks on Hodeidah city were produced by a factory in Al-Kharj, Saudi Arabia. That factory was run by RDM and opened at an elaborate ceremony by former president Jacob Zuma and Crown Prince Mohammed bin Salman bin Abdulaziz of Saudi Arabia in March 2016.

Although three investigatory reports - the OHCHR report to the HRC, the SC- mandated Expert Panel report, and the report of the non-profit organisation, Open Secrets, were publicly available, the NCACC failed to take note of any of them and failed to take steps to investigate and stop the use of the arms they had sold, against civilians in Yemen in violation of our national law as well as the ATT.

South Africa’s foreign policy positions on the arms trade are inconsistent with their stated commitment. This incoherence has a significant negative impact on respect for human rights across the world. At Security Council debates on the conflict in Yemen, South Africa’s Minister of International Relations and Cooperation, Naledi Pandor, as well as our ambassadors condemned the attacks on civilians in Yemen and expressed concern at the humanitarian crisis caused by the war in Yemen. The Department of International Relations and Cooperation, (Dirco) is thus aware of the devastation caused by the war in Yemen and purports to seek its resolution. It must account for why, if that is true, it has yet to use its role within NCACC to discourage the export of South African weapons that may fuel the conflict. 


In conclusion, while South Africa has often played an important role in a number of pressing rights issues, the record makes clear that its engagement with international human rights law is a cause for concern. Whatever group or regional loyalties South Africa supports, these must not be at the expense of adherence to its stated commitments to constitutional rights and values and promises of their implementation.

When South Africa adopted its Constitution in 1996, it committed to making human rights an incontrovertible and unimpeachable part of its law and its politics. The world may have changed since then, but that commitment is needed now more than ever.

- Pillay served as the United Nations High Commissioner for Human Rights from 2008 to 2014.

- This lecture was given as the 15th annual human rights lecture to celebrate the centenary of the Stellenbosch University law faculty. 

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