UN tribunal heads blast SA for inaction over genocide fugitive

Both the president and the prosecutor of the International Residual Mechanism for Criminal Tribunals blasted South Africa  for its failure to arrest a fugitive wanted by the mechanism, which deals with cases left over by the UN tribunals for the former Yugoslavia and for Rwanda.

Judge Carmel Agius, president of the mechanism, and Prosecutor Serge Brammertz on Wednesday expressed their frustration over South Africa's protracted inaction over the arrest and surrender of the fugitive wanted for crimes in Rwanda, Xinhua news agency reported.

"The mechanism strongly regrets the current lack of progress, particularly since, as we all heard in this very chamber in July of this year, South Africa believes that states have an international obligation to cooperate with the mechanism and the prosecutor," Judge Agius told the Security Council in a briefing.

The mechanism trusts that South Africa, being one of the current members of the Security Council, will decide to honor its obligations under Chapter VII of the UN Charter by securing the arrest of the fugitive that was located on its territory in 2018, said Judge Agius.

In the same briefing, Prosecutor Brammertz detailed South Africa's repeated failures.

"I deeply regret South Africa's long-standing failure to execute a mechanism arrest warrant. Since my office was officially notified in August 2018 that one of the fugitives had been located in South Africa, I have endeavored to work with South African authorities to secure the fugitive's arrest. At all times we have sought to handle this matter with discretion and respect for South Africa's sovereignty."

During discussions over the last year, South Africa provided changing reasons why it could not act. For each and every challenge that was posed, his office sought to work with South Africa and find solutions to overcome them, said the prosecutor.

The prosecutor had to raise the issue twice at the Security Council as the situation remained the same.

"After assurances in July that cooperation would be forthcoming, I was cautiously optimistic that the arrest would take place expeditiously. My office was greatly surprised, then, to receive in September a formal response from South Africa, informing us, for the first time after more than a year of discussions, that it could not cooperate because it lacked the necessary domestic legislation. We quickly responded by reaffirming South Africa's obligation to cooperate under Chapter VII and reiterating our request for the fugitive's prompt arrest."

After the prosecutor's office filed a critical written report to the Security Council, South Africa last week informed the office that it had finally submitted the arrest warrant to the competent judicial authorities for execution.

"While we welcome this procedural step after nearly one and a half years of inaction, the fact is that while we are speaking today, the fugitive remains at large," said Prosecutor Brammertz.

"At this late stage, neither the victims nor this council can be satisfied with anything less than the fugitive's immediate arrest," he said.

Seven other fugitives indicted by the International Criminal Tribunal for Rwanda also remain at large.

"The Security Council has repeatedly urged (UN) member states to provide all necessary cooperation in the search for the fugitives. This message, sadly, is not being heard by some states. And when a member of the council fails for 16 months to arrest a fugitive wanted for genocide, it sends the wrong signal," said Prosecutor Brammertz.

In response, a South African envoy promised his country's cooperation with the mechanism, but did not say when the arrest will be made.

"South Africa takes its international obligations seriously and wishes to assure the mechanism and the Security Council that it is firmly committed to combatting impunity and implementing the request for assistance. We will continue to cooperate with the prosecutor's office in order to ensure that the fugitive is brought to justice," Xolisa Mabhongo, South Africa's deputy permanent representative to the United Nations, told the Security Council.

South Africa fully respects its obligation to provide assistance to the mechanism, and the delay in positively responding to the prosecutor should in no way be regarded as a refutation of such obligation, he said.

South Africa has been in regular communication with the prosecutor's office and has met with the prosecutor to explain the steps South Africa is taking to implement the request, said Mabhongo.

"Following active engagements on a national level, I am happy to announce that the international arrest warrant has been endorsed in accordance with South Africa's domestic law, thus paving the way to give effect to the request for assistance."

Prosecutor Brammertz said his office is facing challenges in obtaining cooperation in other areas.

His office is generating valuable intelligence and leads: telephone numbers, places of residence, identification documents, travel details and more. It has submitted numerous urgent requests for assistance, particularly to countries in East and Southern Africa, to follow up on those leads.

However, many time-sensitive, important requests remain unanswered for more than a year, he noted.

"Among other issues, we have credible information that some fugitives have been able to illegally and corruptly procure passports from a number of different countries. This has enabled them to freely cross borders and evade our efforts."

"National authorities have not, though, provided us with access to the persons and information we need, or otherwise treated our requests with urgency," he said.

This year marks the 25th anniversary of the Rwandan Genocide, which claimed the lives of over 1 million people, mainly ethnic Tutsis.

The victims have waited far too long to see these fugitives brought to justice. Success in this respect depends on timely and effective cooperation from member states, said the prosecutor.

The International Residual Mechanism for Criminal Tribunals was established by the UN Security Council in 2010. It has two branches, one in The Hague of the Netherlands, the other in Arusha of Tanzania.