Covid-19 and crimes against humanity – South Africa has gone low, it must now aim high

11 Aug 2020

Let there be no mistake: corruption is Africa’s biggest killer. The Constitutional Court has repeatedly stressed that it destroys all we have fought for, and strikes at the heart of all our rights.

In an editorial in Daily Maverick on 2 August (“Stealing from your own people is a crime; stealing during the pandemic is a crime against humanity”), this publication correctly lamented the state of our nation – where the country’s public officials brazenly abuse the pandemic and their offices, to profit from despair. And where well-connected companies loot while infections rise.

https://www.dailymaverick.co.za/article/2020-08-02-stealing-from-your-own-people-is-a-crime-stealing-during-the-pandemic-is-a-crime-against-humanity/

President Cyril Ramaphosa was forced to respond, arguing in his weekly letter that Covid-19 presents a “turning point” in the fight against corruption. He wrote that those stealing Covid-19 funds are “scavengers” behaving like a “pack of hyenas circling wounded prey”. He reiterated that the Special Investigating Unit has been authorised to investigate Covid-19 related corruption and announced the establishment of a “special centre” to bring together institutions, from the Hawks to the State Security Agency, to tackle corruption. Ramaphosa heralded that “through the establishment of the SIU Special Tribunal, we have increased our capacity to get back funds stolen from the state”.

https://www.dailymaverick.co.za/article/2020-08-03-profiting-from-disaster-is-the-action-of-scavengers/

The president, for all his words, needs to act. He claimed that we “have rebuilt vital institutions like the National Prosecuting Authority”, and that “through the establishment of bodies like the Investigating Directorate in the NPA, we have strengthened the hand of law enforcement to investigate and prosecute these crimes”.

But we need to ask whether these crimes are simply corruption, as the president suggests. Certainly, they are “crimes against humanity”, as the Daily Maverick editorial contends, on a social and moral level. But is the public outrage against such despicable conduct a crime against humanity on a legal basis, as understood by international lawyers?

... as Scheffer points out, that public health malpractice could rise to the level of a crime against humanity, and with the death toll rising and people’s health and lives at ever-increasing risk, the notion, he insists, is not far-fetched.

Let there be no mistake: corruption is Africa’s biggest killer. The Constitutional Court has repeatedly stressed that it destroys all we have fought for, and strikes at the heart of all our rights. In South Africa, it is no longer just that corruption is endemic. The context is critical: during a pandemic, corruption in the public health sector does more than steal, it kills.

Important then, is that the interplay between international criminal law (ICL) and public health is now being thought about seriously (for example, see the piece by US-based scholar, David Scheffer, a respected international criminal lawyer: Is It a Crime to Mishandle a Public Health Response?).

In this context, the South African scenario raises the question of whether ICL could be used to expose and hold accountable those who increase the vulnerability of their population. It also requires us to ask important international law questions such as the application of the doctrine of superior responsibility (a form of liability that punishes the failure of the superior to act) to situations where those in power deliberately fail to take all necessary steps to contain the propagation of a potentially deadly virus, in full awareness of the consequences. And lastly, it forces us to debate whether senior ANC and government officials (again under the doctrine of superior responsibility) can be held responsible for a failure to act against their own rank and file.

These questions are currently being considered by international lawyers across the world. South Africa has the moral imperative to lead the way. And if Ramaphosa’s words are to be matched by deeds, he has a political duty to punch hard against perpetrators. Importantly, South Africa has the legal means to do so.

South Africa is a member of the Rome Statute of the International Criminal Court. That statute lists a host of international crimes, crimes so serious that they are of concern to the international community as a whole. It seems to me that the most appropriate crime would be under article 7(1)(k): “For the purpose of this Statute, ‘crime against humanity’” is an act “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. The statute lists a category of such “acts”, including murder, rape, torture, when committed on that scale against a civilian population. The crime includes “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. This means, as Scheffer points out, that public health malpractice could rise to the level of a crime against humanity, and with the death toll rising and people’s health and lives at ever-increasing risk, the notion, he insists, is not far-fetched.

For now, and urgently so, the question for the NPA – and Ramaphosa – is whether the intentional abuse of official power to profit from the pandemic, by perpetrators alive to the severe consequences that may afflict the poor and the sick, is an attack on the civil population of South Africa that will compound or cause serious injury to body or to mental or physical health.

Lofty presidential promises aside, corruption in South Africa is so entrenched that the thought of accountability is a diminishing hope. The result of such impunity for corrupt officials is now on full display in all its horror: government officials with the mandate to work in the best interests of all South Africans, would brazenly steal from their own during a public health crisis. Something must change. The narrative has to be different. We are no longer only bored of promises broken, we are appalled.

Lofty presidential promises aside, corruption in South Africa is so entrenched that the thought of accountability is a diminishing hope. The result of such impunity for corrupt officials is now on full display in all its horror: government officials with the mandate to work in the best interests of all South Africans, would brazenly steal from their own during a public health crisis.

Something must change. The narrative has to be different. We are no longer only bored of promises broken, we are appalled.

Perhaps, then, there is a glimmer of hope for our president and his efforts to engage the NPA in the fight against such party and public officials. By highlighting that such conduct is so serious as to constitute a potential crime against humanity, the NPA and our president might achieve two things: The first is to send a message that matches a description of the crime with its true evil – this is not corruption only, this is a crime so serious that the offenders are enemies of us all.

The second is that the offenders might be placed at the top of the list of priority for prosecution – because their crimes are not merely domestic crimes, but international ones.

There is a further advantage of treating these crimes through an international criminal law lens. It is the hope of accountability somewhere, even if not at home. And here lies the difference between corruption and a crime against humanity. Corruption is a domestic crime, and if the offender is not prosecuted due to a lack of political will or expertise, the crime will remain unpunished. But crimes against humanity affect the whole global order. They are so odious that they attract universal condemnation: Any nation of the world is permitted to take action against the offender (under what is known as “universal jurisdiction”), and dockets may be filed in other countries by victims, concerned citizens and NGOs, asking for specialised international criminal law prosecutors to act against South African perpetrators of such crimes.

And, critically, because South Africa is a member of the International Criminal Court, it may request the ICC to assist it with prosecuting such crimes against humanity (South Africa has previously enlisted the ICC’s help in this manner, in another case). As a final backstop: if South Africa proves itself unwilling or unable to act against the perpetrators, then the ICC has jurisdiction to do so in its place.

The news of the hyenas feeding off the poor is downright despairing. But there is scope, now, urgently, to use this news for positive action. The theft and corruption have brought our country so low, that we must now go high. Ramaphosa’s leadership is a powerful tool – not only in South Africa, obviously, but given his role on the continent, he has an opportunity to lead the way against corruption regionally.

To act against those responsible as potentially guilty of crimes against humanity, would be to use a powerful and appropriate legal weapon against those who intentionally afflict the ravages of an infectious pandemic upon their own. DM

Max du Plessis is an advocate in South Africa, honorary research fellow University of KwaZulu-Natal (Durban) and a senior research associate at the Institute for Security Studies. As an advocate in South Africa (and associate tenant, Doughty Street Chambers, London), Du Plessis has been working on domestic cases dealing with arrest warrants for senior government officials implicated in international crimes and litigating and advising on them in South Africa and other countries. He acted on behalf of the Southern African Litigation Centre (SALC) in seeking to ensure that the South African government complies with its obligations to arrest President Bashir of Sudan, arguing against the government’s claim that Bashir has immunity from arrest under customary international law on account of him being head of state.

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