The petition to seek an international criminal court to investigate xenophobic violence in South Africa has attracted wide public attention in Africa. Many articles have noted that Ghana brought the case, while the petition was filed by two individuals from Ghana – security analyst Emmanuel Kotin and former Ghanaian government official Palgrave Boakye-Danquah.
ICC investigation into South African xenophobia, The petition calls on the ICC to determine whether a series of attacks on African nationals in South Africa may constitute crimes against humanity in accordance with the Rome Statute. South African government has dismissed the petition as being legally flimsy and politically motivated.
Even though there is no official announcement from the ICC about an investigation into South African xenophobia, the case has raised many issues concerning how the ICC deals with such petitions.
Who Has Filed the Petition?
It must be noted that contrary to popular belief on the internet, the Government of Ghana has not brought the case to South Africa at the ICC.
It should be stated that the petition was filed by Emmanuel Kotin and Palgrave Boakye-Danquah, claiming that the consistent attacks on foreign nationals from Africa require international attention, as there is a need to evaluate whether the alleged pattern constitutes crimes against humanity.
The South African government believes that its domestic legal system can investigate any crime associated with the acts of xenophobic violence and thus considers an international involvement in the matter unnecessary.
What Comes First?
Before commencing a full-scale investigation, the prosecutor needs to conduct a preliminary examination.
At this stage, the prosecutor will consider whether the Court has jurisdiction in the matter; whether the alleged crimes are serious enough; and whether there is a basis to start an investigation based on the available data. It should also be considered whether the case satisfies the requirements of the Rome Statute.
Preliminary examination doesn’t mean investigation has already started or that the persons have been identified.
The Complementarity Principle
One of the fundamental principles of the ICC is that of complementarity.
ICC becomes involved only in cases where the national authorities are either unwilling or truly unable to conduct investigations or prosecutions of grave international crimes. Provided that South African authorities can prove that they are effectively investigating or prosecuting the perpetrators of the xenophobic attacks, the ICC might conclude that its involvement is not necessary.
This principle ensures the primacy of the domestic judicial process.
In Case of Opening an Investigation
In case the Prosecutor concludes that all the legal requirements have been met, the ICC may request the authority to open a formal investigation.
During the investigation, investigators gather testimonies from witnesses, documentary evidence, forensic evidence, and other relevant information to establish whether the attacks on migrants were so widespread and systematic that they amounted to crimes against humanity.
The investigation is targeted at identifying persons who bear maximum responsibility without implicating governments or organizations as a whole.
Issuance of Arrest Warrants
Having gathered sufficient evidence, the ICC Prosecutor may approach the Pre-Trial Chamber for issuance of arrest warrants or summonses.
The above steps would be applied to people who were believed to have taken an active part in perpetrating or coordinating criminal acts.
All suspects would be presumed innocent until found guilty by the ICC after trial.
Investigations by the ICC might take several years to yield any final judgment.
Further Implications – ICC investigation into South African xenophobia
Whether or not the ICC decides to investigate this case, the petition has raised concerns about xenophobic attacks in South Africa and the safety of migrants in other parts of Africa.
Many problems have emerged due to the petition, including accountability, regional cooperation, and protection of migrants in Africa. Nations within Africa need to understand the need to avoid such violence, enforce the law effectively, and provide justice through their own mechanisms.
It is clear at this point that the ICC has not revealed the move that it will take after conducting the preliminary inquiry. The move will depend on whether or not the prosecutors fulfill all the requirements for an investigation.
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