By Lesedi Sibiya-Diplomatic Insider

Professor Angelo Dube, who serves as an expert in international law and human rights, sat down with Diplomatic Insider as he weighs in on a petition that was started by two Ghanaian nationals and was filed at the International Criminal Court (ICC) as the two Ghanaians seek an investigation into attacks on foreign nationals due to the protests that have been taking place across the nation of South Africa.

The petition was submitted to the Hague-based court last week, which argues that the violence could escalate to crimes against humanity and is also accusing the government of South Africa of being complicit and failing to apprehend those who are responsible for the attacks.

The Ministry of International Relations and Cooperation (DIRCO) has dismissed the petition as lacking any legal basis in their accusations, or at least to the standards of the ICC. It has affirmed that they are able to manage the situation within the bounds of their legal systems.

This petition has caused a rift in international ties between South Africa and Ghana, as they were the first country to repatriate their citizens from South Africa due to the anti-illegal immigrant protests.

Ghana has claimed that their citizens were murdered in relation to these protests however, the South African authorities have since denied these claims.

Diplomatic Insider sat down with Professor Dube, who is an expert in International Law, in order to give his perspective regarding whether or not the petition holds any weight within the standards of the ICC. Dube was asked what constitutes a “crime against humanity” in regard to international law.

“Thank you for having and regarding this situation that we find ourselves in, the Roman Statue is clear that for any action of any set of, you know, activity to be classified as a crime against humanity, it must consist of either murder, rape, slavery, and forced disappearances or displacement of a certain group of people, and it must be wide spread and it must be systematic.”

“So, it doesn’t just become a crime against humanity; it must be one of those crimes listed there, from murder to slavery to rape, and it must not be done in a manner that is not just once off.” said Dube.

Dube was further asked if there is any legal basis regarding the ICC investigating South Africa.

“It is very worrying when you see individuals, such as the two that went to the office of the prosecutor, pushed by nothing more than emotion. When one looks at the situation on the ground, a group of disgruntled South Africans came together to peacefully march, and we must not lose sight of the fact that in South Africa the constitution allows every individual the right to march peacefully.”

“Obviously in any situation of a march, a public expression of frustration, there will always be individuals who go over and above, who become too overzealous; they may see a shop, they may want to start looting it.”

“They may see a particular person, they may even begin to be violent towards them. But those sporadic events that I’m talking about cannot necessarily be ‘crimes against humanity’ because they are not systematic. The government has denounced all violence, you know, violation of other people.”

“The organisation itself that called for the march to be there did not necessarily exhibit a policy that could be said to be the basis for any alleged xenophobic attacks. All they did was to say that there are individuals in the country who are not legally within the country, and they are putting a strain on the economic growth of the country. They need to go.”

“They are illegally in the country, law enforcement must be brought to bear, and they must exit. If they want to come back, they must come back through proper channels, through legal channels. As we stand now, there isn’t anything that can make the ICC say that it is taking over the matter and investigating South Africa, because the prosecutor himself has several steps to follow before it can be said that an investigation has been opened in South Africa.”

“ They need to identify which individuals are the perpetrators, because the ICC deals with individual responsibility. It does not deal with South Africa as a country or the government.” Dube explained.

The professor was then asked about the significance of the principle of complementarity in this case or whether repeated incidents of xenophobic violence satisfied the threshold for crimes against humanity.

“You remember George Bush once invaded countries that he didn’t like under the pretext of fighting terrorism, and how he managed to rally support was to create a sociological term called the war against terror. So, anytime they were attacking the Middle East, they would say, we’re fighting the war against terror. Everybody thought these guys are doing good, they are fighting the war against terror, the same thing is being done here. “

“People are creating a new term called xenophobic attack, it’s not a legal term, it’s not a crime. It’s not there in the international legal framework. It’s not there in the domestic legal framework. It’s not there in the Rome Statute. If you search for xenophobic attack in the Rome Statue, it won’t come up because it’s not a legal term, and yet here we are having these two fellows trying to abuse the international legal framework of the ICC to fight a non-existent crime called ‘xenophobic attack’.”

“ So that’s the only thing that I would like to just put there and clarify, that we see an overlap between politics and legality. We’ve seen it before with the war on terror. Diplomatically, this will ruffle some feathers. But fortunately, diplomacy was created specifically to do that, to avoid countries from solving their disputes through war. So diplomacy will continue to be the platform to engage with the Ghanaians, to engage the Ghanaian government. Because it’s not like the Ghanaian government is not aware of the fact that its people were largely in South Africa without documentation.”

“The Repatriation flights that we saw, the government of South Africa was clear that a high number of those people had actually been in the country without the necessary commissions and the necessary papers.” Dube said.

Towards the end of the interview, Dube was asked about what steps South Africa can take to demonstrate its commitment to preventing xenophobic attacks and upholding human rights.

“I think the first step is what it is doing now, the diplomatic sojourn it has taken to engage various governments in Africa and to ask for a very candid and honest reflection when they have these engagements.”

“Because of the criminality that happens at the hands of undocumented persons who know very well that there will be no consequence management because the system cannot pick them up. They are invisible. The implications of that are huge on the society of South Africa, on the fiscals of South Africa. And it’s a serious matter that the South African government needs to keep engaging African states and other affected states elsewhere about.”

“The African Union is another level at which South Africa needs to engage. South Africa needs to lead the conversation, South Africa should not sit back and hope that the AU will lead the conversation. It must put the agenda of the African Union on this item as an agenda item and call for it to be debated.” Dube said.