Jun 23, 2010

Afrikaner: ICC Received Complaint of Genocide against Malema

Active ImageSapa are reporting Friday that the genocide charge lodged by an Afrikaner farmer against African National Congress Youth League President Julius Malema has been received by the International Criminal Court housed in The Hague.


Below is an article published by Newstime:

The ICC has confirmed receipt of the complaint against Malema.

The question now is whether the prosecutor, based upon the evidence submitted to him, will decide to investigate.


Genocide is the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group.

The legal definition, set out in Article 2 of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, describes it as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group."

The farmer, who along with his family left South Africa amid fears for their safety, sent the charges via their attorney Fanie van der Walt. They relate to Malema singing "shoot the boer", which the Rustenburg farmer interpreted as inciting youth league supporters to commit genocide against Afrikaans boers.

ANCYL Response

The ANCYL were disgusted by the attention seeking sentiments and insanity of the Afrikaner farmer from Rustenburg who has reportedly lodged a complaint with the ICC about the singing of liberation songs in South Africa's ANC-led liberation movement.

They called it an attempt by right-wing elements to divert it from its main political programmes and the issue of liberation songs is currently before South African courts, which have issued an interim interdict on the singing of some of the liberation songs until the ANC has successfully defended its struggle and liberation songs and heritage.

"We are more than sure that the ICC will never entertain some Afrikaner's stupidity and insecurities, and should instead focus on prosecution of imperialist sponsored wars that continue to happen in the world. The league said as a matter of principle, it was encouraging all South Africans to beware of right-wing agent provocateurs, "most of who are beneficiaries of a racist murderous apartheid regime".

International Criminal Court

The ICC is a permanent tribunal for prosecuting individuals for genocide, crimes against humanity and war crimes.

It came into being on 1 July 2002 in terms of the 'Rome Statute of the International Criminal Court' and can only prosecute crimes committed on or after that date. It is housed in The Hague, Netherlands, but its proceedings may take place anywhere.

South Africa is a signatory to the treaty and bound by it.

While investigations are normally referred to the prosecutor by what is termed a state party ; in terms of Article 15(1) “the Prosecutor may initiate investigations proprio motu (on his own impulse) on the basis of information on crimes within the jurisdiction of the Court.

In this case with South Africa being a signatory the ICC would have jurisdiction.

The prosecutor on the basis of information furnished to him by the farmer could very well decide to investigate further. If regard is had to the number of farmers who have died since the liberation song became popular he might even feel compelled to at least have a look around and see whether there is a link from the singing of the song to the killings.


If the prosecutor does decide to investigate further he will commence with Articles 53-55 below :

Article 53 - Initiation of an investigation

1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b) The case is or would be admissible under article 17; and

(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:

(a) There is not a sufficient legal or factual basis to seek a warrant or summons under article 58;

(b) The case is inadmissible under article 17; or

(c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime;

The Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.

3. (a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.

Article 54 - Duties and powers of the Prosecutor with respect to investigations

1. The Prosecutor shall:

(a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally;

(b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and

(c) Fully respect the rights of persons arising under this Statute.

2. The Prosecutor may conduct investigations on the territory of a State:

(a) In accordance with the provisions of Part 9; or

(b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d).

3. The Prosecutor may:

(a) Collect and examine evidence;

(b) Request the presence of and question persons being investigated, victims and witnesses;

(c) Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate;

(d) Enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person;

(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and

(f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

Article 55 - Rights of persons during an investigation

1. In respect of an investigation under this Statute, a person:

(a) Shall not be compelled to incriminate himself or herself or to confess guilt;

(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; and

(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness;

(d) Shall not be subjected to arbitrary arrest or detention; and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in the Statute.

2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9 of this Statute, that person shall also have the following rights of which he or she shall be informed prior to being questioned:

(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;

(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;

(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it;

(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.