This obviously places the South African government in a diplomatic pickle, given, on the one hand, South Africa’s constitutional obligations – including observance of the Rule of Law – and on the other hand, the need for South Africa to maintain cordial and sound diplomatic relations. Two questions further arise – whether the NPA can legally arrest Mr Modi for the allegations of rights violations and whether the NPA can investigate the allegations despite their having occurred in a foreign jurisdiction.

These questions are best viewed against the backdrop of international law, which, without exception, imposes obligations on States to prosecute those who have committed international crimes within their territory. However, this rarely happens globally (unless there are changes in government where the changes in policy result in prosecutions for past conduct). This has resulted in a culture of impunity, where there is no deterrence for human rights violations perpetrated by a State. To further contextualise the questions raised, there are certain international law rules regarding the immunity of State officials. 

Customary international law recognises immunity for heads of State. This immunity allows the heads of State to properly conduct international relations between States since international relations need effective communication between States. As such, should a head of State be hindered in carrying out international relations – for example through arrest or detention – this then stymies the functioning of international relations. This principle of immunity applies too, in cases involving international crimes. It is important that the question of Mr Modi’s immunity from prosecution be distinguished from that of the Sudanese President, Mr Al Bashir.

In the Al Bashir case, South Africa’s Supreme Court of Appeal (SCA) found that the provisions of the Implementation of the Rome Statute of the International Criminal Court Act (Implementation Act) took precedence over customary international law. Thus Mr Al Bashir, despite being a sitting head of State, has no immunity from prosecution by the South African courts. 

The distinguishing factor in this instance is that Mr Al Bashir had already been indicted by the International Criminal Court (ICC), while Mr Modi has not been indicted. This means that the Implementation Act (which remains firmly in place, despite attempts by to repeal it) would not apply to Mr Modi, thus the immunity he enjoys as head of State will remain.

Nonetheless, that will not be the end of the inquiry. In 2014, the Constitutional Court of South Africa handed down a unanimous judgment in a seminal case reiterating South Africa’s obligations under both international criminal law and the Constitution. The judgment held that the South African Police Service (SAPS) has a duty to investigate allegations of torture committed by officials of the government of Zimbabwe, in Zimbabwe, against fellow Zimbabwean nationals. The Constitutional Court considered the fact that both the Rome Statute which establishes the ICC, and international criminal law were premised on the principle of complementarity. This means that the ICC will only undertake investigations and prosecutions as a court of last resort where States parties are either unwilling or unable to do so. The primary responsibility to investigate and prosecute international crimes remains with States parties. Where a country which has not signed the Rome Statute fails to launch investigations where crimes have been committed, then perpetrators can still be brought to justice through the investigation of the crimes by States parties which have signed the Rome Statute

It must be stated that India is not a signatory to the Rome Statute. While the conduct which the Indian Prime Minister is accused of is proscribed in Indian domestic law, it is however highly unlikely that India would prosecute Mr Modi for the alleged rights violations in Kashmir. This then means that, following the Constitutional Court decision in the Zimbabwean torture case, that South Africa, by virtue of it being a signatory to the Rome Statute, has, at minimum, a duty to investigate the allegations against Mr Modi. The Constitutional Court’s decision, however, added a cautious note in questioning the reasonableness and practicability of South Africa investigating an international crime committed outside its borders. Nonetheless, the decision makes apparent that the SAPS has, at minimum, a duty to act reasonably in declining to investigate rights violations committed in another country. Perhaps that is the safety valve which the SAPS may release to escape the building pressure.  

It is perhaps an understatement to suggest that any SAPS investigation into the allegations levelled against President Modi would rock the BRICS grouping. However, South Africa’s foreign policy, as with all other States, is an extension of the nation’s values. South Africa is founded upon values including human dignity, the supremacy of the Constitution and the Rule of Law. It thus stands to reason that these should also be the values which undergird South Africa’s international relations. Above all, the South African government, in order to save itself such headaches, should play a more proactive role in developing policies which properly reflect due cognisance of the demands of strict adherence to both international law and its Constitution. Currently, it appears as if South Africa’s major foreign policy aspects are led by the courts and civic society.

By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights
25 July 2018