August 19, 2009

Maite Nkoana-Mashabane
Minister of International Relations and Cooperation
Republic of South Africa

Fredrik Reinfeldt
Foreign Minister
Government of Sweden

Dear Ministers,

The joint European Union-South Africa Summit on September 11, 2009 in Kleinmond brings key western democracies together with a leading democracy in the global south. The EU-South Africa dialogue covers many important areas. Above all, this summit offers an opportunity to improve cooperation on human rights. The EU and South Africa should be natural allies on critical issues like justice for serious crimes in violation of international law and holding perpetrators to account.

The Kleinmond summit precedes the expected release of the Goldstone Commission report on alleged abuses committed in Gaza in December 2008 and January 2009 by the Israel Defense Forces and Hamas and other Palestinian armed groups. Both Israel and Hamas have poor records in conducting thorough and impartial investigations into alleged serious violations of the laws of war. Human Rights Watch has documented many such violations by both sides. Perceptions that Israeli and Palestinian officials enjoy impunity for criminal acts can only undermine European and South African efforts to promote justice and accountability in other conflict and post-conflict areas.

In a report released on August 13 ("White Flag Deaths"), Human Rights Watch documented seven clear cases-resulting in 11 deaths (including four children) - in which Israeli soldiers opened fire on unarmed Palestinian civilians in groups carrying white flags. Earlier reports documented Israel's extensive use of white phosphorus munitions in densely populated civilian areas, and high-precision drone-fired missiles that resulted in at least 29 civilian deaths, eight of them children. These attacks violated the prohibition of indiscriminate attacks on civilians. Human Rights Watch has written extensively on Israel's blockade of Gaza that prevents the movement of people and goods-including ordinary civilian goods and reconstruction materials-amounting to collective punishment of the territory's 1.5 million civilians.

Human Rights Watch has also documented evidence of serious violations of the laws of war by Hamas and other Palestinian armed groups. During the Israeli offensive in Gaza in December and January, Hamas and other groups launched hundreds of rockets into Israel. These rockets cannot be aimed at military targets and struck populated areas up to 40 kilometres inside the country, killing civilians and placing 800,000 others at risk. The Palestinian groups also launched rockets from densely populated areas of Gaza, putting civilians at risk of Israeli counterstrikes. Individuals believed to be affiliated with Hamas also carried out 18 extra-judicial killings and beat and maimed dozens of others, mainly supporters of its rival group Fatah.

The Kleinmond summit offers South Africa and the EU a chance to announce joint action on the forthcoming Goldstone Commission report.  Human Rights Watch urges you to press both sides of the Gaza conflict to allow impartial investigations into laws-of-war violations and to prosecute in fair trials those responsible for war crimes. Given the consistent lack of adequate action by Israel and Hamas in the past, South Africa and the EU should urge the creation of a dedicated UN mechanism to monitor and report on any such investigations and prosecutions, and press for international trials if either side fails to show progress.  The International Criminal Court (ICC) could prosecute crimes committed during the recent hostilities in Gaza if the UN Security Council refers the situation to the court. In addition, should the ICC prosecutor determine that the necessary preconditions have been met, he could decide to open an investigation based on the Palestinian National Authority's request in January 2009 that the court assume jurisdiction over alleged war crimes by both sides committed in Gaza.  

The summit should also support calls for an international commission of inquiry into Sri Lanka. Human Rights Watch has documented many serious violations of international humanitarian law since January by Sri Lankan government forces and by the separatist Liberation Tigers of Tamil Eelam. Recently, the government disbanded a presidential commission of inquiry into past abuses by both sides, and detained in camps more than 260 000 civilians who fled the conflict, clearly violating its international legal obligations. 

The summit also comes at a time when the International Criminal Court (ICC) is under attack from states hostile to the fight against impunity. EU member states and southern African states (including South Africa) were key to the creation of the ICC. Europeans and Africans also cooperated to resist the previous US administration's strong opposition to the court. The EU and South Africa have recently expressed support for the fight against impunity and their intention to carry out the ICC arrest warrant for Sudan's president, Omar al-Bashir, on charges of crimes against humanity and war crimes in Darfur. In this context, a joint declaration of commitment to fighting impunity would send a strong moral and political signal that serious crimes must be tackled wherever they occur; to both deter a future Yugoslavia, Rwanda or Cambodia, as well as hold perpetrators to account in present-day Sudan.

Justice means supporting the victims of crimes not the perpetrators. Opponents of the Bashir warrant claim the ICC is an example of the "strong" picking on the "weak," intimating that President Bashir and his government are somehow victims in this case. In reality, it is Bashir's brutalisation of hundreds of thousands of civilians in Darfur that has triggered the arrest warrant. 

The court's opponents also say that UN Security Council Resolution 1593 in 2005, authorising the ICC investigation into crimes in Darfur, was a western manoeuvre to politicise the court and the Bashir case. However, the United States was one of four states that abstained on Resolution 1593. Those voting in favour included Tanzania, Benin, Argentina, the Philippines, and Japan. The Benin ambassador said the Council should act to end the suffering of civilians and impunity in Darfur by providing impartial justice. His Tanzanian counterpart hoped that the international community would not abandon the people of Darfur. Resolution 1593 was-and remains-a statement of global determination to eradicate impunity.

There are legitimate concerns that impunity is not being tackled evenly across the globe. Victims of human rights abuses in Afghanistan, Gaza, Guantanamo, and Chechnya, for example, have all lacked access to justice. But this is no excuse for abandoning victims for whom justice is available now. The Kleinmond summit should signal clearly that justice must apply to all those responsible for serious international crimes, and that impunity should not be tolerated, either in the Bashir case or in similar cases. The EU and South Africa committed themselves to the fight against impunity at their last meeting in 2008: the summit should re-commit both in these bolder, more specific terms.

Human Rights Watch has long pressed for a criminal investigation into egregious human rights violations committed by the United States in its so-called "war on terror" since 2001. These include torture, enforced disappearances and other ill-treatment of detainees. Documents now in the public domain show that senior US Justice Department officials purported to give legal sanction to practices like "waterboarding" (near-drowning), as well as long-term sleep deprivation, violent slamming into walls, prolonged exposure to heat and cold, and confinement in small, dark boxes.

The Obama administration has, to date, been reluctant to initiate a criminal investigation into these crimes. Media reports say the US attorney general may soon appoint a special prosecutor to investigate alleged abuses by the Central Intelligence Agency, but suggest that any investigation will likely focus on lower-level officials who acted without government authorisation. A more wide-ranging investigation is essential, not only to allow victims redress, but to reduce the risk of future recurrence. The US detention facility at Guantanamo Bay has not yet closed. And US authorities continue to hold indefinitely without charge several hundred persons, primarily Afghans, at Bagram air base in Afghanistan, including a handful of people originally detained in other countries.

Human Rights Watch urges the EU and South Africa to press the United States to investigate those officials most responsible for serious human rights abuses since 2001, that is, those who planned, authorised, and facilitated the use of abusive methods that violated US and international law. Only an investigation that reaches those at the centre of the policy would have credibility both domestically and internationally. The summit should also urge the United States government to end its practice of indefinite detention of terrorist suspects without charge in violation of their basic rights.

Accountability is also at the core of the crisis in Burma. The politically motivated guilty verdict by a criminal court in Rangoon, on August 11, against the Burmese democracy leader Aung San Suu Kyi, was just the latest in a long series of abuses of power by Burma's military government. The court sentenced Suu Kyi to three years' imprisonment for violating her order for house arrest, later reduced to 18 months, to be served under house arrest.  She has spent more than 14 of the past 20 years under house arrest.

Police arrested Suu Kyi and her two assistants on May 14. They went on trial on May 18, charged with breaching the terms of Suu Kyi's house arrest order by allegedly permitting the uninvited visit of an American, John William Yettaw, on May 4 and 5. All four were charged under the draconian State Emergency Act. Criminal trials of political prisoners in Burma do not meet international fair trial standards. The judges are not independent, and the defense does not have an adequate opportunity to present its case. During Suu Kyi's trial, the court permitted 14 witnesses for the prosecution, but only two for the defence, despite several appeals by Suu Kyi's lawyers to present additional witnesses.

The EU and South Africa have long taken strong positions on military dictatorships. Unconstitutional changes of government are grounds for suspension from the African Union, and the AU has taken action in Madagascar, Guinea, and Mauritania in the past year. The people of Burma deserve the same rights as Africans and Europeans, and should be able to elect the government of their choosing. Under Burma's new constitution, the armed forces will retain effective control of the country after planned elections in 2010. Europe and South Africa should now speak as one on Burma and press for the strongest possible concerted international action against its military rulers.

Specifically, the EU and South Africa should call on ASEAN to use the recently formed ASEAN Inter-Governmental Commission on Human Rights, the terms of reference for which were agreed on July 20, to hold the Burmese government to account for its actions. The EU should expand and tighten existing targeted sanctions on Burma (focusing on individuals and corporations implicated in human rights abuses). South Africa should use its considerable moral authority within Africa and more widely to increase the pressure on Burma's generals. The UN Security Council should finally take meaningful action, including an international arms embargo and other targeted sanctions.

The EU and South Africa have already successfully joined forces to support more active Security Council involvement in the prevention of sexual violence and the protection of civilians. At the August 7 open debate at the UN Security Council, South Africa and EU member states welcomed the UN Secretary-General's first report on the implementation of the relevant Security Council resolution (1820). Human Rights Watch now urges both to show a lead on this issue and follow up with concrete action to implement the report's recommendations.  In particular, support for a new senior post at the UN secretariat to coordinate UN activities on issues related to women, peace, and security, is essential for a stronger, sustained and coordinated UN response to the scourge of rape as a weapon of war.

The EU and South Africa have invested significant sums in rebuilding the Democratic Republic of the Congo. Yet systematic rape (including numerous cases implicating members of the country's armed forces) continues to go unpunished there. The summit offers an important opportunity for the EU and South Africa to commit political and other resources to bringing this horrific practice to an end and insist on justice for such crimes.

Urgent action is also needed on accountability in Somalia. While there has been much necessary focus on the country's humanitarian crisis and brutal internal conflict, little has been done to address Somalia's crisis of impunity. Despite long-standing calls for a UN commission of inquiry into human rights violations by all sides in Somalia's conflict, no action has been taken. Such a commission would be very simple to establish. The EU and South Africa have a prime opportunity to show leadership on this issue.

In Zimbabwe, ZANU-PF, a party in the notional power-sharing government, continues to use its control of the security forces and judicial system to target and harass its political opponents and civil society. ZANU-PF has also blocked urgent legislative reforms-such as access to information-that are crucial if Zimbabwe is to recover from its climate of repression. It is too soon for the EU to consider direct financial support to an unreformed Zimbabwean government or to lift targeted sanctions against those responsible for organising violence and abuses. We call on the EU and South Africa to press ZANU-PF to honour Zimbabwe's Global Political Agreement, in both letter and spirit.

We wish you well in your deliberations.

Georgette Gagnon
Executive Director, Africa Division

Lotte Leicht
EU Advocacy Director