Penuell Mpapa Maduna
South African Minister of Justice
Dear H.E. Maduna,
Although we have not received a response to our letter, we have read statements in the press, attributed to Foreign ministry spokesman Khangelani Hlongwane, that South Africa will not bring Mengistu to justice because he is a "refugee," because South Africa does not have an extradition treaty with Ethiopia, and because it would be inconsistent to insist on Mengistu's prosecution, given South Africa's reconciliation process. Respectfully, we would like to address each of these assertions.
First, Mengistu Haile Mariam is not deserving of the international protection offered to refugees, pursuant to the 1951 Convention relating to the Status of Refugees. As you know, that Convention specifically excludes from protection "any person with respect to whom there are serious reasons for considering that ...he has committed ... a war crime, or a crime against humanity." Similar terms are used in the 1969 OAU Convention governing the specific aspects of refugee problems in Africa. South Africa is a party to both these conventions. Mengistu is accused of both war crimes and crime against humanity. From 1974 to 1991, Mengistu and his subordinates were responsible for atrocities on a massive scale. Tens of thousands of Ethiopians were tortured, murdered or "disappeared." Tens of thousands more were killed as a result of war crimes. Many others, probably well in excess of 100,000, died as a result of forced relocations ordered by Mengistu's regime.
Second, in our letter, we did not recommend that South Africa extradite Mengistu to Ethiopia, because of our concerns regarding his right to a fair trial and the application of the death penalty. We did urge, however, that South Africa investigate Mengistu before its own courts. The South African constitution (article 232) expressly incorporates customary international law. Under customary international law, all countries have a right and a duty to exercise jurisdiction over crimes against humanity and a right to exercise such jurisdiction over torture. We also note that South Africa in 1988 ratified the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which requires South Africa to prosecute or extradite accused torturers-such as Mengistu-who enter its territory. South Africa has not, however, met its treaty commitment by enacting implementing legislation to incorporate this.
Finally, we believe that it is a disservice to the South African truth and reconciliation process to use that carefully-devised mechanism as a pretext to provide impunity to one of the most blood-stained tyrants of modern times, a man who has never told the truth about his crimes, who has never sought nor received an amnesty and whose government wishes to prosecute him for crimes against humanity. In South Africa, amnesty from prosecution was predicated on truth-telling, which Mengistu has not done. In addition, the route to reconciliation is not something for others to decide but for each country to determine for itself. Ethiopia has clearly decided that reconciliation is best achieved through justice - a fair assessment given the horrendous atrocities committed. South Africa should not seek to impose its model on a fellow country.
South Africa is regarded as a country which places the highest value on human rights. Our organization has had the privilege of working with your government in developing an effective International Criminal Court to bring to justice those accused of the worst atrocities. We believe that South Africa has an opportunity to break the unfortunate cycle of impunity that has developed in many parts of Africa by bringing Mengistu to justice before its courts and providing him with a fair trial.
Thank you in advance for your consideration.