Another foreign policy headache for South Africa: Investigating Prime Minister Modi
25 July 2018
South Africa is this week hosting the emerging economies (Brazil, Russia, India, China, South Africa - BRICS) group summit. In the meanwhile, the Muslim Lawyers Association (the Association) has reportedly lodged a complaint with the National Prosecuting Authority (NPA) and further called for the arrest of Indian Prime Minister, Narendra Modi. This, on the basis of a recently released United Nations (UN) report accusing India’s security forces of gross human rights violations in India’s Kashmir province. Suffice to say, the NPA has acquiesced to the request from the Association and announced that the NPA will be investigating Mr Modi for his alleged role in war crimes and human rights violations.
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.