Q&A: S African group calls for Obama’s arrest

Doha, Qatar – US President Barack Obama on Friday heads to the southernmost shores of Africa on the second leg of his three-country visit to the continent.

While America’s first black president has family roots in Kenya where he is adored by many, in South Africa his visit is not being received with overwhelming enthusiasm.

The country’s largest trade union grouping, the Congress of South African Trade Unions (Cosatu), which is in alliance with the governing African National Congress, has called on its members to join workers and citizens across the globe to “actively participate” in protests against Obama’s visit.

Cosatu cites Obama’s “horrifying record of US foreign policy in the world”, highlighting, the “militarisation of international relations for the multinational companies and their profit-seeking classes in the US”.

It is also opposing the “US support for oppressive regimes that benefit US narrow interests”, saying in a statement on its website that its call was part of world-wide struggle against imperialism.

Many in the country have already heeded the call with a huge protests, dubbed the “Nobama campaign”, being planned across the country. The University of Johannesburg’s decision to award him an honorary degree has already spurred protest and frustration.

Among the various organisations supporting Cosatu’s call include the South African Communist Party (SACP), and the Muslim Lawyer’s Association (MLA).

The MLA has in fact taken its concerns a step further, by lodging an urgent legal complaint with the country’s prosecuting authority, asking it to investigate, charge, arrest and try Obama for alleged crimes he has presided over, in the hope that the court “will take seriously its domestic and international obligations… to act against international war criminals”.

The group believes that Obama is guilty of “genocide”, “war crimes and “crimes against humanity” and that, under international laws to which South Africa is a signatory, he should be arrested on arrival in South African territory.

The possibility of an immediate state investigation and arrest of Obama in South Africa has since fallen away, with a court looking ruling on Wednesday that the matter was not urgent.

Yousha Tayob, spokesperson for the MLA, says his organisation was not discouraged, and hoped that the National Prosecuting Authority (NPA) will still commit to an eventual investigation.

Al Jazeera’s Safeeyah Kharsany spoke to Tayob about “the Obama Docket”.

Safeeyah Kharsany: What is the ‘Obama Docket’?

Yousha Tayob: “The Obama Docket” is essentially a complaint that we have referred to various police and prosecuting authorities in South Africa, indicating that we believe he is guilty of a number of transgressions of international customary laws – consisting of the Geneva Convention, the UN Charter, the Universal Declaration of Human Rights. And in particular, implementation of the Rome Statute, which is legislation adopted in our law in 2002, and which gives us the authority to prefer charges against an acting head of state, for atrocities he has committed, and to bring the foreigner within the [state’s] jurisdiction…

We have said by law that we have evidence – by way of his own confession – in regards to war crimes, crimes against humanity and genocide. And these are based primarily on reports we obtained and his own confessions in regards to the stepping up of drone attacks, extraterritorially and extra-judiciality; renditions; and the killing of US citizens in foreign land.

We’ve also made much reference to Guantanamo, and the fact that ninety percent of its inhabitants are Muslim and almost all of the victims in the foreign countries are Muslim. So we placed that under the label of genocide, war crimes and crimes against humanity.

SK: What are the ‘war crimes’ are that [Barack Obama] has committed?

YT: I’ll start with Guantanamo. He has detained people without due process; he has indicated that some of these people are too dangerous to release, but that they have insufficient evidence against them. This is detention without trial, this is no due process. 

Then we turn to the drone attacks. And the Pakistani high court judge has declared the drone attacks to be illegal and has asked the UN to commence an investigation into them. Navi Pillay [United Nations High Commissioner for Human Rights] has questioned the usage of drones, indicating that they are highly questionable. Obama’s administration, Obama himself, has multiplied five-fold usage of these drones [compared with] Bush’s administration, and he has acknowledged civilian deaths continue to haunt him… and unfortunately for him, those happen to be real people with real lives.

The only palatable issue for them appears to be that they’re Muslim lives. So he continues to use drones [irrespective] and knowing full well the extent of the civilian death caused.

Then we have the renditions, which he’s acknowledged where people are languishing in death holes all over the world without judicial process. No due process is being followed. People have simply been picked up, locked up, in Guantanamos of their own, all around the world.

The third is that he has authorised the assassination of particular individuals… And he personally authorised those killings from the reports that we have in our possession…

The Stanford University report Living Under Drones called the drone attacks unnecessary; have called them disproportionate, and all of these things fall into the definition of what we call breaches of international customary laws, laws of war, war crimes, genocide and crimes against humanity.

SK: What basis does a South African organisation have to lay such a complaint?

YT: I think it’s with the aid of our constitution; we are entitled to bring any lawsuit to our court in the interest of parties who are not able to do so. What we’re entitled to do in terms of the Rome Statute is that, if an accused, as we say Obama should be in this case, is on South African territory, and as a signatory state to the Rome Statute, and having adopted it into our legislation, we are entitled to have our courts constitute an international criminal court in our country.

When we fail to prosecute, we have the right of referral of the matter to the ICC, which is the alternative we have asked our South African court to attend to. So if they don’t want to do it themselves, we ask that they refer it to the ICC as a legitimate complaint for the ICC’s attention.

SK: What are your organisation’s expectations?

YT: If we look at the law, both the international customary law provision and the implementation of Rome Statute, we’re on all fours at the legislation. We meet the requirements. We believe we do so and we believe in law that we are correct.

By his own confessions he has committed these crimes. By virtue of the implementation of the Rome Statute he is not granted immunity.

In fact in terms of section four of the act, he can be investigated and arrested and prosecuted and we’re saying that… from a legal point of view the complaint cannot be faulted.

We’re hoping, considering South Africa’s rich history of human rights struggle, that they’ll continue to consider it, even though they’re now forcing us to go to court to get a judge to order the investigation of the matter.

SK: Is your hope that the South African government will act and arrest Obama when he arrives in South Africa?

YT: The least we can do is commit an investigation based on the information we provided them with, which is the war crimes. If they decided beyond the investigation that they want to prosecute, then yes, arrest is one of the means by which they must secure his [attendance] in a court room.

They can obviously use a sign, they can obviously use a warning.

But what we’re saying is: “Commit the investigation and you’ll find that we’re right on the evidence, we’re right on the law, and eventually you will proceed with a prosecution.”

Follow Safeeyah Kharsany on Twitter: @safeeyah