BRIEF SUMMARY OF THE OBAMA DOCKET
- The MLA has submitted a complaint to the National Directorate of Public Prosecutions (“the NDPP”), the Head of the Directorate for Priority Crime Investigation of the South African Police Service (“the DIPCI”), the National Commissioner of the South African Police Service (“the SAPS”), the Honourable Minister of Safety and Security and the Director General of the Department of Justice and Constitutional Development, being the Central Authority in terms of inter alia, The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (“the ICC Act”), requesting the institution of a criminal investigation, and the arrest and prosecution of Barack Hussein Obama (“Obama”) for war crimes, genocide as well as crimes against humanity committed by him via the implementaion of the US administration’s drone strike policies.
- With the supporting annexures, the complaint comprises 658 pages and because the complaint requests a criminal investigation the complaint can not currently be made available to the public in its entirety.
- This document seeks to provide a general overview of the complaint.
- The complaint requests the authorities:
4.1. to initiate an investigation into the conduct of the president of the United States of America, BARACK HUSSEIN OBAMA (“the accused”),
4.2. to effect the arrest of the accused or secure his presence for trial by other lawful means, and
4.3. to prosecute the accused in respect of the offences outlined below, or
4.4. to refer the case against the accused to the Prosecutor of the International Criminal Court to exercise jurisdiction in accordance with Article 13 and 14 of the Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17th July 1998 and ratified by the Republic on 10th November 2000. (A copy of the Statute is attached as an Annexure to the Implementation of the Rome Statute of the International Criminal Court Act 2002)
- The docket clearly sets out a strong prima facie case of alleged war crimes, crimes against humanity and genocide committed by the US administration’s drone policy.
- The MLA submits that inaction by the authorities would be an open invitation to the accused to extend his nefarious extra-judicial killing spree to include the killing of South Africans within South Africa and to assassinate any persons merely suspected of being terrorists by the USA who happen to be on South African soil.
- The most basic of all human rights is the right to life. The right to life is guaranteed by article 8 of the Universal Declaration of Human Rights. There are 167 signatories to the Universal Declaration of Human Rights; giving the rules embodied therein universal status under International Law.
- The MLA submits that South Africa, through its ratification of the Rome Statute and subsequent domestication thereof through the ICC Act, assumed a number of binding obligations. Parliament’s intention in this respect was unambiguous; namely that South Africa committed itself to the investigation of international crimes and the arrest and prosecution of perpetrators thereof.
- It is apparent from the ICC Act that a Head of State or member of Government such as the accused may be prosecuted and that Diplomatic immunity is not a defence.
10. During his presidency the accused ordered and/or sanctioned the widespread use of unmanned aerial vehicles (uav’s or drones) for the extra-territorial, extra-judicial killing of persons considered by the US government to be a threat to the safety of the USA. Such killings continue unabated and the accused continues to implement the policy.
11. Such murders have been committed in sovereign territories and has extended to Afghanistan, Pakistan, Yemen and on African soil in Somalia. They are ongoing occurances.
12. Such persons as are identified to be assassinated are not arrested or tried in a Court of law. They are assassinated on the basis of mere accusations levelled against them. The alleged evidence is kept secret. There is no judicial oversight to determine if listed persons are indeed guilty of any alleged crime. They are deprived of a hearing (let alone a fair one) as well as an opportunity to present mitigating factors even if found to be guilty. There are no due process rights and such persons are not afforded their most basic human rights.
13. The process of identifying listed persons, if such a process even exists, is a closely gaurded secret. Accountability is not part of the equation and these acts of annihilation can only be called murder.
- 14. At all material times the accused knew or foresaw the possibility that the use of drones to carry out the assassinations of the listed persons would cause civilian casualties.
- 15. This notwithstanding, the accused implemented the policy, indifferent to the consequences thereof on innocent lives, including those of children.
16. The result is that the world at large is not immune to the acts of the accused. No person who is considered by the American government to be a threat to the USA is safe in any country anywhere in the world, nor is the territory where such a person is domiciled or resident immune from USA drone strikes.
17. The USA armed forces, headed by the accused, have demonstrated an utter disregard for the territorial sovereignty of nation states and have repeatedly, with alarming regularity, invaded the air space of sovereign states to carry out attacks and assassinations. The territorial sovereignty of every country is thus threatened by the USA policy that the accused has implemented in the past and continues to implement.
18. During his term in office, the accused has intentionally sanctioned the use of drones in a manner which offends the fundamental principles of due process, distinction, proportionality, humanity, military necessity and has violated the international laws of war and international humanitarian law.
19. He has also assassinated his own citizens: Anwar Al Awlaqi, Abdul Rahman Al Awlaqi and Sameer Khan who were all adherents of the Islamic faith. Anwar Al Awlaqi and his 16 year old son Abdul Rahman Al Awlaqi as well as Sameer Khan were all US citizens at the time of their deaths.
20. On the direct instructions of the accused, they were each assassinated in two separate drone attacks, two weeks apart from each other by the USA armed forces in Yemen.
21. Many innocent civilians including woman and children have been murdered by unlawful drone attacks.
- 22. There is no valid reason as to why the USA cannot capture persons that it suspects as being terrorists and provide such persons with due process and the full protection that the law affords to arrested persons. In fact the USA has captured many such persons and is illegally detaining them at Guantanamo Bay and various other secret prisons internationally.
- 23. Instead the USA has murdered persons without providing supporting evidence of guilt beyond a reasonable doubt.
24. Pakistani High Court Chief Justice Dost Muhammad Khan issued a ruling on 9 May 2013, declaring the ongoing USA drone strikes in the tribal areas in Pakistan illegal under international law, adding that they amount to a “war crime” when they kill innocent people. The ruling follows a case filed by an Islamabad legal aid charity on behalf of victims of March 2011 drone strikes. The accused sanctioned the aforementioned drone attack on government officials and tribal elders in North Waziristan. Chief Justice Dost Muhammad Khan, who presided over the case, cited a comprehensive list of international laws and agreements, which the accused’s conduct breached. These agreements ranged from the UN Charter to the UN Millennium Declaration and the Geneva Conventions. He also called for the USA government to redress Pakistani civilian victims of USA drone strikes, and for UN Secretary General Ban Ki-moon to establish a war crimes tribunal to investigate further injustices. The learned judge states in the judgment that “the US decision making Troika, the president, the Pentagon and the CIA have joined hands to carry out drone strikes in north and south Waziristan on spy information to hit and kill foreign elements labelled to be enemies (paragraph 5).”
- 25. The learned judge held that the policy violates the Geneva Convention and Article 7 of the Additional Protocol 1, because the killings were not necessary and the use of force was disproportionate. The learned judge held further that the forming of an opinion by the CIA that the strikes target groups of men who are alleged militants who have links with alleged terrorist groups is based on ‘figments of imagination’.
26. The accused’s criminal conduct is not restricted to assassinations, murder and drone attacks.
27. The accused has also utilised a systematic policy of enforced disappearance of persons known colloquially as “extra-judicial renditions”.
- 28. He continues to keep Guantanamo Bay open and continues the unlawful detention and torture of its inmates despite the fact that commitments to close the facility have been continuing for years.
29. American Secret prisons or black sites have also been uncovered on African soil in Somalia.
30. The provisions of South Africa’s International Criminal Court Act 27 of 2002 make it very clear that a head of state cannot be immunized from an alleged arrest or investigations for crimes against humanity, war crimes or genocide.
31. The MLA aims to use the freedoms enshrined in the South African Constitution and the provisions of the ICC Act to seek justice for those victims of drone attacks who have not been afforded their most basic right, the right to life.For some supporting material refer to –