Jonathan Katzenellenbogen, International Affairs Editor
4 May 2004
Johannesburg — SA's constitution could bind the country to fighting the extradition of suspected mercenaries from Zimbabwe, an international law specialist said yesterday.
As most of the 70 detainees carry South African passports, SA may be obliged to step in to protect their rights, said Anton Katz, an advocate practising international law in Cape Town. The men were unlikely to receive a fair trial should they be deported to Equatorial Guinea, he said.
However, the interpretation of the constitution hinges on the outcome of a case in the Pretoria High Court, to determine if South African citizens whose rights have been violated by foreign countries deserve "diplomatic protection" from Pretoria.
The case was brought by Josias van Zyl and the South African shareholders of the Swissbourgh group, a diamond mining company whose assets were expropriated without compensation by the Lesotho government.
The suspected mercenaries are being held in a high-security prison in Harare. Equatorial Guinea claims they planned to join another group of 15, already in that country, in an attempt to overthrow its president.
Harare has threatened to extradite them to Equatorial Guinea where they could face execution.
The foreign affairs department said last week that it had no legal recourse to halt the extradition. The department said the matter was out of its control as it fell within the sovereign rights of both countries. The department also said Zimbabwe and Equatorial Guinea were free to undertake "such measures as may be necessary to punish" those who violated the Organisation of African Unity's convention on mercenary activity.
But Katz said a positive judgment in the high court case would force SA to intervene in the suspected mercenaries case. The judgment could bind government in terms of the constitution to offering "diplomatic protection" to its citizens abroad if they were not granted internationally accepted minimum rights.
Diplomatic protection covers a wide variety of ways in which a state can attempt to halt a foreign government infringing on its citizens' international rights.
Katz said the legal right to diplomatic intervention by foreign affairs could hinge on whether or not the judicial process in Equatorial Guinea accorded with international standards.
Expropriation, torture, and an unfair trail would constitute a violation of these standards.
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