Bosnia ruling used in plea for 70 SA men

Seventy men detained in Zimbabwe on suspicion of being mercenaries have received help from an unexpected corner in their battle to get diplomatic protection.

The legal team for South Africa's Society for the Abolition of the Death Penalty have unearthed a case from the Human Rights Chamber of Bosnia that set a precedent for countries to intervene in the detention of their nationals (or those who were inside their borders). This was to prevent gross human rights violations and to intervene before the death penalty was imposed.

During argument before the Constitutional Court, Wim Trengove SC, lead counsel for the Society for the Abolition of the Death Penalty, said a number of "new constitutions" - especially from eastern Europe - contained a provision obliging the state to intervene diplomatically on its nationals' behalf if human rights were at stake.

Advocate Ismail Semenya SC, acting on behalf of the government, pointed out, however, that South Africa had a relatively new constitution and that there was no such obligation put on the government.

The main feature of the men's litigation is that South Africa must give them diplomatic protection and stop them from possibly being extradited to Equatorial Guinea, where they would face the death penalty.

In their decision, the judges from the Human Rights Chamber for Bosnia and Herzegovina concluded that the forcible transfer of four Algerian men to American federal agents was a violation of a number of their human rights guaranteed by the European Convention on Human Rights.

More specifically, the court said: "The chamber orders Bosnia and Herzegovina to use diplomatic channels in order to protect the basic rights of the applicants and to take all possible steps to establish contact with the applicants and to provide them with consular support.

"Bosnia and Herzegovina is further ordered to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants."

The applicants in this case were arrested in October 2001 on suspicion of having planned an attack on the embassies of the United States and the United Kingdom in Sarajevo.

It is not known when the Constitutional Court will give its judgment in the case of the 70 men.

[Source: By Estelle Ellis, The Star, South Africa, 27Jul04]

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