DURBAN - THE Prime Minister of India, Narendra Modi, need not worry about being arrested at the BRICS summit in South Africa this week.
The National Prosecuting Authority has rejected “war crimes” claims against Modi, describing the allegations as “inadequate”.
NPA spokesperson Luvuyo Mfaku said: “After evaluating the evidential material, information received and the applicable law, the NPA decided there was inadequate evidence to sustain a successful prosecution and to support an application for a warrant of arrest.
“The NPA thus declines to obtain a warrant of arrest for the prime minister of India.”
The South African Kashmiri Action Group and the Muslim Lawyers’ Association demanded the investigation, arrest and prosecution of Modi over his governance of Jammu and Kashmir.
The allegations were based on a report released by the Office of the UN High Commissioner for Human Rights in June regarding alleged atrocities committed by India’s security forces in the state.
Modi is expected to attend the summit as India’s head of state along with his counterparts from Brazil, Russia, China and South Africa, the other participating BRICS countries.
Attorney Yousha Tayob, who is the legal representative of the two civil society organisations pushing for Modi’s prosecution, wanted Modi arrested when he landed in the country.
“We believe there is sufficient evidence for Modi’s arrest,” said Tayob.
Last month, Tayob filed a request for a criminal investigation and prosecution of Modi on behalf of his clients, with the NPA, the SAPS and the head of the Directorate of Priority Crime Investigation (Hawks).
Advocate Feroze Boda deposed the statement, on behalf of the two organisations, which was submitted to the law enforcement agencies.
Boda said they were acting on behalf of the “victims of crime” and in the public’s interest and to hold accountable those who were responsible for human rights atrocities in Jammu and Kashmir.
Boda believed that by holding Modi accountable for the alleged atrocities, South Africa would be complying with international and domestic legal obligations regarding perpetrators of international crime.
“It is simply unthinkable that Modi could be invited to this country and enjoy immunity,” claimed Boda.
He said the NPA had jurisdiction on several grounds to prosecute Modi, which included the country’s constitution and directives on case law from the Geneva Convention and Nuremberg Trials pertaining to war crimes.
Boda also drew attention to the report released by the office of the UN High Commissioner for Human Rights, which delved into events in the state from June 2016 to April 2018.
Some of the concerns raised in the report included Indian security forces using excessive force during the July 2016 demonstrations that led to unlawful killings.
The report stated that civil society estimated 145 people were killed by armed forces using pellet-firing shotguns.
Laws in the state enabled security forces to use lethal force not only in self-defence but on anyone who contravened laws.
The report stated that during the 2016 unrest basic medical services to injured civilians were obstructed.
Allegations of sexual violence, perpetrated by security forces, were not properly investigated and prosecuted, according to the report.
Boda concluded: “Modi has been at the helm as prime minister and commander in chief of India and should be held accountable for war crimes and crimes against humanity inflicted upon Kashmiris.”
Advocate Chris Macadam, on behalf of the NPA in response to Boda, said their approach to the investigation focused on the UN report and looked into the July 2016 murder of Burhan Wani, who was the commander of a Kashmiri militant group, Hizbul Mujahideen.
The use of excessive force by security forces during protests, arbitrary arrests and detention, including children, torture, sexual violence and the killing and injuring of civilians, were also investigated, according to Macadam.
India’s High Commissioner in South Africa did not comment by the time of going to print.