Accountability for Aiding and Abetting the Rwandan Genocide: The obligation on South Africa to Investigate and Prosecute Willem 'Ters' Ehlers

• Citation: (2023) African Yearbook on International Humanitarian Law 78
• DOI: https://doi.org/10.47348/AYIH/2023/a4
• Published date: 17 June 2025
• Pages: 78-98
• Author: Nkamisa, A.
• Date: 17 June 2025

78

ACCOUNTABILITY FOR AIDING

AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON

SOUTH AFRICA TO INVESTIGATE

AND PROSECUTE WILLEM ‘TERS’

EHLERS

Abongile Nkamisa* and Jane Borman**

Abstract

Genocide is ofte n prosecuted at the level of direct perpet rators, yet those who

facilitate or enable mass atrocit y—such as private arms dealers— remain largely

unaccountable. This ar ticle investigates the case of Willem Petrus Jacobus ‘Ters’

Ehlers, a South African ar ms broker who supplied weapons to the Forces Armées

Rwandaises during the nal mont hs of the 1994 Rwandan genocide, in violation

of United Nations Securit y Council Resolution 918. Using a doctrinal and c ase‐

study methodology, this art icle maps the evolution of the aiding and abet ting

doctrine in inter national criminal law —from Nuremberg to the Inter national

Criminal Tribunal for the Former Yugoslavia, Internat ional Criminal Tribunal

for Rwanda and the Rome Statute —and applies its element s of actus reus

and mens rea to Ehler s’s conduct. The analysis demonstrates that Ehle rs

provided substantial assista nce by negotiating arms deals in th e Seychelles,

arranging logistics and air char ters, and facilitating payments f rom Rwandan

government agents – all act ions that materially contr ibuted to the perpetration

of genocide. Drawing on evi dence from the UN Inte rnational Commission

of Inquiry, tribunal judgme nts, and domestic sources, the art icle argues that

Ehlers’s conduct satises the requisite kno wledge and substantial impact tests

for aiding and abetting liabilit y. Turning to South Africa’s obligations, the art icle

examines constituti onal provisions (ss 231–232), the Internat ional Criminal

Court Act and Constitut ional Court jurispr udence, concluding that under

customary inte rnational law and domest ic statutes, South Africa has a bi nding

duty to investigate and prosecu te its nationals who enable genocid e. It further

dispels any statute‐ of‐limitations barrier for cr imes jus cogens. By spotlighting

a singular actor, this study underscores t he critical need for states to hold private

enablers of atrocit y accountable. It calls on South African auth orities to full

their erga omne s obligations, thereby strengthening inter national criminal

justice, deterr ing future genocides and af rming the rule of law.

https://doi.org/10.47348/AYIH/2023/a4

* Lawyer at Open Se crets. ORCID 0000 -0002-1424-842 4.

** Lawyer at Open Se crets.

A rican Yearbook HL (2023) BOOK indb 78 2025/05/29 09 14

(2023) African Yearbook on International Humanitarian Law 78

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

79

Keywor ds: Rwandan genocide, aiding and abetting, complicity,

international crimina l law, customary international law, South Africa,

investigation and prosecution, arms traf cking, Willem ‘Ters’ Ehlers

1 INTRODUCTION

Genocide has been described in international jurisprudence as ‘the

crime of all cri mes’.1 While there has been extensive focus on the direc t

perpetrators of genocides, there has been little to no accountability

in either domestic or international courts for those that facilitate or

enable it. 2 This article provides a roadmap of accountability for one

particular enabler, Willem Petrus Jacobus ‘Ters’ Ehlers (Ehlers). Ehlers

was a South African a rms dealer who helped the Rwandan government

forces procure arms during the nal months of the 1994 genocide.3

In providing a road map to accountability, this article outlines

the existing international jurisprudence on aiding and abetti ng,

highlighting its development through international customary law

and various judgments from genocide tribuna ls and their statutes. In

addition, this article arg ues that South Africa has a legal obligation

under both customary international criminal law and domestic law to

investigate and prosecute its citizens who enable genocide and other

crimes against human ity. While this a rticle focuses on a singular actor,

Ehlers, it demonstrates the importance of states holding arms dea lers

accountable for the integral role they play in enabling or facilitating

genocide.

2 COMPLICITY IN INTERNATIONAL CRIMES THROUGH

AIDING AND ABETTING

Addressing aiding and abetting is a key avenue for seeking justice

in establishing liability for complicity in customary international

law.4 It refers to the legal responsibility imposed on individuals

1 ICTR The Prosecutor v. Jean-Paul Akayesu J ICTR-96-4 -T (Judgment of

2 September 1998), (hereaf ter Akayesu), available at

jurisprudence/case law/ictr/1998/en/19275> (accessed on 15 September 2024).

2 Human Rights Watch (HRW), ‘World Report 200 4 – Weapons and War Crimes:

The Complicity of Ar ms Suppliers’ (1 January 20 04), available at

www.refworld.org/reference/annualreport/hrw/2004/en/15322> (accessed on

15 September 2024).

3 Open Secrets ‘The Sec retary: How Middle men and Corporations ar med the

Rwandan Genoc ide’, available at a/the-

secretar y-report/> (accessed on 14 September 2024).

4 Oona A Hathaway, Alexandra Francis, Aar on Haviland, Srinath Re ddy

Kethireddy & Aly ssa T Yamamoto ‘Aiding and Abetting i n International

Criminal L aw’ (2019) 104 Cornell Law Rev iew 1597.

A rican Yearbook HL (2023) BOOK indb 79 2025/05/29 09 14

© Juta and Company (Pty) Ltd

80 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

who or entities that knowingly assist, encourage, or contribute to

the commission of an international crime by another party.5 In this

context, complicity means that a person or entity is not the primar y

perpetrator of the crime but played a signicant role in enabling or

facilitating its occurrence. For these reasons, addressing the law on

aiding and abetting becomes necessary for proper international legal

accountability.6 Aiding and abetting involves two distinct types

of actions. While aiding is dened as a way of offering practical or

material help to facilitate the commission of a crime, abetting means

to provide encouragement or moral support for the occurrence of the

crime.7 Aiding and abetting was not specica lly mentioned in earlier

tribunals such as the Nuremberg Trials held after World War II; they

instead referred to it as ‘complicity’.8

The International Crimina l Tribunal for the Former Yugoslavia

(ICTY), established in 1993, played a crucial role in formally dening

and applying the concept of aiding and abetting. The ICTY’s

jurisprudence claried that aiding and abetting involves providing

substantial assistance to the commission of an i nternational crime, and

it became an essential component of the Tribunal’s legal framework.

The ICTY’s case law was inuential in shaping the understanding

of aiding and abetting in international criminal law.9 The Rome

Statute of the International Criminal Court of 1998 (Rome Statute),

which established the International Criminal Court (ICC), explicitly

incorporates aiding and abetting into its framework. Article 25(3)(c)

of the Rome Statute denes the liability of individuals who knowingly

and intentionally aid, abet, or assist in the commission of a crime.10

The various modes of participation in international crimes such

as aiding, abetting, or direct perpetration are not explicitly dened

in the statutes of the courts or in the Extraordinary Chambers in

the Courts of Cambod ia (ECCC) law.11 The Appeals Chamber of the

5 M Cherif Bassiouni Introduc tion to International Criminal Law 3e d (2018) 47.

6 Hathaway et al. op cit note 4.

7 Jérôme de Hemptinne, Robert Roth, Elie s van Sliedregt, Ma rjolein Cupido,

Manuel J Ventura and Lache zar Yanev (eds) Modes of Liability in Internatio nal

Criminal Law (2 019) 173–25 6.

8 Principle VII of the Nuremb erg Principles Intern ational Law Commission

(ILC) ‘Report of t he International L aw Commission Covering Second Session,

5 June–29 July 1950’ UN Do c A/1316, Yearbook of the Inter national Law

Commission (1950), Vol II, 377); Art 2(13)(iii) 1954 ILC Draft Code of Cr imes.

9 International Crimina l Tribunal for the Former Yugoslavia (ICT FY) Prosecutor v

Furundžija (10 December 1998), Case No IT-95-17/1-T, Judgment para 249 p 53.

10 Rome Statute of the Internationa l Criminal Cou rt, 17 July 1998, UN Doc

A/CONF.183/9 art 25(3)(c).

11 ECCC was a hybrid cou rt established to prosec ute crimes committed du ring

the Khmer Rouge regi me; Prosecutor v Kaing Guek Eav (D uch) (26 July 2010),

A rican Yearbook HL (2023) BOOK indb 80 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

81

ICTY claried that these statutes only provide the framework for who

can be held accountable (ratione personae) but they do not specify the

precise forms of liability or the legal requirements for each form of

criminal responsibility. This must be established through customary

international law. In the absence of clear denitions in the statutes

and ECCC law, it fell to tribunals like the ICTY, International Crim inal

Tribunal for Rwanda (ICTR), Special Cou rt for Sierra Leone (SCSL), and

the ECCC to elaborate the legal criteria for different modes of liability.

In doing so, it became essential to differentiate between the elements

that make up the offence itself and the specic legal conditions that

must be met for different forms of liability to apply. The constituent

elements of the offence were dened as the objective element or actu s

reus; a nd the subjective element or mens rea. Cassese denes actus reus

as a conduct (an act or omission contrary to a rule imposing specic

behaviou r) and mens rea as a state of mind (a psychological element

required by the legal order for the conduct to be blameworthy and

consequently pun ishable).12 There exists a separate set of requirements

for each form of individual criminal responsibility. Their purpose is

to help the prosecution/judge, seized with the matter, decide whether

an individual’s involvement in a crime entails criminal responsibility

or not.

2.1 The standard of actus reus and mens rea in

customary international law

The ad hoc and hybrid courts and tribunals dened the legal

requirements of various forms of liability on a case-by-case basis,

relying on the existing customary international law.13 In cases of

direct primary participation (ie commission), the conduct and fault

requirement for legal responsibility form ‘mirror’ m ens rea and actus

reus for the substantive offence, that is, the conduct of the principal

must fully correspond to the elements of the crime. However, when

it comes to more complex forms of commission, such as comm ission

through the joint criminal enterprise, as well as different forms of

complicity, the requirements of liability supplement the constituent

elements of an offence. It became important to establish that the cr ime

was committed and the way in which the accused was involved in it.

The rst international criminal law judgment since the Nuremberg

Case No. 001/18-07-2007/ECCC/TC, Ju dgment para 567 p 133.

12 Antonio Cassese Inter national Criminal Law 2ed (2008) 53.

13 Prosecutor v Zdravko Mucic aka ‘Pavo’, Hazim Delic, Esad Land zo aka ‘Zenga’, Zejnil

Delalic IT9621A, IC TY, 20 February 2001 (^ELEBICI Appeal Judg ment) p 178.

A rican Yearbook HL (2023) BOOK indb 81 2025/05/29 09 14

© Juta and Company (Pty) Ltd

82 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

trials—Tadi ć—pointed out this phenomenon.14 The Trial Chamber

had to determine ‘whether the conduct of the accused […] sufciently

connects the accused to the cr ime’.15 In doing so, the judges drew a

distinction between instances when the accused direc tly engaged

in the actions alleged and cases when the accused did not directly

commit some of the offences charged but was present at the time of,

or otherwise involved in, their commission.16 The Ta dić Trial Chamber

consequently established a two-prong test to establish liability for

‘complicitous’ conduct. The rst element of the test is ‘intent’, which

involves awareness of the act of participation coupled with a conscious

decision to participate by planning, in stigating, ordering, committing,

or otherwise aiding and abetting in the commission of a crime.17 To

satisfy the second part of the test, the conduct of the accused must

have contributed to the commission of an illegal act.18 The accused

must have had knowledge of the criminal purpose of the principal

perpetrators and the substantial impact of their assistance. The

judgment stated that it was not necessary to prove that the accused

intended the crime to be committed; however, it must be shown that

they were aware of the essential elements of the crime and the role

their assistance played in facilitating it.19

2.2 C omplicit y

The early Tad i ć interpretation of ‘complicitous conduc t’ introduced the

broader understanding of complicity and then subsequently applied

by the ad hoc tribunals and the hybrid courts. It encompassed all

forms of participation mentioned in Article 7(1) of the ICTY Statute.20

Such a broad understanding of complicity can be explained by the

legacy of the International Military Tribunal (IMT) and subsequent

jurisprudence that formed the basis of the rst ICTY judgment. Pre-

1993 case law adopted a rather fact-based unitary approach to the

14 Prosecutor v. Duško Tadić, ICTY, Case No. IT-94-1-T, (Trial Chamber Judg ment),

7 May 1997.

15 Ibid at 673.

16 Subsequent case law of the IC TY and ICTR did not stress th is subtle difference,

with the exception of sit uations when conviction on appeal w as revised:

multiple Appeals Chamb ers allowed changing the mode of l iability on appeal,

reiterating that it does not amou nt to entering a new conviction.

17 Tadić Trial Judgment para 24 p 165.

18 Ibid at 674, 688.

19 Ibid para 229 p 166; this wa s also adopted in Akayesu supra note 1 pa ra 445

p 21.

20 Article 7(1): ‘A person who planned, instigated, ordered, com mitted, or

otherwise a ided and abetted in the pla nning, preparation, or e xecution of a

crime referr ed to in Articles 2 to 5 of the present Statute, shal l be individually

responsible for the crime ’.

A rican Yearbook HL (2023) BOOK indb 82 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

83

modes of liability. Thus, little clarity ex isted in this regard at the

time when the Tad i ć judgment was drafted.21 In Krnojelac, the ICT Y

Appeals Chamber addressed the Tad ić approach by clarifying that the

term ‘accomplice’ has different meanings depending on the context

and may refer to a co-perpetrator or an aider and abettor.22 The

ECCC Trial Chamber delimited aiding and abetting from the broader

concept of complicity, recognising that, while aiding and abetting

refers specically to actions that signicantly assist in the commission

of a crime, complicity encompasses a broader range of involvement,

which can include both direct participation and other various forms

of assistance.23

The conclusion about the shifting scope of complicity is corrobo -

rated by the separate declaration of Judge Keith to the Genocide

Judgment, in which he examined various denitions of ‘complicity’

and came to the conclusion that ‘complicity is often restricted to aiding

and abetting’.24 If it is understood that international criminal law is

rooted in domestic criminal law, complicity should be understood as

embracing planning, instigating, ordering, aiding and abetting.25 At the

time of the conception of the ICTY, the idea seemed to be precisely

to ground international criminal law in the two disciplines—public

international law and domestic criminal law. This conclusion follows

from the theoretical under pinning of complicity as a form of secondary

participation, which is derivative. 26 Various domestic law systems

recognise different forms of complicity; aiding and abetting and

instigating being the most common.27 The idea is that an accomplice

does not directly perpetrate the crime but is nonetheless involved in

its commission. ‘Committing’, on the other hand, signies principal

perpetration, whether directly or indirectly through an agent.28

Broader and narrower notions of complicity were to be contextualised

and treated as mere rhetorical tools. Consequently, all modes of

21 In a differe nt part in the same judgment t he Trial Chamber used the ter m

‘complicity’ as a synonym to ‘aid ing and abetting ’; Tadi ć Trial Judgment para

688.

22 Prosecutor v. Krnojelac, ICT Y Case No. IT-97-25-A, Appeal Judgment,

17 September 2003 (K rnojelac Appeal Judgment) para 70.

23 Kaing Guek Eav supra note 11 para 501 p 87.

24 Case concerning t he Application of the Convention on the Preve ntion and

Punishment of the C rime of Genocide (Bosnia an d Herzegovina v. Serbia and

Montenegro), ICJ Reports 2007 (‘Genocide Judgment’), Declar ation of Judge Keith

p 353.

25 Ibid declaration of Judge Keith at par a 3.

26 Furundžija supra note 9 para 232 p 199.

27 W Schabas The U N International Cr iminal Tribunals: The Former Yugoslavia,

Rwanda and Sierra Leone (200 6) 305.

28 Tad ić para 188 p 132.

A rican Yearbook HL (2023) BOOK indb 83 2025/05/29 09 14

© Juta and Company (Pty) Ltd

84 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

participation listed in the statutes of the ad hoc tribunals and hybrid

courts aside from ‘committing’ belong to the sphere of ‘complicity’.

2.3 Aiding and abetting

The early judgments of Tad ić and Furundžija interpreted ‘aiding

and abetting’ by relying heavily on the case law produced by the

post-Nuremberg war crimes trials and the ILC Draf t Code.29 These

interpretations proved to be authoritative, with subsequent judgments

merely clarify ing the elements set out by Tad ić a nd Furundžija.

An aider or abettor was then said to provide ‘practical assistance,

encouragement, or moral support’ to the principal perpetrator. This

then supposed that the actions must have had a substantial effect on

the perpetration of a crime.30 The Tad ić Trial Chamber borrowed this

element of aiding and abetting from the formulation of the ILC Draft

Code, which called for criminal responsibility of the individual who

‘knowingly aids, abets or otherwise assists, directly and substantially,

in the commission of such a crime […]’.31

The ILC commentary does not explicitly dene the term

‘substantially’ but it does suggest that the assistance provided by an

accomplice must facilitate the commission of a crime in a signicant

way. This implies that the aid must have a meaningful impact on the

perpetration of the offence, rather than b eing minimal or peripheral.32

Based on these considerations, the Tadi ć Chamber claried t hat a

substantial contribution requirement presupposes a contribution

that affects the commission of the crime.33 The Furundžija Chamber

further elaborated on the effect of assistance, holding that the acts of

the accomplice need not ‘bear a causal relationship to, or be a conditio

sine qua non for, those of the principal’.34 This  nding unde rlines the

derivative nature of aiding and abetting: an accomplice can only

inuence the conduct of the principal perpetrator to a certain extent;

the nal decision to commit or not to commit a crime rests with the

perpetrator and not with the accomplice. There is a slight semantic

29 Furundžija supra note 9 para 235 p 121; Tad ić (15 July 1999), IT-94-1-A, Appeals

Judgment para 229 p 117.

30 Furundžija supra note 9 paras 223, 224, 249; Blaski ć Appeal Judgment para 48

as discusse d by Guénaël Mettraux Intern ational Crimes and the Ad Hoc Tribunals

(2005) at 284; Casses e op cit note 12 at 188.

31 Tad ić Trial Judg ment supra note 14 at para 674 p 162.

32 International Law Com mission (ILC) ‘Dra ft Articles on Resp onsibility of

States for Internationally Wrong ful Acts, with C ommentaries’ Yearbook of the

International L aw Commission Volume II, Part Two (2001) p 66, Commentary to

art 16 para 5.

33 Tad ić Trial Judgment supra note 14 para 68 8 p 223.

34 Furundžija supra note 9 para 249 p 217.

A rican Yearbook HL (2023) BOOK indb 84 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

85

difference between t he terms ‘aiding’ and ‘abetting’. Aiding has been

described by international criminal tribuna ls as meaning ‘giving

somebody assistance’, whereas abetting stands for ‘facilitating the

commission of an act by being sympathetic thereto’. The contribution

of the aider or abettor may be provided at any stage of a criminal

process including planning, prepa ration, and execution. In Furundžija,

the Chamber noted that assistance may take the form of either a

positive act or an omission. It further claried that mere presence

at the scene of the crime could constitute aiding and abet ting if it

is demonstrated to have had a signicant encouraging effec t on the

principa l offender.35

2.4 Establishing knowledge and related challenges in

aiding and abetting

One of the key challenges in proving aiding and abetting liability

is establishing that the accused had the necessary knowledge of the

principal’s criminal activities. For aiding and abetting liability to

ensue, it remains crucial to demonstrate that the aider or abettor

was aware of the crimina l intent and the impact of their actions on

the commission of the crime.36 The requirement to prove specic

knowledge and intent can complicate the prosecution of accessory

liability, given that the aider’s awareness must be established beyond

mere suspicion or conject ure.37

In Tadi ć, the ICTY Appeals Chamber emphasised that, to

establish aiding and abetting, it must be shown that the accused had

knowledge of the crime and that their actions substantially assisted

in the commission of that crime. Speci cally, the court ruled that the

accused’s knowledge does not need to extend to the specic details of

the crime, but must encompass the general crimi nality of the acts and

the substantial contribution of the aid provided.38 The case highlighted

the difculty in proving the accused’s specic knowledge and intent,

as well as the necessity for demonstrating that the assista nce was not

incidental but signicant.

In Prosecutor v Jean-Paul Akayesu, the ICTR also grappled with the

challenge of proving the accused’s knowledge in the context of aiding

and abetting liability. Akayesu, a former mayor, was charged with

35 Ibid para 252 p 220.

36 Antonio Cassese ‘T he proper limits of indiv idual responsibilit y under the

doctrine of joint cr iminal enterprise’ (2007) 5 Jou rnal of International Criminal

Justice 109 para 15 p 120.

37 Ibid p 123; Tad ić 132; Rome Statute op c it note 10.

38 Prosecutor v. Duško Tadić (Appeal Judgment), Case No. IT 941A, Appeals Cham-

ber, 15 July 1999 Appeals Chambe r para 229 p 94 para 229 p 164.

A rican Yearbook HL (2023) BOOK indb 85 2025/05/29 09 14

© Juta and Company (Pty) Ltd

86 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

aiding and abetting genocide and crimes against humanity. The ICTR

held that it is essential to prove that the accused had knowledge of

the genocidal acts being planned or committed and that their actions

signicantly contributed to these crimes.39 The case highlighted the

requirement that the aider’s knowledge must be direct and specic to

the criminal activities, rather than inferred from general circumstances.

Proving the causal link between the assistance provided and

the commission of the crime is another signicant challenge. The

prosecution must show that the aid was more than incidental and

played a substantial role in the crime’s execution.40 The legal threshold

for proving aiding and abetting liability requires showing that the

aider’s knowledge was specic and direct.41 Dist inguishing between an

aider’s intention to assist and their knowledge that they are committing

a crime is complex, the process of gathering evidence for aiding and

abetting liability often involves complex investigations, including

witness testimonies and extensive and accurate documentation. In

conict or post-conict settings, obtaining reliable evidence can

be particularly challenging.42 In Prosecutor v. Stanislav Galić43 and

Prosecutor v. Radislav Krstić,44 the ICTY faced these challenges in

collecting evidence to prove aiding and abetting liability.

However, in Prosecutor v. Jean-Pierre Bemba Gombo, the ICC

addressed the challenge of proving the causal link between the aid

provided and the commission of the crime.45 Bemba was convicted

of crimes against humanity and war crimes committed by his troops.

The ICC found that Bemba’s leadership and control over his troops

constituted signicant assistance that contributed to the commission

of the crimes. The court emphasised that the prosecution must

demonstrate a clear and substantial lin k between the aid provided and

the crime, showing that the accused’s actions had a direct impact on

the commission of the crimina l acts.46 In Prosecutor v. Mladen Naletilić

and Vinko Martinović, the ICTY Tribunal found that it was necessary

to prove that the assistance provided by the accused had a substantial

39 Akayesu supra note 1 para 482; Robe rt Cryer, ‘The adjudication of genoc ide:

Gacaca and the road to reconci liation in Rwanda’ (2001) 1 Journal of Conic t

and Securit y Law 17 p 21.

40 Tad ić Appeal Judg ment supra note 38 at para 229 p 94.

41 Ibid para 687.

42 Ibid para 24 p 165.

43 Prosecutor v. Stanislav Galić ( Judgment of 5 December 20 03), International

Criminal Tribunal for the former Yugoslavia, Ju dgment (2003) para 113 p 63.

44 Ibid para 236.

45 International Cri minal Court ( ICC), Prosecutor v. Jean-Pierre Be mba Gombo

(Judgment of 21 March 2016), Internat ional Criminal Court, Judgmen t (2016 )

para 151 p 101.

46 Ibid para 119 p 109.

A rican Yearbook HL (2023) BOOK indb 86 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

87

impact on the commission of the crimes. The Court held that the

aid must have played a signicant role in enabling or facilitating the

criminal acts, rather than being merely incidental or per ipheral.47

3 CASE STUDY: THE RWANDAN GENOCIDE AND

EHLERS’S INVOLVEMENT

The Rwandan genocide, recorded as having occurred from 7 April

1994 to 19 July 1994, left a lasting sca r on the people of Rwanda and

the international community as a whole. It is estimated that between

800 000 and 1 million civilians—mainly of Tutsi ethnicity—were

massacred. As stated in a 1995 report by Human Rights Watch (HRW):

‘Over a horric period of thr ee and a half months in the spring of 1994,

hundreds of thousands of Rwandan men, women and children were

murdered during a violent campaign of genocide led by the Rwandan

government, armed forces and Hutu militias’.48 A 1999 report by the

Independent Inquiry into the actions of the United Nations (UN )

during the 1994 genocide in Rwanda (Independent Inquir y Report)

characterised the genocide as ‘as one of the most abhorrent events of

the twentieth century’.49

On 17 May 1994 the UN Security Council passed Resolution 918,

imposing a mandatory arms emba rgo on the sale or supply of arms to the

territory of Rwanda until 1 September 1996 (the embargo). Resolution

918 stated that ‘all States shall prevent the sale or supply to Rwanda

by their nationals or from their terr itories or using their ag vessels or

aircraft of ar ms and related matériel of all types, including weapons

and ammunition, military vehicles and equipment, paramilitary

police equipment and spare parts’.50

As a result, the Rwandan government forces, namely the Forces

Armées Rwandaises (FAR) soldiers, increasingly engaged private arms

dealers willing to disregard the embargo. According to HRW, South

47 Prosecutor v. Mladen Naletilić Judg ment of 31 March 2003; Vinko Martinović

Judgment (20 03) para 338 p 78.

48 HRW ‘Rearming w ith Impunity: Inter national Support for the Perp etrators of

the Rwandan Geno cide’ (1 May 1995), available at .refworld.org/

reference/countryrep/hrw/1995/en/21954> (accessed on 14 September 2024).

49 UN ‘Report of the I ndependent Inquiry into the actions of the United Nat ions

during the 1994 genocide i n Rwanda’ (S/1999/1257),ava ilable at

peacekeeping.un.org/en/report-of-independent-inquiry-actions-of-united-

nations-duri ng-1994-genocide-rwanda- s19991257> (accessed on 2 Septemb er

2024).

50 UN ‘Secur ity Council resolut ion 918 (1994) on expansion of the ma ndate of

the UN Assista nce Mission for Rwanda and imposition of a n arms embargo

on Rwanda’ (S/Res/918, 1994), available at y.un.org/

record/197563?ln=en&v=pdf> (access ed on 14 September 202 4).

A rican Yearbook HL (2023) BOOK indb 87 2025/05/29 09 14

© Juta and Company (Pty) Ltd

88 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

African government ofcia ls who previously had coordinated arms

supplies to Rwanda were not prepared to directly violate the embargo

but ‘offered to help arrange shipments by other parties’.51 On 4 June

1994, Ehlers, a former aide to PW Botha, ew with Colonel Theoneste

Bagosora, a senior ofcial in the Rwandan Ministry of Defence, to the

Seychelles to negotiate the procurement of arms.52

Bagosora was later prosecuted and convicted by the ICTR for

his role in committing genocide, crimes against humanity (murder,

extermination, rape, persecution and other inhumane acts) and

serious violations of Article 3 common to the Geneva Conventions

and Additional Protocol II (violence to life and outrages upon personal

dignity). 53

The arms to be procured had previously been intercepted by the

Seychelles government as they were being transp orted by sea to Somalia,

which was under an arms embargo at the time. Because of the high

security r isk and cost of retaining the arms, the Seychelles government

decided to dispose of them.54 James M ichel, the then Seychelles De fence

Minister, stated in interviews that they were approached by Ehler s, who

indicated that Zaire had expressed interest in buying the intercepted

arms. Michel recalls how Ehlers introduced them to a ‘Zairian’

individual that both HRW and the Independent Inquiry Report later

conrmed to be Colonel Bagosora. The Independent Inquiry Report

notes that: ‘[t]he buyers inspected t he shipment, agreed to purchase it

in its entirety and produced an end-user certicate apparently issued

by the Zairian Ministry of Defence’.55 Two consignments of the arms

were then own to Goma, a city in the Democratic Republic of Congo,

where they were then transported to Gisenyi, Rwa nda. According to

the Seychelles authorities, there was a third consignment intended to

be transported, however, it was cancelled after loca l press revealed that

the nal destination of the arms was Rwanda.56 The fact that the arms

from Seychelles arrived in Rwa nda in June 1994 is conrmed by the

ICTR and, as will be discussed, there is evidence that weapons from

Seychelles were used in attacks in t he nal months of the genocide.57

The Rwandan genocide ended on 19 July 1994 when the Rwanda

Patriotic Front (RPF) gained control over Rwanda, implementing

a ceasere and setting up a government of national unity. In 1996

51 HRW op cit note 48.

52 Ibid.

53 ICTR The Prosecu tor v. Bagosora (Judgment of 18 December 2008) ICTR -98-41-T,

International Cri minal Tribunal for Rwanda (ICT R) 18 December 2 008.

54 HRW op cit note 48.

55 UN op cit note 49.

56 HRW op cit note 48.

57 ICTR op cit note 53 para 1815.

A rican Yearbook HL (2023) BOOK indb 88 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

89

the International Commission of Inquiry ( UNICOI), established by

the UN Security Council to investigate illicit arms ows to Rwanda,

recommended that the South African state investigate Ehlers for his

role in arming the Rwandan government during the arms embargo.58

Ehlers, however, has never been held to account for his role in the

Rwandan ge nocide.

Considering the elements of aiding and abetting liability, as

described, Ehlers provided assistance in two material ways, namely

he assisted with negotiations and logistics related to the purchase of

arms on behalf of the former Rwandan government; and facilitated

payments on behalf of the former government of Rwanda.

3.1 Assistance with negotiations and logistics related

to the purchase of arms on behalf of the former

Rwandan government

Ehlers provided the following assistance with regard to negotiations

and logistics related to the purchase of arms on behalf of the former

Rwandan government:

• Identifying stockpile of ar ms in Seychelles: The evide nce shows

that Ehlers rst identied where ar ms were available for purchase,

and he is the one who rst approached the Seychelles government.

• Vetting the arms deal before t he Seychelles government: Ehlers

vetted the arms deal to the authorities59 by using his position as

Director of the company Delta Aero60, also listed on the forged

end-user agreement which was presented to the authorities. HRW

investigated the evidence of the government of Zaire issuing false

end-user certicates to private arm s dealers supplying Rwanda with

arms during the embargo.61 This is conrmed in an interview held

with an American pr ivate arms dealer, Fred Zeller. Zeller conrmed

that he travelled to Belgium in May 1994 in the company of a high-

ranking military ofcial in the Za irian Garde Civile (Civil Gua rd),

from there, the government of Zaire issued end-user certicates

58 UN ‘Report by the I nternational Commission of Inqui ry into the Sale or Supply

of Weapons to former Rwandan govern ment armed forces’ (14 March 1996)

UN, S/1996/195 paras 70, 86, available at ols.org/doc/

bf57d9/pdf/> (accessed on 15 September 2024).

59 On 31 January 1996, two member s of the UNICOI visited S eychelles and met

with the Seychelle s Defence Minister, Mr James Michel to d iscuss the details of

the arms sale.

60 UN op cit note 58 p 8.

61 HRW op cit note 48.

A rican Yearbook HL (2023) BOOK indb 89 2025/05/29 09 14

© Juta and Company (Pty) Ltd

90 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

for the weapons.62 He also conrmed that arms delivered at Goma

airport were supplied to the FAR in Rwanda.63

• Assistance with logist ics: According to the facts, it was Eh lers who

arranged the ights for Bagosora and his entourage to travel to

Seychelles. Further, Ehlers completed the immigration forms on

behalf of Lieutenant-Colonel Jean-Bosco Ruhorahoza (a Rwandan

national) who arrived in Seychelles on 16 June 1994 aboard the Air

Zaire DC-8 aircraft used to transport the arms to Goma.64

• Identifying and contract ing the air charter to deliver the ar ms:

Ehlers oversaw the delivery of the weapons. The Mail & Guardian

reported in 1995 that Ehlers arranged the delivery of the arms

and that he had rst negotiated with a South African air charter

company (name undisclosed),65 but had later decided that Air Zaire

should transport the weapons to Goma airport, a Zairian town

near the Rwandan border.66 In their report, the UNICOI identify

that the aircraft u sed in the transfers was a popular freight airc raft,

a DC-8 cargo airplane with registration callsign 9QCLV. The pilots

were revealed to be two Zairia n nationals, Mr L Aembe-Monga

and Mr wa Makilanda.67 The arms were transported by plane from

Seychelles to Goma airport; a stone’s throw away from Gisenyi

stadium in Rwanda, where the weapons were made readily available

to newly trained Hutu (FAR) soldiers.

3.2 Facilitating payments on behalf of the former

government of Rwa nda

Ehlers provided the following assistance with regard to payments on

behalf of the former government of Rwanda:

• Ehlers paid the Seychelles government for the arms pur chased:

Bagosora was unable to make payment to the Seychelles government

directly from the Bank of Rwanda without alerting the bank (and

62 Interview with Fr ed Zeller, Kinshasa 9 M arch 1995. The shipment in question

was aborted when Belg ian authorities arre sted Zeller, and three ot her

Europeans involved in t he deal on charges of attempti ng to cash American

Express travel ler’s checks that had reporte dly been stolen from the Rwa ndan

Central Ban k in Kigali. HRW op cit note 48 p 5.

63 Ibid.

64 Third Report of the I nternational Commission of Inquir y (Rwanda), UN report

to the Securit y Council, 1997 para 31.

65 Stefaans Brüm mer ‘SA’s arms dealing under world’ Mail & Guardian (2 June

1995), available at ://mg.co.za/article/1995-06-02-sas-arms-dealing-un-

derworld> (accessed on 14 September 202 4).

66 Stefaans Brüm mer ‘Ehlers linked to ig hts in Namibia ightsy’ Mail & Gua rdian

(8 March 1996), available at le/1996-03-0 8-ehlers-

linked-to- ights-in-namibia-ightsy/> (accessed on 14 September 20 24).

67 UN op cit note 58 p 6.

A rican Yearbook HL (2023) BOOK indb 90 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

91

the government) that the arms deal was connected to Rwanda.

Therefore, Ehlers made payment to the Seychelles government from

his personal bank account. Evidence from the Swiss prosecution

authorities shows that Ehlers received money from the Bank of

Rwanda (through BNP) and then paid the Seychelles government,

who held an account in New York.

These payments were made by Ehlers a day before each

shipment of arms was own out of Seychelles on 15 and 17 June

1994, respectively. The Seychelles government was paid a total of

$320000 for the arms.68

• Ehlers paid the Zai rian national, Mr Hunda Nzambo: According

to UNICOI69 Mr Hunda accompanied Ehlers and Bagosora to

Seychelles. On 28 June 1994, the sum of $97 024 was transferred

from Ehlers’s Union Bancaire Privée account into Mr Hunda’s

Kredietbank account.70 This is concerning because Ehlers told

UNICOI that Mr Hunda was the ‘authority gure’ in the arms deal

and Bagosora the technical exper t; why then would Ehlers pay

Mr Hunda instead of receiving payment from Mr Hunda for brokering

the arms deal on his beh alf? The only reasonable conclusion is that

Ehlers paid Mr Hunde who, being a Zair ian national, used this fact

to assist in vetting the arms deal in Seychelles.71

Based on this, there is no doubt that Ehlers d id provide practical

and material assistance to senior members72 of the former gover nment of

Rwanda and that this type of conduct ts into the interpretation of

aiding and abetting. However, this is not the full test, the conduct

of the aider and abettor must have a direct and substantial impact

on the principal offence committed by the former government of

Rwanda. While there is no ‘smoking gun’, this art icle argues that

there is enough evidence to suggest Ehlers’s actions may have had a

substantial impact and, therefore, to warrant further investigation.

68 UN op cit note 64 para 21.

69 Ibid para 29.

70 Ibid para 22.

71 The UNICOI identi ed Mr Nzambo Hunda as a Z airian ofc ial who worked

closely with Ehle rs and Bagosora to arrange t he arms deal. Thi s corroborates

the media report s on 20 June 1994 by Le Figaro newspaper where Lt Cnl Jean-

Bosco Ruhorahoza ind icated that they had shipped arms to Rwa nda on 17 June

1994, bypassing the emba rgo.

72 The facts establis h that, in addition to Chief of Staff of t he Ministry of Defence,

Bagosora, Ehlers al so travelled with Mr Jose ph Nzirorera, the President of t he

Rwandan National A ssembly and later met Rwandan LtCnl Ruhorahoza .

A rican Yearbook HL (2023) BOOK indb 91 2025/05/29 09 14

© Juta and Company (Pty) Ltd

92 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

• Ehlers’s direct and substantia l impact on the principal offence

– genocide: In Karemera,73 the ICTR con rmed that soldiers from

Gisenyi, the nal destination of the ar ms shipment, arrived

in Bisesero, Rwanda to reinforce ongoing attacks in the region

between 19 and 22 June 1994.74 In the Bagosora trial, two witnesses

provided testimonies before the ICTR suggesting t hat the forces

that carried out the attacks at Bisese ro had been armed.75 Howeve r,

the ICTR was unable to corroborate these accounts. Therefore,

while acknowledging the shipment of arms, the Bagosora judgment

refrains from conclusively lin king the weapons from the Seychelles

to the attacks in Bisesero: 76

There is considerable evidence rega rding Bagosora’s attempts to

obtain weapons in the Se ychelles in June 1994 (/1/.6.1). Indeed,

a United Nations International Comm ission of Inquiry suggests

that Bagosora orchestrated two shipments of weapons f rom the

Seychelles to Gama bet ween 16 and 19 June. This evidence offers

circumsta ntial corroboration that weapons were brought i nto

Rwanda around thi s time in June .... it is unknown whether they

were used in the attack on Bi sesero, as Witness KJ referred to t he

assailants carrying traditional weapons.

In addition, in Karemera and Ngirumpatse,77 evidence in the form

of a letter (dated 24 June 1994) from one regional leader again

conrms the arrival of militia forces from Gisenyi in Bisesero. The

letter notes that shots had been red, indicating that weapons

and ammunition had been used in the attack.78 In the ICTR case

of Kayishema and Ruzindana79 witness accounts, which the court

accepted, refer to the use of grenades, which formed part of the

Seychelles arm shipment during the Bisesro attacks.

Therefore, this article argues that there is enough evidence to

suggest Ehlers’s actions may have had a substantial impact and,

therefore, to warrant further investigation.

73 ICTR Prosecutor v É douard Karemera et al (Judgment of 12 December 2012) Case

No. IC TR -9 8- 44 -T.

74 Ibid par a 1230.

75 Ibid para s 1794–5, 1800.

76 ICTR op cit note 53.

77 Karemera supra note 73. T he case was afr med on appeal on 29 September

2014. It is attached as Annexu re 21 (item 21 of the Appendix).

78 Ibid para 1217.

79 ICTR Prosecu tor vs Kayishema and Ruzindana (Judgment of 21 May 1999) ICTR-

95-01 .

A rican Yearbook HL (2023) BOOK indb 92 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

93

4 SOUTH AFRICA’S LEGAL OBLIGATION TO

INVESTIGATE, PROSECU TE AND PU NISH

INTERNATIONAL CRIMES

The role of international law and the obligations it places on the state

has long been recognised in South A frican jurisprudence.80 In Law

Society of South Africa & Others v President of the Republic of South Africa

& Others, the Constitutional Court held that, in terms of international

law, ‘its centrality in shaping our democracy is self-ev ident. For, in

truth, it does enjoy well-deserved prominence in t he architecture of

our constitutional order’.81

4.1 Application of international law in South Africa

Section 231(4) of the Constitution provides for the domestication of

international law through national legislation. It states that:

Any international agre ement becomes law in the Republic when it is

enacted into law by national legislation.

Relatedly, section 232 afrms that:

Customary internationa l law is law in the Republic unless it is

inconsistent with the Const itution or an Act of Parliament.

From these provisions, the Constitution establishes three key pri nciples

regarding the status of international law in South Africa: (i) customary

international law forms part of domestic law unless it conicts w ith

the Constitution or an Act of Parliament; (ii) an international treaty

only acquires the force of law in South Africa once it has been enacted

through national legislation; and (iii) undomesticated international

law should be considered as persuasive when interpreting national

legislat ion.82

80 Law Society of Sout h Africa & Others v. President of the Rep ublic of South Africa &

Others (2018) ZACC 51,2019 (3) SA 30 (CC) (SADC Tribunal) para 4; Glenister v.

President of the Republic of Sout h Africa & Others (2011]) ZACC 6, 2011 (3) SA 347

(CC) para 202

81 Law Society of S outh Africa supra note 80 para 4.

82 These principles were a frmed in S v. Makwanyane and Anothe r 1995 (3) SA

391 (CC) para 35; Progress Ofce Machines CC v. South Afr ican Revenue Ser vice

and Others 2008 (2) SA 13 (SCA) para 6; and National Commissioner of the South

African Police Serv ice v. Southern African Huma n Rights Litigation Centre and

Another (30 October 2 014) (CCT 02/14) (2014) ZACC 30.

A rican Yearbook HL (2023) BOOK indb 93 2025/05/29 09 14

© Juta and Company (Pty) Ltd

94 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

4.2 The duty to investigate and prosecute international

crimes under South African domestic law

In National Commissioner of the South African Police Service,83 the

Constitutional Court held that: 84

The need for states parties to comply w ith their international obligat ion

to investigate international cr imes is most pressing in instances where

those crimes are c ommitted by citizens of a nd within the territor y

of countries that are not par ties to the Rome Statute, because to do

otherwise would per mit impunity. If an investigation is not instituted

by non-signatory countries i n which the crimes have been committe d,

the perpetrators c an only be brought to justice through the application

of universal jurisdiction, namely the investigation and prosecution of

these alleged cri mes by states parties under the Rome Statute.

This principle suggests that states parties to the Rome Statute, such

as South Africa, have a pressing duty to ensu re that international

crimes do not go unpunished, particularly when they occur in non-

signatory states. However, it logically follows that when such crimes are

committed by a state’s own citizens abroad, the obligation to investigate

remains even stronger. A failure to do so would not only undermine

international crimina l justice but also violate the state’s duty under

both domestic and international law to ensure accountability for its

own nationals.

The Constitutional Court f urther afrmed in the same case that

the South African Police Service (SAPS) and the National Prosecuting

Authority (NPA) bear a clear duty under domestic law to investigate

international crimes. At paragraphs 57–8, the Court stated:

The statutory designation of i nternational crimes under t he SAPS

Act domesticated into our law by the ICC Act requ ires the SAPS to

prioritise these t ypes of crimes and indeed imposes a duty on it to do

so.

This legal framework highlights the domestic mechanisms for the

prosecution of international crimes, reinforcing that the state has a

binding duty to investigate and prosecute such offences, especially

when committed by its own citizens.

In Azapo v President of the Republic of South Africa the Constitutional

Court acknowledged the importance of state accountability in

addressing serious crimes.85

83 Human Rights Litigation Centre supr a note 82.

84 Ibid para 32.

85 [1996] Z ACC 16.

A rican Yearbook HL (2023) BOOK indb 94 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

95

Under customary international law, all states have an obligation to

investigate, prosecute and punish all international crimes, including

genocide. These obligations are erga omes—a duty owed to the

international community as a whole.86 In Ta di ć the ICTY stated that87

the customary stat us of the prohibition against cri mes against

humanity and the att ribution of individual c riminal responsibi lity

for their commission have not been ser iously questioned.

Further in Barcelona Traction, Light and Power Company, Limited (Belgium

v Spain)88 the International Court of Justice (ICJ) held that:

In view of the importa nce of the rights involved, all States can b e

held to have a legal interest in their protect ion; they are obligations

erga omnes. Such obligations derive, for exa mple, in contemporary

international law, from the outlawing of ac ts of aggression, and of

genocide, as also from the pr inciples and rules concern ing the basic

rights of the human per son […]89

Ehlers’s actions occurred b efore the codication of the liability of aiding

and abetting in the Rome Statute. The principle that indiv iduals cannot

be prosecuted retrospectively for crimes that were not criminalised at

the time of their commission is explicitly established in Article 24(1)

of the Rome Statute of the ICC, which states:

No person shall be c riminally resp onsible under this Statute for

conduct prior to the entry into force of th is Statute.

This provision upholds the fundamental principle of nullum crimen

sine lege (no crime without law), ensuring that prosecutions under the

ICC are not applied retroactively. The Rome Statute was assented to by

South Africa in 2002, meaning that the ICC only has jur isdiction over

crimes committed on or after t hat date, unless a state explicitly accepts

jurisdiction over earlier cr imes under Article 12(3). South Africa has

not accepted the application of Article 12(3) of the Rome Statute to

extend the ICC’s jurisdiction to crimes committed before 1 July 2002.

However, as discussed previously, and despite Ehlers’s actions

occurring b efore the codication of the liability of aiding and abetting

86 ICJ Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain),

(Judgment of 5 Febru ary 1970), Reports 1970, 32 paras 33 –34; Furundžija supra

note 9 para 156; Tad ič supra note 13 paras 618– 623.

87 Tad ič supra note 13 para 623.

88 Barcelona Traction supra note 86.

89 Ibid paras 33– 34.

A rican Yearbook HL (2023) BOOK indb 95 2025/05/29 09 14

© Juta and Company (Pty) Ltd

96 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

in the Rome Statute, there still exists a duty a nd a means to prosecute

perpetrators under customar y international law in South African

domestic courts. This is conrmed in the ICC Act’s preamble90 as

well as in S v. Basson, in which the Constitutional Court held that the

creation of the ICC represented ‘the culmination of a centuries-old

process of developing international humanitarian law’.91

5 STATUTE OF LIMITATION HURDLE IN SOUTH

AFRICAN LAW

One constraint on South Africa’s obligations in this matter would

be if a statute of limitations applied. In many legal systems statutes

of limitations exist to protect individuals from being prosecuted for

crimes long after they were committed.92 However, international law

carves out exceptions for the most heinous crimes, such as genocide

and crimes against humanity. A key aspect of customary international

law is that grave crimes against humanity, war crimes, and genocide

are generally considered not subject to a statute of limitations.93 The

principle that grave crimes cannot be subject to statutory limitations

is linked to jus cogens norms. These nor ms hold the highest status

in international law and include the prohibition of crimes against

humanity and genocide. This pr inciple is widely recognise d because of

the nature of these crimes, which have profound and enduri ng impacts

on both victims and t he international community. These cri mes are so

severe that the passage of time does not diminish the responsibility to

investigate and prosecute them.94

In South Africa, domestic statutes of limitation typically apply

to ordinary criminal matters but not to international crimes of this

magnitude – this is based on t he nature of genocidal crimes due to their

severe and enduring impact.95 Sect ion 18(g) of the Crimina l Procedure

Act 51 of 1977 in South Afr ica provides an important exception to

the general principle that certain crimeas are subject to statutory

90 Implementation of the Rome Statute of the Intern ational Crimina l Court Act

27 of 2002.

91 S v. Basson (2) 2005 (1) SA 171 (CC) para 37.

92 Section 35(3)(l) of the Con stitution upholds the principle of lega lity, prohibiting

retrospect ive criminal prosecution u nless the conduct was crimina lised under

international law at the ti me.

93 C van den Wyngaer t, ‘War crimes, genocide and crimes ag ainst humanity: Are

states still under a n obligation to prosecute these cr imes in spite of amnesty

provisions?’ (1999) 8 European Journal of Crime, Criminal Law an d Criminal

Justice p 12.

94 Ibid.

95 HRW op cit note 48.

A rican Yearbook HL (2023) BOOK indb 96 2025/05/29 09 14

© Juta and Company (Pty) Ltd

ACCOUNTABILITY FOR AIDING AND ABETTING THE RWANDAN

GENOCIDE: THE OBLIGATION ON SOUTH AFRICA TO INVESTIGATE AND

PROSECUTE WILLEM ‘TERS’ EHLERS

https://doi.org/10.47348/AYIH/2023/a4

97

limitations. Specically, it states that the passage of time does not bar

prosecution for certain serious offenses, including genocide, crimes

against humanity, and war crimes.96

South Africa, being a sig natory to the Rome Statute and having

passed the ICC Act, has aligned its domestic laws with its inter national

obligations. These laws reect the principle that grave crimes do not

prescribe over time. However, challenges may arise when dealing with

older cases, particularly if they occurred before the adoption of the

ICC Act. Nonetheless, South African courts could rely on the principle

of jus cogens (peremptory norms of international law) to argue that

no statute of limitations should bar the prosecution of crimes against

humanity, given their nature as obligations erga omnes.

While the statute of limitations can be a legal obstacle in

many types of criminal prosecutions, South Africa’s adherence to

international legal principles and the incorporation of customar y

international law into its Constitution provide a robust framework for

overcoming this hurdle in cases of grave crimes. The gravity of crimes

against humanity, war crimes, and genocide means t hat they transcend

traditional temporal limitations, ensuring that perpetrators can be

held accountable regardless of when the crimes were committed. The

South African legal system, with its strong grounding in international

law, is well-placed to address this challenge and uphold its obligations

to the international community.

6 CONCLUSION

This article has i llustrated there is extensive international jurisprudence

on the crime of ‘aiding and abetting’ genocide. Despite this, there has

been little to no accountability for arms dealers who enable genocide.

Using the case study of Ehlers and his role in aiding the Rwandan

Genocide this art icle lays out the international law of aiding and

abetting. It also outlines the ev idence against Ehlers and argues that

South Africa has a legal obligation under both international and

domestic law to investigate and prosecute him and other private actors

that enable genocide and other crimes against humanity. Addressing

the private systems and actors that nancial ly benet from and enable

genocide is essential in preventing further genocidal atrocities. With

the legal framework in place, it becomes a question of states fullling

their legal obligations to the rest of the international community.

96 Act 51 of 1977.

A rican Yearbook HL (2023) BOOK indb 97 2025/05/29 09 14

© Juta and Company (Pty) Ltd

98 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2023/a4

As the Independent Inquiry Report states: ‘[W]hen the international

community makes a solemn promise to safeg uard and protect innocent

civilians from massacre, then it must be willing to back its promise

with the necessary means’.97

97 UN ‘Report of the I ndependent Inquiry into the actions of the United N ations

during the 1994 genocide i n Rwanda’ op cit note 49.

A rican Yearbook HL (2023) BOOK indb 98 2025/05/29 09 14

© Juta and Company (Pty) Ltd