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WHY ZIMBABWEANS ARE SUING SOUTH AFRICAN DOMICILE BANKS FOR SANCTIONS AND WHY IT MATTERS.

Updated: Mar 27, 2023




Background:


1. ZASM is a civil society organization comprising Zimbabwean citizens who have been externally displaced and are suffering from the illegal sanctions imposed on Zimbabwe by the US, EU, UK, Australia and Canada.


2. As an organization, we believe that sanctions imposed indiscriminately, disproportionately and unreasonably on a nation constitute illegal collective punishment of civilians.


3. We believe that such collective punishment deprives individuals of their human rights.


4. We also believe that sanctions targeted towards government officials, for allegations of violating human rights, constitute punishment without trial, so long as those being targeted have not been tried in any competent court or tribunal using an established legal code, as enjoined by the Universal Bill of Rights.


Our Understanding of the Legal Problem:


5. The UN resolution 44/215 and UNHRC resolutions 27/21 and 34/13 all confirm that unilateral sanctions (unilateral coercive measures) by states are illegal and contrary to international law and custom.


The same was reiterated by the Special Rapporteur for the negative impact of sanctions on the 28th of October 2021, when her report declared Western sanctions on Zimbabwe illegal, lacking due process and violating human rights.


6. In our reading of the established definitions of crimes against humanity and the Geneva Convention, collective punishment of civilians through indiscriminate, unreasonable and disproportionate punishment by persecution (depriving people of clean water, healthcare, education, development, and social services) constitutes a war crime in wartime and a crime against humanity by persecution in peacetime.


7. For these reasons, we have decided to use the Special Rapporteur’s report, the Universal Bill of Rights, the South African constitution and UNHRC resolution 34/13 to take legal action in South African courts against banks domiciled in that country for breaking their domestic and international laws by implementing illegal sanctions on Zimbabweans without trial.


8. We still intend to pursue similar action in Zimbabwe, Mauritius, the African court, and, if the sanctions are not removed by then, we will approach the World Court (ICJ).


Nexus Between Sanctions and Anti-Money Laundering Laws:


9. We believe that the implementation of extraterritorial and illegal sanctions by South African banks and international banks domiciled in that country has led to discrimination against Zimbabweans, depriving them of banking services and their human rights without trial or court orders, which is illegal according to the laws of Zimbabwe's biggest trading partner.


10. We have heard many banking executives locally in South Africa and internationally attempting to use AMLCT (Anti-Money Laundering and Counter-Terrorism) rules to justify their illegal compliance with or implementation of illegal sanctions. However, we have noted that, just like unilateral sanctions, the application of AMLCT measures is often extrajudicial, with no trials or guilty verdicts accompanying the discriminatory blocking, prohibiting, or excluding of innocent persons, institutions, and entities from banking services or the international banking system.


11. More critically, according to a book written by Juan Zarate, who worked for the US Treasury as the Assistant Director of Counter-Terrorism from 2000 to 2008; he led the team of US Treasury and Pentagon experts who devised a strategy of weaponizing US sanctions against its enemies by leveraging AMLCT rules to give US sanctions extraterritorial (international) reach through the FATF (Financial Action Task Force), the establishment of western controlled Financial Intelligence Units in every country and the use of SWIFT to block payments.


12. The objective behind the leveraging of AMLCT rules by the US Treasury was to cut off international financing to nations which fight against US oppression, enemies, and competitors of the US. This would be achieved by the US and her allies merely labelling their enemies or competitors as threats to democracy, terrorists or risks to the global financial system.


To generate these labels, western-sponsored NGOs and media write damning reports (like the one that said Iraq had weapons of mass destruction or the one that said Gaddafi was murdering civilians) that demonize the targets and then are used by the US President to declare national emergencies identifying those persons, institutions or nations as threats to the US or global security.


Once these designations are made, these entities are automatically deemed threats or risks to the global financial system without trial. As a result, banks around the world are mandated to isolate them and deny them services, or face isolation themselves from the international banking and payment systems, for bringing risk to the global financial system.


This lawless kangaroo court of fascist global financiers is the culmination of 21 years of unquestioning compliance to George Bush's dictatorial slogan of 'either you are with us [US] or with terrorists.'


13. In addition, SWIFT, which was also created by the G7 like FATF, was arm-twisted into giving the US government and its allies unfettered access to transaction information pertaining to these entities, so they could unilaterally block their payment instructions without any court orders from international courts.


14. Financial institutions that refuse to be part of this Anglo-Saxon dictatorship will be summarily excluded from the global financial system, as has happened to the Zimbabwean, Iranian, Venezuelan, Cuban, Syrian, Russian, Libyan, and North Korean financial systems.


15. This process is clearly fraught with illegality, as it is an abrogation of international law and contravenes human rights law and international customs.


16. We outlined these illegalities in a proposal we were asked to write by the Zimbabwean Minister of Justice and Legal Affairs in 2021, to address our warning that FATF intended to blacklist Zimbabwe in its October 2021 review.


17. In that strategy proposal, we urged the Minister to expedite the process of approaching the UN Human Rights Council about US, EU, and UK sanctions so that the UN could officially declare the sanctions illegal.


18. The Zimbabwean government obliged, and subsequently, the UN Special Rapporteur for the negative impact of sanctions came to Zimbabwe in October 2021 and unequivocally declared the Zimbabwean sanctions illegal in her preliminary report. Additionally, she noted that illegal sanctions deny nations and businesses legitimate financial channels, leaving them with no option but to use alternative channels that might be perceived as money laundering.


19. As a result of the UNHRC's report and other submissions made by our government, the Zimbabwean financial system escaped blacklisting in 2021 and was instead removed from the FATF greylist.”


Objectives Of Our Case


20. Our case seeks to challenge the arbitrary system of financial exclusion by the West in Africa, starting with South Africa, in order to restore the rule of law in international finance and international relations. This aligns with our strategy in the FATF October 2021 review.


21. We seek a declaratory order from the South African courts to stop financial institutions domiciled in South Africa, Zimbabwe's largest trading partner, from punishing people extrajudicially by implementing illegal sanctions or AMLCT rules without due process (trial).


22. Such an order would empower Zimbabweans to regain their rights in the South African banking system and illustrate publicly that the imposition and implementation of illegal unilateral sanctions or AMLCT restrictions, without trial or local laws empowering those actions, constitute illegal persecution.


Legal Precedent


23. As a precedent, in 2019, CBZ successfully challenged OFAC's penalties for infringing U.S. sanctions. CBZ engaged an international legal firm to contest U.S. coercion and force the cancellation of the penalties. The result was the cancellation of all the fines that had been levied on CBZ. To this day, CBZ remains the only bank in Zimbabwe that continues to open accounts, give loans, and process transactions for Zimbabweans and entities on the sanctions list. This case illustrates that U.S. sanctions are unenforceable because the law cannot enforce illegality.


24. However, to void these sanctions, Zimbabweans must challenge them legally to enjoy their rights, as CBZ did.


25. Four months ago, the South African company, Sekunjalo, won a case in the Equality Court of South Africa to reopen all its accounts after Nedbank closed them due to managing reputational risk. Sekunjalo was negatively implicated for financial impropriety in the Mpathi Commission Inquiry.


26. These legal precedents have serious implications for our legal fight against the arbitrary enforcement of sanctions and AMLCT restrictions. This applies not only to South African banks but also those in Zimbabwe and internationally.


27. Once we receive a positive ruling in our case, we hope that our government and partners will take this ruling, the final report of the Special Rapporteur which is coming out in September 2022, the CBZ case, and the ruling by the South African Equality Court in Sekunjalo vs Nedbank on international roadshows. These roadshows would show global investors, particularly those from the United States, that they have been unfairly kept out of the Zimbabwean economy due to illegal sanctions and coercion by the United States government. It has been proven to be illegal by case law.


28. This would then put American companies, global companies, and investors at the forefront of challenging their illegal exclusion from potential opportunities in not only Zimbabwe but any other country under illegal United States sanctions.


Political Angle.


29. There is a powerful political thrust to our case.


30. With the Special Rapporteur confirming that unilateral sanctions are illegal and that the persecution of civilians is also illegal, it is crucial for Zimbabweans to impress upon the West that political parties that called for the West to impose illegal sanctions to force "democratic change" or regime change upon Zimbabweans, in pursuit of ZDERA objectives, persecuted civilians through deprivation and collective punishment by sanctions. This was done to force civilians to vote for them into parliament.


31. By deduction, these members of parliament used the collective punishment of sanctions to force people to vote for them into parliament, thereby perpetuating crimes against humanity by persecution upon Zimbabwean civilians, in contravention of human rights law.


32. Therefore, their presence in our parliament is premised on gross violations of civilian rights and the perpetuation of an international crime that should be tried by a tribunal constituted by the United Nations or African Union.


33. If the United Nations decides to institute such a tribunal, then such a trial is the basis upon which to call for the suspension of these politicians, or this political party from the election ballot until the members are cleared of wrongdoing.


34. In South Africa, a political party that goes by the name of Black Land First was denied participation in the 2019 elections because it was deemed to be discriminating against white people from joining the party. As a parallel, the Zimbabwean government must also utilize its own constitution to discourage the use of voter coercion by illegal persecution for political advancement.


35. The Zimbabwean government must use its own constitution to discourage the use of voter coercion and illegal persecution for political gain. The use of economic sanctions to deprive civilians of necessities is a war crime under the Geneva Convention and a crime against humanity in peacetime.


36. There is evidence that opposition party members who participated in writing the constitution used crimes against humanity to coerce citizens to vote for them, and the constitution was written to please the sanctions senders. ZANU PF members of parliament were also under duress to please the sanctions senders in the hopes of removing sanctions. Therefore, the constitution may have been created to suit sanctions senders under duress, not to suit the will of the Zimbabwean people. Zimbabweans can request the voiding of the constitution based on this argument.


37. This position implies that white farmer compensation may be voidable if the West refuses to remove illegal sanctions and pay reparations in line with UNHRC RES 34/13 for deaths and economic losses caused by their persecution of civilians. ZASM's case is solid but requires relevant stakeholders to play their roles to achieve the desired outcome.


By Rutendo Matinyarare

Chairman of ZASM

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