27 November 2014 marks the fourteenth anniversary of South Africa’s ratification of the Rome Statute of the International Criminal Court, thus the timing of the Constitutional Court’s progressive judgment in the case of National Commissioner of the South African Police Service v Southern Africa Litigation Centre & Another (Zimbabwe Torture Case), could not have been better as it sends a strong message that impunity will not be tolerated.
On 30 October 2014, in a unanimous judgment, South Africa’s highest court ruled that the South African Police Service (SAPS) has a legal duty to investigate allegations of crimes against humanity committed in Zimbabwe by Zimbabweans, against Zimbabweans, as detailed in a dossier submitted by the Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF).
This was the first case brought in terms of South Africa’s Implementation of the Rome Statute of the International Criminal Court Act (ICC Act). The ICC Act is the embodiment of South Africa’s commitment as a member of the community of nations fighting impunity and seeking to protect universal human rights. An integral part of the universal fight against impunity is the understanding that some crimes (including genocide, crimes against humanity, torture, war crimes, apartheid, and slavery) are so serious, that they harm the international community as a whole. As such, nations are entitled, if not required, to bring proceedings against the perpetrators, regardless of the nationality of the perpetrator or victims and the location of the crime. This is the principle of universal jurisdiction. It is incorporated in the ICC Act, and is the foundation of SALC’s Zimbabwe Torture Case.
Universal jurisdiction was very popular during the 1990s in Europe, however, European states have been circumspect about universal jurisdiction of late, limiting its use by amending their laws. Belgium in particular, had the most far reaching and purest form of universal jurisdiction that required no nexus whatsoever between the acts, the accused, and the state of Belgium.
In 2001 and 2003 respectively, Belgium boldly initiated cases against Ariel Sharon, in a bid to prosecute him for the massacre of innocent civilians in Lebanon in 1982, and against former president George H.W. Bush for the bombing in Baghdad during the first Gulf War. Unfortunately, the initiation of these cases resulted in the United States of America and NATO threatening to withdraw the NATO base from Brussels if Belgium did not amended the scope of its universal jurisdiction laws. The legislation was amended and significantly limited in 2003. Currently, a nexus to Belgium is required before complaints can be filed under Belgian universal jurisdiction laws.
Breathing fresh air into the application of universal jurisdiction, South Africa’s Constitutional Court judgment shows the way in which universal jurisdiction principles might be embraced whilst safeguarding against the potential risks of an absolutist approach. The Court did this by articulating two very important and sobering limitations to the application of universal jurisdiction: the principles of subsidiarity and practicability.
Subsidiarity means that South Africa may investigate international crimes committed abroad only if the state with traditional jurisdiction is unwilling or unable to prosecute, and only if the investigation is confined to the territory of the investigating state. The Court made it clear that if Zimbabwe were able and willing to investigate and prosecute the alleged instances of torture, there would be no place for South Africa to do so.
The principle of practicability requires that before assuming universal jurisdiction over an extraterritorial international crime, South African authorities must consider whether embarking on an investigation is reasonable and practicable in light of the particular circumstances of the case. In making this assessment, the following must be considered: whether the investigation is likely to lead to a prosecution; and accordingly, whether the alleged perpetrators are likely to be present in the investigating state on their own, or through an extradition request. Simply put, the Court stated that the ultimate enquiry (having considered all the relevant facts) is: whether it is reasonable to investigate crimes against humanity committed in another country.
These limits and well-articulated considerations are not only legally sound, but provide a road map for the application of universal jurisdiction. With the limits of subsidiarity, practicability, and reasonableness, the principle of universal jurisdiction has a fighting chance and can be viewed with less scepticism. Against the backdrop of the current international criminal justice landscape – where crimes are committed and accountability remains elusive in Syria, Sri Lanka, and Palestine; where the International Criminal Court lacks jurisdiction and is unable to act; and where politics cripple the United Nations Security Council – universal jurisdiction presents potential.
This judgment could also be a very useful model for other jurisdictions grappling with the concept and could also show legislatures and judiciaries that universal jurisdiction need not be feared, but should rather be embraced. Accountability for serious crimes should be a priority for the international community, and if principles like universal jurisdiction can assist in the eradication of impunity, they should be utilised. Let the fourteenth anniversary of South Africa’s ratification and the Zimbabwe Torture Case be marked as important steps towards ending impunity.