The recent judgment by the Supreme Court of Appeal (SCA) in the case, National Commissioner of the SAPS and Another v SALC and Another[1] has sent a very clear message – international criminal justice is a matter of national importance and crimes against humanity will be appropriately addressed. The judgment has elements of international law, foreign law and domestic South African law, carefully constructed to produce an order requiring the South African Police Service (SAPS) to initiate an investigation. The judgment could not have come at a better time given the current crisis with the International Criminal Court (ICC) and the African Union (AU) which is threatening the international criminal justice project in Africa.
The ICC and the AU continue to be at odds. The ICC indictment of sitting heads of state irked the AU and generated speculation about a mass withdrawal from the Rome Statute of the International Criminal Court by African states. These factors, combined with African countries failing to promulgate domesticating ICC legislation and the ongoing perpetration of crimes against humanity, war crimes and genocide in Africa continue to threaten international criminal justice in Africa. One of the major stumbling blocks for international criminal justice in Africa is the deficiencies in domestic and regional African courts, limiting their capacity to handle egregious international crimes.
Most domestic courts are not equipped to conduct these trials in part because they lack the proper legislation. In addition, in some cases political will is an inhibiting factor. To date only six African countries have enacted domestic ICC legislation that empowers authorities to handle international crimes. The situation at the regional level is also a source of concern as the Southern African Development Community (SADC) Tribunal is defunct and the African Court on Human and People’s Rights has limited power and jurisdiction. This is an unfortunate state of affairs making justice elusive in many African countries as both the domestic and regional forums are inadequately equipped to address international crimes.
South Africa is one of the six countries that has implemented domesticating legislation in the form of the Implementation of the Rome Statute of the International Criminal Court Act 22 of 2002 (ICC Act). This legislation has enabled SALC to bring its matter before competent courts making this case exemplary as it is the first time that content and substance has been given to the ICC Act. The case is a manifestation of South Africa’s strong legislative framework with respect to international criminal justice and is a testament to the potential South African courts have when faced with international crimes.
This case is of great importance because it establishes that local courts can and should handle international crimes and that this is possible provided the correct legal framework exists. It gives the international criminal justice project a much needed local dimension and is a vital building block in the path to constructing a body of relevant jurisprudence. The case has also, through the use of international, regional and domestic law, demonstrated that the domestication of ICC legislation can be complemented by foreign and existing domestic legislation and can also be tailor-made to suit each nation. Often nations fear that the domestication of the Rome Statute will erode national independence yet as the South African example shows, countries can domesticate it in ways which complement their existing systems.
The judgment begins by tracing the origins of universal jurisdiction and points out that in terms of this principle, states are empowered to proscribe conduct that is recognised as threat to the good order of the international community as a whole. With reference to international customary law and the Rome Statute, the judgment makes use of the rich tapestry of international legislation conferring jurisdiction over crimes against humanity. The application of international criminal law in this case is complementarity in action, adding value to the principles espoused by the Rome Statute and giving the African international criminal justice project a stronger leg to stand on.
Having set the international legislative scene, Navsa J then moves on to introduce the domestic legislative framework. He establishes that the SAPS possess investigative competence as provided for in the South African Constitution and the South African Police Service Act. Whilst determining whether the circumstances in the case warrant an investigation Navsa J turns to foreign law and uses the diverse national positions to show that each case must be decided with regard to its own facts, indicating the usefulness of foreign law in addressing international crimes.
Having covered relevant international, foreign, and domestic law, the judgment concludes that the SAPS are empowered to investigate and are therefore required to initiate an investigation into allegations of systemic torture by Zimbabwean officials in 2007. This order is a vital first step that will hopefully serve as an example to other nations on how useful domesticating ICC legislation can be. If other African countries do follow South Africa and implement the Rome Statute in their domestic systems then the African international criminal justice project can be strengthened greatly. International criminal justice can and should have a domestic dimension to complement the international dimension- this judgement shows that this is not only possible but crucial.
[1] The case was brought by the Southern Africa Litigation Centre (SALC) and the Zimbabwean Exiles Forum (ZEF) to compel South Africa to abide by its legal obligations to investigate and prosecute high level Zimbabwean officials accused of torturing victims after conducting a raid on the Movement for Democratic Change’s Harvest House headquarters in 2007. SALC submitted a detailed dossier to the NPA and SAPS containing evidence that the acts of torture constituted a crime against humanity and asked them to investigate as required under South African legislation. After the NPA and SAPS refused, SALC took the matter to the High Court. In May 2012, the North Gauteng High Court set aside the decision of the NPA and SAPS not to initiate an investigation into crimes against humanity committed in Zimbabwe. The NPA and SAPS were denied leave to appeal by the High Court and took the matter to the SCA were judgment was given in favour of SALC.
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