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Business Day
By Nicole Fritz

NELSON Mandela remarked in 1993 in the journal Foreign Affairs that SA’s future foreign relations would be based on the belief that “human rights should be the core concern of international relations, and we are ready to play a role in fostering peace and posterity in the world we share with the community of nations”.

Those remarks now seem from a distant, more hopeful era. They seem to jar with an increasingly fragmented world order, in which states eschew collective action in favour of short-term unilateralism and where emerging powers are criticised for failing to assume the burdens of global leadership. In particular, they seem inappropriate to SA’s latter-day foreign policy, which not long ago earned the sobriquet, “the see-no-evil policy”.

Yet those words by Mandela were revived last week by the Constitutional Court, in the introduction to a judgment ordering SA’s police to investigate crimes against humanity committed in Zimbabwe, in terms of SA’s Implementation of the Rome Statute of the International Criminal Court Act.

The judgment does not shirk from an awareness of what it means to place at the centre of our foreign policy the upholding of human rights and international law commitments, finding that political interstate tensions are virtually unavoidable as far as application of the act is concerned, but that it is the toll to be paid to hold torturers, genocidaires, pirates and their like accountable for their crimes “wherever they may have committed them or wherever they may be domiciled”.

The judgment, however, is not an ode to a quixotic pursuit, proposing that SA’s police charge off to investigate international crime wherever it may occur. SA is not to be the world’s policeman. If, as the court says, “the duty to combat torture travels beyond the borders of Zimbabwe”, it does not mean that South African police may investigate on Zimbabwean territory. But where witnesses and documents are available here, they must be consulted.

The court also says the duty to investigate international crimes is limited by the principle of subsidiarity and by practicability. Subsidiarity holds that the state most directly affected by the crimes should be afforded the opportunity to investigate and prosecute. This is based on sovereignty and fairness: it would have been an affront had SA’s democracy decided to prosecute those responsible for apartheid’s crimes, and the US or France did so too. Only if the state concerned is unwilling and unable to investigate and prosecute are SA’s authorities empowered to do so.

Practicability is to be weighed on a case-by-case basis. It will include an assessment of whether the alleged perpetrators are likely to be present in SA, the ease with which evidence may be collected, and the geographical proximity of SA to the place of the crimes. As the court concluded, “Zimbabwe borders our country and the possible presence of the suspects in future cannot be discounted”. Here, then, is a principle to govern the conduct of states in ensuring those responsible for the world’s worst crimes be held accountable, but also an ethic with which individuals might seek to comply: a duty of care to others is not an amorphous obligation but weighs most heavily in respect of those who are nearest us.

It does no favours to the court to place it unnecessarily in opposition to the executive, but it is worth contrasting the approach adopted by the court in the Zimbabwe torture judgment with the way the executive conducts foreign policy. To those who criticise it for its failure to uphold human rights concerns, the executive responds that they have no appreciation for the way real power is wielded on the international stage.

Make no mistake, however. The judgment will be analysed and cited extensively. It will be held up as a model for courts in other countries to follow when interpreting their own international law commitments. Through such citation and examination, the court’s influence will be spread and its values promoted, demonstrating the persuasive nature of soft power and of how we might realise Mandela’s ideal of making human rights the light that guides our foreign affairs.

As it is, the judgment was possible only as a result of SA’s law on the International Criminal Court, enacted by Parliament and held up as model legislation the world over. Now the judiciary provides a judgment to match it. It waits to be seen whether the executive will be equal to the other two branches of government.

  • Fritz is the director of the Southern Africa Litigation Centre, one of the parties that initially brought the case.


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