The tragedy of judicial limitations

Zimbabwe's Morgan Tsvangirai (left) of the Movement for Democratic Change and Lovemore Maduku, leader of the National Constitutional Assembly, leave the Harare Magistrate's Court to get medical attention on March 13, 2007. File photo: Reuters

Zimbabwe's Morgan Tsvangirai (left) of the Movement for Democratic Change and Lovemore Maduku, leader of the National Constitutional Assembly, leave the Harare Magistrate's Court to get medical attention on March 13, 2007. File photo: Reuters

Published Nov 9, 2014


Universal jurisdiction is something to be excited about, but only when it is effective, writes Lwando Xaso.

On October 30, the Constitutional Court handed down a groundbreaking judgment that compels South Africa to do what many had been hoping it would do – intervene in Zimbabwe.

This judgment has been seen by many as a victory against the rampant impunity on the continent that we have grown accustomed to.

Theoretically, the judgment is good news, but practically – how excited should we get?

It is no secret that many countries, not just in Africa, have battled with or simply disregarded their international law obligations.

Much of the difficulty lies in the fact that international law quite often requires the state to interfere in the affairs of another sovereign state.

Non-intervention is an easier route to take because people who live in glass houses are hesitant to throw stones.

Despite this hesitation, in certain circumstances countries are obliged to intervene in the internal affairs of another country. When your neighbour’s house is on fire, do you look the other way or do you intervene? Most will say that of course you have to intervene because what happens to your neighbour’s house may spread to your house.

Other than the interests of self-preservation, there is a moral obligation to intervene when there are human lives to be saved – and international law dictates as much. Not only is there a moral obligation, but most states, including South Africa, have voluntarily assumed international and domestic law obligations to intervene.

The Constitutional Court matter of the National Commissioner of the South African Police Service versus Southern African Human Rights Litigation Centre and Another concerns the extent to which the SAPS has a duty to investigate allegations of torture committed in Zimbabwe by and against that country’s nationals.

In a unanimous judgment, the court concluded that the SAPS must investigate the allegations of torture because, under the constitution, the International Criminal Court Act and South Africa’s international law obligations, the SAPS had a duty to investigate the crimes against humanity – torture – allegedly committed in Zimbabwe.

Much of the judgment turns on domestic legislation together with the constitutional imperative to interpret South African law in accordance with international law.

South Africa was the first African state to domesticate the Rome Statute of the International Criminal Court (ICC) – an international instrument which obliges every state to exercise its criminal jurisdiction over those responsible for international crimes – in national legislation, the International Criminal Court Act.

The international crimes over which the ICC exercises jurisdiction, including torture, are listed in Schedule 1 to the ICC Act.

However, the Rome Statute does not provide states with universal jurisdiction in respect of torture and it need not do so as it already applies.

Universal jurisdiction means that a state can punish “certain offences recognised by the community of nations as of universal concern”, though that state has no links of territory with the offence or of nationality with the offender or even with the victim.

Every state has the jurisdiction under customary international law to exercise extraterritorial jurisdiction in respect of international crimes that satisfy the criteria.

The constitution provides that customary international law is part of South Africa’s domestic law insofar as it is not inconsistent with the constitution or an act of Parliament. Therefore, even before the domestication of the Rome Statute in 2002, South Africa had universal jurisdiction to investigate crimes of torture because the prohibition of torture is a jus cogens (inviolable principle) that places an obligatio ergo omnes (obligation towards all) on states to investigate and prosecute crimes of torture.

Crimes prohibited by international law attract universal jurisdiction under customary international law if two criteria are satisfied. First, they must be contrary to a peremptory norm of international law so as to infringe a jus cogens. Second, they must be so serious and on such a scale that they can justly be regarded as an attack on the international legal order.

The jus cogens nature of the international crime of torture justifies states taking universal jurisdiction over torture wherever committed. International law provides that offences of jus cogens may be punished by any state because the offenders are common enemies of all humankind.

In the matter International Tribunal for the Territory of the Former Yugoslavia: Prosecutor versus Anto Furundzija, the court said that “at the individual level, that is of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every state is entitled to investigate, prosecute and punish or extradite individuals accused of torture who are present in a territory under its jurisdiction”.

However, the Constitutional Court has taken matters further than the finding of the tribunal. The tribunal held that the presence of the accused was required for not only the prosecution but also the investigation of a breach of jus cogens.

In the national commissioner’s case, none of the perpetrators were present in South Africa.

According to the ICC Act, if an international crime is committed outside South Africa, a connecting factor is needed for South Africa to have jurisdiction.

The accused person must be a citizen of, or ordinarily resident in, South Africa, must have committed the crime against a citizen or a person ordinarily resident within the country, or must be present in the country after the commission of the offence. Only the connecting factor requiring the presence of the accused bore some relevance to the facts of the matter.

The court found that although the presence of the accused might be required for the prosecution or adjudication of the matter, presence is, however, not a requirement for the investigation of the matter by the SAPS.

As commendable as this judgment is, it also highlights the problem with international law – its effectiveness practically.

Although universal jurisdiction is a powerful concept in theory, it quite often produces no results practically.

Although the SAPS is obliged to investigate the matter, it will have to hold on to its docket until such time as the accused find their way on to South African territory.

Until then, the impunity persists. All the perpetrators have to do is make sure they do not leave Zimbabwe.

It can be said that the risk the perpetrator’s face, should they travel to South Africa or any other country that will not hesitate to exercise its universal jurisdiction, is a noteworthy restriction on their freedom.

However, it cannot be gainsaid that universal jurisdiction cases are hard to investigate, prosecute, and prove – especially if the state of nationality opposes the prosecution.

A 2012 survey noted that since World War II, prosecutions based on universal jurisdiction had been instituted – although not all had led to a final judgment – in Argentina, Austria, Australia, Belgium, Canada, Denmark, Finland, France, Germany, Israel, the Netherlands, Norway, Paraguay, Senegal, South Africa, Spain, Sweden, Switzerland, the UK and the US

A country notorious for its use of universal jurisdiction is Belgium. Presence was not a requirement under Belgian law.

Article 7 of Belgium’s Punishment of Grave Breaches of International Humanitarian Law Act of 1993 allowed the prosecution of a foreigner for offences committed abroad against another foreigner. This was equally true if the accused was not found in Belgium.

Moreover, unlike the US, the Belgian criminal system allowed for trials in absentia.

After a number of controversial universal jurisdiction cases, it has been reported, the US threatened Belgium that it would risk losing its status as host of Nato’s headquarters if it did not rescind the law.

Belgium gave in to the threats and repealed the law.

Further bad news for universal jurisdiction is that the Constitutional Court held that one of the limiting principles of universal jurisdictions is practicability.

These considerations of practicability are whether the investigation is likely to lead to a prosecution and, accordingly, whether the alleged perpetrators are likely to be present in South Africa on their own or through an extradition request; the geographical proximity of South Africa to the place of the crime and the likelihood of the suspects being arrested for the purpose of prosecution; the prospects of gathering evidence which is needed to satisfy the elements of a crime; and the nature and the extent of the resources required for an effective investigation.

All of this means that a successful prosecution through the exercise of universal jurisdiction is based on so many variables that it almost renders it useless. However, the same can be said about international law – it all hinges on the consent of nations to be bound.

But I am not one to be pessimistic.

I am reminded of a speech in which Justice Edwin Cameron said that the law had limitations.

“(It) cannot ensure that men (and they are mostly men) will not subordinate the instruments of government for evil, nor can it guarantee that they will not use them for illicit wealth accumulation,” he said.

“It cannot stop corruption. It cannot engender human trust and affection and reliance... But it can offer us the chance to be better than ourselves.”

Universal jurisdiction as a concept gives nations that opportunity to be better and to do better in the protection of human rights.

That is something to get excited about.

* Xaso is a lawyer with an LLM in constitutional and administrative law from UCT and an LLM in international human rights law from the University of Notre Dame.

** The views expressed here are not necessarily those of Independent Media.

Sunday Independent

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