On May 8, 2012, the High Court of South Africa, pursuant to a recent statute, ordered the commencement of an investigation of alleged torture of Zimbabwean political opponents by Zimbabwe authorities in that neighboring country. We will examine that statute’s implementation of the international legal principle of universal jurisdiction, the legal case and the court decision.
The South African Statute
In 2000 the Republic of South Africa ratified the Rome Statute of the International Court and thereby became a State Party to the Statute.
Two years later South Africa enacted the Implementation of the Rome Statute of the International Criminal Court, Art. 27 (“the SA ICC Act“). Its preamble stated:
- “The Republic of South Africa is committed to bringing persons who commit such atrocities [the crimes of genocide, crimes against humanity, war crimes and the crime of aggression] to justice, either in a Court of Law in the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court [the Statute”], or in the event of the National Prosecuting Authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the [S]tatute, in the International Criminal Court, created by and functioning in terms of the said [S]tatute; and, carrying out its other obligations in terms of the said [S]tatute.”
Section 4 (1) of the SA ICC Act provides that “any person who commits [such] a crime, is guilty of an offence and is liable on conviction to a fine or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine, or both a fine and such imprisonment.”
Section 4 (3) of the statute goes on to state, “In order to secure the jurisdiction of a South African court for purposes of this Chapter, any person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if . . . (c) that person, after commission of the crime, is present in the territory of the Republic . . . .”
Pursuant to the SA ICC Act, two South African non-governmental human rights organizations petitioned the High Court to review the decision by the Republic’s prosecutors not to initiate an investigation into the alleged arrest, detention and torture in March 2007 of Zimbabwean nationals by Zimbabwean police as part of a widespread and systematic attack on officials and supporters of an opposition political party.
The two petitioners asserted that they filed their request for an investigation “on behalf of and in interest of the victims of torture in Zimbabwe who cannot act in their own name . . . and in the public interest . . . [and] in their own interest pursuant to their respective aimsand objectives as concerned civil society organizations [sic].”
One of the petitioners was the South African Litigation Center, an “initiative of the International Bar Association and the Open Society Initiative for Southern Africa . . . [that] aims to provide support, both technical and financial, to human rights and public interest initiatives undertaken by domestic lawyers within the Southern African region.”
The other petitioner was the Zimbabwe Exiles Forum, whose “object is to assist victims of human rights abuses occurring in Zimbabwe to obtain access to justice and redress that are ordinarily denied them in Zimbabwe. It also provides assistance necessary for the dignity and wellbeing of all exiles from Zimbabwe, in particular victims of torture, political violence and other human rights abuses.”
The Court’s Decision
The High Court in a 98-page judgment set aside the decision of the prosecutors not to investigate these alleged crimes as being “unlawful, inconsistent with the [South African] Constitution and therefore invalid.” The Court, therefore, ordered the prosecutors to initiate such an investigation.
Important for the Court was the fact that the alleged Zimbabwean perpetrators “from time to time visit South Africa and that, if and when they do so, South Africa was under a duty at International Law and under the ICC Act to apprehend and prosecute them if possible.”
In reaching its conclusion, the Court rejected the respondents’ arguments that the petitioners did not have standing to request such an investigation. According to the Court, the petitioners’ “rights to have the decision made lawfully and in accordance with constitutional and statutory obligations has been infringed, the victims of the torture who had been denied the opportunity to see justice done, and the general South African public who deserve to be served by a public administration that abides by its national and international obligations. The public clearly has an interest in a challenge to the manner in which public officials discharge their duties under the relevant legislation.”
A commentator said this ruling “could cement South Africa’s commitment to protecting human rights and broaden the application of universal jurisdiction.” Unfortunately, in his view, the South African government is preparing an appeal of the decision to South Africa’s Supreme Court of Appeal.
Not surprisingly the Zimbabwe government has criticized and ridiculed the decision.