Wayne Ncube | Universal jurisdiction in Africa: a step towards justice

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9 April 2015 – In the wake of last year’s South African Constitutional Court judgment in National Commissioner of the SAPS v SALC, many commentators hailed the outcome as a progressive step towards the enforcement of, and the end of impunity for, core international crimes (crimes against humanity, torture, genocide and war crimes). The judgment provided a guide for the practical application of universal jurisdiction in Africa. Universal jurisdiction, put simply, is when a country exercises jurisdiction over international crimes committed outside of the country’s territory by perpetrators who, at the time the offences were committed, were not citizens or residents of that country. The Constitutional Court defined the scope of universal jurisdiction’s application in South African law. The principles laid out by the Court offer other jurisdictions a useful foundation on which to base a consistent execution of important international obligations.

In 2008, the Southern African Litigation Centre (SALC), an organisation promoting human rights in the southern African region, compiled detailed evidence of torture allegedly committed by Zimbabwean state officials, and lodged a complaint with the South African Police Services (SAPS) and South Africa’s National Prosecuting Authority (NPA) in South Africa. The NPA decided not to investigate matters of alleged torture as they amounted to crimes against humanity, an international crime. Among the reasons cited for its decision not to investigate included uncertainty over whether South African authorities had jurisdiction over the crimes. The NPA also alluded to the far-reaching consequences of seemingly undermining Zimbabwe’s sovereignty.

SALC launched a review of the NPA’s decision not to investigate the allegations of torture at the High Court. The High Court found that the decision to refuse to initiate an investigation was inconsistent with the South African Constitution (pdf) and South Africa’s international law obligations. This decision was upheld by the Supreme Court of Appeal which declared that the SAPS are both empowered and required to investigate the alleged offences. The National Commissioner of Police appealed the decision to the Constitutional Court, seeking clarity on a number of issues including the position of universal jurisdiction in South African law.

The concept of universal jurisdiction has existed for centuries, dating back to when countries sought to combat piracy in the 1600s. Universal jurisdiction is a particularly important tool for deterring potential perpetrators from committing crimes for which they would otherwise enjoy domestic impunity from prosecution. As mentioned in a recent post, the International Criminal Court (ICC) remains largely ineffectual due to fundamental flaws in its referral and deferral systems. As a result, domestic courts exercising jurisdiction over the most egregious international crimes remains the most effective way to combat impunity globally. The strengthening of universal jurisdiction therefore holds significant value to any advocate for justice.

Currently the International Criminal Court has jurisdiction to prosecute war crimes, crimes against humanity and genocide. The basis of this jurisdiction is contained in the preamble of the Rome Statute which emphasises that the most serious crimes are of concern to the international community as a whole and should not go unpunished. The preamble further places an obligation on every state to exercise criminal jurisdiction over perpetrators of such crimes. This inherent duty on the international community to exercise criminal jurisdiction over certain acts is reiterated in other international treaties such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.

Placing the burden to investigate and prosecute all such acts on the International Criminal Court is impractical because that court does not have jurisdiction to independently institute investigations for acts committed in countries that are not state parties to the Rome Statute, in the absence of a referral from the politically flawed United Nations Security Council. A quick survey of the map of countries that are state parties to the Rome Statute reveals that most allegations of international crimes demanding the International Criminal Court’s attention occur outside its natural jurisdiction. The proper exercise of universal jurisdiction would therefore cover the massive gap currently in place regarding international criminal prosecutions and ensure that the international community’s ambitious goal of addressing atrocities doesn’t amount to empty rhetoric.

As with all rights or goals, the exercise of universal jurisdiction to achieve an end to impunity of serious crimes must be balanced with other rights states enjoy in international treaties. Opponents to the principle of universal jurisdiction often hide behind its eroding effect on state sovereignty. State sovereignty enshrines the equality of states and protects individual states from interference by foreign states in the regulation of their internal affairs. On this basis the principle of universal jurisdiction has faced heavy criticism from a number of influential politicians, causing a number of countries, including Belgium, to limit its scope and application. The irony is that Belgium, one of the world’s most courageous enforcers of universal jurisdiction, was forced by the US government, through threats of withholding funding for NATO operations and removing NATO bases out of Belgium, into watering down its universal jurisdiction legislation. What better way to protect sovereign equality and the independence of states than to interfere in a state’s judicial and political processes?

When properly applied, however, universal jurisdiction does allow for the sovereignty of states. The Rome Statute codifies the principle of complementarity and places this as the first limitation on the exercise of jurisdiction over international crimes committed in a state. In terms of Article 17 of the Rome Statute, the ICC only has competency as a result of the unwillingness or inability of national jurisdictions to conduct a genuine investigation and prosecution. It is important to note that sovereignty no longer exclusively protects states from foreign interference. The developing doctrine of the responsibility to protect limits aspects of a state’s sovereignty when it fails to protect its population from core international crimes.

It is obviously preferable to have such crimes investigated in the countries where they occurred. International tribunals and courts are meant to complement states and their national jurisdictions that have the primary obligation to investigate and prosecute international crimes. Similarly, universal jurisdiction should naturally follow the same course and only be exercised in similar instances of a primary state’s unwillingness or inability to act. This complementary application of universal jurisdiction is in line with the African Model National Law on Universal Jurisdiction over International Crimes proposed by the African Union. Under Article 4(2) of the Model Law, national courts are to “accord priority to the court in whose territory the crime is alleged to have been committed, provided that the State is willing and able to prosecute”.

The proper application of complementarity in the exercise of universal jurisdiction should allow for any bona fide balancing of the duty to prosecute international crimes with the duty not to infringe state sovereignty. If a state lacks internal mechanisms to address allegations of serious international crimes, its sovereignty should not be used to obstruct criminal investigation and prosecution. The SALC judgment caters for this principle of complementarity in the test it developed to determine whether it is appropriate to exercise universal jurisdiction.

Most countries that currently have domestic legislation enabling the exercise of universal jurisdiction limit its application to situations where the alleged perpetrator is present in the investigating country. But a strict interpretation of the presence requirement before an investigation can even be instituted would render the concept and purpose of universal jurisdiction meaningless. This is because investigations take a long time to conclude and if prosecuting authorities can only initiate investigations while a suspected perpetrator is in the country, the progress of the investigation would be stalled every time the suspect leaves the country. This would render the jurisdiction null and void. In this respect the South African Constitutional Court provided useful guidelines that will hopefully be adopted by other jurisdictions that have the temerity to follow the same course in holding accountable the “enemies of humankind. The court set out a test for practicability to consider whether embarking on an investigation would be reasonable. The court went as far as stating presence or even anticipated presence is not a prerequisite for an investigation to be instituted. A case by case analysis of the practicality of investigating and prosecuting alleged criminals is preferable to strict legislative limits that achieve nothing more than releasing countries from their international obligations.

The Constitutional Court set out a two pronged test that limits the duty to investigate.  First, the principle of subsidiarity (which requires a substantial connection between the subject matter and jurisdiction’s source) should be applied, and second, the practicability of an investigation must be determined. The principle of subsidiarity would require, as far as reasonably possible, priority to be given to States with a stronger nexus to a situation (and therefore encompasses the principle of complementarity). This two pronged test covers any criticism that universal jurisdiction can be abused, while ensuring countries enforce their most important international obligations. The international crimes set out in the Rome Statute (war crimes, genocide and crimes against humanity) should be considered jus cogens – peremptory norms that are non-derogable. As such, a universal application of the obligation to enforce and punish such crimes because of their higher status should include an effective application of the universal jurisdiction countries can exercise over the perpetrators of the crimes.

The practical implications of the South African judgment in achieving actual prosecutions might be limited, as most alleged perpetrators will avoid traveling to countries able to effectively exercise universal jurisdiction. One could argue that isolating such perpetrators from international travel and international political platforms diminishes the impunity they might otherwise enjoy and may also deter other individuals from similar conduct. The true value of the judgment is as a beacon for other countries to take their international obligations in relation to core international crimes seriously. This point is best enunciated by Acting Judge Majiedt in his judgment:

Our country’s international and domestic law commitments must be honoured. We cannot be seen to tolerant of impunity for alleged torturers. We must take up our rightful place in the community of nations with its concomitant obligations. We dare not be a safe haven for those who commit crimes against humanity.”

Ideally international law, particularly international criminal law, should guide the conduct and decisions of politicians and state officials — rather than politics guiding where and when the law is applicable. Without strengthening the mechanisms available to enforce international criminal law, atrocities will remain a deplorable feature of our world.

Wayne Ncube

About Wayne Ncube

Wayne is a public interest litigator and the Director of Migrant and Refugee Rights for the African Legal Centre. He has read towards a LL.B. degree at the Nelson Mandela Metropolitan University and a LL.M degree focusing on Human Rights Advocacy and International Criminal Law at the University of the Witwatersrand, Johannesburg. He has worked at Lawyers for Human Rights (LHR) since 2011 in their Refugee and Migrant Rights and Environmental Rights Programmes. Wayne currently heads the Detention Monitoring Unit at LHR.