National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012)  ZASCA 168 (27 November 2013) – read judgment.
In what appears to be the first case where the Supreme Court of Appeal (SCA) has had to consider the investigation of crimes committed extraterritorially, the Court has made it clear that the perpetrators of systematic torture – as was alleged in this case – can be held accountable in South Africa regardless of where the offending acts took place.
It had been alleged that Zimbabwean officials had on a widespread scale tortured opponents of the ruling party. The Gauteng high court had ordered the SAPS to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act) into the alleged offences (see my previous post on that ruling). The SCA examined the principles of public international law and considered restrictions on domestic jurisdictions. It had regard to crimes that struck the whole of human kind and impinged on the international conscience which led to greater efforts internationally to ensure that perpetrators of human rights abuses do not go unpunished. It is described as the struggle against impunity.
This increased consciousness of human rights and fighting impunity gave rise to an emerging and sometimes contested additional basis for prescriptive jurisdiction, namely the idea of universality which suggests that states are empowered to proscribe conduct that is recognised as “[threatening] the good order not only of particular states but of the international community as a whole. They are crimes in whose suppression all states have an interest as they violate values that constitute the foundation of the world public order.
Accordingly, this basis for jurisdiction is not tied to the state’s territory or some other traditional connecting factor, but is rather grounded in the universal nature of the offence committed. In customary international law, such international crimes include piracy, war crimes, crimes against humanity, genocide and torture. The legislature in South Africa had enacted the ICC Act in compliance with its obligations as a State Party to the Rome Statute to take measures at national level to ensure criminal jurisdiction over the crimes set out in the Rome Statute. The SCA had regard to submissions on behalf of the SAPS concerning the interpretation of s 4 of the ICC Act and, in particular, the contentions concerning the ICC Act’s extraterritorial application and whether an investigation was competent, despite the absence, in South Africa of the perpetrators. The SCA rejected the submission on behalf of the SAPS that a crime against humanity is only deemed to have been committed once the perpetrators set foot in South Africa. The SCA found that crimes against humanity committed extraterritorially could, depending on connecting factors, rightly be investigated by South African authorities. The SCA held that on the SAPS’s own version there was sufficient evidentiary material on which an investigation could be initiated, including an investigation into whether the perpetrators might at some stage be present within the country. On the facts provided by the SAPS, witnesses from Zimbabwe could be interviewed within South Africa and Zimbabwean sovereignty was not necessarily implicated.
Having regard to international authorities the SCA held that there was no universal rule or practice against the initiation of investigations in the absence of the alleged perpetrators. It was not for this court to prescribe to the National Commissioner of the SAPS how the investigation is to be conducted:
What is clear is that on the SAPS’ own version an investigation is warranted. No doubt, in conducting that investigation, the SAPS will consider issues such as the gathering of information in a manner that does not impinge on Zimbabwe’s sovereignty. The SAPS is free to consider whether a request should be made to Zimbabwean authorities for a prosecution to be initiated there. It should also be left to the SAPS to consider a request for extradition or investigative assistance from the Zimbabwean authorities should they deem that to be necessary. In this regard, considerations of comity and subsidiarity will intrude, as of course will anticipated presence of the perpetrators in this country and resource allocation.
The appeal was accordingly dismissed with costs.
This ruling has been welcomed by human rights campaigners in South Africa and Zimbabwe. “Zimbabweans can be proud today knowing that South Africa will not shirk from its responsibility to ensure justice for victims of crimes against humanity,” said Gabriel Shumba, Chairperson of Zimbabwe Exiles Forum, one of the respondent organisations. “This judgment is a critical step in the international fight against impunity.”
Acting Deputy President Navsa, giving judgment, made much of the principles of public international law and customary international law underlying his decision. But the core principle of public international law which has assumed customary status is that of state sovereignty. Sovereignty dictates that states are empowered to act at their discretion within their own territory. A state’s jurisdiction, being the authority that a state has to exercise its governmental functions by legislation, executive and enforcement action, and judicial decrees over persons and property, is derived from its sovereignty. Although PIL does not contain an absolute prohibition on extraterritoriality, a state’s capacity to enforce and adjudicate over its domestic laws is “severely restricted to its own territory, absent the consent of a foreign state” 
The post World War II consciousness of human rights and “fighting impunity” may have given rise to an “emerging and sometimes contested additional basis for prescriptive jurisdiction”, namely the idea of universality, which suggests that states are empowered to proscribe conduct that is recognised as threatening the good order not only of particular states but of the international community of the whole. There may be crimes in whose suppression all states have an interest as they violate values that constitute the foundation of the world public order. Accordingly this basis for jurisdiction is not tied to the state’s territory or some other traditional connecting factor, but is rather grounded in the universal nature of the offence committed. Whilst this obviously holds true for offences such as piracy on the high seas, it is hard to see how this extraterritorial jurisdiction can be triggered by offences against political opponents in sovereign territory. Loathsome and illegal as the behaviour of the Zimbabwean authorities is, it is difficult to see how it can be prosecuted in another country; indeed Section 35(3) (e) of the South African Constitution guarantees that a person may not be tried in absentia. The Commissioner’s submission had some force, that since the actual presence in South Africa of the alleged perpetrators could not be firmly established, it was futile and wasteful to initiate an investigation in respect of a prosecution that “had no prospect of getting off the ground”. After surveying the approach of several countries such as the UK, German, Canada and Denmark to the principle of universal jurisdiction over certain international crimes, the Court reveals that they all require the actual presence of a subject of an investigation in the enforcing country, for the investigation to commence. But Navsa ADP obviously felt that approach was not adequate to the question:
…there is no universal rule or practice against the initiation of investigations in the absence of alleged perpetrators. …Adopting a strict presence requirement defeats the wide manner in which our legislation is framed, and does violence to the fight against impunity.
The question is, once it has established the extraterritorial responsibility of its law enforcement arm, where does it stop? Will it extend north to the current outbreak of horrific crimes against humanity in the Central African republic? The contiguity of Zimbabwe to South Africa is not a condition of its extraterritorial jurisdiction under the Rome Statute. One might have thought that the resources of the South African Police Service are stretched enough as it is.
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