Zim human rights ruling goes too far
Perpetrators of apartheid crimes received amnesty. Many went unpunished for war crimes and crimes against humanity – which, by extension, includes genocide, apartheid and the systematic use of torture.
The crimes are universally condemned under the highest form of customary international law, jus cogens, from which there can be no derogation. But the South African government and the Constitutional Court, by validating amnesty, violated the universally affirmed rule that there can be no amnesty for gross human rights violations.
Alas, in a judgment last week, penned by Justice Mohammed Navsa for a unanimous court, the Supreme Court of Appeal held there can be no immunity for gross violations of human rights in Zimbabwe and the South African Police Service has a duty to investigate them.
Let's SMS George Orwell.
Undoubtedly, perpetrators of gross human rights violations anywhere in the world should enjoy no immunity under international law. For mandatory jurisdiction for serious human rights violations to be founded, international law requires connector links such as territory, nationality or presence of the perpetrator in the territory of the investigating state.
The question before the appeal court was whether the South African police have an obligation to investigate violations by Zimbabwe officials when the alleged offence was not committed in South Africa, the victims were not South Africans and the perpetrators are not currently in South Africa.
There is an overwhelming consensus under international law that affirms that the first and the second conditions are not a bar to the prosecution of a non-national. So, when a perpetrator who is not a national sets foot in a second country, there is an obligation to investigate and prosecute.
To date, no international tribunal or foreign court has ruled that there is a duty to start an investigation where a foreign perpetrator is not present or likely to be present in the territory of the investigating state. Belgian and Spanish law once allowed for such universal jurisdiction, but those laws have since been repealed.
The domestic statutes of many countries, including South Africa, and international instruments incorporate the connector links. Some are silent on the question of whether state authorities can open an investigation against a perpetrator who is a non-national located outside the investigating state's territory. Navsa interprets this silence, combined with the supposed international law opinions, none of which support his conclusions, to support the way he wishes South African legislation to be interpreted.
At best the minority examples he references suggest that state authorities may (as opposed to must) investigate individuals outside the country. He inexplicably carves out a rule from "may investigate" to a duty on the police to investigate. If it was his contention that this is an international custom, which he alludes to in referencing the respondents' papers, he fails to provide consistent state practice, with no major departures, which states adhere to out of a sense of obligation. The last two principles are indispensable to establish a norm in customary international law.
Navsa buttresses his conclusion by referencing the commentary on the Princeton Principles on Universal Jurisdiction, which say a state is not prevented from initiating the criminal process when the accused is not present in its territory.
This is a misapplication of the comment. The context of the comment explicitly mentions it was done not to carve out a rule but to "allow for further discussion … and partly out of deference to pending litigation in the International Court of Justice [ICJ]". The commentary did not want to pre-empt the ICJ decision.
The subsequent ICJ decision, in the Democratic Republic of Congo vs Belgium case, affirmed that, when dealing with certain government officials, there is a difference in the area of universal jurisdiction when an international tribunal (as opposed to domestic courts) applies jurisdiction. Domestic courts would be deprived of jurisdiction to try certain government officials, a limitation that would not apply to an international tribunal.
The appeal court's message would seem to be that, if you are doing nothing about myriad gross human rights violations, South Africa is the appropriate forum in which to investigate them. At the behest of powerful and well-funded lobby groups, the police could be forced to investigate any number of human rights violations on the chance that the perpetrator might visit South Africa. Without any of these alleged perpetrators being in South Africa, the South African police could be obligated to investigate Bashar al-Assad for allegedly killing 200 000 civilians, using sarin gas and starving his population. They could have a duty to investigate the emir of Bahrain, the rulers of Burma or George W Bush. If a court ruled similarly in any other democracy, it would be characterised as gross overreaching – if not nuts.
The world has an interest in prosecuting crimes against humanity. For cogent reasons, courts in other jurisdictions do not take it upon themselves to impose a duty on the police to investigate abuses outside their territory without any connecting links. If these are not there, investigation of the crimes lies within the discretion of responsible state officials.
Democracy and the separation of powers requires certain decisions to be made by the co-equal branches of government, rather than the courts. The richest countries in the world recognise that police and prosecutors should not be financially burdened with an obligation in cases that, for practical reasons, have little possibility of success. Navsa's judgment pays lip service to this idea.
Without the legitimating link of a connector, the investigation of a foreign national outside the territory of the investigating state under international law is at best discretionary.
The appeal court misapplied international law and adopted half-baked reasoning in imposing such an obligation.
The ultimate flaw in Navsa's analysis was his interpretation of universal jurisdiction under South African law as something deduced from the Rome Statute. Zimbabwe is not a party to the statute.
Universal jurisdiction is not given to the International Criminal Court (ICC) or, under complementarity, to the domestic courts. The jurisdiction of the ICC, with the exception of referrals by the United Nations Security Council, is based on a link to a territory or national of a state party.
The judiciary gets its validation from adherence to authority. Judging involves black-letter law, jurisprudence and personal bias. The last-named needs to be controlled, lest it lead to stray rulings, which drain the courts of legitimacy.
Was the appeal court decision motivated by a desire to stick it to the South African or Zimbabwean governments, or the result of judges lacking in depth of reasoning, logic and use of authority?
Professor Ziyad Motala teaches at Howard University's law school in Washington, DC.