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The Application of Universal Jurisdiction in South African Law

Published on April 24, 2012        Author: 

Christopher Gevers is a Lecturer in the School of Law, University of KwaZulu-Natal, South Africa. He is author of the War and Law Blog.

One of the contentious issues that arises in debates about universal jurisdiction is whether international law allows for what has been called “universal jurisdiction in absentia”. The question is whether a State may initiate criminal proceedings, for international crimes, against persons who are not present within the territory of the prosecuting State? Usually, the initiation of the proceedings is followed by the issuance of an international arrest warrant or a request for extradition. In 2002, the judges of the International Court of Justice split on the question of universal jurisdiction in absentia in the Arrest Warrant Case. [See Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, (2004) 2 Journal of International Criminal Justice 735]. In March, precisely ten years after the Arrest Warrant case, a South African Court heard a landmark case on the domestic prosecution of international crimes which raises the issue of whether domestic proceedings may be initiated under the principle of universal jurisdiction with regard to persons outside South Africa. The case was brought to court by the Southern Africa Litigation Centre (SALC) following unsuccessful attempts to persuade the South Africa’s National Prosecuting Authority (NPA) to investigate and prosecute, in South Africa, 17 Zimbabwean suspects for torture as a crime against humanity. The torture was allegedly committed in connection with a raid on opposition headquarters in Zimbabwe in March 2007.

Background

In June 2009, over a year after receiving a complaint from the SALC, the South African Police Service (SAPS) and South Africa’s National Prosecuting Authority (NPA) decided not to investigate the matter. The reasons given for the decision, included issues regarding the sufficiency of the evidence, ostensible problems in obtaining further evidence from Zimbabwe, concerns over whether South Africa’s authorities had jurisdiction in respect of the investigation, and the fear of undermining Zimbabwe’s sovereingty.

In December 2009, SALC launched a legal challenge asking the Court to set aside the decision not to open an investigation and to order that the matter be remitted to the authorities for them to reconsider the decision. Read the rest of this entry…