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.
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.
On the eve of proceedings, the case took an interesting turn when one of the senior Prosecutors deposed to an affidavit that alleged he had been sidelined within the NPA because of his view that the SAPS’s reasons for refusing to initiate an investigation were flawed.
Arguments before the Court
A large portion of the arguments were directed at the domestic legal aspects of the application, in particular (i) the standing of the applicants; (ii) the competence of the Court to review the decision of the NPA not to prosecute (based on the acceptance of the police decision not to investigate); and (iii) the correct division of responsibilities between the NPA and the police in respect of the investigation of international crimes. Those arguments, while interesting, are not the focus of this post. Suffice it to say that, in my opinion, none presented an obstacle to the success of the applicants’ case.
Rather, I’d like to focus on what I consider the three most interesting aspects of the case: the sufficiency of evidence, the question of jurisdiction and the comity-related concerns.
The sufficiency of evidence for the purposes of investigation
In his written submissions to the Court, the head of the NPA placed considerable emphasis on the apparent insufficiency of the evidence contained in the complaint handed over by SALC as a basis for an investigation and possible prosecution. This line of argument was somewhat contradicted by the police’s response to the complaint, which castigated SALC for going too far in its investigations by taking witness statements. This inconsistency led counsel for the applicants to remark that the respondents were collectively asking for a ‘Goldilocks complaint’ in order to investigate: not too much, not too little.
In any event, the NPA argued that, in the absence of domestic law in respect of the appropriate standard of evidence required to initiate an investigation, the Rome Statute provisions on sufficiency of evidence had been followed by the NPA in its consideration of the complaint. On this basis the NPA went on to cite a number of cases from the ICC and the ICTY relating to the sufficiency of evidence. However, in doing so counsel for the NPA failed to distinguish between the different evidentiary burdens that apply at different stages of proceedings. For example, he cited case-law from the confirmation of charges phase (The Prosecutor v. Bahar Idriss Abu Garda and The Prosecutor v. Callixte Mbarushimana), and from the trial phase (Prosecutor v Lubanga).
In doing so, the NPA placed considerable reliance on the Abu Garda and Mbarushimana confirmation of charges decisions, but did not cite the Kenya Authorisation Decision, where the Pre-Trial Chamber considered in some detail the evidentiary basis necessary for the initiation of an investigation. Nor did he cite articles 15(2) and 53(1)(a) of the Rome Statute. By doing so the NPA pushed into service the higher evidentiary burden for the confirmation of charges (‘substantial grounds to believe’), rather than the appropriate standard for the commencement of an investigation (‘reasonable basis to believe’). In so doing, the applicants argued that the NPA had committed one amongst many material errors of law in deciding to accept the police’s decision not to initiate an investigation. Nor, incidentally, would it have been wise for the NPA to rely on the appropriate evidentiary standard, as it was conceded by the respondents in the papers that the complaint provided by SALC established a reasonable suspicion that crimes against humanity had been committed.
The ‘Gordian knot’ of jurisdiction
The parties’ submission on jurisdiction were aimed at answering three separate questions: First, whether and on what basis South African courts would be able to exercise ‘universal jurisdiction’ over the crimes in question. Second, whether it was necessary for South African courts to have jurisdiction in order for the police to investigate the crime. Third, whether the investigation of crimes that took place in Zimbabwe would violate that country’s sovereignty.
The first question turned on the correct interpretation of the jurisdictional clauses of South Africa’s Implementation of the Rome Statute Act 27 of 2002 (the ICC Act). Section 4(1) of the ICC Act states:
‘Despite anything to the contrary in any other law in the Republic, any person who commits [an international] crime, is guilty of an offence.’
Then, section 4(3) states:
‘In order to secure the jurisdiction of a South African court for purposes of this Chapter, any person who commits [an ICC] crime outside the territory of the Republic, is deemed to have committed that crime within the territory of the Republic if –
(c) that person, after the commission of the crime, is present in the territory of the Republic’
In their submissions on jurisdiction, the applicants relied on the distinction between prescriptive and enforcement jurisdiction. Accordingly, section 4(1) of the Act prescribes international offences as crimes under South African law and does so without any reference to the locale of the crime or the presence of the accused. By contrast, section 4(3)(c) sets out the conditions under which South African courts can exercise enforcement jurisdiction over the crimes. While accepting that courts cannot exercise enforcement jurisdiction over the crimes until the person is present in the Republic, the applicants rejected the construction that South Africa’s prescriptive jurisdiction over such crimes was similarly conditioned on the presence of the accused. This must be the case, according to the applicants, because: (i) if it were not it would create an absurd situation where a crime was inserted into South Africa’s criminal law when the accused appeared, and then deleted therefrom should he leave the Republic, and (ii) were the crime only prescribed at the time of the accused entry into the Republic it would violate the principle of legality in that it would amount to a retroactive application of criminal law. This would not only offend South Africa’s international human rights obligations, but also violate the South African Constitution, which contains a prohibition on retroactive application of criminal law.
Therefore, according to the applicants, it is incorrect to say that South African courts do not have jurisdiction over these crimes until the accused is present in the Republic. Rather under section 4(3)(c) the enforcement of such jurisdiction was merely subject to the same territorial limitations as other ‘traditional’ bases of jurisdiction. On this reasoning it was preferable, said the applicants, to understand section 4(3)(c) as motivated by the South African legislature’s concern to avoid trials in absentia.
The respondents’ arguments on jurisdiction were difficult to follow. While the NPA appeared to abandon his jurisdiction points in oral argument, in the NPA’s written submissions the distinction between prescriptive and enforcement jurisdiction was accepted in principle.
However, instead of turning to section 4(1) as the basis for the Court’s prescriptive jurisdiction, the NPA argued:
“We submit that section 4(3) [the enforcement jurisdiction clause] should be interpreted as defining the circumstances under which South Africa will exercise extraterritorial jurisdiction. In this regard we submit that the initiating of an investigation would be the first step in the exercise of such jurisdiction. The reference to the crime being deemed to have been committed in South Africa once the jurisdictional facts set out in the section had been established is also indicative of the fact that the investigation should be initiated on the basis of the establishment of these facts”.
This passage is not easily deciphered. One interpretation is that the NPA understands section 4(3)(c) as setting out the conditions under which jurisdiction will be exercised – i.e. enforcement jurisdiction. However, if this is the case then the prescriptive basis of the crimes lies in some alternate, unspecified provision. Another interpretation is that – notwithstanding the previous passage, and the NPA’s recognition of the different forms of jurisdiction – both prescriptive and enforcement jurisdiction are conditioned on the presence of the accused, as is the initiation of an investigation.
The National Commissioner of Police’s argument on jurisdiction was simpler: section 4(3)(c) of the Act set out the conditions under which South African courts can exercise jurisdiction over crimes committed abroad, and that provision confers jurisdiction on condition that the “rationes jurisdictionis” of presence of the accused is satisfied. Notably, the Police Commissioner did not distinguish between prescriptive and enforcement jurisdiction, meaning that in effect the crime is only substantively prescribed once the person enters the Republic, at which point such jurisdiction can also be enforced. Further, according to the Police Commissioner attempts by the applicants to initiate an investigation without the presence of the suspects violated the choice by South Africa’s legislature to adopt a conditional rather than absolute form of universal jurisdiction. According to the Police Commissioner, the absence of jurisdiction was not only fatal to the applicants’ substantive claim, but also vitiated their standing to bring the case before the courts at all!
The second, related question was whether the police’s power to investigate international crimes is contingent on South African courts having jurisdiction over the crimes. Simply put, do the jurisdictional requirements of section 4 of the ICC Act have to be met in order for the police to initiate an investigation?
The applicants argued that the police’s power to investigate crimes was not territorially limited. In effect, they argued that the police were empowered by the Constitution and the domestic legislation governing the South African Police Service to open an investigation based on the ‘anticipated presence’ of a suspect in the territory of the Republic of South Africa. Furthermore, or in any event, the applicants argued, if one accepts that section 4(1) of the ICC Act makes ICC offences criminal within the Republic when they are committed (regardless of their locale) then they are ‘crimes’ within the Republic for the purposes of investigation regardless of whether the conditions for their prosecution before a court (i.e. presence) are met.
Finally, in their submissions the respondents placed considerable reliance on the supposition that any investigation into crimes committed in Zimbabwe by South African police would per force violate that country’s sovereignty. The applicants countered this by arguing that even if conducting investigations on Zimbabwean soil without consent would violate its sovereignty: (i) conducting an investigation within South Africa over events that took place abroad would not impact upon Zimbabwe’s sovereignty; and (ii) if authorities wanted to investigate crimes on the territory of Zimbabwe they could in any event do so by mutual legal assistance requests to the relevant authorities.
Both the applicants and the respondents relied on the Canadian Supreme Court decision in R. v. Hape  2 S.C.R. 292, 2007 SCC 26 in support of their contentions on this point, with the applicants also citing the subsequent decision in Canada (Justice) v. Khadr  SCC 28. I have my doubts about the usefulness of Hape and Khadr in this regard, aside from setting out the general rules relating to the exercise of extraterritorial jurisdiction and the broad principle (relied on by the applicants) that deference required by the principle of comity “ends where clear violations of international law and fundamental human rights begin” (Hape, at paras. 51, 52 and 101, per LeBel J.).
Equally interesting, though less laudable to some, were the arguments raised by the state regarding the political considerations of the proposed investigation and any resultant prosecutions. Arguments of this species appeared throughout the papers, implicitly and explicitly. They concerned not only the effect of such action on inter-state relations, and in this regard South Africa’s role as the SADC mediator in Zimbabwe was specifically raised, but also the effect on relations between functionaries of the police forces of South Africa and Zimbabwe. While these arguments overlap with the sovereignty-based arguments, they are distinct in that they maintain that South Africa ought not investigate the crimes in Zimbabwe for policy reasons, not that they are legally prohibited from doing so under the principle of sovereign equality.
The consideration of these arguments split into two distinct enquiries: (i) whether such considerations are relevant; and (ii) at which stage (and by whom) these should be considered.
The applicants argued that it was not the task of the police, at the investigatory phase, to raise these foreign policy considerations as an excuse not to investigate. If indeed these foreign policy considerations are relevant at all, then they are to be considered by the head of the NPA, with advice from the Ministry responsible for international relations, at a later stage in the proceedings.
In any event, as the applicants argued, arguments of this nature are precursors to an immunity claim which some (though not all) of the suspects might be entitled to raise at a latter stage should prosecutions be undertaken. However, as I’ve discussed elsewhere, the consensus appears to be that the ICC Act has pre-empted such arguments through the inclusion of section 4(2)(a), which provides that notwithstanding “any other law to the contrary, including customary and conventional international law, the fact that a person … is or was a head of State or government, a member of a government or parliament, an elected representative or a government official … is neither – (i) a defence to a crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime”.
Most commentators have interpreted this provision as removing personal immunity of foreign officials before South African courts. Based on this understanding, the applicants argued it would appear nonsensical for a court to allow considerations of comity to derail an investigation into the commission of international crimes, when the legislature has expressly negated the relevance of comity at the prosecution stage through the removal of personal immunity. (That argument would lose its force significantly if section 4(2)(a) of the ICC Act merely removes the functional immunity of persons tried under the Act, and does not address personal immunity per se.) Additionally, the applicants contended that various other provisions of the ICC Act – not least of all the Preamble – suggest that the consideration of comity as a basis for non-investigation is inimical to South Africa’s commitment to combat impunity for international crimes.
Following three days of argument the Court reserved judgment. It remains to be seen which peg the Court will decide to hang its decision on. The nature of a review application is such that the Court might choose not decide every issue raised by the applicants in respect of the impugned decision. In fact, it need only find fault with one as a basis for concluding that the decision must be set aside. The upshot of this is that should the Court find in favour of the applicants, it might base its decision on an isolated misdirection of law, or a misconstruction of authority by one or more of the respondents, and leave the more interesting (and admittedly more vexed) questions of jurisdiction and comity unanswered.
Having witnessed the judge’s handling of the case, I would certainly not characterize him as a shrinking violet, quite the contrary. Equally so, it was clear that he had a complete and considerable grasp of all of the complex issues raised by the parties, as well as the significance of the case both from the perspective of the victims, and its broader context. All this augurs well for those of us looking for a wide-ranging, precedent-setting judgment fitting of the inaugural judicial pronouncement on South Africa’s ICC Act.