An interesting judgment from the Supreme Court of Appeal of South Africa deals with the exercise of universal jurisdiction and the obligation on prosecutors to investigate crimes committed outside the country. It quashes a decision by the public prosecutor who had refused to initiate an investigation into acts of torture perpetrated in Zimbabwe on the ground that there was no connection with South Africa, such as the presence in South Africa of alleged perpetrators.
Congratulations are in order to Max du Plessis and Gilbert Marcus SC of Doughty Street Chambers, who argued the case the Southern Africa Litigation Centre.
The judgment poses the question as follows:
 To those unfamiliar with International Criminal Law, the following instinctive question arises: What business is it of the South African authorities when torture on a widespread scale is alleged to have been committed by Zimbabweans against Zimbabweans in Zimbabwe? It is that question that is at the heart of this appeal. Put simply and hopefully concisely, this appeal concerns the investigative powers and obligations of the NPA and the South African Police Service in relation to alleged crimes against humanity perpetrated by Zimbabweans in Zimbabwe. It involves a consideration of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act). Put jurisprudentially, this appeal concerns the exercise of jurisdiction by a domestic court (and the logically antecedent exercise of investigative powers by the relevant authorities) over allegations of crimes against humanity – in particular, the crime of torture – committed in another country.
The Court concludes:
3.2 It is declared that, on the facts of this case:3.2.1 the [South African Police Service] are empowered to investigate the alleged offences irrespective of whether or not the alleged perpetrators are present in South Africa;3.2.2 the [South African Police Service] are required to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 into the alleged offences.
There is an interesting discussion in the judgment about whether presence on the territory is a prerequisite for the exercise of universal jurisdiction. Noting that legislation and practice in various countries is inconsistent, this judgment holds that it is not.
The judgment may well be correct in concluding that presence is not a requirement for the exercise of universal jurisdiction, and to this extent the Court is justified in correcting the misunderstanding of the prosecution service. It is rather thin, however, in explaining how the right to exercise jurisdiction in this way is transformed into an obligation.
If the South African prosecution service have an obligation to investigate torture in Zimbabwe committed by Zimbabweans who have never set foot in South Africa, does it also have an obligation to investigate Sri Lankans, and North Koreans, and, why not, Donald Rumsfeld and Dick Cheney? Where does this obligation stop? It seems absurd to suggest that it is absolute and without limits, providing the alleged crime takes place somewhere on the planet or in that part of the universe over which earthlings exercise sovereignty.
The other question, that did not directly arise in this case so the Court cannot be faulted for failing to speak to it, is how the prosecution service is to establish its priorities if indeed the obligation exists but is subject to some sort of reasonable limitation. Would the South African Supreme Court view the matter in the same way if this was a case of torture in North Korea, or Sri Lanka, or Guantanamo? There are obvious reasons to link Zimbabwe and South Africa, including a common border. But if the obligation to exercise universal jurisdiction is subject to limits, it seems that a common border may not be the ideal criterion. Should the requirement be that the crimes take place in the region, on the same continent, in the same hemisphere? This is all very vague and not easily subject to formulation of a legal norm that is both logical and viable.
Ultimately, this is the proverbial problem of selectivity, so familiar at the international criminal tribunals but also a feature of the exercise of universal jurisdiction. Presence on the territory or indeed custody of the accused, as is the case in some national legislation, seems to make sense. Moreover, it is consistent with the adage aut dedere aut judicare (prosecute or extradite), which is premised on the notion that the accused is in some way under the control of the state that seeks to prosecute.
It seems that there is lots of judicial energy for the prosecution of torture, as long as it occurs in places like Zimbabwe and Chad. I’m going to be more impressed when we see some international indictments about the torture perpetrated in Iraq and Guantanamo. Senior US officials at the time were responsible. Maybe the South African Supreme Court could do that case next.
Thanks to Max du Plessis.