Landmark case for international criminal justice in South Africa

 by Christopher Gevers

This past week a South African Court heard a landmark case on the
domestic prosecution of international crimes under the principle of universal
jurisdiction. The case was brought to court by the Southern Africa Litigation
Centre (SALC) following unsuccessful attempts to persuade the National Prosecuting
Authority (NPA) to investigate and prosecute in South Africa 17 Zimbabwean
suspects for torture as a crime against humanity
committed in connection with a raid on
opposition headquarters in Zimbabwe in March 2007. The case was followed
closely by local and international media; and the importance of the case to
SALC was indicated by the fact that it briefed as its counsel three of South
Africa’s leading international and constitutional law lawyers, Wim Trengove SC,
Gilbert Marcus SC and my colleague at the University of KwaZulu-Natal, Max du
Plessis. I was fortunate to act as an adviser to the applicants on the
international legal aspects of the case; and resultantly had an opportunity to
witness the matter first hand as it was argued over the course of 26 to 29
March in Court 2D of the Pretoria High Court, before Judge Fabricius.


On 14 March 2008 SALC hand delivered
a memorandum and docket of information and evidence to the Priority Crimes
Litigation Unit (PCLU) of the NPA. On 19 June 2009, after much hand-wringing by
the NPA, SALC received a response from the head of the NPA advising them that the
docket had been referred to the South African Police Service (SAPS), and that
the SAPS had responded saying they did not intend to investigate the matter –
for reasons that the NPA endorsed. These reasons included issues regarding the
sufficiency of the evidence contained in the docket, 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.

Unhappy with the decision by the NPA and the SAPS, in December 2009
SALC (together with the Zimbabwe Exiles Forum) launched a legal challenge to
the decision not to pursue the matter on the basis that it was irregular and
unlawful under South Africa’s administrative justice principles and contrary to
the rule of law. In its application SALC asked 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.  The respondents cited in the matter were the
head of the NPA (First Respondent), the Director of the PCLU (Second Respondent),
the Director-General of Justice and Constitutional Development (Third
Respondent) and the National Commissioner of Police (Fourth Respondent).

After a year of pleadings being exchanged, the matter was set down
for hearing in the Pretoria High Court last week. On the eve of proceedings the
case took an interesting turn when one of the senior Prosecutors (the Second
Respondent) – who had previously indicated his intention to abide by the
decision of the Court – 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’

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 First Respondent (head
of the NPA) placed considerable emphasis on the apparent insufficiency of the
evidence contained in the docket 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 docket, which castigated SALC for
going too far in its investigations by taking witness statements. This
inconsistency led counsel for the applicants, Trengove SC, to remark that the
respondents were collectively asking for a ‘Goldilocks docket’ in order to investigate:
not too much, not too little.

In any event, the First Respondent 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 docket. On
this basis the First Respondent 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 First Respondent 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
First Respondent 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
First Respondent 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’). Insodoing, 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.
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 docket provided by SALC established a reasonable suspicion that crimes
against humanity had been committed.

The ‘Gordian knot’ of

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

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 First Respondent 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 First Respondent 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 First Respondent 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
First Respondent’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 Fourth Respondent’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
” of presence of the accused is satisfied. Notably, the
Fourth Respondent 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 Fourth Respondent 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 Fourth Respondent,
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

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

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
[2007] 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
(Justice) v. Khadr

[2008] 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.).

Comity-related concerns

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 (as I’ve argued elsewhere) section 4(2)(a) of the ICC
Act 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.

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