By: Richard A. Goldstone, Former
Justice, Constitutional Court of South Africa, First Chief Prosecutor of the
International Criminal Tribunal for Yugoslavia, and Regular Columnist,
International Judicial Monitor
Modern international criminal law
recognizes universal jurisdiction for the most serious international atrocity
crimes. These include genocide, crimes against humanity, and torture. Such
jurisdiction does not require that the crimes be committed within the
territorial jurisdiction of a domestic court or, indeed, that they be committed
by or against nationals of the country in which the court is situate. However,
most nations that recognize universal jurisdiction insist that, in order to be
put on trial, the defendant be physically within their jurisdiction. South
Africa is one such country. In other words, trials in the absence of the
defendant are not permitted. However, there is no uniformity of practice with
regard to the necessity for suspects to be present in the country at the time
an investigation is launched
Universal jurisdiction has been
recognized in a number of countries. Thus, for example, courts in Canada,
Belgium, Switzerland and The Netherlands have convicted Rwandans for crimes
relating to the genocide committed during 1994 in Rwanda. There are proceedings
in Senegal against the former Chadian dictator, Hissène Habré, for international
crimes allegedly committed between 1982 and 1990 when he was President of Chad.
In all of those cases the defendants were physically within the jurisdiction of
the respective courts.
In a recent South
African decision, (National Commissioner of the South African Police Service v
Southern African Human Rights Litigation Centre, [2013] ZASCA 168),
the Supreme Court of Appeal was confronted with a claim that the national
prosecution authorities were empowered to investigate serious allegations of
torture allegedly committed in Zimbabwe by Zimbabwe government officials
against Zimbabweans. The claim was brought by two non-governmental
organizations, the South African Litigation Center and the Zimbabwe Exiles
Forum. They relied on the provisions of legislation promulgated by the South
African Parliament pursuant to its ratification of the Rome Statute for the
International Criminal Court (Rome Statute of the International Criminal Court
Act of 2002 (the Act)). That legislation recognizes that the crimes defined in
the Rome Statute are also crimes under South African law. The South African
authorities failed to launch the investigation that was requested of them. They
denied that they had legal capacity to do so.
The Court held, with
reference to the Act, that “the alleged conduct complained of is a crime in
terms of our law.” . . . notwithstanding that it was allegedly committed
extraterritorially. The Court noted that the legislation is silent on whether
an alleged perpetrator is required to be present within the country at the time
an investigation is initiated. It said that “adopting a strict presence
requirement (in respect of investigations) defeats the wide manner in which our
legislation is framed and does violence to the fight against impunity.” It
accepted, however, that there would be no point in initiating an investigation
if there were no reasonable prospect of the perpetrators being present in South
Africa. Some of the alleged perpetrators had visited South Africa in the then
recent past. On the facts presented to it, the Court declared that prosecuting
authorities were empowered to investigate the alleged offenses irrespective of
whether or not the alleged perpetrators were present in South Africa at the
time. It held further that in the case before it, the authorities were required
to initiate an investigation into the alleged offenses. Leave is presently
being sought to appeal the judgment to the Constitutional Court.
International
Judicial Monitor