International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2014 Issue

Global Judicial PERSPECTIVe

Universal Jurisdiction: A Growing Legal Phenomenon

Richard J. Goldstone

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.


Regardless of the outcome of the appeal, this case demonstrates the development in recent years of the doctrine of universal jurisdiction and the reach of the principle of complementarity that is enshrined in the Rome Statute. That principle recognizes that a domestic court is the most appropriate forum for the prosecution of international crimes. The International Criminal Court is a court of last instance and has no jurisdiction unless there is no domestic court having jurisdiction over the perpetrators that is willing and able to prosecute the alleged crimes.

The decision of the South African court correctly recognized that the system established by the Rome Statute is intended to bring an end to impunity for atrocity crimes and to that end requires all Member States to act as best and efficiently as they are able to rein in alleged perpetrators of these heinous crimes. The courts of Zimbabwe are notoriously unwilling to secure accountability for the crimes that have been committed by government officials over many years. In these circumstances, according to the Supreme Court of Appeal, South African authorities are empowered to initiate investigations in anticipation of the anticipated presence in the country of the suspected perpetrators. There was no claim for any investigations to be conducted outside South Africa and the non-governmental organizations offered to make the victims and witnesses available in South Africa.

This innovative and welcome decision by the South African Supreme Court of Appeal should be viewed in the context of criticism by the African Union and some African nations of the International Criminal Court on the basis that it has demonstrated a bias against African states. Domestic courts in Africa should be encouraged to exercise universal jurisdiction in appropriate cases against nationals of other African states. In that way they could ensure that impunity is denied those who might be guilty of atrocity crimes and who are present or anticipated are likely to be present within the jurisdiction of such state. Complementarity should be a shared global responsibility.

The decision should also be viewed in the context of the objections by some who stand opposed to the exercise by domestic courts of universal jurisdiction. They view it as being inconsistent with the sovereignty of nations. However, strict application of sovereignty has been increasingly diminished during the past five or six decades. As crimes against humanity and other atrocity crimes have proliferated so the global community has recognized the necessity for intervention to protect threatened citizens in oppressive societies. This began with the wide opposition to Apartheid in South Africa. It has matured into the doctrine of the responsibility to protect that was unanimously endorsed at the 2005 World Summit.

It is to be hoped that the approach of the South African court will be followed by the courts of other nations that share a commitment to bring justice to the many tens of thousands of victims of international criminality.

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© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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