The importance of the judgment is that it provides greater clarity on South Africa’s duty to investigate and where necessary, prosecute, genocide, crimes against humanity and war crimes as provided for in the Implementation of the Rome Statute of the International Criminal Court Act (ICC Act). It also has obvious implications for the country’s foreign policy – especially in relation to the protection and promotion of human rights. 

The judgment came as an appeal by the National Commissioner of the South African Police Service (SAPS) against a decision from the Supreme Court of Appeal (SCA) (and the High Court of first instance), which held that the SAPS has a duty to investigate allegations of torture committed by officials of the Government of Zimbabwe, in Zimbabwe, against fellow Zimbabwean nationals. This duty, the SCA held, was in accordance with the ICC Act, which domesticates and incorporates the Rome Statute of the International Criminal Court (the Rome Statute) into South African law.

The facts briefly are that in March 2007, a year before national elections were held in Zimbabwe, Zimbabwean police – allegedly acting on the instructions of the ruling political party, Zimbabwe Patriotic Front (ZANU-PF) – raided the headquarters of the main opposition party, the Movement for Democratic Change (MDC). More than 100 people were taken into custody. They were detained for several days where they were allegedly subjected to torture, and under duress, forced to admit their supposed involvement with the MDC. Zimbabwean lawyers, medical practitioners, and family members of the victims corroborated the torture allegations.

The Southern African Litigation Centre (SALC), a non-governmental organisation, briefed by Zimbabwe Exiles’ Forum, assembled the evidence related to the alleged acts of torture into a dossier which was then hand delivered to the Priority Crimes Litigation Unit, a unit within the National Prosecuting Authority (NPA). The dossier also contained a memorandum outlining the substance and procedure of prosecuting crimes against humanity. The memorandum – in presenting the evidence – also requested the NPA to decide whether to begin the torture investigations under the ICC Act. The SALC also offered to assist with the provision of evidence regarding international law regarding the alleged torture.

In deciding the appeal, the crux for the Constitutional Court was whether, in view of South Africa’s domestic obligation, the SAPS had a duty to investigate crimes against humanity. The Court considered section 231(4) of the Constitution which provides that any international agreement becomes law when it is enacted into law by national legislation. Further, section 232 states that customary international law is law in the Republic, unless it is inconsistent with the Constitution or an Act of Parliament.

The Court also considered jurisdiction under international law and concluded that in order for universal jurisdiction to be established, three important considerations must be taken into account. First, there has to be a sufficient link between the subject matter and source of the jurisdiction; secondly, the principle of non-intervention in the domestic affairs or territorial jurisdiction of other states should be observed; and thirdly, that accommodation, mutuality and proportionality should be applied. This means that there should be a legitimate interest in an activity – in this case the torture allegations – which constitutes a crime against humanity under international law. States have sovereignty over their own territories and should not otherwise intervene in the internal affairs of other states.

The Court then considered the fact that the Rome Statute and international criminal law were premised on the principle of complementarity, meaning that the International Criminal Court (the ICC) will only undertake investigations and prosecutions as a court of last resort where states parties are either unwilling or unable to do so. The primary responsibility to investigate and prosecute international crimes remains with states parties. Where a country which has not signed the Rome Statute fails to launch investigation where crimes have been committed, then perpetrators can still be brought to justice through the investigation and prosecution of the crimes by states parties which have signed the Rome Statute.

The Court also considered that the main goal of the ICC Act is to establish extraterritorial jurisdiction, thus enabling prosecution of persons having committed atrocities criminalised by the Rome Statute (such as torture) outside of the borders of the country, in South African courts or the ICC. International law prohibits torture in totality. Accordingly, states, even where they are not bound by international treaty law, are required to suppress torture. As such, torture – as an act prohibited by international customary law – is a crime in South Africa by virtue of section 232 of the Constitution. In addition, the Convention against Torture, of which South Africa is a signatory, obliges states parties to “ensure that all acts of torture are offences under its criminal law”. To this end, the Prevention and Combating of Torture Act has been enacted in South Africa. As such, torture is criminalised under section 233 of the Constitution as well as the Torture Act, while torture on the scale of crime against humanity is criminalised under section 232 of the Constitution, the Torture Act and the ICC Act. Additionally, regional and sub regional treaties such as the African Charter on Human and Peoples Rights as well as the SADC Protocol on Mutual Legal Assistance permit South Africa to take the necessary steps against crimes against humanity such as torture.

In answering whether the alleged perpetrators needed to be present in the country in order for an investigation of international crimes to begin, the Court considered section 4 of the ICC Act which inter alia provides that the alleged perpetrators must be a citizen of, or ordinarily resident in, or must have committed the crime against a citizen or a person ordinarily resident within the country, or must be present in the country after the offence. The SAPS contended that that they had no duty to investigate the alleged torture in Zimbabwe as the suspects were not present in South Africa. On this, the Court held that this only true for the prosecution of crimes in South Africa rather than at investigation stage. The Court aligned its reasoning with that of the Rome Statute which distinguishes between investigations and prosecution.

The Court also underscored the SAPS’s duty to investigate international crimes as contained in section 205(3) of the Constitution which states that “The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law”. Section 17C(1) of the South African Police Service Act  established in terms of section 205(2) of the Constitution established the Directorate for Priority Crimes Investigation whose role, according to section 17D(1)(a) of the SAPS Act is to investigate national priority offences, which includes the crimes against humanity such as torture.

The Court held that the SAPS has both the power and the duty to investigate allegations of torture, the duty arising from the Constitution, read with the ICC Act which must be interpreted in relation to international law.

While finding that the SAPS has an obligation to investigate crimes against humanity, including acts of torture committed outside the country, the Court stressed that this universal jurisdiction was not absolute, but could be limited. Where the country with jurisdiction is unwilling or unable to prosecute, then investigating international crimes committed abroad is permissible. In this matter, the Court stated that Zimbabwe had not been asked to investigate the crime but that it was “very unlikely” that the Zimbabwean police would have pursued the investigation. Another limitation on jurisdiction considered by the Court was the notion of practicability in that South Africa must consider whether it is reasonable and practicable to embark on an investigation into an international crime committed outside its borders. This has to be on a case-by-case basis. The most important considerations would be whether the investigation is likely to lead to a prosecution and also whether the alleged perpetrators are likely to be in South Africa. The ultimate decider though, is whether the SAPS acted reasonably in declining to investigate crimes against humanity committed in another country. The Court held that the SAPS failed to appreciate its legal duty in terms of the SAPS Act, and the ICC Act, as interpreted in accordance with binding international law, as prescribed by section 233 of the Constitution.

This decision sets out key principles regarding the application of international law within South Africa. While reiterating important principles of international criminal law – especially regarding ending impunity for crimes against humanity – the decision also limits the instances in which South Africa can involve itself in the affairs of other states. Furthermore, the decision shows how international law should guide the behaviour of states in matters regarding investigation and prosecution of crimes against humanity and other international human rights violations. Importantly, it reflects the notion that torture is so intolerable that it offends the sensibility of every human being. It also firmly reiterates South Africa’s duty in terms of the Constitution and its international law obligations, to ensure that perpetrators of this crime do not escape the law and that South Africa does not turn a blind eye to human rights violations wherever they may be committed in the world. 

by Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights

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