In the latest judicial ruling to grapple with issues of universal jurisdiction, South Africa’s Supreme Court of Appeal handed down a judgment in late November that could potentially raise concerns among U.S. political and military leaders and their coalition partners. The threat of universal jurisdiction has loomed (sometimes large) over the U.S. prosecution of the conflict with al-Qaeda and associated forces during the last twelve years. As Just Security readers may remember, the reach of Belgium’s original 1993 universal jurisdiction statute and efforts to hold top U.S. leaders responsible for international crimes prompted U.S. Defense Secretary Donald Rumsfeld to threaten to pull NATO headquarters out of Brussels, leading Belgium to amend the statute. More recently, Spain’s universal jurisdiction law was used to file a criminal complaint against the “Bush Six” over their alleged role in the torture of detainees at Guantánamo and other locations. The recent South African decision–in the case of National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre–may provide similar cause for concern among current and former U.S. officials.
This case concerned the investigative powers of the South African Police Service (“SAPS”) in relation to alleged crimes against humanity perpetrated by Zimbabwean officials and police against Zimbabwean citizens in Zimbabwe. According to the allegations, acts of torture (including electric shocks, beatings, and waterboarding) were carried out on “a widespread or systematic basis” primarily against the political opponents of Zimbabwe’s ruling party. The Court held that, on the facts, the SAPS are required to initiate an investigation into the allegations under the South African Implementation of the Rome Statute of the International Criminal Court Act 2002 (“ICC Act”). Moreover, in a declaration that could have far-reaching impact beyond the facts of this case, the Court held that “the SAPS are empowered to investigate the alleged offences irrespective of whether or not the alleged perpetrators are present in South Africa.”
In reaching this conclusion, the Court examined (i) the question of jurisdiction under international law; (ii) South Africa’s obligations under the Rome Statute and the domestic ICC Act; and (iii) the practice of other State Parties to the ICC in exercising domestic jurisdiction over international crimes. The Court noted that the ICC Act allows for a prosecution for extra-territorial conduct in certain prescribed circumstances: where the perpetrator or victim is a South African citizen or where the perpetrator is “present in” or “ordinarily resident in” South African territory. In this regard, South African law is consistent with multilateral treaties prescribing international crimes—such as the Geneva Conventions, the Torture Convention, and a range of terrorism treaties—and the domestic law of a number of states, including the United States. That said, the Court held that “there is no universal rule or practice against the initiation of investigations in the absence of alleged perpetrators” with regard to crimes set out in the Rome Statute, in anticipation of the presence of the accused.
However, the Court identified one practical limitation to this expansive approach, namely, “if there is no prospect of a perpetrator ever being within [South Africa], no purpose would be served by initiating an investigation.” The Court concluded:
[68] It is not for this court to prescribe … how the investigation is to be conducted. … No doubt, in conducting that investigation, the SAPS will consider issues such as the gathering of information in a manner that does not impinge on Zimbabwe’s sovereignty. The SAPS is free to consider whether a request should be made to Zimbabwean authorities for a prosecution to be initiated there. It should also be left to the SAPS to consider a request for extradition or investigative assistance from the Zimbabwean authorities should they deem that to be necessary. In this regard, considerations of comity and subsidiarity will intrude, as of course will anticipated presence of the perpetrators in this country and resource allocation.
So, should U.S. leaders and officials be worried? The prospect of South Africa being used as a potential forum to bring complaints against U.S. officials, particularly regarding torture, may not be as remote as one might first think. Earlier this year, Lawfare’s John Bellinger reported on an (unsuccessful) attempt by a local group to have President Obama arrested and prosecuted for war crimes relating to drones, Guantanamo Bay, and extraordinary renditions. It is unclear how a domestic court will handle a future complaint of this kind following the Supreme Court of Appeal’s reasoning in this case. On the one hand, the Court’s concluding remarks appear to accommodate the issues of state sovereignty, comity, and subsidiarity. Yet the Court did not acknowledge concerns of the Government over the political impact of an investigation, notably on the South African President’s role as mediator between the ruling and opposition parties of Zimbabwe. Essentially, the Court did not defer to the Executive despite the President’s responsibility for mediating the political crisis in Zimbabwe, a role to which he was specially appointed by the South African Development Community.
A potential suit implicating current or former U.S. officials may still be treated differently than one against a neighboring pariah state causing significant unrest in the region. The practical limitations of conducting an investigation into matters in comparatively remote locations, such as Afghanistan or Iraq, will naturally be weighed more carefully than one across state borders. And the potential adverse impact on foreign relations may be treated more cautiously with regard to a world power. Nevertheless, the South African judiciary is an important opinion leader. Last week’s ruling could become a trend-setter for other countries. And at the very minimum, the Court’s ruling should be viewed as a significant contribution to the efforts toward, what the Court termed, the “increased consciousness of human rights and fighting impunity.”