The Unexceptional Nature of the South African Universal Jurisdiction Law

In the wake of the moving funeral of Nelson Mandela, we have reported on the recent ruling of the South African Supreme Court of Appeal mandating that the National Prosecution Authority (NPA) and Police Service (SAP) investigate crimes against humanity committed by security forces in neighboring Zimbabwe (crimes that are documented in disturbing detail here (Amnesty International), here (Human Rights Watch), and here (Zimbabwean documentation center)).

As we contemplate the recent ruling, we should bear in mind that the 2002 statute in question—South Africa’s Implementation of the Rome Statute of the International Criminal Court (“Act”)—does nothing particularly unusual when it empowers South African courts to exercise universal jurisdiction (UJ) over the core international crimes of genocide, crimes against humanity, and war crimes.  Nor does it depart substantially from analogous statutes under U.S. law, as noted by Ruchi Parekh in her recent post and as will be discussed in a subsequent post. In addition, it is a standard practice for prosecutorial authorities to investigate potential crimes even when the defendant is not contemporaneously in the forum (although many systems do not allow trials to proceed in absentia, unless the defendant has absconded).  Where the judicial ruling is somewhat unique is that it mandates investigation of these crimes, rather than leaving the decision entirely to prosecutorial discretion, although the court made clear that moving to the prosecutorial stage would require a consideration of a host of issues, including international comity.

The extent to which rulings such as that of the South African court present a genuine risk to U.S. personnel will also be discussed in a subsequent post.  For now, it should be noted that the Act and the court’s interpretation thereof reflect a clear commitment to ensure that individuals deemed responsible for the most serious crimes under international law do not enjoy impunity. In this respect, the Act and the recent ruling should be celebrated—and emulated.  These legal developments are in many ways a reflection of Mandela’s inspiring legacy as articulated by President Obama at Tuesday’s funeral: the transformation of South Africa from a pariah state into a state dedicated to providing human rights and justice for all people.

The South African Statute

After playing a central role in the drafting of the Rome Statute creating the International Criminal Court, South Africa ratified the ICC treaty in November 2000, becoming one of the 60 states necessary to bring it into force in July 2002.   The South African Implementation Act indicates that it is intended to create a framework for ensuring the “effective implementation of the Rome Statute of the International Criminal Court” and is an expression of South Africa’s commitment to bring to justice persons who commit atrocities.   To this end, the Act criminalizes the three core ICC crimes—war crimes, crimes against humanity, and genocide—consistent with the ICC Statute’s definitions of the crimes.  It rejects any form of head of state and foreign official immunity and provides that South African courts have jurisdiction over individuals accused of committing one of the three ICC crimes if they:

• Are a South African citizen (active nationality jurisdiction);
• Are ordinarily resident in South Africa (modified active nationality jurisdiction);
• Are present in South Africa (modified universal jurisdiction);
• Committed a crime against a South African citizen or resident (passive personality jurisdiction).

Oversight over such prosecutions is provided by the National Director of Public Prosecutions, who must consent to a case going forward, taking into account

the obligation that the Republic, in the first instance and in line with the principle of complementarity …, has jurisdiction and the responsibility to prosecute persons accused of having committed [such] crimes…

The National Director must provide a reasoned decision if she declines to go forward with a prosecution.  The Act also creates a framework for providing a range of forms of cooperation to the Court, including through the arrest and transfer of suspects and responding to evidentiary and other requests for assistance.

The Obligation To Domesticate ICC Crimes

Only parts of the South African Act were mandated by the ICC Statute.  In particular, there is no express requirement within the ICC treaty obliging states parties to penalize ICC crimes.  The treaty’s Preamble merely:

• affirms that serious international crimes should be effectively prosecuted by “taking measures at the national level” and “enhancing international cooperation”;
• recalls that “it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes”; and
• emphasizes that the ICC is to be “complementary to national criminal jurisdictions”.

These preambular provisions recall pre-existing obligations under general international law rather than create new treaty-based obligations.  Indeed, the second clause is directed at “every State” (vice “states parties”), implying that no new duties are created by the Rome Statute.  And, while this language calls for domestic prosecutions, it falls just shy of an express endorsement of the exercise of universal jurisdiction (UJ) over ICC crimes.

In only two areas does the Rome Treaty mandate that states parties enact domestic legislation:

1. The first is contained in Articles 88 and 89 and concerns state cooperation, requiring states parties to create procedures within their national law to enable cooperation with the Court, especially with respect to the arrest and surrender of suspects.
2. The second is contained in Article 70(4)(a) and creates an obligation to assert jurisdiction over offences against the administration of justice.

Both sets of state party obligations were on display during the impressive intercontinental arrest operation coordinated with the governments of France, the Netherlands, Belgium, and the Democratic Republic of Congo of individuals accused of witness and evidence tampering in the ICC’s Central African Republic case (discussed here).

All that said, as a practical matter, many states have harmonized their penal codes with the ICC statute upon ratifying the treaty, if only to allow themselves to take advantage of the principle of complementarity.  According to this principle, which is at the foundation of the Rome Statute system of international justice, the ICC will only assert jurisdiction if the case is not going forward in a domestic court with jurisdiction.  In drafting implementing legislation, many state legislatures have asserted universal jurisdiction over these crimes consistent with customary international law, which permits the exercise of universal jurisdiction over these crimes, and their other treaty obligations.  Unlike the Rome Statute, several other international criminal law treaties actually require states parties to exercise UJ over the crimes they prescribe, including the Geneva Conventions (war crimes committed in international armed conflicts), the Torture Convention, the Apartheid Convention, and a range of terrorism treaties, including the most comprehensive treaty outlawing terrorist bombings.

The Prevalence of Universal Jurisdiction Statutes Worldwide

The South African Act is thus consistent with many other UJ statutes around the world.  Indeed, Amnesty International, in a massive survey of state legislation completed in 2012, reports that almost 90% of states manifest the ability to exercise some form of UJ over individuals accused of committing one or more of the core international crimes: war crimes, crimes against humanity, or genocide.  Although the most comprehensive study of its kind, the AI data are arguably over-inclusive because the report counts those states that exercise UJ over any one constitutive act of one of the three crimes.  So, for example, AI counts the United States as exercising universal jurisdiction over war crimes because we can exercise UJ over the recruitment or use of child soldiers, torture, and acts of terrorism that may also amount to war crimes if committed within the context of an armed conflict.  Our general war crimes statute (18 U.S.C. § 2441), however, reaches only those war crimes committed by, or against, U.S. nationals and members of the U.S. armed forces (the nationality principles).  (U.S. law on UJ will be discussed in more detail in a subsequent post).

Although there are multiple ways to tally relevant statutes, it remains accurate to say that there is a distinct upward trend in the degree to which states are incorporating atrocity crimes into their domestic codes and empowering their courts to exercise various forms of extraterritorial jurisdiction.  As noted, much of this trend is attributed to the ratification of the Rome Statute.  In terms of specific crimes subject under national laws to UJ:

• Upwards of 70% of states have a war crimes statute.  Of these, there is some variation with respect to war crimes committed in international armed conflicts (IACs) and non-international armed conflicts (NIACs).  This distinction reflects the fact that the Geneva Conventions require codification only with respect to the former.  Thus, only 47% of states criminalize war crimes in NIACs.  Of these, however, 70% manifest UJ or some form of modified UJ over war crimes committed in NIACs.  Although the Geneva Conventions do not mandate the assertion of UJ over war crimes committed in NIACs, such assertions of extraterritorial jurisdiction are permissive under international law.
• The second most prevalent international crime in terms of codification is genocide, with approximately 60% of states codifying the crime.  Of these, another 60% of states are empowered to exercise UJ over the crime, even though the Genocide Convention only requires states parties to prosecute acts of genocide committed on their territories.
• About half of the world’s states have incorporated crimes against humanity into their codes, notwithstanding the lack of a treaty dedicated to the crime besides the Rome Statute.  Of these, about 40% can exercise UJ over at least one enumerated CAH.
• Many states also allow for the exercise of UJ over acts of torture, terrorism, and even ordinary crimes, such as murder.

There are a number of national statutes allowing for the exercise of “pure” universal jurisdiction—jurisdiction where there is no link between the defendant, the victim, or the crime to the prosecuting state.  More modern statutes, by contrast, increasingly contain a combination of limitations and/or restrictions applicable to cases involving international crimes or extraterritorial jurisdiction.  Many of these restrictions are premised on the existence of some nexus between the state and the crime or parties, such as habitual residence or presence in the forum.  The South African and U.S. statutes, for example, require the defendant to be “present in” the prosecuting country.

Related Cases Involving Zimbabwe

The investigation proceeding in South Africa is not the first to consider abuses committed in Zimbabwe in connection with President Mugabe’s land “reform” program.  In Campbell & Others v. Zimbabwe, [2008] SADCT 2, the regional Southern African Development Community (SADC) tribunal ruled in favor of 79 applicants that ZANU-PF farm invasions discriminated on the basis of race and denied land owners access to justice.  Zimbabwe was ordered to pay compensation to 79 applicants.  (Zimbabwe withdrew from the SADC tribunal following this decision; Campbell—the lead plaintiff—died after being beaten by Mugabe loyalists in 2008).

A British appeals court confirmed the denial of a Zimbabwean woman’s bid for asylum on the ground that she had brutalized commercial farmers (often white) and their farm workers (often black) during farm invasions organized by the youth wing of President Mugabe’s ZANU PF party.  The court confirmed that her actions, which included severe beatings and forcible transfers, amounted to crimes against humanity within the meaning of Article 7 of the Rome Statute establishing the ICC.  The case is SK (Zimbabwe) v. Secretary of State for the Home Department [2012] EWCA Civ. 807.

Bibliography

For citation purposes, my sources of data besides Amnesty International include studies and reports by:

1. The Coalition for an International Criminal Court (CICC) (tracking ICC implementing legislation)
2. An European Union-African Union Experts Task Force;
3. The International Committee of the Red Cross (ICRC) (tracking the implementation of the Geneva Conventions and their Protocols);
4. The 6^th Committee (Legal) of the General Assembly (which is considering universal jurisdiction);
5. Academic writings, including the work of Sean Murphy, who as a member of the International Law Commission is studying the codification of crimes against humanity with an eye toward drafting a multilateral treaty, and Máximo Langer, who has produced the best empirical study on UJ yet.
6. Track Impunity Always (TRIAL);
7. Redress Trust (cataloging the availability of extraterritorial jurisdiction in the European Union); and
8. The American University War Crimes Research Office (which conducted a detailed analysis of the codification of war crimes at the request of my former office, the U.S. State Department’s Office of Global Criminal Justice).