SA slow to make use of universal jurisdiction

Over the past week there has been international coverage of the abduction and gruesome torture of three Zimbabwean youth leaders. As previously reported in Legalbrief Today, a prominent MDC lawmaker and two party officials were originally arrested for protesting over food shortages two weeks ago. They were then abducted from a police station by unidentified men and claim they were sexually assaulted. In a Mail & Guardian analysis, Atilla Kisla, a senior researcher for the Southern Africa Litigation Centre’s International Criminal Justice Programme, says the incident serves as a reminder of the groundbreaking 2014 Constitutional Court decision in National Police Commissioner of the SAPS v Southern African Human Rights Litigation Centre Trust (The Torture Docket case) where the court held that the SA authorities – the SAPS and NPA – had a duty to investigate and prosecute international crimes allegedly committed in Zimbabwe. Kisla questions how the SA authorities can prosecute alleged crimes committed in Zimbabwe. ‘The short answer is that they can use the principle of universal jurisdiction which allows states to prosecute certain international crimes such as war crimes, crimes against humanity or torture without having a link of territoriality or nationality to the country where the alleged crime occurred. States have interpreted this principle in different ways. While South African legislation adopted an approach which requires accused persons to be in the country, other countries such as Germany have adopted a broad interpretation of this principle without any pre-conditions.’ Kisla notes that on this basis, the German trial against two former Syrian Security Members for crimes against humanity committed against Syrians in Syria commenced at the end of April in Koblenz, Germany. ‘The principle of universal jurisdiction is a key element in order to bring these kinds of cases before domestic courts outside the state where the alleged crime occurred. However, even if domestic law allows the initiation of such processes, cases from the past show that there is an intrinsic inertia of state authorities to act.’

Cases such as the Torture Docket case constitute significant steps in the fight against impunity, but the obvious question, says Kisla, is: What progress has been made after six years? Today, SAPS are still investigating the alleged cases of torture in Zimbabwe from 2007, even though the Constitutional Court emphasised the importance of time in its judgment. Acknowledging that the prosecution of international crimes might take longer than ordinary cases due to the massive amounts of evidence, Kisla says six years of investigations hardly constitutes an 'expedited investigation'. The lethargy which SAPS has displayed in this investigation is disappointing. The tardiness of the NPA should, however, also not surprise us, notes Kisla in the M&G analysis. Twenty years ago, the Truth and Reconciliation Commission submitted more than 300 cases of alleged apartheid-era crimes for further investigation to the NPA. Even though some of these cases may qualify as torture or crimes against humanity, victims, relatives and friends are still waiting for prosecutions to be initiated. The apartheid-era cases demonstrate that disappearing evidence constitutes a serious threat to any prosecution and search for justice. Nevertheless, cases such as the Torture Docket case or the recent trial in Germany for alleged crimes against humanity in Syria underline the importance of civil society and survivors in the process of building those cases. As the SALC pushed for an investigation of crimes against humanity in Zimbabwe in the Torture Docket case, the commencement of the trial in Germany can be attributed, to a large extent, to the research and analysis of the European Centre for Constitutional and Human Rights. These cases highlight that the principle of universal jurisdiction has become a useful tool to hold perpetrators of international crimes to account.