South Africa’s Conditional Universal Jurisdiction — and Its Potential Effect on Zimbabwe

by Kevin Jon Heller

A human-rights NGO in South Africa, the Southern Africa Litigation Centre (SALC), has formally requested the National Prosecuting Authority’s Priority Crimes Unit to investigate senior Zimbabwean officials suspected of committing crimes against humanity:

Said SALC Director Nicole Fritz on Sunday: “The intention behind the initiative is both to ensure some form of accountability for the people of Zimbabwe at a time when their own justice system has all but collapsed and also to secure South Africa’s interest against becoming a ‘safe haven’ for perpetrators of the most egregious international crimes.”

South Africa’s implementation of the Rome Statute of the International Criminal Court Act, No 27 of 2002, permits prosecutions for crimes against humanity of those who are not South African nationals or have not committed such crimes on SA’s territory if such a person after the commission of the crime, is present in South Africa.

Several of the perpetrators named in the dossier travelled to South Africa on official business, in some instances for co-operative endeavours such as the South Africa/Zimbabwe Joint Permanent Commission on Defence and Security.

Moreover, given Zimbabwe’s economic collapse, many of those named travelled to South Africa to obtain desired commodities and services, including healthcare, Fritz said.

Although it is obviously too early to predict whether SALC’s request will go anywhere, the request foregrounds how important it is for states to adopt conditional universal jurisdiction for serious international crimes, particularly when they share a border with the state in which the crimes are being committed. The Zimbabwean officials will be far less likely to venture into South Africa if they fear facing prosecution there. And that threat exists only because South Africa has taken a very progressive approach to its incorporation of the Rome Statute.

Imagine if every peaceful state in Africa followed South Africa’s lead and embraced conditional universal jurisdiction. With no safe havens to flee to, petty dictators like Mugabe and their minions would almost certainly think twice before committing their crimes.

http://opiniojuris.org/2008/03/17/south-africas-conditional-universal-jurisdiction-and-its-potential-effect-on-zimbabwe/

3 Responses

  1. I think Mr. Heller is being overly rosy as to the impacts of Universal Jurisdiction. One could, absent such laws, still restrict the visitation rights of Zimbabwe’s citizens.

    Imagine if every peaceful state in Africa followed South Africa’s lead and embraced conditional universal jurisdiction. With no safe havens to flee to, petty dictators like Mugabe and their minions would almost certainly think twice before committing their crimes.

    That’s quite an assumption. Yes, indeed, if Africa was a peaceful and harmonious place, Mugabe and his cronies would indeed have a harder time going anywhere.

    However, it is hard to picture any regime friendly towards Mugabe suddenly adopting universal jurisdiction. Generally, if you do business and socialize with war criminals, threatening to prosecute them is considered poor form.

    Adopting such things is less a cause of war crime intolerance, and more a symptom.

  2. Good news indeed, even if (and let’s hope that it is not) the effect is only to limit the wanderlust of the senior officials.

    Maybe it is wishful thinking to have other African countries follow suit, yet consider the rise of universal jurisdiction over recent years all over the world, which includes African countries such as Senegal exercising universal jurisdiciton over Hissene Habre, former dictator of Chad (There is video footage of a mission of the International Federation for HUman Rights to Chad on FIDH’s website, but I cannot post the link..) It also includes the US adopting relevant legislation (see Opinio Juris posts), Canada, Chile and numerous European countries (see REDRESS/ FIDH, Fostering a European Approach to Extraterritorial Jurisdiction, 2004, Fostering a European Approach to Serious International Crimes, 2007, HUman Rights Watch, Universal JUrisdiction in Europe: The State of the Art)

    Who would have thought it would come to that only 10-15 years ago, in particular after the US threatened Belgium to move Nato Headquarters, among other things, if it did not repeal its universal jurisdiction legislation? UJ has been on the rise ever since.

    I would therefore share the optimism, considering that such legislation is a real (and often the only) possiblity to bring perpetrators to justice (that is,of course, only if such legislation is then also applied in practice).

  3. Doesn’t it seem possible if not probable that Universal Jurisdiction might make officials “hunker down” and exert even more control over their home-states? In turn resulting in more loss of life and torture?

    I’m not implying allowing impunity. I’m simply thinking that a realist perspective on things is not always welcomed but always warranted.

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