22 Aug Emerging Voices: The Transformative Influence of International Criminal Law in Domestic Perspective
[Dr. HJ van der Merwe is a Lecturer in Public Law Studies at the Law Faculty of the University of the Western Cape, South Africa]
The degree to which states are able and willing to dynamically reflect international criminal norms within their domestic legal systems is crucial to the success of the project of international criminal justice. This is exemplified by the existence of the complementarity-centred International Criminal Court (“ICC”), which aims to establish a system of international criminal law (“ICL”) where domestic jurisdictions are primarily responsible for and capable of prosecuting core international crimes. It may be argued that the dawn of the ICC-era of international criminal justice has brought with it the goal of a global transformation as regards the pursuit of accountability and respect for human rights that occurs primarily from within states. However, various legal and political hurdles continue to inhibit the effective incorporation and enforcement of international criminal norms on the domestic level. A constructive way to engage with these challenges is to conceptualise the interaction between international criminal norms and domestic legal systems in terms of its ability to produce a kind of transformative synergy (my doctoral thesis elaborates on the idea that ICL holds transformative value i.e. the ability and potential to produce change that may be beneficial to the civitas maxima or the abstract notion of an international community in which the collective interest transcends that of individuals). This argument is presented here by way of closer examination of developments relating to international criminal justice within post-apartheid South Africa.
International criminal law as transformative
International criminal law is historically and ontologically purpose and value driven. It exists due to a widely held belief in the notion that a supranational framework of criminal law can address problems of state criminality and mass violence, as well as play a role in the future deterrence of these phenomena. Whether one agrees with this notion or not, the fact remains that this supranational framework for criminal liability under international law has received increasing support from and within states, especially since the end of the Cold War. This development alludes to the international community’s desire, based on an increasing commonality of basic human values, to transform the global landscape by altering the status quo characterised by injustices that have gone unabated under the system of traditional Westphalian sovereignty. The existence and enforcement of international criminal norms may be viewed as an effort to protect the values of the international community as well as to project these values onto groups of individuals (perpetrators of international crime and also perhaps their supporters) which have not yet embraced such values, as it is believed that this would be to the benefit of all. These norms are not only repressive, but also expressive of the international community’s values. As such, they aim to shape a new consensus and to create new social expectations within the international community. Consequently, it may be said that a transformative purpose lies at the heart of modern ICL.
Transformative value from a South African perspective
As a consequence of its post-apartheid openness towards international law as well as its history of systematic oppression under apartheid, democratic South Africa has acceded to the ideal of international (criminal) justice, both indirectly by way of its Constitution (which provides for, and regulates, the domestic application of international law) and directly through national legislation. Notable in the latter respect is the Implementation of the Rome Statute of the International Criminal Court Act (“ICC Act”), which has transformed the crimes of the Rome Statute into South African criminal law. The recent South African judgment in Southern African Litigation Centre and Another v National Director of Public Prosecutions and Others (“SALC”) is particularly illustrative of the potential for transformative synergy between ICL and domestic legal systems. The case is a good example of how domestic obligations towards international criminal justice can serve to promote the values of the international community on the domestic level. The case concerned an application for judicial review of a decision by the South African Police Service (“SAPS”) not to investigate allegation of torture constituting crimes against humanity committed by Zimbabweans against Zimbabweans in Zimbabwe.
In a precedent-setting judgment, the court directed the SAPS to conduct an investigation into the matter. The judgment highlighted “an international consensus on the normative desirability of prosecuting [perpetrators of crimes against humanity]” (par 27). From a broader perspective, the international prohibition of torture, like other international crimes, is a value-driven norm that exists for the purpose of punishing torturers as hostis humani generis wherever they may have committed the act of torture and through such punishment, to entrench the values for which the prohibition exists. Torture as a crime against humanity is criminalised under South Africa’s ICC Act. The SALC-judgment affirms the ICC Act as part of the supranational framework of criminal law that represents an effort to address those crimes which domestic criminal justice systems are often unable or unwilling to address. Although the dispute related only to the duty to investigate under the ICC Act, the judgment affirms that the jurisdiction under the ICC Act must be expansively interpreted so as not to limit its application to crimes committed by or against South African citizens or in South African territory. The judgment further affirms that the Act is intended to pursue maximum accountability where there is substantial evidence of international crimes committed in any country where the prospect of accountability is low due to the collapse of the rule of law or due to state complicity in the commission of such crimes (par 1.9).
As is illustrated by the interpretation of the duty to investigate under the ICC Act in the SALC-judgment, South Africa has broadened the scope of application of its domestic criminal justice system with the effect of benefitting both its own citizens and the international community. While there have so far been no prosecutions in terms of the ICC Act in South Africa, the SALC-case illustrates the potential for extending the reach of international criminal norms via indirect application thereof in domestic courtrooms. The transformation of international crimes into domestic law presents a practical means of channelling international values to individuals via the domestic legal systems of states. In turn, domestic courts may serve as ‘engine rooms’ for transformative change through more effective enforcement of those international criminal norms that have been ‘transformed’ into national law through implementation legislation. Thus, international criminal norms applied domestically represent both a projection of the values of the international community and a means of bringing international values home to individuals where legal avenues for the protection of such values are more accessible, for example, via civil society organisations acting on behalf of the victims of international crime.
The permeation of international criminal norms into the domestic sphere via implementation legislation represents a foray of universal values into an area traditionally dominated by sovereign might. However, it must be recognised that international criminal norms do not operate in a vacuum. Although ICL partly reflects an idealistic version of how the world should be, it is also constantly under the influence of how the world is: a place in which the demands of politics and justice often come into conflict. For better or worse, ICL’s transformative value and potential is affected by the political will of states. It is submitted that the negative influences of politics on international criminal justice (for example, selective prosecutions and the African critique of the ICC) must be regarded as areas of awareness and concern for anyone with a genuine interest in a fair and balanced system of international criminal justice. Conceptualizing ICL in terms of its transformative potential may provide states with an incentive to pro-actively secure the benefits of international criminal justice for its own citizens as part of the greater civitas maxima. While it is true that this holds potential for promoting the interests of individuals and for the institutionalisation of human rights, the absence of political will reduces such potential to little more than an untapped resource.