30 Oct Huge Win in the Zimbabwe Torture Docket Case
Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.
As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.
The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):
 This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.
The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take. I won’t bore readers with the Court’s reasoning, because it’s complicated and based on South Africa’s constitution and Rome Statute Act. But I do want to highlight the two limitations the Court imposed on that obligation. The first is that the territorial state must have failed to prosecute the international crimes in question itself (pp. 33-34):
The first limitation arises from the principle of subsidiarity…. [T]he principle of non-intervention in the affairs of another country must be observed; investigating international crimes committed abroad is permissible only if the country with jurisdiction is unwilling or unable to prosecute and only if the investigation is confined to the territory of the investigating state. Simply put, we may not investigate or prosecute international crimes in breach of considerations of complementarity and subsidiarity.
The second is that there must be “anticipated presence” of the suspect in South Africa (p. 35):
The second limiting principle is practicability. Before our country assumes universal jurisdiction it must consider whether embarking on an investigation into an international crime committed elsewhere is reasonable and practicable in the circumstances of each particular case. That decision must be made in the light of all the relevant circumstances. None of these factors alone should be dispositive of the enquiry. Each case must be determined on its own merits and circumstances.
Foremost amongst these considerations are whether the investigation is likely to lead to a prosecution and accordingly whether the alleged perpetrators are likely to be present in South Africa on their own or through an extradition request; the geographical proximity of South Africa to the place of the crime and the likelihood of the suspects being arrested for the purpose of prosecution; the prospects of gathering evidence which is needed to satisfy the elements of a crime; and the nature and the extent of the resources required for an effective investigation. In some instances a preliminary investigation to test the reasonableness of undertaking a full-blown investigation may be necessary.
Both of these limitations are sound. There is no justification for South Africa pursuing a universal-jurisdiction investigation in absentia if the territorial state is willing and able to prosecute the suspects itself — to do so would both violate the territorial state’s sovereignty and needlessly waste South Africa’s limited police resources. And there is equally no justification for South Africa pursuing a universal-jurisdiction investigation in absentia where there is no reasonable prospect of ever obtaining the suspect. Imposing an anticipated-presence requirement not only conserves resources, it ensures that South Africa will not get dragged into the kinds of politicised cases that have all-too-often discredited universal jurisdiction in the eyes of skeptical states.
I’m not sure whether the Zimbabwe Torture Docket judgment will reverberate much outside of South Africa; few states, unfortunately, have the kind of domestic law that could support an obligation to investigate international crimes in absentia under universal jurisdiction. But it’s a good thing that such an important Court has clearly stated that international law does not prohibit such investigations. And it’s an even better thing that the high-ranking officials in Zimbabwe may one day face justice for their acts of torture.
With respect, to say as an absolute rule that there is ‘no justification’ for initiating an investigation when the suspect is unlikely to visit the investigating state is to take an unduly narrow and formulaic view. First, as the Court itself acknowledges, it is impossible to even ascertain who the suspect is, where they are and whether they are likely to visit, without investigating. Second, it appears to prevent any sort of transnational investigation involving the gathering of evidence in multiple jurisdictions.