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Challenge to absolute application of ICC Universal Jurisdiction


National Commissioner, South African Police Services and others v Southern African Litigation Centre

The South African Government today lodged its appeal application in the country’s top court against a recent ruling regarding ICC jurisdiction. This had required police authorities to launch criminal investigations whenever an ICC core crime is committed anywhere in the world and the possibility cannot be discounted that the suspect might one day enter South Africa.

In its papers, the Government describes the ruling by the Supreme Court of Appeal as an ‘absolutist’ application of the principle of universal jurisdiction – in fact, the most extreme position yet known to have been adopted by a court.

The case is a sequel to alleged assaults and torture in Zimbabwe of opposition activists. South Africa is a signatory to the Treaty of Rome (1998), setting up the ICC, and has adopted a statute giving effect to it. Zimbabwe has refused to sign the Treaty.

An NGO, the Southern African Litigation Centre, had succeeded in the lower courts on the basis that only an ‘anticipated presence’ of perpetrators is required to trigger a constitutional duty on the South African police to investigate the ICC core crime committed elsewhere.

In its challenge to the judgment, the South African Government points to the fact that the domestic statute implementing the Treaty is silent as regards when any duty to investigate commences – but the matter is expressly dealt with in the Convention against Torture (1984), to which South Africa is a party. That contemplates investigation first commencing upon actual presence of the perpetrator.

Reference is also made to the fact that German law invoked by the Supreme Court of Appeal in support of its absolutist position is in fact against it, for several reasons. One is that German law explicitly requires residence, not presence. Overall, there is no adequate basis to impose a constitutional duty on an overstretched police force to investigate ICC core crimes (in countries which may range from the Sudan to China) when there is no more than a mere possibility of the perpetrator’s future presence in South Africa.

Jeremy Gauntlett SC leads the Government of South Africa’s legal team in the appeal to the Constitutional Court.