The Duty to Investigate Zimbabwe Crimes Against Humanity (Torture) Allegations: The Constitutional Court of South Africa Speaks on Universal Jurisdiction and the ICC Act

(2015) 13(4) Journal of International Criminal Justice 861-889

32 Pages Posted: 21 Apr 2015 Last revised: 30 Sep 2015

See all articles by Manuel J. Ventura

Manuel J. Ventura

Western Sydney University, School of Law; The Peace and Justice Initiative

Date Written: April 1, 2015

Abstract

On 30 October 2014 the Constitutional Court of South Africa held, in a landmark unanimous judgment, that South Africa had a legal duty to investigate allegations of crimes against humanity committed in Zimbabwe by Zimbabweans against their fellow citizens and ordered South African authorities to do so. This was pursuant to universal jurisdiction provisions of the Implementation of the Rome Statute of the International Criminal Court Act (‘ICC Act’) (Act 27 of 2002) – the domestic legislation that incorporated international crimes and other obligations pursuant to the Rome Statute of the International Court (‘ICC’) (1998) into South African law. Whilst, in coming to that conclusion, the Court’s analysis of international law on the duty to investigate in a universal jurisdiction context was unsatisfying, the judgment is innovative since the duty to investigate was ultimately grounded on a domestic duty to investigate all crime under domestic law – whether international or otherwise. This bold and fresh technique has the potential to be duplicated in countries that recognize a general duty to investigate crime, have incorporated international crimes into domestic law, and recognize universal jurisdiction over such offences. Further, in an attempt to rein in the wide-ranging implications, the judgment articulated guiding principles and limitations that in some respects draw directly from the ICC. In particular, the ICC’s signature ‘unwilling or unable’ complementarity test and the ICC Prosecutor’s preliminary examination mechanism were, in effect, judicially sanctioned for application in the South African legal order. As a result, there is potential for the ICC’s best practices and case law to directly influence the direction of South African investigations, proceedings and jurisprudence in the future exercise of her universal jurisdiction over international crimes in a manner that is consistent with the Constitutional Court’s judgment and international law.

Keywords: torture, crimes against humanity, universal jurisdiction, duty to investigate, presence, complementarity, unwilling or unable, International Criminal Court, Rome Statute, Constitutional Court of South Africa, South Africa, Zimbabwe

JEL Classification: K14, K33, K41, K42

Suggested Citation

Ventura, Manuel J., The Duty to Investigate Zimbabwe Crimes Against Humanity (Torture) Allegations: The Constitutional Court of South Africa Speaks on Universal Jurisdiction and the ICC Act (April 1, 2015). (2015) 13(4) Journal of International Criminal Justice 861-889, Available at SSRN: https://ssrn.com/abstract=2591927

Manuel J. Ventura (Contact Author)

Western Sydney University, School of Law ( email )

Locked Bag 1797
Penrith, NSW 2751
Australia

HOME PAGE: http://www.westernsydney.edu.au/staff_profiles/uws_profiles/mr_manuel_ventura

The Peace and Justice Initiative ( email )

The Hague
Netherlands

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