The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind - I

This is a series of four briefs. In this series I consider whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed genocide, war crimes or crimes against humanity. I conclude that although the NPA has a discretion when exercising its power to institute criminal proceedings, it also has a duty to prosecute alleged perpetrators of such crimes. This duty is grounded in the Constitution, with domestic legislation and international law concretising, particularising and duplicating this duty. This conclusion has important implications for any decision by the NPA not to prosecute alleged perpetrators of such crimes. It also means that South Africa’s membership of the ICC is not critical to the NPA’s duty to prosecute such persons. The arguments that I make in this series include a fair amount of legal and conceptual analysis. As such, the ideal approach to reading this series of briefs would be for the four briefs to be read in a single sitting (or, at least, without much break in between reading each brief). In the likely event that such dedication is not possible, however, I have provided short summaries of the preceding briefs in the second, third and fourth briefs of this series. These three summaries, I hope, will be adequate to remind the reader of the more essential arguments of the preceding briefs.

Introduction

The National General Council (‘NGC’) of the African National Congress (‘ANC’) was held between 9 and 11 October 2015. On Sunday, 11 October 2015, the ANC revealed a number of important policy decisions that will no doubt shape the future of the country. One of the decisions provides the inspiration for this series of briefs.

The ANC has decided ‘to ask the ANC-led government to begin the process of withdrawal’ of South Africa’s membership of the International Criminal Court (‘ICC’). [1] It also announced that Omar al-Bashir, the President of Sudan, will be visiting South African in two months, in December. [2] Though, it now appears that he will not be visiting. [3] Notwithstanding this flip-flopping, it is likely that the decision to withdraw and the initial announcement of President al-Bashir’s visit are related. Given the timing of the decision, it might well have been informed by a recent application by the Southern African Litigation Centre (‘SALC’) in the North Gauteng High Court. [4] In its application, SALC sought to compel the state to take steps to arrest and detain President al-Bashir during his visit to South Africa in June, and then process his surrender to the ICC. The ICC has issued two arrest warrants for President al-Bashir relating to crimes against humanity, war crimes and genocide.

The SALC litigation is ongoing. [5] I will not address its merits in this series of briefs. Rather, I consider a related question. Where there is prima facie evidence that a foreign national is guilty of genocide, crimes against humanity and war crimes, does the National Prosecuting Authority (‘NPA’) have a duty to institute criminal proceedings? In short, my answer is that the NPA does have a duty to institute such proceedings. In this and three follow-up briefs, I will explain why it has this duty.

Some fear that this decision to withdraw from the ICC will compromise South Africa’s capacity and commitment to uphold human rights, both at home and abroad. One of my aims is to explain why this fear, at least legally speaking, is not warranted. It is not warranted because my account of why the NPA has a duty to prosecute genocidaires, war criminals and enemies of all humankind, supports the idea that this duty is a constitutional duty. It is a duty that the NPA has by virtue of the Constitution. Withdrawal from the ICC and repeal of associated legislation, therefore, is quite beside the point.

The duty of the SAPS to investigate allegations of crimes against humanity

Before the NPA institutes criminal proceedings it must establish that there is ‘sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution’. [6] Thus, the institution of proceedings will be preceded by an investigation by the SAPS. Only after an investigation of alleged crimes against humanity, genocide and war crimes that uncovers prima facie evidence of such crimes, does the question arise as to whether the NPA has a duty to prosecute implicated persons. So, is there a duty to investigate allegations of crimes against humanity?

On 30 October 2014, the Constitutional Court handed down a unanimous judgment in National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre (‘SALC decision’). [7] This case dealt with the failure by the South African Police Service (‘SAPS’) to investigate allegations of torture by and against various Zimbabwean citizens. In his judgment, Majiedt AJ held that the SAPS has a constitutional duty to investigate allegations of this type. This duty, he said, is subject to two limiting principles. First, there is no duty to investigate if the state that has ordinary nation-based jurisdiction is both able and willing to investigate and prosecute the alleged crimes. Second, undertaking the contemplated investigation must be reasonable and practicable in the circumstances.

The outcome of this decision is obviously important. It affords an avenue for the victims of crimes against humanity, genocide and war crimes to obtain justice, where the most directly affected state is unwilling or unable to investigate or prosecute. Moreover, the decision facilitates the process envisaged by the Preamble of the Constitution, in terms of which South Africa must take its ‘rightful place as a sovereign state in the family of nations’. It does this by acknowledging the duty of South Africa to take steps to ensure that justice is done when people, including foreign nationals, commit crimes that have an international character, such as genocide, war crimes and crimes against humanity. The finding that the SAPS must investigate allegations that foreign nationals have committed crimes of this type is a step towards ensuring that the victims of such crimes obtain justice.

Despite the importance of the SALC decision, the decision of the ANC to withdraw from the ICC reveals a possible misstep in the reasoning of the court. It is a misstep that may have significant repercussions for the idea expressed by President Nelson Mandela, during the arduous process of South Africa’s transition from apartheid to constitutional democracy, that ‘human rights should be the core concern of international relations’ and the belief that ‘we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations’. [8]

The ‘power’ of the NPA to prosecute

The focus of the SALC decision was whether the SAPS has a duty to investigate allegations against foreign nationals of crimes against humanity. In the main, the judgment ticks all the right boxes. It explores relevant provisions in the Constitution, it refers to international law and it considers applicable domestic legislation. In doing so, it arrives at the conclusion that the SAPS is under a duty to investigate. So far, so good.

Near the end of his analysis, however, Majiedt AJ contrasts section 205 of the Constitution, the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (‘ICC Act’), the South African Police Service Act, 1995, and Glenister v President of the Republic of South Africa, [9] on the one hand, with section 179(2) of the Constitution, on the other hand. The purpose of this contrast was to demonstrate that the SAPS has a duty to investigate allegations of crimes against humanity. It is the conclusion that Majiedt AJ draws from this contrast that generates the possible stumbling block when confronted with prima facie evidence that a foreign national is guilty of crimes against humanity.

First, he says that the ‘Constitution and the ICC Act make it clear that, whilst empowered to investigate crime, the SAPS also bears a duty to do so’. Then, he says: ‘By way of contrast, section 179(2) of the Constitution affords the prosecuting authority a “power” and thus a discretion to institute criminal proceedings. The word “power” does not appear in section 205(3) of the Constitution in relation to investigating crime.’ [10]

According to Majiedt AJ, therefore, the fact that section 179(2) affords the NPA a ‘power’, but section 205(3) does not, means that the NPA has ‘a discretion to institute criminal proceedings’. As noted, this conclusion is reached when arguing for the idea that the SAPS has a duty to investigate allegations of crimes against humanity committed by and against foreign nationals: the SAPS has ‘not just a power, but also a duty’ to investigate. Thus, the context in which he says that the NPA has ‘a discretion’ to institute criminal proceedings indicates that whilst the SAPS has a duty to investigate, the NPA has ‘just a power’; it does not ‘also’ have ‘a duty’ to institute criminal proceedings. [11]

The conclusion of the court is questionable in a number of respects. Quite apart from the fact that section 205(2) of the Constitution refers to the ‘powers’ of SAPS, the logical jump from the idea that the NPA has a power to the idea that its power is discretionary is flawed. More importantly, even if the NPA has a discretion (as I argue it does, in the final brief of this series), Majiedt AJ is mistaken to think that this means that the NPA, unlike the SAPS, does not ‘also’ have a duty to exercise its powers. Much of what I say in the next three briefs is devoted to explaining why both jumps are impermissible.

Let me conclude this brief by touching on the significance of this legal conclusion by Majiedt AJ. As I have noted, the ANC has decided to withdraw South Africa as a member of the ICC. Withdrawal will not excuse South Africa from its obligations under the Rome Statute of the International Criminal Court (‘Rome Statute’) for at least a year after which notification of withdrawal is given. It will also not excuse it from any obligations that it incurred whilst it was a member of the Rome Statute. [12] If in the future, however, South Africa does not have a duty to detain, arrest and surrender to the ICC those alleged to have committed crimes against humanity, genocide and war crimes, the focus of future efforts to obtain justice for victims will take place primarily in our own courts. As such, whether the NPA has a duty or ‘just . . . a discretion’ to prosecute foreign nationals who prima facie appear to have committed such crimes is vital. The next brief begins by explaining why it is vital.

Matthew Kruger
Legal Researcher
matthew@hsf.org.za

[1] Para. 2.9, ‘ANC NGC 2015 Resolutions on International Relations’ (http://www.anc.org.za/docs/res/2015/irc_reportv.pdf).
[2] See http://mg.co.za/article/2015-10-11-the-resolutions-adopted-by-the-anc
[3] See http://ewn.co.za/2015/10/18/Omar-al-Bashir-will-not-be-visiting-SA-in-December
[4] Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others [2015] ZAGPPHC 402 (24 June 2015).
[5] The state has petitioned the Supreme Court of Appeal for leave to appeal the decision of the High Court.
[6]https://www.npa.gov.za/sites/default/files/Library/Prosecution%20Policy%20%28Final%20as%20Revised%20in%20June%202013.%2027%20Nov%202014%29.pdf.
[7] [2014] ZACC 30.
[8] Mandela, ‘South Africa’s Future Policy: New Pillars for a New World’ (1993) 72 Foreign Affairs 86-97, 97.
[9] [2011] ZACC 6.
[10] Ibid para. [56]. Section 179(2) provides: ‘The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings’.
[11] Ibid para. [55].
[12] See article 127 of the Rome Statute.