Amnesty laws International standards

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I. DEFINITION
An amnesty refers to legal measures that have the effect of
(a) prospectively barring criminal prosecution and, in some cases, civil action against certain
individuals or categories of individuals in respect of specified criminal conduct committed
before the amnestys adoption, or
(b) retroactively nullifying legal liability previously established.
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Amnesties do not prevent legal liability for conduct that has not yet taken place, which would be an
invitation to violate the law.
An amnesty is distinct from
a pardon, which refers to an official act that exempts a convicted criminal or criminals from
serving his, her or their sentences.
various forms of official immunity under international law, such as ead of !tate and
diplomatic immunities, which shield officials from the exercise of a foreign !tates "urisdiction
under certain circumstances.
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other elements of impunity that do not fall within the definition of amnesty used here but
which may achieve similar effects. $hese include !tates failure to enact laws prohibiting
crimes that should, under international law, be punished% to bring criminal prosecutions
against those responsible for human rights violations even when their laws present no barriers
to punishment% to provide prosecutors the resources they need to ensure effective
prosecution% and intimidation of witnesses whose testimony is needed to ensure a full legal
reckoning.
II. CATEGOIE! OF A"NE!TIE!
&arious commentators have proposed to classify amnesty laws. ere is the '( classification
)
*
Self-amnesties are amnesties adopted by those responsible for human rights violations to shield
themselves from accountability. uman rights treaty bodies, "urists and others have strongly critici+ed
self,amnesties, which by their nature epitomi+e impunity.
Blanket amnesties exempt broad categories of offenders from prosecution and-or civil liability without
the beneficiaries having to satisfy preconditions, including those aimed at ensuring full disclosure of
what they know about crimes covered by the amnesty, on an individual basis. .lanket amnesties have
been nearly universally condemned when they cover gross violations of human rights and serious
violations of humanitarian law.
Conditional amnesties exempt an individual from prosecution if he or she applies for amnesty and
satisfies several conditions, such as full disclosure of the facts about the violations committed.
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A
conditional amnesty often involves a prior investigation to allocate individual responsibility. 0onditional,
accountable amnesties could be considered for less serious crimes to facilitate truth,recovery and
reconciliation initiatives. owever, they must impose on the perpetrators applying for amnesty certain
conditions such as* acknowledgement of harm done, seeking an apology, full disclosure of the facts
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2or a detailed analysis, please refer to 3ffice of the 'nited (ations igh 0ommissioner for uman 4ights, Rule of Law Tools
for Post-Conflict States: Amnesties, 2556, 4-7'.-56-1, available at* 'nited (ations, Rule of Law Tools for Post-Conflict
States: Amnesties, 2556, 4-7'.-56-1, available at* http*--www.ohchr.org-8ocuments-7ublications-Amnesties9en.pdf (hereafter
:304;).
2
304 p.)#.
#
304 p.)#.
)
304 pp.)#,)).
/
!uch amnesties might not strictly come within the general definition of amnesty used here, as they effectively suspend rather
than extinguish criminal responsibility. !ee Prosecutor v. Kondewa, !eparate 3pinion of <ustice 4obertson, para. 1/.
1
about the violations committed, commitment to cooperate with truth telling procedures (national and-or
traditional) aimed to promote reconciliation.
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De facto amnesties describe legal measures such as !tate laws, decrees or regulations that
effectively foreclose prosecutions. >hile not explicitly ruling out criminal prosecution or civil remedies,
they have the same effect as an explicit amnesty law. !uch amnesties are impermissible if they
prevent the prosecution of offences that may not lawfully be sub"ect to an explicit amnesty.
Disguised amnesties can take various forms. 2or example, they include amnesties whose operation
is prescribed in regulations interpreting laws that, on their face, may be compatible with international
law but which, as interpreted by their implementing regulations, are inconsistent with a !tates human
rights obligations. !uch amnesties are impermissible if they prevent the prosecution of offences that
may not lawfully be sub"ect to an undisguised amnesty.
III. CONFO"IT# $IT% INTENATIONA& &A$
8espite the increased codification of international crimes, no international convention explicitly
prohibits amnesty laws.
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owever, a substantial body of international law sets limits on their
permissible scope.
'nder international law( amnesties are impermissi)le if they
*a+ pre,ent prose-ution of indi,iduals who may )e -riminally responsi)le for war -rimes(
.eno-ide( -rimes a.ainst humanity or .ross ,iolations of human ri.hts/
*)+ interfere with ,i-tims0 ri.ht to an effe-ti,e remedy/ or
*-+ restri-t ,i-tims0 or so-ieties0 ri.ht to 1now the truth a)out ,iolations of human ri.hts
and humanitarian law.
"oreo,er( amnesties that see1 to restore human ri.hts must )e desi.ned with a ,iew to
ensurin. that they do not restri-t the ri.hts restored or in some respe-ts perpetuate the
ori.inal ,iolations.
()A Amnesties that are inconsistent with international law
A number of widely ratified international human rights and humanitarian law treaties e2pli-itly
re3uire !tates parties to ensure punishment of specific offences either by instituting criminal
proceedings against suspected perpetrators in their own courts or by sending the suspects to another
appropriate "urisdiction for prosecution. @t is generally accepted that an amnesty that foreclosed
prosecution of an offence that is sub"ect to this type of obligation would violate the treaty concerned.
A
Amnesties have also been found to be incompatible with human rights treaties that do not explicitly
address prosecution but which have consistently been interpreted to re3uire !tates parties to
institute -riminal pro-eedin.s when serious violations occur. Amnesties for gross violations of
human rights and serious violations of humanitarian law may also violate customary international law.
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'( 3ffice of the igh 0ommissioner for uman 4ights, :'( 7osition on 'gandas Amnesty Act 2555, !ubmission to the on.
Binister of @nternal Affairs;, Bay 2512, pp.1/,1?. Available at* http*--"los.go.ug-uploads-'(C257ositionC25onC25'ganda
C25AmnestyC25DawC25.pdf
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Douise Ballinder, :Amnesties and @nternational 0riminal Daw;, p. ) in >illiam A. !chabas and (adia .Erna+ (eds) andbook
on @nternational 0riminal Daw (4outledge, 2515). Available at*
http*--papers.ssrn.com-sol#-8elivery.cfm-!!4(9@81/#1?519code=#/#1=.pdfFabstractidG1/#1?51HmiridG#
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!ee, for example, !pecial 0ourt for !ierra Deone, Prosecutor v. Morris Kallon, case (o. !0!D,255),1/,A4?2(I), and
Prosecutor v. Brima Bazzy Kamara, case (o. !0!D,255),1=,A4?2(I), Appeals 0hamber, 8ecision on challenge to "urisdiction*
DomE Accord Amnesty (1# Barch 255)), para. ?#% Antonio 0assese, International Criminal Law (3xford 'niversity 7ress, 255#),
p. #1).
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@nternational tribunals have had few opportunities to address the Juestion whether !tates obligations under customary
international law may be violated by an amnesty. A 166A decision by a $rial 0hamber of the @nternational 0riminal $ribunal for
the former Kugoslavia suggested, however, that an amnesty for torture (and, by implication, for other conduct whose prohibition
in international law has the status of a peremptory norm) would be :internationally unlawful.; Prosecutor v. Anto urund!i"a,
case (o. @$,6/,1?-1,$, <udgement of 15 8ecember 166A, para. 1//. !ee also Prosecutor v. Morris Kallon and Prosecutor v.
Brima Bazzy Kamara, para. A2.
2
>ith the exception of the 16)A 0onvention on the 7revention and 7unishment of the 0rime of
Lenocide, each of the human rights treaties summari+ed in this section
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explicitly reJuires that victims
of specified violations should have a--ess to remedies.
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An amnesty that interfered with civil
remedies would violate these treaty provisions. Boreover, victims of genocide and other human rights
violations en"oy the right to an effective remedy, including reparation, under general international law.
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Accordingly, the followin. -rimes -an ne,er )e amnestied4
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1. Geno-ide
$he 16)A 0onvention on the 7revention and 7unishment of the 0rime of Lenocide
(Articles @ H @&* obligation to punish)
0ustomary @nternational Daw
6. Crimes a.ainst humanity
4ome !tatute of the @nternational 0riminal 0ourt (7reamble* obligation to punish and
prosecute)
uman 4ights treaties (@0074, @A04* interpreted to reJuire punishment of crimes
against humanity)
1)
5. $ar -rimes
@n international armed conflict*
o $he four Leneva 0onventions of 16)6 and Additional 7rotocol @ of 16?? (in
international armed conflict* obligation to search for persons allegedly
responsible for grave breaches and to ensure that they are prosecuted).
o $he 4ome !tatute of the @nternational 0riminal 0ourt (Article A.2*
enumerate 2= :other serious violations of the laws and customs applicable
in international armed conflict; that can be prosecuted by the @00).
o 0ustomary @nternational Daw.
@n non,international armed conflict*
o 0ommon Article # of the four Leneva 0onventions of 16)6 and the
7rotocol Additional to the Leneva 0onventions of 12 August 16)6
o 4ome !tatute (Article A.2.c* punish serious violations of common article #%
Article A.2.e)
o 0ustomary @nternational law
An amnesty that encompassed serious violations of the laws of war governing non,
international armed conflicts would #e of dou#tful $alidity% @ndeed, article 6.5 PA II
stipulates that at the end of hostilities, the authorities in power shall endeavour to
grant the broadest possible amnesty to persons who have participated in the non-
international armed conflict, or those deprived of their liberty for reasons related to the
armed conflict, whether they are interned or detained. The I! has affirmed that
article =./ aims at
Incouraging a sort of release at the end of hostilities, for those detained or punished
for the mere fact of having participated in hostilities. @t does not aim at an amnesty for
those having violated international law. >hile excluding war crimes, article =./ of
Additional 7rotocol @@ encourages !tates to grant former rebels amnesty for such
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26 $hese include the @nternational 0ovenant on 0ivil and 7olitical 4ights, the American 0onvention on uman 4ights, the
African 0harter on uman and 7eoples 4ights, the Iuropean 0onvention for the 7rotection of uman 4ights and 2undamental
2reedoms, the 0onvention against $orture and 3ther 0ruel, @nhuman or 8egrading $reatment or 7unishment, and the
@nternational 0onvention for the 7rotection of All 7ersons from Inforced 8isappearance.
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!tates parties to the Lenocide 0onvention can, however, seek reparations for violations of the treaty. !ee @nternational 0ourt
of <ustice, A&&lication of t'e Con$ention on t'e Pre$ention and Punis'ment of t'e Crime of (enocide )Bosnia and *erze+o$ina
v. Ser#ia and Montene+ro,- .ud+ment of /0 e#ruary /112- para. )=5.
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!ee .asic 7rinciples and Luidelines on the 4ight to a 4emedy and 4eparation for &ictims of Lross &iolations of @nternational
uman 4ights Daw and !erious &iolations of @nternational umanitarian Daw (Leneral Assembly resolution =5-1)?).
1#
304, pp.11,2).
1)
!ee, for example, uman 4ights 0ommittee, general comment (o. #1 (255)) on the nature of the general legal obligation
imposed on !tates parties to the 0ovenant, para. 1A% @nter,American 0ourt of uman 4ights, Almonacid-Arellano et al% v. C'ile,
<udgment of 2= !ept. 255=, para. 11).
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crimes as rebellion, sedition and treason. !tates can also grant rebels amnesty for
legitimate acts of war, such as killing members of the opposing forces under
circumstances not amounting to a war crime.
7. Torture
$he 16A) 0onvention against $orture and 3ther 0ruel, @nhuman or 8egrading
$reatment or 7unishment ( Articles ).1, ).2* obligation to criminalise and punish%
Article ?.1* obligation to extradite or prosecute)
0ustomary international Daw (@040 !tudy). $he @0$K has expressed the view that an
amnesty for torture would be :internationally unlawful.;
1/
8. Enfor-ed disappearan-e
$he 255= @nternational 0onvention for the 7rotection of All 7ersons from Inforced
8isappearance (Article =.1* obligation to hold criminally responsible% Article ?.1*
obligation to punish% Article 11.1* obligation to extradite or prosecute% Article 2).)*
victims right to obtain reparation and prompt, fair and adeJuate compensation)
@0074, regional human rights and international humanitarian law treaties (obligation
to institute criminal proceedings, to provide reparation, and to ensure that the fate of
direct victims of enforced disappearance is discovered and disclosed).
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0ustomary @nternational Daw
@t should be noted that many !tates do not include in their criminal codes a crime of :enforced
disappearance; as such. @n these !tates, enforced disappearances might be prosecuted as
unlawful detention or arbitrary arrest and detention. @t is thus important, when considering the
scope of a proposed amnesty, to ensure that the proposed law does not prevent !tates from
punishing enforced disappearances by including in the proposed amnesty crimes that appear
to be ordinary crimes but which in fact, under relevant national law, provide the principal basis
for prosecuting the crime of enforced disappearance.
9. Other .ross ,iolations of human ri.hts
@nternational and regional human rights treaties (obligation to conduct effective
investigation, ensure prosecution and victims right to a remedy and reparations)
'nited (ations principles and guidelines
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Although the phrase :gross violations of human rights; is widely used in human rights law, it
has not been formally defined. @t is generally assumed that this category includes*
genocide%
slavery and slave trade%
extra"udicial, summary or arbitrary executions%
enforced disappearances%
torture or other cruel, inhuman or degrading treatment or punishment%
prolonged arbitrary detention%
deportation or forcible transfers of population%
systematic racial discrimination%
and the gender-specific instances of these violations, such as rape.
8eliberate and systematic deprivation of essential foodstuffs, essential primary health care,
and-or basic shelter and housing may also amount to gross violations of human rights.
@n those = instances, the aim of the amnesty law is irrele,ant. @nvalid amnesties are impermissible
even if they are used as an inducement for rebels to demobili+e or secure a stable transition to
1/
@0$K, Prosecutor $% Anto urund!i"a- case 3o% IT-45-6276-T- .ud+ement of 61 8ecem#er 6449- &ara% 655%
1=
!ee, for example, :uinteros v. ;ru+uay- communication (o. 15?-16A1, in Selected 8ecisions of t'e *uman Ri+'ts
Committee under t'e <&tional Protocol- vol. @@ ('nited (ations publication, !ales (o. I.A6.M@&.1)% Iuropean 0ourt of uman
4ights, Kurt v. Tur=ey, (o. 2)2?=-6), <udgement of 2/ Bay 166A% @nter,American 0ourt of uman 4ights, >el?s@uez-RodrA+uez
0ase, <udgement of 26 <uly 16AA, !eries 0, (o. ), para. 1?2.
1?
.asic 7rinciples and Luidelines on the 4ight to a 4emedy and 4eparation for &ictims of Lross &iolations of @nternational
uman 4ights Daw and !erious &iolations of @nternational umanitarian Daw (preamble).
)
democracy and promote reconciliation. !imilarly, democratic processes cannot transform an amnesty
that would otherwise be invalid into a lawful amnesty.
"oreo,er( when !tates adopt amnesties that e2-lude war -rimes( .eno-ide( -rimes a.ainst
humanity and other ,iolations of human ri.hts( they must ta1e -are to ensure that the
amnesties do not restri-t or imperil the en:oyment of human ri.hts( in-ludin. those that are
ostensi)ly restored.
2or examples,
Amnesties that expunge the conviction of persons previously convicted for their nonviolent
political dissent. @n these instances granting amnesty to a prisoner of opinion is tantamount to
an implicit acknowledgement that his conduct was criminal. A better option would be to
consider that prisoner as innocent.
Amnesties that seek to restore human rights and encourage political exiles to return home by
removing the threat of prosecution. !uch amnesties should not be sub"ect to the condition of
actual return, as various personal constraints may limit beneficiaries ability to exercise their
right to freely leave and enter their own country.
(). Degal effect of amnesties
An amnesty for gross violations of human rights or serious violations of international humanitarian law
would not pre,ent prose-ution )efore forei.n or international -ourts.
1;
$he ICT# expressed its view that a domestic amnesty covering crimes whose prohibition has the
status of a "us co+ens norm, such as the prohibition of torture, :would not be accorded international
legal recognition.;
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$he !pe-ial Court for !ierra &eone further observed that :one conseJuence of the nature of grave
international crimes against humanity is that !tates can, under international law, exercise universal
"urisdiction over such crimes.; :>here "urisdiction is universal,; it concluded, :a !tate cannot deprive
another !tate of its "urisdiction to prosecute the offender by the grant of amnesty.;
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2inally, human ri.hts treaty )odies have repeatedly affirmed their right to review the validity of
amnesties adopted by !tates parties. 2or example, in Malawi African Association et al% v. Mauritania,
the African 0ommission concluded that a domestic amnesty law that :had the effect of annulling the
penal nature of the precise facts and violations of which the plaintiffs; were complaining could not have
the effect of precluding review by the 0ommission itself.
()0 @ssues to consider in an amnesty situation
1. @s a proposed legal measure an amnestyF 8oes it have the legal effect of foreclosing criminal
prosecutions, civil remedies, or bothF
2. 8oes a proposed amnesty fully and clearly exclude all categories of conduct that, under
international law, should be sub"ect to an effective investigation and, where the evidence
warrants, a criminal prosecutionF Are the excluded conduct effectively criminalised in national
lawF @s it clear what crimes are encompassed by the phrase usedF
#. 8oes a proposed amnesty interfere with victims right to an effective remedyF
). 8oes a proposed amnesty restrict victims or societies right to know the truth about violations
of human rights and humanitarian lawF
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()8 Amnesties and measures of transitional "ustice
1A
304, p.26.
16
@0$K, Prosecutor v. Anto urund!i"a- &ara% 655%
25
!ee Prosecutor v. Morris Kallon and Prosecutor v. Brima Bazzy Kamara, paras. ?5 and =?. !ee also Prosecutor v. Kondewa%
21
304, pp.#? et seJ.
/
7ublic deliberations considering human rights policies aimed at strengthening a transition to
democracy should be strongly encouraged. owever, a demo-rati- pro-ess cannot transform an
amnesty that would otherwise be invalid into a lawful amnesty.
Truth( :usti-e and reparations are -omplementary rather than alternative responses to gross
violations of human rights and serious violations of international humanitarian law.
>hile in some instances an individuals full disclosure of the truth about violations may "ustify a
reduction in sentence, measures of transitional "ustice such as the establishment and operation of a
truth -ommission should not fully exempt perpetrators from criminal process in exchange for their
testimony.
Iven when reduced in exchange for a full confession, the senten-e imposed on an individual
responsible for a gross violation of human rights or a serious violation of humanitarian law must )e
proportionate to the .ra,ity of the offen-e/ and victims right to an effective remedy must not be
compromised.
!imilarly, providing victims reparations for violations of human rights and humanitarian law does not
relieve !tates of their obligation to ensure prosecution of war crimes and gross violations of human
rights.
Iven when amnesties are used to promote the disarmament( demo)ili<ation and reinte.ration of
combatants, !tates may not grant amnesties that are inconsistent with their international legal
obligations.
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()I 'nited (ations policy
'nited (ations is not opposed to amnesties per se, but set limits on their permissible scope. @t
recogni+ed that amnesties can play a valuable role in ending armed conflicts, reconciling divided
communities and restoring human rights N provided that they do not grant immunity to individuals
responsible for genocide, crimes against humanity, war crimes or gross violations of human rights.
@ndeed, experiences show that amnesties exempting from criminal sanction those responsible for
atrocious crimes in the hope of securing peace have often failed to achieve their aim and have instead
emboldened their beneficiaries to commit further crimes.
2#
$he 'nited (ations has recogni+ed that "ustice and peace are not contradictory. 4ather, properly
pursued, they promote and sustain one another. Ixperience has shown that a culture of impunity and
a legacy of past crimes that go unaddressed are likely to undermine a lasting peace.
2)
I=. ECENT >'I!?'DENCE
&andmar1 -ase for international -riminal :usti-e in !outh Afri-a
Sout'ern African Liti+ation Centre and Bim#a#we CDiles orum $% 3ational 8irector of Pu#lic
Prosecutions and t'ree ot'ers, 0ase (umber* ??1/5-56, !outh Africa* igh 0ourt, A Bay 2512,
available at* http*--www.unhcr.org-refworld-docid-)fad2Af/2.html
@a-1r.ound
@n Barch 2512, !AD0 and OI2 challenged the refusal of the (ational 7rosecuting Authority ((7A) and
the !outh African 7olice !ervices (!A7!) to launch an investigation into crimes against humanity
carried out by Oimbabwean police against supporters of the main opposition party during the 255?
elections. .rought in terms of !outh Africas @nternational 0riminal 0ourt Act, which defines torture as
a crime against humanity, the applicantsP argued that the (7A and !A7! had failed to take into
22
304 p.)/.
2#
304, p. &.
2)
304 p.)/.
=
account !outh Africas international and domestic law obligations to investigate and prosecute
perpetrators of international crimes regardless of where they are committed or by whom.
2/
&e.al )asis
$he section )(1) of the !outh AfricaQs @mplementation of the 4ome !tatute Act 2? of 2552 (the @00
Act) states*
E8es&ite anyt'in+ to t'e contrary in any ot'er law in t'e Re&u#lic- any &erson w'o commits
Fan internationalG crime- is +uilty of an offence%H
$hen, section )(#) states*
EIn order to secure t'e "urisdiction of a Sout' African court for &ur&oses of t'is C'a&ter- any
&erson w'o commits Fan ICCG crime outside t'e territory of t'e Re&u#lic- is deemed to 'a$e
committed t'at crime wit'in t'e territory of t'e Re&u#lic if I
)a, J
)#, J
)c, t'at &erson- after t'e commission of t'e crime- is &resent in t'e territory of t'e Re&u#lic
Ar.uments of the parties
@n the light of the collapse of the rule of law in Oimbabwe, concern for the safety of the victims, and the
unlikelihood of securing accountability in a Oimbabwean court, the appli-ants maintained that !outh
Africa was legally reJuired to investigate these crimes against humanity, regardless of whether they
were committed in !outh Africa or by !outh African nationals. $hey argued that section )(#)(c) merely
conditioned the exercise of enforcement "urisdiction by the courts on the presence of the accused
while !outh Africas &rescri&ti$e "urisdiction is provided for by section )(1) of the @00 Act and was not
conditional on the presence of the accused.
2=
@n their view, section )(#) only reJuired the presence of
the perpetrators for initiating a prosecution, thus outlawing trials in a#sentia. $hey submitted evidence
that those Oimbabwean officials identified visited !outh Africa from time to time and contended that, if
and when they do so, !outh Africa was under a duty to apprehend and prosecute them if possible.
2?
$he respondents refused to respond to the reJuest to investigate, mainly on grounds of inadeJuacy
of evidence. $hey claimed that section )(#) established a so,called conditional universal "urisdiction
regime in terms of which !outh Africa could not exercise "urisdiction in any form over crimes until the
accused was present in the 4epublic. @n their view, section )(#) reJuired the presence of the
perpetrators for both opening an investigation and initiating a prosecution. $hey also argued that the
undertaking of any investigation would in addition to negatively impacting on !outh Africas diplomatic
initiatives in Oimbabwe, compromise the political position of the !A7!. $hey finally claimed that
there was no point investigating because the Oimbabwean authorities were unlikely to cooperate.
2A
ulin.
$he igh 0ourt found that the (7A and !A7! decision not to initiate an investigation into torture as a
crime against humanity committed in Oimbabwe was unlawful. $hey failed to take into consideration
!outh Africas international and domestic 4ome !tatute o#li+ations to in$esti+ate t'is crime re+ardless
of w'ere t'e crime is committed or #y w'om. $he (7A and !A7! were therefore ordered to
investigate allegations of torture committed in Oimbabwe which were brought to the attention of (7A
and !A7! in 255A.
2/
@mplementation of the 4ome !tatute of the @nternational 0riminal 0ourt Act 2? of 2552. Available at*
http*--www.info.gov.+a-ga+ette-acts-2552-a2?,52.pdf
2=
0hristopher Levers, :$he PlandmarkP Oimbabwe $orture 8ocket decision;, 6 Bay 2512,
http*--warandlaw.blogspot.co.uk-2512-5/-landmark,+imbabwe,torture,docket.html
2?
4osalind Inglish, :!outh Africa shrinks from investigating Oimbabwe torture allegations;, 1) Bay 2512,
http*--ukhumanrightsblog.com-2512-5/-1)-south,africa,shrinks,from,investigating,+imbabwe,torture,allegations-
2A
@bid.
?
$he case highlighted (i) !outh Africas duty to investigate crimes against humanity% (ii) the sufficiency
of the evidence presented by !AD0 to the (7A and !A7! to trigger an investigation% and (iii) how
irrelevant considerations N such as political concerns N improperly influenced the decision.
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*i+ $he 0ourt found that based on the @00 Act, the !outh African authorities have a duty to investigate
and prosecute perpetrators of international crimes, regardless of where they are committed, by who
and where is located the accused. $he 0ourt in substance accepted the Applicants submission that
section )(#)(c) of the @00 Act relates to the exercise of enforcement "urisdiction. $his decision sends
out a clear message that perpetrators of international crimes will not be accommodated in !outh
Africa, and the impunity that so many en"oy ends at the Oimbabwean, or other countries borders. @n
this regard, it is worth mentioning that the effect of this construction of section ) of the @00 Act is not
limited to !outh Africa , Bauritius recently adopted implementing legislation in respect of the 4ome
!tatute which contains a very similar provision on universal "urisdiction.
#5
*ii+ $he 0ourt endorsed the position that in order for a domestic investigation to be initiated under the
@00 Act in !outh Africa the correct Juestion is whether there is a Qreasonable basis to proceed.
*iii+ $he 0ourt ruled that political considerations or diplomatic initiatives are not relevant at the
investigatory phase having regard to the purpose of the @00 Act. @ndeed, the @00 Act itself denies
explicitly diplomatic immunity to government officials accused of committing @00 Act crimes. owever,
such considerations may become relevant for the prosecutions but, when they are considered, they
are to be made by a senior official, not an investigating officer.
#1
Appeal
$he (7A and !A7! challenged this decision on a number of grounds. $hey argued that the igh
0ourts finding that the @00 Act reJuired !outh Africa to investigate core international crimes when
committed outside of !outh Africa was incorrect. $he (7A and !A7! maintained that !outh Africa
only had "urisdiction to prosecute these crimes. @t was also argued that the 0ourt had erred in
accepting that !AD0 and OI2 had legal standing to bring this case.
3n ? <une 2512, the (orth Lauteng igh 0ourt dismissed the (7A and !A7!s application for leave
to appeal. <udge ans 2abricius dismissed both arguments finding that (7A and !A7! failed to
demonstrate that this case was not brought in the public interest and in the interest of the Oimbabwean
torture victims. e also found that the (7As and !A7! interpretation would render !outh Africas
domestic 4ome !tatute Act meaningless and that they ignored the fact that investigations are a
necessary component of prosecutions. @n dismissing the application, <udge 2abricius concluded that
an appeal has no reasonable prospects of success and noted that even if leave to appeal had been
granted he would not have suspended the initiation of an investigation pending the outcome of an
appeal.
#2
emar1s
3n ? August 2512, !outh Africa initiated opened its first ever investigation into crimes against
humanity on the basis of universal "urisdiction established by the !outh AfricaPs @00 Act. $he (ational
7rosecuting Authority ((7A) will investigate the abuses committed in Badagascar in 2556, with a view
to prosecuting the countryPs ousted former 7resident Barc 4avalomanana for his role in their
commission. !ince as Br 4avalomanana is currently in exile in !outh Africa, section )(#) is not an
issue.
owever, the (7APs announcement makes it clear that the applicable standard for the opening of an
investigation is whether there is Preasonable suspicionP that crimes against humanity have been
26
!outhern African Ditigation 0entre, :<udgment 8ay* (orth Lauteng igh 0ourt to 4ule on Oimbabwe $orture 0ase;, ? Bay
2512,
http*--www.southernafricalawcenter.org-news-item-Bedia9Advisory9<udgment98ay9(orth9Lauteng9igh90ourt9to94ule9on9O
imbabwe9$orture90ase
#5
0hristopher Levers, :$he PlandmarkP Oimbabwe $orture 8ocket decision;, 6 Bay 2512,
http*--warandlaw.blogspot.co.uk-2512-5/-landmark,+imbabwe,torture,docket.html
#1
@bid.
#2
!outhern African Ditigation 0entre .log, :@nvestigations Bust go Ahead N !A igh 0ourt 8ismisses Appeal Application in Oim
$orture 0ase;, ? <une 2512, https*--salcbloggers.wordpress.com-2512-5=-5?-investigations,must,go,ahead,sa,high,court,
dismisses,appeal,application,in,+im,torture,case-
A
committed. $he use of a Preasonable suspicionP test as opposed to the 4ome !tatutePs Preasonable
basis to believeP standard , which was endorsed by the igh 0ourt in the Oimbabwe $orture case , is
regrettable, but it remains to be seen whether there is any practical difference between the two
evidential standards.
##
##
0hristopher Levers, :!outh Africa investigating Pcrimes against humanityP in Badagascar;, ? August 2512,
http*--warandlaw.blogspot.co.uk-2512-5A-south,africa,investigating,elleged.html
6