Wednesday, May 23, 2012

The Zimbabwe Torture Docket and the ghosts of crimes past

by Tour

The recent decision of the North Gauteng High Court ordering the
National Prosecuting Authority, together with the South African Police Service,
to properly investigate allegations of torture that took place in Zimbabwe, has
been greeted with both elation and disdain. Civil society has proclaimed it as
a victory for human rights, universal jurisdiction and the rule of law.
Predictably, a ZANU-PF aligned member of the Zimbabwean government decried the
decision as
“a wish by the South
African judge pushing an agenda of former Rhodesians” looking to effect regime
change in Zimbabwe.
While there is little hope of
reconciling these two points of view, there is some value to be found in
setting out exactly what the decision was (and was not) about.

First, this case was not about Zimbabwean politics, at least not
directly. It will no doubt have an effect on the political environment in
Zimbabwe, and perhaps even South Africa’s mediation efforts there, but this was
not its focus. Some might question the selection of these from amongst the
abundance of putative international crimes, but the short answer to this
skepticism is that by proximity alone Zimbabwe is a more likely candidate than,
say, Syria. Moreover, this is not the only attempt by civil society to use
South Africa’s Rome Statute Act in this manner. In 2009
civil society organisations submitted a docket
to the NPA and SAPS concerning war crimes allegedly committed in Israel’s offensive
in Gaza (Operation Cast Lead)
. Before that, civil
society relied on the same Act to dissuade President Omar al-Bashir from coming
to President Zuma’s inauguration (albeit not under threat of domestic
prosecution but rather of arrest pursuant to a warrant issued by the
International Criminal Court in The Hague).

Second, while this case is undoubtedly a landmark one for the
exercise of universal jurisdiction over international crimes, it is possible to
overstate its significance in this regard. South Africa has notionally
exercised universal jurisdiction over such crimes wherever they are committed since the ‘Implementation of the Rome
Statute of the International Criminal Court Act’ was passed in 2002. In this regard, those looking to impugn the
applicants might reserve some of their opprobrium for Parliament – which passed
the Act – and former President Thabo Mbeki – who by Presidential proclamation
created a specialized unit to manage and direct investigations and prosecutions
under the Act in 2003. Moreover, this case did not involve the direct
application of the criminal provisions of the Act (that is yet to come); it was
a review application relating to the obligations of the state under the Act,
the Constitution and international law. All Judge Fabricius did was apply these
laws to the facts before him. The significance of his decision lies in setting
out the responsibilities of the NPA and SAPS under the Rome Statute Act, and
under what circumstances these are triggered.

As such, this case was as much (if not more) about service delivery:
i.e. holding to account state organs that do not fulfill their constitutional
mandates. The court found the NPA and SAPS were remiss in their failure to
properly investigate a docket providing a reasonable basis to believe
international crimes that fell within their investigative remit had been committed
by individuals who visited South Africa.

Seen in this light, the case is only the most recent example of the
NPA’s failure to fulfill its obligations in respect of the prosecution of
crimes that – in the words of Michael Walzer – “shock the moral conscience of
mankind”. Since the Truth and Reconciliation Commission’s work ended in 2003,
the NPA has dragged its feet in respect of its duty to prosecute the
perpetrators of serious apartheid-era crimes who were either denied amnesty or
refused to apply for it. In 2008 the families of victims of apartheid-era
crimes prevented the NPA from shirking this duty altogether by having its
policy – that provided for a second round of amnesties – declared
unconstitutional. However, such prosecutions have still not been forthcoming,
notwithstanding the fact that some would amount to ‘international crimes’ –
placing South Africa under an international obligation to prosecute them. While
the Rome Statute Act’s reach is limited to international crimes that have taken
place since 2002, the NPA has other legal avenues to pursue justice for these
atrocities should it wish to ‘deliver’ in this regard. It can only be hoped
that the Zimbabwe case will wake the NPA from its slumber in respect of these
crimes as well.

There is a broader lesson here. The history of the ‘international
justice’ project (of which these cases form part) is replete with irony.
Hitler and Goering met at a rally in
1922 protesting the demand by the “Entente” that Germany’s military leaders be
extradited to stand trial under the terms of the Treaty of Versailles. Those
trials never took place. However, the horrific events that Hitler and Goering –
along with their contemporaries – unleashed on Europe two decades later brought
about the first international war crimes trials in history at Nuremberg (where
Goering was tried), which form the normative and institutional basis of the ‘international
justice’ project.

Seventy years later, the project’s
penchant for irony remains. In April last year, as six high-profile Kenyan
politicians accused of committing atrocities in the aftermath of the December
2007 elections made their first appearance at the International Criminal Court
in The Hague, victims of British abuses in pre-independent Kenya were finally having
their day in court in London.
It comes as no surprise
then that the current case provides yet another twist of fate: the same week
that the Zimbabwe case was being heard at the Pretoria High Court in March, the
unfinished business of apartheid crimes was being discussed at Wouter Basson’s
professional misconduct hearing just down the road.

These anecdotes teach an obvious lesson that has been shared by
Milosevic, Taylor, Eichmann, Krstic and Mladic: that is, the inevitability of
international justice. While justice often takes its time, its time eventually
comes to those that deserve it.

Therefore, through their recalcitrant efforts to avoid their duty in
investigating the individuals implicated in the torture docket, the NPA and
SAPS did nothing more than slow down justice’s march.  The importance of Judge Fabricius’s decision
is to put the South African authorities on the right path again. However,
unless and until they are adequately addressed the crimes of the past will
continue to cast a long shadow over the pursuit of international justice in
South Africa.

Tuesday, May 22, 2012

U.S. News & World Report Improves Transparency of Law School Rankings

Huzzah for U.S. News and World Report! The most recent edition of its law school rankings includes the median LSAT and GPA of each school’s entering class. Finally. I have long argued that USN&WR should publish all of the data that it uses in its rankings. How else can the rest of us (read: rankings geeks) understand how—and, indeed, whether—the rankings work? Though USN&WR remains short of that ideal, disclosing median LSATs and GPAs represents a major step towards making the rankings more transparent and, thus, trustworthy.

USN&WR started the trend towards transparency last year, when it began publishing the “volume and volume equivalents” measures that it uses in its law school rankings. That input counts for only .75% of a school’s score, however. Median LSATs and GPAs together count for 22.5% of a school’s score, in contrast, making their disclosure by USN&WR all the more helpful.

There remain only two categories of data that USN&WR still uses in its law school rankings but does not disclose: overhead expenditures/student (worth 9.75% of a school’s score in the rankings) and financial aid expenditures/student (worth 1.5%). It isn’t evident why USN&WR declines to publish those inputs, too, though perhaps the financial nature of the data raises special concerns. If USN&WR cannot bring itself to publish overhead expenditures/student and financial aid expenditures/student, however, it should abandon those measures. They serve as poor proxies for the quality of a school’s legal education and if we cannot double-check the figures we cannot trust their accuracy.

[Crossposted at Agoraphilia and MoneyLaw.]

Friday, May 11, 2012

The right families

I look behind my ears for the green
Even my sweat smells clean
Glare off the white hurts my eyes
Gotta get out of bed get a hammer and a nail
Learn how to use my hands, not just my head
I think myself into jail
Now I know a refuge never grows
From a chin in a hand in a thoughtful pose
Gotta tend the earth if you want a rose.
— Indigo Girls, Hammer and a Nail, Nomads Indians Saints (2000)

I grew up in the deep South. I have spent most of my adult life in exile as a stranger in the strange land called Academia. Though the deep South and Academia generally distrust each other, the two places do have some things in common. Chief among those shared traits is the belief that coming from the "right family" counts for something. After six years of publishing MoneyLaw, I'll readily concede that most of my readers will never understand the South and really don't want to understand it. That's a lost cause. But I do suspect that many readers of this blog know a "right family" when they see one. "Proffspring." Children of professors or politicians — hellfire, children of a professor and a politician — collecting another generation of Ivy or near-Ivy degrees. By and large, this is the bourgeois background that dominates acadème. They don't call it the ivory tower for nothing.

Charles Murray

For weeks I've been looking for an excuse to post a link to the PBS quiz, White, educated, and wealthy? Congratulations, you live in a bubble. The quiz is quite illuminating. It illustrates the basic premise of Charles Murray, Coming Apart: The State of White America, 1960-2010: The United States, especially but not just its majority white population, is pulling apart like cells undergoing meiosis. The wealthier and (yes) whiter you are, the less likely you are to encounter anyone who deviates from your background. MoneyLaw veteran Jeff Harrison calls it class bias. Really, there's a simpler term for it. Business as usual in academia.

I scored 32 out of 100 points on that PBS quiz. Humble was I ere I saw Harvard: any points I scored were traceable to my upbringing in a comfortable but decidedly modest, working-class immigrant family. That score, PBS told me, is typical of a first-generation professional from a fair to middlin' working-class background. I strongly suspect that most scores in American legal academia would be much, much more sequestered.

I had occasion this week to speak to the hiring partner of a large law firm in a medium-sized American city (not Louisville). He reported an observation that bears repeating. This partner and his counterparts around the country have compared notes on all of the top-ten-percent students and law review editors their firms have hired. The factor that most accurately predicts success? Whether at least one parent worked with her or his hands. Seriously, get out of bed and grab a hammer and a nail.

Come to think of it, as the child of parents whose first jobs in this country were busing tables at Atlanta's old Stouffer Hotel and packing doughnuts at the Krispy Kreme on Ponce de Leon Avenue, I can definitely lay claim to a distinction that has dogged me my whole life, first as a child in and of the deep South, and later as a vagabond in Academia. I really do come from one of the "right families." Indeed, the very best.

Happy Mother's Day, Mom. And thanks, Dad, for marrying her.

Wednesday, May 9, 2012

The 'landmark' Zimbabwe Torture Docket decision

by Tour

 Yesterday the High Court in Pretoria
handed down a landmark decision in the case of South African Litigation Centre and Others v The National Director of Public Prosecutions and Others that has indelibly altered
the international criminal justice landscape in South Africa (and possibly
beyond). My colleague and co-blogger, Max du Plessis, was one of the advocates
involved in bringing the case on behalf of the applicants (the Southern Africa
Litigation Centre and Zimbabwe Exiles Forum) – while we share this blog, he has
refrained from commenting on the case and these comments are my own, flowing
from my position both as an academic international lawyer and as a legal
adviser to the applicants during the hearing on matters of international law.

In a wide-ranging, yet at times tersely-worded,
95-page judgment the Court found that the decision taken by the South African National
Prosecuting Authority and Police (the Respondents) “refusing and/or failing to
accede to the First Applicant’s request that an investigation be initiated
under the Implementation of the Rome Statute of the International Criminal Court
Act 27 of 2002 (the ICC Act), into acts of torture as crimes against humanity
committed by certain named perpetrators in Zimbabwe” was unlawful, inconsistent
with the Constitution and therefore invalid. In light of “South Africa’s
international law obligations as recognised by the Constitution”, the Court
ordered the Police’s ‘Priority Crimes Investigation Unit’ (in cooperation with
the National Prosecuting Authority) “in so far as it is practicable and lawful,
and with regard to the domestic laws of the Republic of South African and the
principles of international law, to do the necessary expeditious and
comprehensive investigation of the crimes alleged in the torture docket”.
Having done so, the Prosecuting Authority must then decide whether or not to
institute a prosecution de novo.

As expected, a significant portion of
the judgment was directed at the (for want of a better word) ‘domestic’ aspects
of the case, such as the Applicants’ standing to bring the review application
and the standard of review or review to be applied. The Court made short work
of the Respondents’ objections in this regard. Notably, in respect of standing,
while the Applicants were on fairly solid ground regarding their right to bring
the case under South African law generally, the specific nature of this case
(and its importance) was not lost on the Court, which noted:

I agree… with the Applicants’ contentions
that the decisive factor in the present context is the ICC Act. In the present
instance the quality of
standi has to be decided,
not by mere reference to prior decisions of the Constitutional Court and the
Supreme Court of Appeal, which both adopt a broad approach in constitutional
litigation, but more importantly in the context of the Rome Statute and the
domestic Act of 2002, the ICC Act. The former emphasises in its preamble that
it is the duty of every state to exercise its jurisdiction over those responsible
for intentional crimes. In the preamble to the ICC Act, Parliament committed
South Africa, as a member of the international community, to bringing persons
who commit such crimes to justice under South African law where possible. The
Act, read in the context of its purpose and Rome Statute, seems to require a
broad approach to traditional principles of standing. Section 3(d) read with s2
requires the High Courts of South Africa to adjudicate cases brought by persons
accused of a crime committed in the Republic, and even beyond its borders in
certain circumstances. The relevant international imperative must not be lost
sight of, and the Constitutional imperative that obliges South Africa to comply
with its relevant international obligations. The complimentarity principle
referred to in Article 1 of the statute must also not be lost sight of in this
context. This states that the ICC has jurisdiction complementary to national
criminal jurisdictions. Section 4(3) of the ICC Act is also relevant, as it goes
beyond “normal” jurisdictional requirements. In the context of the purpose of
that Act, s3 requires that a prosecution be enabled as far as possible.
holistically therefore, all the mentioned provisions place an obligation on South
Africa to comply with its obligations to investigate and prosecute, crimes
against humanity within the ambit of the provisions of s4(3) of the ICC Act,
and it is in the public interest that the State does so. In the context of that
Act it is not decisive that the crimes contemplated by that act were not
committed in South Africa. Section 3 of the South African statute makes this abundantly
clear in my view, and I therefore hold that Applicants have
locus standi in the litigation before me. It is my view
that the Applicants are entitled to act in their own interest in the present
context, and also in the public interest in particular. They do not have to be
the “holders” of any human rights themselves. They certainly have the right,
given their attributes, to request the state, in the present context, to comply
with its international obligations on behalf of those who cannot do so, and who
are the victims of crimes against humanity.

Immediately, the Court’s finding that
the ICC Act demands a broader notion of standing will be of consequence to
those in the process of utilizing the ICC Act to initiate prosecutions in South
African courts (or planning to do so). Beyond this, the recognition of the
obligation to investigate and prosecute international crimes under both
international and domestic law, and the finding that ‘prosecution be enabled as far as possible’, will have potentially
far-reaching consequences for the prosecution of international crimes in South
Africa generally.

When it came to what I’d previously
identified as the three high-points of the case – sufficiency of evidence,
jurisdiction and comity-related concerns – the judgment did not disappoint.

sufficiency of evidence for the purposes of investigation

The Court agreed with the Applicants’
submissions that the Respondents had relied on the incorrect evidential
threshold in deciding not to initiate an investigation. Based on the
Respondents’ contention that the Rome Statute’s thresholds should be applied mutatis mutandis to a domestic decision,
the Court accepted that “
said Respondents had confused different thresholds for different steps that had
to be taken in terms of the Statute”. According to the Court:

Article 53 of the Rome Statute only required that a reasonable basis
existed for the decision whether or not to initiate an investigation. It was
common cause in the present proceedings that the standard was met…. There were
other standards for an arrest, and the confirmation of charges. The sufficiency
of material for prosecution purposes was therefore not the proper threshold
that was required, and accordingly, Brigadier Marion, as I have already pointed
out, was asked the wrong question and gave the wrong answer. The question ought
to have been: Is there enough information to warrant an investigation in terms
of the applicable law? The answer has to be, yes, and First Respondents have
conceded that [the] Respondents had therefore laboured under an error of law in
that context.

While the Court’s conclusion is
correct, unfortunately it itself errs in its explanation (albeit without
significant consequences) by stating that there are “other standards for an arrest” under the Rome Statute:
article 58, like article 53, requires that there are “reasonable grounds to
believe that the person has committed a crime within the jurisdiction of the
Court” in order for an arrest warrant to be issued.
Nevertheless, the salient point here is that the
Court has endorsed the position that in order for a domestic investigation to
be initiated under the ICC Act in South Africa the correct question is whether
there is a ‘reasonable basis’ to proceed. This is a point the Court repeats later
more explicitly (at paragraph 31):

In my view it is clear that when an
investigation under the ICC Act is requested, and a reasonable basis exists
for doing an investigation
, political considerations or diplomatic
initiatives, are not relevant at that stage having regard to the purpose of the
ICC Act.

‘Gordian knot’ of jurisdiction

The issue of jurisdiction, or the
absence thereof, formed a large part of the Respondents’ ‘defence’ (in fact it
was the sole argument relied on by Counsel for the Police). The fulcrum of the
parties’ jurisdiction submissions was the proper meaning to the ascribed to
section 4(3)(c) of the ICC Act, which states:

In order to secure the jurisdiction of a
South African court for purposes of this Chapter, any person who commits [an
ICC] crime outside the territory of the Republic, is deemed to have committed
that crime within the territory of the Republic if –

(c)              that
person, after the commission of the crime, is present in the territory of the

The Respondents argued (i) that this
provision established a so-called conditional universal jurisdiction regime in
terms of which South Africa could not exercise jurisdiction in any form over crimes until the
accused was present in the Republic, and (ii) the absence of jurisdiction on
the part of South African courts vitiated the ‘jurisdiction’ of the police to
investigate the torture docket, the two being co-extensive.

The Applicants responded: (i) Section
4(3)(c) merely conditioned the exercise of enforcement
by the courts on the presence of the accused while South
Africa’s prescriptive jurisdiction was
provided for by section 4(1) of the ICC Act – which states: “D
espite anything
to the contrary in any other law in the Republic, any person who commits a
[international] crime, is guilty of an offence” – and was not conditional on
the presence of the accused: therefore South African courts did have ‘jurisdiction’
over the offence. (ii) Furthermore, and in any event, the competence of the
Police to investigate crime was not territorially limited.

Although the point could have been made
more clearly, the Court in substance accepted the Applicants’ submission that
section 4(3)(c) of the ICC Act relates to the exercise of enforcement

“Mr Marcus SC is in my view correct in submitting
that s4 (3) of the ICC Act dealt with the jurisdiction of the court to try
someone after an investigation. He submitted that Fourth Respondent’s argument
was absurd: it would mean that if a suspect was physically present in South
Africa then an investigation could continue. If they then left, even for a
short period, the jurisdiction would then be lost. If they then re-entered
South Africa, an investigation would continue. I agree that this does amount to an absurdity.
One does not know what would have occurred if an investigation had been
ordered, it was not simply an open and shut case. Section 4 (3) was concerned
with a trial. The ICC Act was silent on an investigation, but in my view it is
logical that an investigation would have to be held prior to a decision by the First
Respondent whether or not to prosecute. I am therefore of the view that Fourth
Respondent’s argument on the meaning of s4 (3) of the ICC Act cannot be upheld.”

By this passage the Court appears to
have put paid to the argument that the universal jurisdiction regime under South
Africa’s ICC Act is ‘conditional’. In doing so it arguably accepted in substance the distinction made in the
Applicants’ papers between prescriptive and enforcement jurisdiction. However,
the Court did not expressly invoke the prescriptive versus enforcement
jurisdiction distinction. The closest it came was earlier in the judgment,

Chapter 2 of this Act deals with
jurisdiction of South African courts in respect of crimes, and makes a crime
against humanity a crime under South African domestic law. Section 4(1) has
no requirement of presence.

However, one might infer that by
accepting that the power to investigate crimes committed under the ICC Act is
‘universal’ proper, the Court must have accepted that South African law
exercises prescriptive jurisdiction over such crimes on the same terms. Were
that not the case the power of the police would be extraordinary. Further,
section 205 of the Constitution states that police have power to ‘prevent,
combat and investigate crime’, therefore, if the court accepts their
power to investigate regardless of the
presence of the accused,
it must be taken to have accepted those offences
are crimes regardless of the presence of
the accused

While this aspect of the case might give
pause for further academic analysis, the effect of the ruling from a practical
perspective is, for the most part,
the same: the South African authorities have a duty, irrespective of the location of the accused, to investigate international
crimes where section 4(3)(c) is implicated.

Looking forward then, and aside from
these academic nuances, the decision confirms the South African police have an
extensive power to investigate international crimes the world over, without
setting out any mechanism for determining which crimes should be selected
(hence the suggestion of the ‘anticipated presence’ standard by the
Applicants). In this regard it’s worth mentioning that the effect of this
construction of section 4 of the ICC Act is not limited to South Africa -  Mauritius recently adopted implementing
legislation in respect of the Rome Statute which contains a very similar
provision on universal jurisdiction (See section 4(3)(c), The International Criminal Court Act 27 of 2011).


As far as the Respondents’ submissions regarding
the political implications of the proposed investigation and any resultant
prosecutions are concerned, the Court was unmoved by this argument.
While the Court did not go
so far as to rule that such
are irrelevant to prosecutions under the ICC Act, it agreed with the Applicants
that they are premature at the investigatory phase and, when they are
considered, are to be made by a senior official, not an investigating officer
(Noting, “
Diplomatic considerations were … not
the business of [the police], to put it bluntly”.)
In reaching this conclusion the Court relied heavily
on the
decision of the House
of Lords in R. (Corner House Research and
Another) v Director of The Serious Fraud Office (JUSTICE Intervening)
UKHL 60, noting:

“In that case the Director had
discontinued investigating allegations of corruption against a United Kingdom Company.
There had been a threat by a foreign state (Saudi-Arabia) to withdraw
co-operation on security matters if investigations were continued. If this
threat was carried out, public safety and national security would be
compromised. It had been made clear to the relevant UK officials, that the
relevant threats to national and international security had been grave indeed.
The Director had therefore taken the decision to discontinue the investigation
with extreme reluctance. The Director had been confronted, as the House of
Lords put it, by an ugly and obviously unwelcome threat. He had to decide what,
if anything he should do. He did not surrender his discretionary power of
decision to any third party, although he did consult the most expert source available
to him in the person of the Ambassador, and he did, as he was entitled if not
bound to so, consult the Attorney General who, however, properly left the
decision to him. The issue in the proceedings before the House of Lords was not
whether the decision was right or wrong, but whether the decision was a
decision the Director was lawfully entitled to make. The evidence before the
House of Lords was clear, no commercial interests caused the Director to
discontinue the investigations, but a clear threat to “British lives in British
streets” Public safety was therefore the relevant consideration. I am of the
view that reference to that decision of the House of Lords is particularly
apposite. In the present context it was the duty of the First, Second and Fourth
Respondents to investigate the docket. It contained sufficient information for
purposes of such an investigation, in the context of the Rome Statute. At that
stage, it was not their obligation to take political or policy considerations
into account. These change in any event from time to time, whilst a proper jurisprudence remains a concrete
basis for a stable society living under the twinkling but stern eyes of the
Rule of Law. Any such considerations would affectively destroy the efficacy of
the ICC Act. Respondents were required to act independently. In the present
context, and in the light of the request for an investigation of the torture
docket, they had to appreciate the nature and ambit of their duties, and act
accordingly. What the First Respondent would thereafter have decided to do with
the docket, if I can put it that way, was not a lawful basis for refusing to do
an investigation at that stage either. That is a different topic which may or may
not arise in future, and which might or might not have arisen in the past, once
the investigation had been completed. It is clear therefore that irrelevant
considerations where taken into account at that stage.”

Against this
backdrop the Court concluded:

“In my view it is clear that when an investigation
under the ICC Act is requested, and a reasonable basis exists for doing an
investigation, political considerations or diplomatic initiatives, are not
relevant at that stage having regard to the purpose of the ICC Act. Such
considerations may become relevant at a stage when the First Respondent would
have to decide whether or not to order a prosecution, but even at that stage
the purpose of the ICC Act, and South Africa’s commitment thereto, remain
relevant considerations that have to be taken into account.”

Notably, in respect
of the relevance of such decisions later on in proceedings, the Court made the
point of stating:

“It must not be forgotten that the ICC Act itself
denies explicitly diplomatic immunity to government officials accused of
committing ICC Act crimes. (See s4(2)(a)). The recent trial of Taylor, in the International Criminal
Court in The Hague, is a case in point.”

The incorrect reference
to the Charles Taylor Trial (he was tried in the Special Court for Sierra
Leone, sitting in The Hague; and not by the ICC) is a small distraction.  The important point is that this passage not
only casts a shadow over arguments that might be raised at a later date
relating to political considerations, it also shows that the Court accepts that
the ICC Act does in fact remove immunity ratione

Finally, the Court was not impressed
with the Respondents’ handling of the Torture Docket generally, noting:

“It is my view that in deciding whether it was
“possible” to bring the perpetrators of international crimes to justice, the
Respondents were required to determine whether or not the information before
them was sufficient to initiate an investigation, and as I have said, First
Respondent admitted that a reasonable suspicion that crimes against humanity
were committed in Zimbabwe during that period, existed. It is also strange to
say the least that First Respondent said that he did not take the views of
Second Respondent, which at on stage were the same as those of the Applicants,
into account. It is clear that First Respondent, on his own affidavit,
without a thought or concern for the governing international statute or
domestic legislation, abdicated his views to those held by the Fourth
Respondent. I need scarcely emphasize that the Constitution, s179 has granted
him, in the context of the NPA, independence, which he must exercise
impartially without fear or favour it is not for him to blindly follow
political views or policies, let alone to anticipate such

In contrast, the Court praised the
efforts of the Applicants in preparing the Torture Docket and defended them against
the unfortunate attacks leveled against them by the Respondents, noting:

[The] Applicants stated in their written
heads of argument that, having regard to [the] Respondents’ answering
affidavits, there was a well-founded apprehension that they had not acted in
good faith, but had instead adopted a carping, defensive, and evasive position
to avoid their duties in law. I do not for purposes of this judgment intend to
go into this topic in any great detail, but Applicants’ comments in this regard
seem to be well justified. For instance, Applicants’
bona fides were attacked, they were accused of publicity
seeking, and almost reprimanded for daring to place an undue burden, which was
an obvious waste of time, on them. These attacks herein were in my view
unfortunate and unjustified, as they did not address the real crux of the case
nl. whether the Respondents’ response to the torture docket had been performed
with due respect for the enabling law applicable to the functions, and with the
respect for the values of the Constitution and South Africa’s international law

On this basis the Court ordered the
Respondents to pay the costs of the application jointly and severally,
including the costs of three counsel, noting:

I must add that I considered the employment
of two senior counsel and one junior counsel on behalf of the Applicants as
having been a wise and reasonable precaution in the light of the facts and the
relevant legislation, and the importance of the matter to the Applicants, the victims
and the general public.

This is good news for civil society
organisations such as the Applicants – who expended vast amounts of time and
effort on preparing the torture docket in the first place, and then took the
precaution of hiring three of the country’s leading constitutional and
international law advocates to prepare and argue their case before the High
Court.  It is, in this respect, a victory
for the rule of law, a victory for international criminal justice, and a
validation of hard work, tenacity, and a commitment to human rights.

Friday, May 4, 2012

Guest Post: The Real Value in Pursuing Justice is Closure

by Nicole Fritz

month, the Special Court for Sierra Leone convicted former Liberian
president Charles Taylor of crimes against humanity, war crimes and
other violations of humanitarian law. It is the most high-profile
conviction by the court and the ruling for which it is likely to be

found him liable not, as the prosecution had charged, on the basis of
command responsibility for the gruesome atrocities committed by the
Revolutionary United Front and other rebel forces in Sierra Leone during
the civil war, or on the basis that he formed a joint enterprise with
the rebels, but because he had aided and abetted their acts and had
helped plan some of the rebel attacks.

some observers, this will seem less the resounding condemnation that
all the time, effort and resources deployed by the court should yield.
And yet Taylor will likely live out the rest of his days in prison, and
the many victims of Sierra Leone’s war will now know that the crimes
against them did not go unacknowledged.

criminal justice, particularly in an African context, is an easy
target. What dividends does it pay, critics ask. Too expensive, too
time-consuming, too far away, they say. Admittedly, some of these
criticisms are fairly made. It’s hard, for instance, to make the case
that international justice proceedings have any deterrent effect. Does
Syrian President Bashar al-Assad go any softer on anti-regime forces for
fear of a possible International Criminal Court (ICC) indictment? Does
Sudan’s Omar al-Bashir, already the subject of an ICC indictment, make
this impending sanction any part of his calculations against South Sudan

we appear to ask of international criminal justice proceedings far more
than we ask of any domestic criminal process. Countless studies call
into question the deterrent effect of domestic prosecutions and
punishments without us ever significantly interrogating the value of
these proceedings.

is the back story to another international law judgment issued last
month, that perhaps best testifies to the value of proceedings such as
those against Taylor. This case, heard by the European Court of Human
Rights, concerned the Katyn massacre, a Second World War atrocity in
which more than 20000 Polish army officers and other nationals were
executed — the crime hidden by burying their bodies in the Russian
forests of Katyn. The killings were on Joseph Stalin’s orders after the
Soviet invasion of Poland, but the Russians blamed the crime on the
Nazis, going so far as to try to have them prosecuted at Nuremberg. Only
in 1993 did then Russian president Boris Yeltsin acknowledge that
Stalin and the politburo of the Communist Party were responsible for the

of the victims attempted to initiate investigations and prosecutions
but, in 2004, Russian officials classified most of the volumes gathered
in investigations as "top secret" and classified their decision to
discontinue investigation as "top secret" too, effectively ending the
descendants’ search for accountability.

approached the European Court for assistance. The court’s judgment is
of limited value — it concluded that the time between the crimes (in
1940) and the entry into force of Russia’s obligations under the
European Convention (in 1998) meant that it could exercise no
jurisdiction in ordering investigation and prosecution. But it is this
very lapse of time that makes the case so notable.

years on — several generations gone — the applicants before the court,
including a widow, children and grandchildren, seek official
acknowledgment of the wrong that was done to their families.

judgments tend to be one dimensional, foregrounding the issue at hand.
Still, even if every day of the past 72 years has not been only joyless
grappling with the trauma of Katyn for these descendants, there is no
doubt that it has cast a long shadow over their lives — that their lives
would have been made easier by an acknowledgment of what happened, that
their husbands, fathers and grandfathers had not simply disappeared.

criminal justice proceedings will not erase the trauma of international
crimes, but its acknowledgement, its accounting, will go some way to
easing the suffering and memory of those who endured Sierra Leone’s
brutal war — a prospect still sought by many, such as those who, 72
years on, seek reckoning for the massacre of Katyn. 

Its justification lies not in it offering a complete salve, but in offering some.

• Fritz is the director of the Southern Africa Litigation Centre.