South Africa has opened its first ever investigation into crimes against humanity. What is more, it is doing so on the basis of universal jurisdiction, in respect of a former head of state. The National Prosecuting Authority (NPA) has announced that it has opened the investigation in respect of abuses committed in Madagascar in 2009, with a view to prosecuting the country's ousted former President Marc Ravalomanana for his role in their commission. According to an NPA spokesperson:
Evidence has been brought to the attention of the Priority Crimes
Litigation Unit... and
there's reasonable suspicion that crimes against humanity may have been
committed.
The investigation was initiated under South Africa's Implementation of the Rome Statute of the International Criminal Court Act (the ICC Act). It will be 'managed and directed' by the NPA's Priority Crimes Litigation Unit (established to inter alia prosecute international crimes), but carried out by the Police's Directorate for Priority Crimes Investigation. As with the Zimbabwe Torture Docket, this case was instigated by civil society who submitted a docket to the NPA earlier this year. According to media reports at the time:
In the
Madagascar case, a group called the Association of the Martyrs of
Antananarivo Merrina Square and citizens of the State of Madagascar will
ask the NPA to investigate Ravalomanana – who lives in exile in SA –
for allegedly ordering the shooting of protesters at the presidential
palace in the Malagasy capital Antananarivo on February 7, 2009.
The group, represented by Cape
Town attorney David Erleigh, alleges that the shooting was a crime
against humanity as defined in the ICC Act and so SA authorities may,
and should, prosecute Ravalomanana.
The victims and relatives of
victims shot in the demonstration say 71 people were killed and 698
injured on February 7. They will present the NPA with sworn affidavits
from several of them, urging it to ensure that justice is done.
The investigation is in its early stages and much more work needs to be done, particularly in terms of proving the contextual elements of the crimes and (perhaps most difficult) establishing Ravalomanana is liable for the crimes under the doctrine of command responsibility. However, as the first investigation into international crimes by South Africa its significance is already well-established, regardless of the outcome. Furthermore, the response by the NPA will have a material effect on the prosecution of international crimes in South African generally, and the Zimbabwe Torture case in particular (should leave to appeal be granted in that case) in at least two ways:
First, the NPA's announcement makes it clear that the applicable standard for the opening of an investigation is whether there is 'reasonable suspicion' that crimes against humanity have been committed. The use of a 'reasonable suspicion' test as opposed to the Rome Statute's 'reasonable basis to believe' standard - which was endorsed by the High Court in the Zimbabwe Torture case - is regrettable, but it remains to be seen whether there is any practical difference between the two evidential standards. In any event, the NPA has accepted and applied a standard - which does not appear too onerous - which not only brings clarity to the issue, but also precludes the NPA from re-opening the issue on appeal in the Zimbabwe Torture case.
Second, by opening an investigation under section 4(3)(c) of the ICC Act - the 'universal jurisdiction' provision - the NPA has closed down many of the arguments it made in the Zimbabwe Torture case regarding both the legality and policy implications of UJ-based prosecutions. In fact, the only remaining issue to be clarified in terms of section 4(3)(c) is whether the presence of the 'suspect' in the territory of South Africa is required for an investigation to take place (notably, the NPA has made no distinction between their 'jurisdiction' to open an investigation and the jurisdiction of the South Africa courts over such crimes). This is not in issue in the current case as Mr Ravalomonana is currently in exile in South Africa, therefore section 4's requirement that the accused "after the commission of the crime, is present in the territory of the Republic" in order for a court to exercise jurisdiction is not an issue. Conversely, in the Zimbabwe case this 'presence' requirement is the issue - with the NPA and Police arguing it is a precondition for both opening an investigation and initiating a prosecution, while the applicants argue that 'presence' is only a requirement for the purposes of trial (i.e. to outlaw trials in absentia).
The narrowing down of the area of dispute in respect of section 4(3)(c) is to be welcomed. However there is a double-edged nature to the Madagascar investigation for the applicants in the Zimbabwe Torture case: the NPA might be providing cover for its arguments on appeal that section 4(3)(c) requires presence in order to investigate by showing that when the person in question was present (i.e. Marc Ravalamanana), they did in fact do so. Moreover, the opening of the Madagascar investigation also undercuts the argument by the applicants - which was strongly hinted at by Judge Fabricius in his decision - that the NPA was failing to take its duties under the ICC Act seriously.
Finally, the 'politics' of the Madagascar case closely resemble the Zimbabwe Torture case - both relate to violence in the context of a political impasse which has subsequently been addressed through a SADC mediation process - with one key difference: while Zimbabwe's political impasse was 'resolved' through a power-sharing 'Global Political Agreement' involving both sides, Madagascar's was resolved (initially) through the exclusion of Mr Ravalomonana. In this regard the timing of the NPA's announcement is interesting, as it coincides with SADC-mediated 'unprecedented direct talks' between Ravalomanana and
his successor President Andry Rajoelina on a Seychelles island.