The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind: An analysis in four parts.

I

In this four part article 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.

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 article.

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 article. 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 article, 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 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 section of this article), 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 sections is devoted to explaining why both jumps are impermissible.

Let me conclude this section 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. 

II

The importance of the SALC decision

Why is the conclusion of the Constitutional Court in the SALC decision so important?

As we now know, the SAPS has a duty to investigate allegations of crimes against humanity. This is good, for it provides an avenue for holding perpetrators of such crimes responsible. Whilst the court in the SALC decision leaned heavily on the Rome Statute and the ICC Act when coming to the conclusion that the SAPS has a duty to investigate allegations of crimes against humanity, there is little doubt that the court would have come to the same conclusion even if South Africa had not ratified the Rome Statute or domesticated it into South African law through the ICC Act. Like the duty to prosecute, which I will argue in the fourth and final section is sourced from the Constitution itself, the duty to investigate is ultimately sourced in the Constitution. Thus, even if South Africa withdraws from the ICC and repeals the ICC Act, the SAPS will have a duty to investigate the allegations against someone like President al-Bashir.

Following an investigation, however, and assuming that the investigation reveals a prima facie case against the alleged criminal, does the NPA have a duty to take steps to prosecute him? It is this question that makes the conclusion by the court in the SALC decision—that is, the conclusion that because section 179(2) affords the NPA a power to prosecute, it affords the NPA a discretion but not a duty to prosecute—so important.

According to a long history of cases, there are two types of discretion: subjective and objective. [13] In this article I assume that the discretion contemplated by the Court is objective, which is to say that the NPA cannot make decisions based on personal preferences. [14] Its decision whether to prosecute must be based on so-called objective value judgments pertaining to the facts of a give case.

Even if the discretion is objective, such that the NPA does not have a complete discretion in deciding whether to prosecute, there is an important difference between the idea that the NPA has discretion to prosecute and the idea that it has a duty to do so. If it has discretion, the power to prosecute must be exercised lawfully and rationally. When exercised lawfully and rationally, it will be justified as a matter of law and courts may not review and set aside the exercise of this power. If the NPA has a duty to prosecute, this does not mean that the standard of review will be different. Rather, it means that where there is a prima facie case that a foreign national has committed crimes against humanity, the onus will be on the NPA to justify its decision not to institute criminal proceedings. The onus will lie with the NPA to justify its exercise of power. This is because prima facie evidence that a foreign national has committed crimes against humanity will, all things being equal, activate the NPA’s duty to institute criminal proceedings.

Why does the placement of onus matter? In short, it matters because it might affect the outcome of a dispute as to whether the NPA properly exercised is power under section 179(2) of the Constitution. This is because if the NPA has the onus of proving that it acted lawfully and rationally, in a case where it did not institute criminal proceedings against a foreign national who prima facie appears to have committed crimes against humanity, it must adduce evidence demonstrating that it in fact acted lawfully and rationally. Until it adduces this evidence, the evidential assumption will be that it did not act lawfully and rationally. Sometimes this evidence will not be available or it will be insufficient to rebut this assumption.

The coexistence of duty and discretion

In this article, I have explained the significance of the finding in the SALC decision that the NPA does not have a duty to prosecute, but instead has ‘just’ a discretionary power. I will explain why this is mistaken in the third and fourth sections of this article. In the remainder of this section, however, I want to explain why it is not conceptually incoherent to say that a person who has a duty to act can also have a discretion.

Duties and discretions can co-exist in at least three ways:

1. Means: A person may have a duty to perform a particular task but she may have discretion about how to go about doing so. So, for example, parents may have a duty to ensure that their child receives basic education, but this duty may be met by sending the child to private school, public school or by home-schooling.

2. Equivalence: Someone may have a duty to act in a particular way, but she may also have a duty to act in a way that conflicts with the first duty. For example, I may have a duty to help my friend move houses, but I might also have a duty to give another friend a lift to the airport. These duties might conflict if my friends are moving and flying on the same day. Some people think that in cases of this type, where the duties are equivalently weighted, I will have complete freedom to act as I happen to think fit, that is, a discretion about which of my two friends to help. [15]

3. Reviewability: It might be that a person has a duty to act in a particular way when certain conditions are satisfied, but that no third party has the power to second-guess that person’s determination of whether these conditions have been satisfied (or, at least, a limited power to second-guess their determination). Or, to put it another way, it may be that no third party can compel the person to act as required simply because this third party thinks that the conditions contemplated by the power have been satisfied.

Of the three ways identified in which duties and discretions might coexist, the second and especially the third are relevant to this article. Regarding the second, the NPA might have a duty to prosecute, but this duty might conflict with other duties—say, those it owes towards citizens not to act in a way that seriously threatens peace. In such cases, where the duties are equivalently weighted, the NPA has both a duty to prosecute and a duty not to prosecute. Regarding reviewability discretion, the NPA may have a duty to prosecute if certain factual conditions are met. But, ‘the polycentric character that generally accompanies its decision-making, including considerations of public interest and policy’, [16] may mean that third parties, such as a court, have limited power to second-guess the NPA’s determination as to whether these conditions have been met.

I return to the third of these three ways in which duties and discretions might coexist in the final section of this article. For now, I want to sum up the two main points that I have made in this section. First, the outcome of any challenge to the NPA’s exercise of power under section 179(2) of the Constitution will sometimes turn on whether the power of the NPA to institute criminal proceedings is ‘just’ discretionary or whether the NPA 'also' has a duty to exercise this power. Second, duties and discretions are not mutually exclusive. A person vested with a power may have a duty to exercise that power and may also have a discretion in her exercise of that power.

If the second of these two points is correct, however, how do we make sense of the SALC decision that because the NPA has a discretion whether to institute criminal proceedings, it therefore does not have a duty to prosecute? The explanation for this logical mistake, I think, requires an exploration of why Majiedt AJ thinks that the NPA has discretion at all. 

III

An outline of the Hohfeldian incidents

In the SALC decision, the Constitutional Court says that because ‘section 179(2) of the Constitution affords the prosecuting authority a power’, it affords the NPA ‘a discretion to institute criminal proceedings’. [17] A necessary conceptual link is asserted between ‘power’ and ‘discretion’, and it is assumed that as a consequence of this link the NPA does not have a duty to exercise its power.

The court does not provide its reasoning in this regard. This is unfortunate, as both the asserted link and the subsequent assumption are mistaken. To explain why the court was mistaken, I must resort to theory.  

W.N. Hohfeld, a legal theorist from the early twentieth century, famously argued that all ‘rights’ are constituted by four basic components. [18] These components are termed ‘the Hohfeldian incidents’. The four incidents are ‘claim’, ‘power’, ‘privilege’ and ‘immunity’. Each incident relates to the others in a particular way, having both an opposite and a correlative. In this section, I outline these relations and in the next section I apply this theory to the facts of the SALC decision.

The opposite of a claim is ‘no-claim’ and its correlative is ‘duty’. For example, Dave has a claim against John that John does not steal Dave’s car; but Dave has no-claim that John does not drive John’s own car.  Thus, simply, the opposite of claim is no-claim. The correlative of claim, though, is duty. If Dave has a claim against John that John does not steal his car, John has a duty not to steal Dave’s car. Thus, to repeat, the opposite of Dave having a ‘claim’ is Dave having ‘no-claim’ and the correlative of Dave’s ‘claim’ is John having a ‘duty’.  

The opposite of ‘power’ is ‘disability’ and its correlative is ‘liability’. Imagine Cyril, who is the chairman of a company. As chairman, he may have the power to order the company’s employees to perform certain tasks. If he ordered Sara to perform a task, Sara would now be liable to act in the way ordered. Power and liability are correlatives, for the exercise of a power creates a liability for someone else. If Cyril were to resign as chairman, however, he would no longer be able to issue orders that bind Sara in this way. In other words, his power to create liabilities for others would now be disabled. Thus, power and disability are opposites.

Turning to ‘privilege’, its opposite is ‘duty’ and its correlative is ‘no-claim’. If Nozipho owns a house, she might have a privilege to paint her house red, green, black or blue. She will only have a privilege, though, if she does not have a duty (imposed, say, by a local building authority) to paint it a certain colour. Privileges and duties are opposites. If she does have a privilege, it will mean that her neighbour Rob has no-claim against her to paint the house a particular colour. If Rob has a claim, Nozipho would have a duty, which means that Nozipho would not have a privilege. Thus, the absence of a claim vesting in Rob is the correlative of Nozipho’s privilege to paint her house the colour that she prefers.

In the language of the courts, a privilege is a ‘subjective discretion’ to act in a particular way; the exercise of this discretion ‘lies within the sole and subjective preserve’ of the person vested with the power. [19] Since privilege (or, subjective discretion) and duty are opposites, a finding that the exercise of a particular power is accompanied by a privilege necessarily means that the person vested with that power does not have a duty to exercise it. The person vested with this power would have ‘just a power’ but not ‘also a duty’. [20]

Finally, I consider ‘immunity’, whose opposite is ‘liability’ and correlative is ‘disability’. A person (call him Omar) has immunity if some other person (call him Shaun) lacks the ability to alter Omar’s claims, powers and privileges. For example, Omar is immune if Shaun is disabled from imposing liabilities on Omar. So, if Shaun has the ability to impose a liability on Omar, say, by prosecuting him for certain crimes that he is alleged to have committed, Omar will not be immune.

Let me summarise the above points.

Opposites

If X has a claim,                      then X lacks a no-claim.

    . . .   a privilege,                        . . .    a duty.

    . . .   a power,                            . . .    a disability.

    . . .   an immunity,                     . . .    a liability.

Correlatives

If X has a claim,               then some person Y has a duty.

    . . .   a privilege,                              . . .              a no-claim.

    . . .   a power,                                  . . .              a liability.

    . . .   an immunity,                           . . .              a disability.

The conflation of ‘power’ and ‘privilege’ in the SALC decision

The relationship among power, discretion and duty is more complicated than the SALC decision seems to recognise. Why does this matter? It matters because the court, it seems to me, confused the opposites and the correlatives of power and privilege.

As this section illustrated, if someone has a power, this does not mean that they do not have a duty. They might have a duty. They might not, in which case they will have a privilege, that is, a subjective discretion.

For example, in his capacity as a chairman, Cyril has the power to issue certain orders. This power is accompanied by duties and privileges. He is under a duty to exercise his powers in the best interests of the company. Within the parameters of this duty, however, he has a privilege to issue orders that he happens to think best. In the language preferred by our courts, he has a subjective discretion. Indeed, it will often be the case that he was hired so that he would exercise subjective discretion of this type. Analytically, therefore, there is no necessary connection between power and privilege. Contrarily, a necessary conceptual connection does exist between privilege and duty. As noted, the opposite of duty is privilege, not power. The opposite of power is disability.

Above, I indicated that according to Majiedt AJ, the fact that section 179(2) of the Constitution affords the NPA a ‘power’ means that it has ‘a discretion to institute criminal proceedings’. This is wrong. The NPA may have discretion when exercising its power, but this does not follow (analytically) from what it means to have power. Nor does it mean, as Majiedt AJ implies, that the NPA does not have a duty to exercise this power. It may be that it does not have a duty to exercise this power, but again this does not follow analytically from what it means to have power.

Whether the power of the NPA to institute criminal proceedings is accompanied by a duty and/or discretion is a normative question, the answer to which requires consideration of the various reasons for and against vesting the prosecuting authority with different types of power. Some relevant factors in this regard include the source, purpose and nature of the power, the forms of action to which the power relates, the persons over whom it can be exercised, and the circumstances of its use. In short, it was not enough for Majiedt AJ to identify the fact that ‘section 179(2) of the Constitution affords the prosecuting authority a “power”’ and conclude from this that this section affords the NPA discretion to institute criminal proceedings. Nor could he conclude from this that the NPA does not have a duty to institute criminal proceedings when investigations reveal a prima facie case against a person alleged to have committed crimes against humanity, war crimes or genocide.

In the next section, I consider whether the NPA has a discretion when exercising its power under section 179(2) of the Constitution to institute criminal proceedings. I then consider whether the NPA has a duty to institute such proceedings.

V

The NPA’s discretion and the limited relevance of such discretion

Is the power afforded to the NPA under section 179(2) of the Constitution discretionary and, if so, what is the relevance of this fact?

In the second section of this article, I explained that duties and discretions are not, conceptually speaking, mutually exclusive. I identified three ways in which a person who has a duty to act might still properly be described as having a discretionary power, namely, means, equivalence and reviewability. It is the third of these that is most relevant to section 179(2).

Regarding this third type of discretion, it will be recalled that the NPA may have a duty to prosecute if certain conditions are met, but that the polycentric character that generally accompanies its decision-making, including considerations of public interest and policy, may mean that third parties, like the courts, have limited power to second-guess its determination as to whether these conditions have been met. It is this type of discretion that many jurisdictions, including our own, afford to prosecuting authorities. [21]

Thus, when the courts say that the NPA has discretion in its exercise of the power to institute criminal proceedings, this does not mean that the NPA has ‘complete’ discretion in deciding whether to prosecute. It does not have a ‘privilege’ in its exercise of power. Rather, it means that the courts are limited in their review powers—that is, courts may only overturn a decision to prosecute or a decision not to prosecute when this decision is unlawful or irrational.

Why is the NPA afforded discretion? In short, the courts are not well-placed, relative to the NPA, to make decisions of the kind relating to decisions to prosecute. The NPA has ‘reviewability’ discretion because they typically make better decisions. As a matter of principle, it is appropriate to afford the NPA latitude of this kind. Courts have limited practical competence when it comes to complex polycentric issues. Thus, they should be wary when substituting their view for that of the NPA. The significance of this fact, though, must not be overstated, for the latitude afforded by this discretion is tempered in at least two ways.

First, reviewability discretion does not preclude scrutiny of decisions to prosecute or not to prosecute. Courts may overturn unlawful and irrational decisions. Courts may review and set aside decisions tainted in this way because reviewability discretion is afforded to the NPA because they typically make better decisions than would judges. When a decision is clearly wrong—irrational or unlawful—the reason for affording such discretion falls away. Second, and more important for the purposes of this article, the NPA has a duty to institute criminal proceedings when a prima facie case exists against an alleged perpetrator of crimes against humanity, war crimes or genocide.  The fact of the NPA’s discretion does not mean that it does not have a duty to prosecute. This is because it has reviewability discretion, not subjective discretion (or, to use the Hohfeldian term discussed in the third section, ‘privilege’).

In the next section, I will explain why the NPA has a duty to prosecute. I will also identify the source of this duty.

The duty to prosecute genocidaires, war criminals and other enemies of all humankind

Does the NPA have a duty to prosecute foreign nationals who prima facie appear to have committed genocide, crimes against humanity and war crimes?

Before answering this question directly, I must first dispose of a possible of objection to the relevance of the answer. Someone might say that the Constitutional Court has already considered this question. It held that the NPA does not have a duty, but ‘just’ has a discretionary power. There are two answers to this objection. First, the statement by Majiedt AJ was obiter, which means that it is not binding on lower courts. It was obiter because the finding was not necessary to arrive at an answer to the actual question before it, namely, whether the SAPS has a duty to investigate allegations of crimes against humanity. Second, even if the statement is binding on lower courts, the Constitutional Court is not bound by its own decisions. If it realises its mistake, it may correct it in a future case. Given the peripheral nature of this statement to the issue before the court, the court would be not be loathe to acknowledge its error (if, of course, it thinks that it was mistaken).

The way is now open to consider whether the NPA has a duty to prosecute foreign nationals of the type under consideration.

The short answer is that the NPA does have this duty. It has this duty not just because of international law (though, international law magnifies or duplicates this duty). [22]  Nor is it a duty that the NPA has simply because South Africa signed and ratified the Rome Statute and domesticated it through the ICC Act (though, signature, ratification and domestication does recognise, concretise and particularise this duty). Rather, it has this duty because it is the prosecuting authority contemplated by section 179(2) of the Constitution, and because South Africa is founded on the values of human dignity and the advancement of human rights and freedoms, [23] and is committed to the building of ‘a united and democratic’ nation that is ‘able to take its rightful place as a sovereign state in the family of nations’. [24]  

For South Africa to respect human dignity and advance rights and freedoms, and for us to take our rightful place in the family of nations as a ‘responsible global citizen’, [25] the NPA must, where appropriate, prosecute alleged perpetrators of crimes against humanity, war crimes or genocide. It must prosecute such persons even when they are foreign nationals. This is because such crimes offend not just the laws of the states of which these individuals are citizens or international law to which we are bound. They offend our basic law: the Constitution. They offend its raison d’être, expressed by President Nelson Mandela during the course of our transition to constitutional democracy:

South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations, and we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations . . . The time has come for South Africa to take up its rightful and responsible place in the community of nations. [26]

The duty to prosecute ‘international and heinous crimes’ [27] of this nature is not ‘created’ [28] by international law or by domestic legislation, for the duty is immanent in the structure, text and values of the Constitution. The source of this duty is the Constitution itself.

Thus, the fact that we might withdraw from the ICC is beside the point, at least insofar as our legal duty to prosecute genocidaires, war criminals and other enemies of all humankind is concerned. The ICC supplements the duty of the state to prosecute such persons; it does not create this duty. [29]  Whilst politically speaking we might be concerned about the withdrawal decision, legally speaking we have nothing to fear.

The scope of the duty to prosecute

In the previous section I said that the NPA must ‘where appropriate’ prosecute foreign nationals who prima facie appear to have committed crimes against humanity, war crimes or genocide. In what circumstances will it be appropriate for the NPA to prosecute?  

Guidance can be sought from the SALC decision. There, the court held that the duty of the SAPS to investigate allegations of crimes against humanity is subject to two limiting principles.  First, there is no duty to investigate if the directly affected national state is able and willing. Second, undertaking the contemplated investigation must be reasonable and practicable. Both of these principles are likely to be extended to any duty to prosecute. [30]

When will it be practicable and reasonable to prosecute? Many considerations will go into this evaluation. I will not discuss them here, save to make a few obvious points.

There is a duty to prosecute if there is a reasonable prospect of success. Sometimes, this duty will be defeated by other conflicting public interest considerations. [31] Any evaluation of what is required by the public interest—that is, of what is practical and reasonable—will include a consideration of ‘the nature and seriousness of the offence’ and the ‘interests of the broader community’. [32] In cases involving crimes against humanity, war crimes or genocide, the public interest will almost always support the prosecution of the alleged perpetrators. It is an interest to which our Constitution commits us and which we ‘dare not relinquish’, [33] for reasons of naked self-interest or even conventional and otherwise legitimate economic concerns. We have long-since rejected such a ‘narrow, chauvinistic approach’ [34] in our engagement with the world. The Constitution requires the state and all of its organs to prevent ‘impunity’. [35] Importantly, this duty exists even in the absence of international treaties and domestic legislation requiring South Africa to prosecute. [36]

Conclusion

In the introduction to the first section of this article, I indicated that the series was inspired by the ANC’s decision to withdraw South Africa as a member of the ICC and the accompanying announcement of President al-Bashir’s impending visit. As a spectator, it is difficult not to get the impression that the decision and visit are related.

The decision to withdraw cannot be implemented until after his visit (should he visit). Even if it were otherwise, however, this would not have an effect on our obligations under the Rome Statute that were acquired prior to withdrawal. The withdrawal decision has no effect on what we must do, legally speaking, when he arrives.

But, if South Africa does withdraw, what does that mean for the future, if foreign nationals who visit our shores prima facie appear to have committed crimes against humanity? Answering this question has been the focus of this article. The answer, in short, is that the NPA has a duty, sourced in the Constitution, to arrest and prosecute persons of this type.

Whilst it may decide not to prosecute if doing so would be contrary to the public interest, the onus is on it to justify this decision. Where the foreign national is accused of murder, rape, torture, extermination, forced displacement and pillaging, all of which led to the death of more than 300,000 people and the displacement of over 2.5 million people, this will be difficult burden to discharge.

Matthew Kruger is Legal Researcher at the Helen Suzman Foundation.

This article first appeared as a four part series of HSF Briefs.

Footnotes:

[1] Para 2.9, ‘ANC NGC 2015 Resolutions on International Relations’ (see here).

[2] See here.

[3] See here.

[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]  See here – 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.

[13] See, for example, the discussion in Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd 1992 (2) SA 791 (A) and for a more recent discussion of this point, see Democratic Alliance v President of South Africa and Others [2012] ZACC 24 paras. [14]-[26]. 

[14] For support, see National Director of Public Prosecutions and Others v Freedom Under Law [2014] ZASCA 58.

[15] Part of the difficulty in expressing this point is that ‘duty’ can mean either an all-things-considered duty, or a prima facie duty.  In the context of this section, I use ‘duty’ in the second sense.  See John Searle, ‘Prima Facie Obligations’ in Joseph Raz (ed), Practical Reasoning (OUP, Oxford 1978) 81-90 and Gilbert Harman, ‘Reasons’ (1975) 21 Critica 3-17.

[16] Supra note 2 para. [25].

[17] National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre [2014] ZACC 30 para. [56] (internal quotations omitted).

[18] Wesley Newcomb Hohfeld, Fundamental Legal Conceptions: As Applied in Judicial Reasoning and other Legal Essays (ed. Walter Cook, YUP, New Haven 1923).  For a summary, see the discussion in paragraph 2.1 of Leif Wenar, ‘Rights’ (Stanford Encyclopaedia of Philosophy, http://plato.stanford.edu/entries/rights/, 2015).

[19] Democratic Alliance v President of South Africa and Others [2012] ZACC 24 para. [23].

[20] Supra note 1 para. [55].

[21] See Freedom Under Law v National Director of Public Prosecutions [2013] ZAGPPHC 271 paras. [117]-[140].

[22] See section 232 of the Constitution.

[23] Section 1(a) of the Constitution.

[24] Preamble to the Constitution.

[25] Mandela, ‘South Africa’s Future Policy: New Pillars for a New World’ (1993) 72 Foreign Affairs 86-97, 87.

[26] Ibid at 97.

[27] The South African Police Service v Southern African Human Rights Litigation Centre [2014] ZACC 30 para. [78].

[28] Ibid para. [42].

[29] Cf. ibid para. [30] fn 25.

[30] Ibid para. [40].

[31] See Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa [1996] ZACC 16, where the need for reconciliation conflicted with the importance of prosecuting violators of human rights.

[32] See here – PDF.

[33] Supra note 5 at 87.

[34] Ibid at 92.

[35] Supra note 7 para. [32].

[36] Ibid para. [37].