Joint Statement from Irish Human Rights Organisations
Monday, 30 January 2017
FOR IMMEDIATE RELEASE
President Trump’s Executive Order adopting a targeted ban on refugees and migrants from certain countries should be strongly and categorically condemned by the Irish government. This Executive Order is a barely concealed attempt to discriminate on nationality and religious grounds, itself a gross violation of freely accepted international human rights obligations. We stand in solidarity with US civil society organisations working to uphold the legal rights of all those affected by this Executive Order.
Closer to home, we express collective concern that the operation of US pre-clearance at Dublin and Shannon Airports may result in individual Gardaí and immigration officials providing assistance to US pre-clearance officials’ implementing the Executive Order.
We welcome the call by the Minister for Children and Youth Affairs, Katherine Zappone for an urgent review of the Irish pre-clearance agreement with the US.
We call on the Minister for Foreign Affairs and Trade and the the Minister for Justice and Equality to take steps to immediately:
- Conduct an urgent review of the pre-clearance system operating in Ireland and take appropriate action, up to and including suspension of pre-clearance agreement, where there might be a reasonable chance of a person’s rights under the constitution, EU or the European Convention on Human Rights may be under threat.
- Provide appropriate information on the applicable law and procedures to any person refused pre-clearance on the basis of the operation of the Executive Order. Irish immigration officials should also give any person refused pre-clearance the opportunity to seek legal advice. The organisations issuing this statement stand ready to give advice and/or make appropriate referrals, to any person refused pre-clearance in Ireland on the basis of the Executive Order.
- Clarify the role of Gardaí and immigration officials in the US pre-clearance process to ensure that in the exercise of their public functions, a person’s rights under the Irish Constitution, European Convention on Human Rights, EU law or international human rights law will not be violated.
Brian Killoran, CEO of Immigrant Council of Ireland (ICI)
Colm O’Gorman, Executive Director of Amnesty International Ireland
Edel McGinley, Director of Migrant Rights Center of Ireland (MRCI)
Eilis Barry, CEO of Free Legal Advice Centres (FLAC)
Fiona Finn, CEO of Nasc, the Irish Immigrant Support Centre (Nasc)
Liam Herrick, Executive Director of Irish Council for Civil Liberties (ICCL)
Nick Henderson, CEO of Irish Refugee Council (IRC)
Signatories are available for interview, please contact:
Caroline Reid, IRC, email@example.com; Ph: 085 858 5510
Clare Herbert, Amnesty International Ireland, firstname.lastname@example.org ; Ph: 085 814 8986
Edel McGinley, MRCI, email@example.com; Ph: 087 748 5695
Emily Glen, ICCL, firstname.lastname@example.org; Ph: 087 998 1574.
Jennifer DeWan, NASC, email@example.com; Ph: 086 085 3923
Pippa Woolnough, ICI, firstname.lastname@example.org; Ph: 085 835 3757
Yvonne Woods, FLAC, email@example.com FLAC, Ph: 01 887 3600
In August 2012, the Irish High Court ruled that as Mohammad Younis was in an irregular migration situation, he could not benefit from protections under employment law (see also Dr Darius Whelan‘s excellent analysis of the High Court decision here). Today (25 June 2015), the Supreme Court set aside the decision of the High Court. The decision was set aside, not on any explicit repudiation of the High Court’s analysis of employment law, employment contracts and irregular migrant workers, but on the basis of strict adherence to the role of a court in judicial review proceedings. Rather than focus on the human rights arguments pleaded before it, the Supreme Court simply considered the jurisdiction of the High Court to make its August 2012 decision. The Rights Commissioner made two monetary awards to to Mr. Younis in March 2011.
For breaches by Mr Hussein (Mr Younis’ employer) of the Organisation of Working Time Act 1997, the Rights Commissioner awarded the sum of €5,000 to Mr. Younis. For breaches of minimum wage legislation over a number of years, Mr. Younis was awarded €86,134.42. As Mr Hussein did not appeal this decision, but did not pay Mr. Younis compensation. the Labour Court issued two determinations that these sums be paid in September 2011.
In setting aside the decision of the High Court, Murray J. in the Supreme Court noted: Continue reading “Mohammed Younis Succeeds in the Supreme Court”
Tomorrow, the Assisted Decision-Making (Capacity) Bill finally progresses to Committee stage in the Dail. This Bill seeks to abolish the outdated ward of court system which currently provides the only mechanism in Irish law for removing the legal capacity of an adult and appointing a substitute decision-maker to take legal actions on that adult’s behalf. The introduction of this Bill has been broadly welcomed by civil society, organisations of persons with disabilities, healthcare professionals, families and state bodies – especially as it has been recognised by government as a key reform which is needed in order to enable Ireland to ratify the UN Convention on the Rights of Persons with Disabilities. However, many organisations and inviduals, including a coalition of NGOs working in the fields of disability, mental health and ageing – have identified changes which need to be made to the Bill to ensure that it fully respects the rights of adults in Ireland to make their own decisions, with support, if they wish.
The Department of Justice has published the amendments it proposes to introduce to the Bill at Committee stage here – where you can also read the amendments proposed by all members of the Dail Select Committee on Justice, Defence and Equality. Some of the amendments proposed by the Department are most welcome – and respond to the concerns highlighted by NGOs based on the text of the Bill as first published. One such amendment is the proposal to remove co-decision making agreements from the court process and to make them a more flexible and accessible instrument, similar to the decision-making assistance agreement. Another example is the change in the name of the state body which will oversee implementation of the new law, from the ‘Office to Public Guardian’ to the ‘Decision Support Service.’ While this might seem like a minor change, it can be viewed as an important reaffirmation of the purpose of the legislation – not to provide for paternalistic interventions into people’s lives – but rather to support individuals’ autonomy and self-determination.
However, other amendments proposed by the Department of Justice demonstrate that the ‘paradigm shift’ called for by the UN Convention on the Rights of Persons with Disabilities has not yet been fully achieved. The Centre for Disability Law and Policy, along with other NGOs, has argued that in order for the Bill to have practical and meaningful effect in the lives of people with disabilities – the threshold for ability to enter into a decision-making assistance agreement should be lowered from what was set out in the original text of the Bill. This has not been included in the Department’s proposed amendments to the Bill at Committee stage.
Further, the UN Committee on the Rights of Persons with Disabilities has now clarified in General Comment 1 that ‘perceived or actual deficits in mental capacity’ can never be used as a justification for a denial or restriction of legal capacity, ‘even in respect of a single decision.’ The Capacity Bill, as originally drafted, relied on an ‘assessment of mental capacity’ to determine what kinds of support an individual could access under the Bill, or whether an individual would have her legal capacity restricted by the appointment of a decision-making representative (a form of substitute decision-making). The amendments set out by the Department have not changed this approach – but the Department has proposed to replace the term ‘mental capacity’ in the Bill with the term ‘decision-making capacity.’ In my view, this change is no more than window dressing, as ‘decision-making capacity’ is given the same meaning as ‘mental capacity’ and continues to be used as a basis for restricting legal capacity. A similar critique can be made the Department’s proposal to remove the term ‘informal decision-making’ from the Bill, while retaining legal protection for third parties who make substitute decisions on behalf of persons who they believe ‘lack capacity’ (the very power which was originally provided to ‘informal decision-makers’ in the original text of the Bill). These proposed amendments therefore, do not address the concerns raised by civil society that those most in need of decision-making support will be denied the opportunity to make binding assistance agreements, and that an unacceptably wide power is granted to substitute decision-makers, who have not been chosen by the person or appointed by the court, to make decisions on behalf of a person they believe to ‘lack capacity.’
Based on the amendments proposed by the Department of Justice, the capacity/incapacity paradigm is now firmly embedded in the Bill – in decision-making assistance agreements, co decision-making agreements, decision-making representative orders, powers of attorney and advance healthcare directives. Again, while a number of submissions were made by NGOs to the Department to advocate that advance healthcare directives be recognised as legally binding in situations of involuntary detention (see here and here) – this proposal has not been reflected in the amendments introducing advance healthcare directives to the Bill at Committee stage. Finally, the relationship between this Bill and other areas of law where ‘mental capacity’ or ‘decision-making capacity’ is used as a criteria to restrict or deny legal capacity (for example in mental health law, sexual offences and eligibility for jury service) has not been clarified in the amendments proposed at this stage.
Along with many others, I will be watching the debate tomorrow with interest, and hope to see some of the concerns outlined here addressed by the members of the Committee. This debate is all the more significant since the Bill is one of the key pieces of legislation which government has deemed necessary in order to facilitate Ireland’s ratification of the UN Convention. In my view, if the Bill is not amended to ensure compliance with the UN Committee’s interpretation of Article 12 of the Convention, then it will remain a barrier to Ireland’s ratification of this important human rights treaty.
We are delighted to welcome back Jane Rooney, a PhD candidate at Durham Law School and Deputy Co-Convenor (PGR) of the Centre for Law and Global Justice. On 30th March 2015, Policy Exchange, a UK-based think tank, released its latest report on the impact of human rights on British military effectiveness abroad. This post criticizes the new Report’s recommendation to prevent relatives of military personnel – killed abroad in the course of military operations due to negligence by the Ministry of Defence (MoD) – from having access to actions under the Human Rights Act 1998 (HRA) and in tort. Instead the Report recommends paying more compensation to relatives of military personnel killed in the course of military operations abroad.
In October 2013 Policy Exchange published a report entitled, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’ co-authored by Thomas Tugendhat and Laura Croft. The report outlined concerns that human rights litigation may have a negative impact on the effectiveness of British military operations abroad. The report was published in reaction to the Smith & Ors v The Ministry of Defence (MoD) case, a case which considered claims against the MoD for negligence and violations of the Human Rights Act 1998 (HRA) at the Supreme Court of the United Kingdom by relatives of British soldiers who died whilst serving in Iraq. I have previously argued that the main proposition in the report was that in affording British military personnel the protection of the HRA abroad – legislation which gives effect to the European Convention on Human Rights (ECHR) in the UK – Smith threatened to undermine a ‘fundamental rationale’ underlying the armed force: ‘the transfer of physical risk’ from civilians to individuals who had volunteered to fight on behalf of their country. The report explained how the ruling in Smith was made possible by the ‘judicial creep’, in both UK domestic courts and at the European Court of Human Rights (ECtHR), of civilian law to British military operations abroad. The report recommended that Parliament legislate on Combat Immunity; that Parliament legislate to exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act and that the UK derogate from the ECHR during deployed operations so that International Humanitarian Law (IHL) standards would apply instead of the ECHR.
On 30th March 2015, Policy Exchange released another report, ‘Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat’, co-authored by Richard Ekins, Jonathan Morgan and Tom Tugendhat. This report is different from the 2013 report. It still recommends derogations from the ECHR in future operations abroad and the revival of the Armed Forces’ Crown Immunity from actions in tort. Furthermore, it still advocates the primacy of IHL over human rights law on the battlefield: it recommends that the Government make an ‘authoritative pronouncement of state policy’ that this is case and that the Government support the International Committee of the Red Cross to strengthen the protections afforded by the Geneva Conventions. However, it details changes that should be made in relation to military personnel: it recommends that the Government introduce primary legislation prohibiting military personnel from relying on the right to life under the ECHR, and recommends instead that the ‘Government should undertake to pay compensation, on the full tort “restoration” measure, to all military personnel killed or wounded during active operations – without need to prove fault’.
I have previously outlined that derogations are not the answer to problems arising from applying human rights in the battlefield. Furthermore, IHL is no longer considered as a lex specialis body of law in relation to human rights law. This is illustrated by the case law of the International Court of Justice and by the ECtHR decision in Hassan v United Kingdom (summarized here). The 2015 Report welcomed and praised the decision in Hassan v United Kingdom for taking into consideration IHL in determining the substance of the Article 5 right to liberty and security when detaining enemy combats abroad, but expressed fears that this sympathetic approach to military operations was only a temporary development and would not necessarily be continued by the ECtHR. Generally speaking, therefore, nothing would be gained from derogating from the ECHR during conflict abroad or exclusively applying IHL abroad. Furthermore, the ECHR should continue carrying out its function as an accountability mechanism for state activity, at home and abroad.
Here, I will briefly posit thoughts on a much narrower point: the recommendation that the Government should legislate to deny military personnel access to Article 2 right to life under the ECHR and restore Crown immunity for the armed forces in tort. Instead, the Report proposes paying compensation on the full tort “restoration” measure to all military personnel killed or wounded during active operations – without need to prove fault. The Report highlights that its main reason for advocating to prevent actions being brought under the HRA or under the tort of negligence is not because of the cost of those trials, but because of the public scrutiny:
Whether or not the judge upholds the claimant’s allegations, they will have been examined with necessary public criticism of the acts and decisions of soldiers, commanders, planners and others, as the claimant attempts to prove his case. This public examination is what produces a hyper-cautious mindset (at 38).
The inquiry into fault is thus damaging because of the public scrutiny and accountability of those who are at fault. Instead, the Report proposes paying more compensation to injured soldiers and their families (at 39). The government will pay compensation ‘irrespective of fault’ (at 39). The Report states that ‘this would remove the financial incentive to bring claims’ (at 39). However, it concedes that ‘some claimants may be motivated by wider notions of justice’ but offers no answer to this concern (at 39). This scheme would not save money, in fact the Report concedes that it would probably cost more money (at 39).
The scheme appears to propose to ‘pay off’ families of military personnel who want an investigation into the death of their loved ones instead of enabling them to access legal justice. However, much evidence suggests that those relatives of victims of negligence in the Smith case were after more than money. Smith merely established that allegations of negligence could be investigated and given a hearing. No damages have been awarded yet and a hearing on the facts has not yet taken place. However, Susan Smith, an applicant in the case, hailed the decision as a victory. Debi Allbutt, the widow of Cpl Stephen Allbutt, one of the victims concerned in the Smith case, stated that: “We want combat immunity thrown out of the rulebook, so instead of soldiers having to sue the Ministry of Defence, the equipment and the training will be in place to stop things like this happening again.” Under these circumstances it might be presumed that those involved in the Smith case, for example, may have ‘wider notions of justice’ than merely receiving a large some of compensation.
The insistence upon a new scheme which comes at a financial cost to the MoD could be construed as an effort to gain political points in undermining the judiciary and human rights. For example, the concern that public scrutiny ensuing from court hearings would negatively affect the armed forces appears not to be a concern in other places in the Report:
These are political matters for which Ministers should be held to account by Parliament and through Parliament to the electorate. Certainly, many MPs have expressed concerns about the under-equipment of soldiers in Iraq (at 37).
This seems contrary to the Report’s concerns about public scrutiny which were posited in justification for not allowing negligence and human rights cases to go to court. Here the Report advocates that the electorate should be able to hold those at fault to account. This undermines the argument that the judiciary should not be able to hold those at fault to account due to public scrutiny.
This post, above all, aims to hold Policy Exchange to account for what it has proposed. The Report’s main proposition is not to deny that human rights apply abroad, as seems to be the main point picked up by media; its main proposition is for no one to be blamed, and nothing to be improved, in relation to the deaths of military personnel on the battlefield. Instead, it wishes to sweep these claims under the carpet by paying off relatives of victims.
UN Commission on the Status of Women (CSW) is set to be the biggest conference yet solely dedicated to women’s issues. With 900 participants it has set itself as both a celebration of the 20th Anniversary of the Beijing Declaration and Platform for Action, which is celebrated as a pivotal moment in the progression of women’s rights but also a point of rejuvenation as the process of ensuring gender equality moves forward. Yet, the fault-lines and alliances that have appeared in the run-up to the Conference as well as the potential of push-back against what has stood for 20 years raises a serious points of concern. Could the CSW actually be a moment of regression rather than forward momentum?
The Beijing Declaration and Platform for Action focused on, amongst other elements, Women and Poverty, Education and Training of Women, Women and Health, Violence against Women, Women and Armed Conflict, Women and the Economy, Women in Power and Decision-making, Institutional Mechanism for the Advancement of Women, Human Rights of Women, Women and the Media, Women and the Environment and The Girl-child. It also explicitly recognised the role that women’s advocates and feminists had done to bring these issues to the fore, this acknowledgement was key in understanding the role that women had played in attempting realise their own equality and the price that some advocates paid in doing so.
The growing strength of the non-governmental sector, particularly women’s organizations and feminist groups, has become a driving force for change. Non-governmental organizations have played an important advocacy role in advancing legislation or mechanisms to ensure the promotion of women. They have also become catalysts for new approaches to development.
Together with the Millennium Development Goals, (MDG) which, amongst others, aimed to eliminate gender disparity in primary and secondary education…no later than 2015 and to improve maternal health as well as reducing child mortality, these two platforms were considered concrete steps forward. Whilst the implementation of both the Beijing Platform and the MDGs has left a tremendous amount to be desired, for example if we look here in Ireland we can see serious problems with achieving what was set out in both these documents, the presence of such aims gave advocates a strong grounding on which to base their claims against governments and other organisations.
What has struck many as problematic in the run-up to Beijing is the pre-ordained settlements that appear to have been made prior to the CSW itself as well as the roll back that some are calling for. The Women’s Rights Caucus is reporting that the Holy See (which is a non-member permanent observer state), Indonesia, Nicaragua, Russia and the Africa group of countries are attempting to limit references to human rights in the final text and critically to remove mention of the role feminist groups play in advancing gender equality from the Declaration. The Holy See is also advocating the removal of the standalone gender equality target proposed in the Millennium Development Goals from the declaration. The Women’s Rights Caucus and have asked organisations to support its call to stop the Declaration from being watered down.
These are serious attempts to undermine the achievements of Beijing and the MDGs. Removing references to feminist groups is a clear assertion that feminism lack legitimacy in advocating gender equality, that less radical voices are required and that ignoring feminist voices is an acceptable stance for a government to take. Such a retrograde step against one doctrine which has been so fundamental in achieving what has been gained by women is astonishing. Failing to acknowledge past achievements and a future role is a clear attempt to re-write the history of women and to prevent feminism from taking a lead in the future. Whilst women are used to being written out of history, such a blatant attempt to do so within a history about women seem preposterous.
The advocacy of the Holy See, itself a form of doctrine, and the significant role it has a religious group above all other religions, who must rely on states to make their cases, ought to be seriously questioned. Allowing one religion to have such a powerful voice against women’s substantive equality when it is completely dominated by one sex and one view of the role of women should be a serious issue for the UN. The Holy See’s alliance against feminism, the use of human rights and gender equality as fundamental part of development needs also to be queried by those within the Church. The World Bank and IMF, which are currently leading a campaign against the gender pay gap, have repeatedly stated that women’s substantive equality within the workforce will be a strong driver of economic development. Whilst we can question what the World Bank and the IMF regard as development and their past roles regarding gender, their acknowledgement that restricting women’s choices in the workforce has a negative impact on a whole country ought to be a stronger voice than the Holy See.
Whilst the final outcome of the CSW remains open it is frustrating that 20 years after Beijing women must again fight to have their history, rights and development acknowledged, a step we perhaps had thought had already been taken.
We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog. The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.
Readers of the blog might recall that this time last year a number of NGOs made submissions to the Department of Foreign Affairs and Trade in relation to its review of Ireland’s foreign policy. Amnesty International, for example, asked the Department to make it “unambiguously clear that Ireland will not allow its economic interests to trump its responsibility to promote and protect human rights”. Other civil society organisations pushed for action on the development of a national plan to implement the United Nations Guiding Principles on business and human rights.
In September 2014, the UN General Assembly adopted a resolution on the ‘establishment of a multilateral legal framework for sovereign debt restructuring processes’. This is a global South initiative emanating from experiences of predatory exploitation by the vulture funds of the North, but aimed more broadly at preventing debt crises and financial speculation from undermining socio-economic rights in all indebted nations. As we know, neoliberalism’s unregulated debt system has become increasingly universal in its reach. The resolution was adopted by a decisive majority of the UN’s member states, by a vote of 124 to 11. It builds on work done by UN authorities on conceptions of debt restructuring and illegitimate debt as they relate to the vindication or violation of socio-economic rights. Despite our own harrowing and ongoing debt crisis, Ireland aligned itself with the finance capital centres of the US, Britain, Germany and Japan in voting against the initiative, Continue reading “Odious Debt Politics”
The Mental Health Rights Group and the LL.M in International and Comparative Disability Law at the Centre for Disability Law and Policy, School of Law, NUI Galway in conjunction with the Employment Law Association will hold a one day conference entitled ‘Law and the Older Person’ on Saturday 24th of January 2015 in Galway.
The conference is timely focusing on the rights of older persons nationally and internationally. The conference addresses the need for comprehensive information and critical analysis of legal and policy reform in Ireland. This Conference will address this need and discuss a number of key legal and policy issues of relevance to older persons. The morning session will focus on the important area of advocacy and will address the proposed Assisted Decision-Making (Capacity) Bill 2013 from both legal and medical perspectives. The afternoon session will focus on aspects of legal practice and the older client, on ageing and discrimination and on the Fair Deal Scheme.
The Conference brings together many leading commentators from the fields of law, medicine and practice. It provides an opportunity for discussion, and debate and will be of particular relevance to older persons, to carers, advocates, health care practitioners, lawyers, researchers, and independent sector service providers and policy activists. For a full conference programme and to register online see here.
We are delighted to welcome this guest post from Amina Adanan who holds the EJ Phelan Fellow in International Law and is a Ph.D candidate at the Irish Centre for Human Rights, School of Law, NUI Galway.
On 30 October last, the Constitutional Court of South Africa issued its decision in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another (Zimbabwe Torture Docket Case). The judgment affirms that the South African Police Service (SAPS) has a duty to investigate crimes against humanity committed outside of South Africa, subject to certain restrictions.
The case concerns the application of universal jurisdiction in South Africa. Universal jurisdiction is the prosecution of a serious human rights abuse, where the crime is committed abroad, by foreigners, against foreigners. It is a type of extraterritorial jurisdiction that applies to piracy (on the High Seas), the Slave Trade, genocide, war crimes, crimes against humanity and torture. Serious human rights abuses are often orchestrated by the state apparatus, thus a prosecution in the territorial state may be unlikely. As such, universal jurisdiction is vital to ensure that abuses are prosecuted. The Implementation of the Rome Statute of the International Criminal Court Act No. 27 of 2002 (ICC Act) allows South African Courts to exercise universal jurisdiction over crimes against humanity.
Background to the case
In March 2007, the Zimbabwean Police, acting under the direction of ZANU PF (the then one party government) raided the headquarters of the main opposition party, the MDC. Some MDC supporters were detained and tortured by the Zimbabwean Police. The torture was committed as part of a wide-scale and systematic operation executed against the MDC and its supporters in the run up to the 2008 elections. The acts were committed in Zimbabwe, by Zimbabweans, against Zimbabweans.
Following the incident, the South African Litigation Centre (SALC), a prominent public interest NGO, investigated the matter. SALC gathered evidence and compiled a docket, which included medical reports of victims, along with interviews and affidavits from witnesses and victims. In March 2008, the docket was forwarded to the National Prosecuting Authority (NPA) for investigation. In June 2009, SALC received confirmation that SAPS would not investigate the alleged offences. Under the Constitution, it is the duty of the Police to investigate crime.
SALC and the Zimbabwe Exiles’ Forum (ZEF) then applied to the High Court in Pretoria, seeking an order to have the decision reviewed. The application was made against the National Director of Public Prosecutions (NDPP), the Head of the Priority Crimes Litigation Unit of the NPA and the National Commissioner of SAPS. After the High Court found in favour of the applicants, the National Commissioner of SAPS and the NDPP appealed the High Court’s decision to the Supreme Court of Appeal of South Africa. In November 2013, the Supreme Court of Appeal found in favour of SALC and ZEF. Saidat Nakitto has provided an excellent analysis of the Supreme Court of Appeal decision.
The National Commissioner of SAPS then appealed the matter to the Constitutional Court of South Africa. Seven amicus curiae joined the proceedings, among them notable academics in human rights law and NGOs around the world, illustrating the importance of the case in the field of human rights.
The findings of the Constitutional Court
The Constitutional Court looked to whether SAPS had an obligation to carry out pre- trial investigations into international crimes committed extraterritorially, and if so, what circumstances trigger this duty.
The obligation on SAPS to investigate international crimes committed abroad
First, the Constitutional Court noted the ‘special place’ of international law in South African law; reiterating, that the Constitution and national legislation must be interpreted in light of international law.
The Court then turned to look at Complementarity in the Rome Statute of the International Criminal Court. Article 17 of the Rome Statute (and its preamble) affirm that the ICC can only hear a case, where a state with jurisdiction over the offence is unable or unwilling to investigate or prosecute the crime. The ICC is complementary to national courts, when it comes to the prosecution of international crimes (genocide, war crimes and crimes against humanity). The ICC can exercise jurisdiction over international crimes that are committed on the territory of a state party, or by a national of a state party, or when a situation is referred to the Court from the UN Security Council. The Constitutional Court noted that a question arises as to states parties’s obligations to prosecute international crimes committed in the territory of a non-state party to the Rome Statute. Here the Court noted:
If an investigation is not instituted by non- signatory countries in which the crimes have been committed, the perpetrators can only be brought to justice through the application of universal jurisdiction, namely the investigation and prosecution of these alleged crimes by states parties under the Rome Statute.
Zimbabwe is not a state party to the Rome Statute and the National Commissioner of SAPS did not dispute the unlikelihood of the torture being investigated in Zimbabwe.
The Court then turned to look at South Africa’s jurisdiction in respect of the crime of torture. The Court noted that torture is a crime to which jus cogens status attaches and from which no derogation is permitted. South Africa had incorporated the UN Convention Against Torture into domestic law. Jurisdiction over torture on the scale of a crime against humanity had been incorporated into domestic law in South Africa by the ICC Act itself. After examining the sources of international and national law, including regional instruments, the Constitutional Court concluded that South Africa is required (where appropriate) to exercise universal jurisdiction over crimes against humanity.
The ‘connecting factors’ in South Africa’s exercise of universal jurisdiction under the ICC Act
The Court recognised that there were certain ‘connecting factors’, at least one of which must be present for an international crime to be prosecuted in South Africa. Section 4 (3) of the ICC Act, states that South African Courts have jurisdiction over international crimes committed outside of South Africa:
[A]ny person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if –
(a) that person is a South African citizen; or
(b) that person is not a South African citizen but is ordinarily resident in the Republic; or
(c) that person, after the commission of the crime, is present in the territory of the Republic; or
(d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.
In this instance, section 4(3)(c) was relied on. SAPS argued that because the accused persons were not present in South Africa, they were not under a duty to commence an investigation. (Notwithstanding that some of the accused Zimbabwean officials visited South Africa after the crimes were committed, and were not apprehended). The ICC Act itself is silent on whether the accused need be present in South Africa for the pre-trial investigation.
After noting the work of the Institut de Droit International and the content of the amicus curiae brief submitted by John Duggard and others, the Court stated that there was no international rule that the accused must be present for the pre- trial investigation. If not, investigations into crimes against humanity would be unlikely take place. The Constitutional Court did not dispute that the presence of the accused is required at a more advanced stage of proceedings.
Limitations on the exercise of universal jurisdiction by South Africa: subsidiarity and practicability
Looking first at subsidiarity, the Court found that an investigation may only commence where another state with jurisdiction over the crime (the territorial or state of nationality of the alleged perpetrator) is unable or unwilling to do so. The reason being, ‘the principle of non- intervention in the affairs of another country must be observed’. Here, the Court borrows from the language of the principle of complementarity. The Court noted that it was unlikely that the crimes would be investigated by the Zimbabwean Police, given that six cabinet ministers were linked to the offence.
On the issue of practicability, the Court said that the South African authorities must consider if it is reasonable to carry out the investigation, in each particular case. A number of factors must be considered: (1) The likelihood of a prosecution; (2) If the accused persons are likely to enter South Africa, of their own accord, or via an extradition request; (3) The geographical location of the crime; (4) The likelihood of the accused being arrested; (5) The gathering of evidence; and (6) The nature and extent of resources required.
The Constitutional Court unanimously rejected the appeal and costs were awarded against the appellant. The Court highlighted that constitutional obligations must be carried out without delay, notwithstanding the considerable time that had lapsed since the torture had occurred. SAPS will now investigate the crime.
Points of note
There are a number of significant points that arise in this judgment. Firstly, the Rome Statute itself does not demand that states parties exercise universal jurisdiction. As stated above, the ICC has jurisdiction to hear cases relating to international crimes committed on the territory of a state party, or carried out by nationals of the states parties. States parties are obligated to incorporate these forms of jurisdiction into domestic law, at a minimum. Section 4(3) of the ICC Act does not include universal jurisdiction in express terms. The Constitutional Court interpreted section 4(3) as implying the exercise of universal jurisdiction by the South African authorities.
Second, the Constitutional Court was right to distinguish between the presence of the accused for the pre-trial investigation and the presence of the accused for the trial, as it did. State practice shows that many pre- trial investigations related to the exercise of universal jurisdiction begin without the presence of the accused in the forum state. The investigation in Spain, into crimes committed by General Augusto Pinochet during his reign in Chile, are perhaps the most famous example of this. In Belgium, investigations commenced into alleged international crimes committed by former US President George H. W. Bush, and former Israeli Prime Minister Ariel Sharon, without the presence of the accused.
Third, in the grand design that is modern universal jurisdiction, where the trend of states is to reduce the scope of universal jurisdiction, this judgment is refreshing. Moreover, it is an example of a non- European state taking steps to apply universal jurisdiction (which is usually exercised by European States). Since 2003, in Belgium, the national legislation on extraterritorial jurisdiction is restricted to the active and passive personality principles, or to accused persons or victims who are resident in the state. In Spain, the question of whether recent amendments the national legislation on universal jurisdiction conflict with Spain’s obligations in international law, is currently being explored by the Spanish Constitutional Court. One of the reasons for this trend is because the exercise of universal jurisdiction interferes with the forum state’s international relations. In the Zimbabwe Torture Docket Case, the Constitutional Court of South Africa did not give much attention to SAPS’s concern that the investigation would hamper South African- Zimbabwean relations. The Constitutional Court noted that inter-state tension is unavoidable in the application of universal jurisdiction.
Finally, it can also be said that this judgment is an example of how the principle of complementarity is supposed to work. As the Court noted, the primary responsibility of the prosecution of international crimes rests with the states parties. It may be the case that this judgment comes from a state with a particularly strong will when it comes to human rights. South Africa was the first African State to incorporate the Rome Statute into domestic law. This is an important judgment not only for South Africa, but for other states that exercise universal jurisdiction. It is a positive move towards preventing impunity for serious human rights abuses. Whether the judgment will appeal to other states will remain to be seen.
Case materials are available on the website of the South African Litigation Centre.