Practice Relating to Rule 157. Jurisdiction over War Crimes
South Africa’s LOAC Manual (1996) states: “Signatory States [of the 1949 Geneva Conventions] are required to treat as criminals under domestic law anyone who commits or orders a grave breach [of the 1949 Geneva Conventions].”
South Africa’s LOAC Teaching Manual (2008) states:
The implementation of the [R]ome [S]tatute of the [I]nternational [C]riminal [C]ourt [A]ct (act no 27 of 2002)
- The act gives jurisdiction to sa [South African] courts to try any person who commits a crime (as defined in the [R]ome [S]tatute) within the rsa [Republic of South Africa].
- The rsa courts also have jurisdiction to hear the case as if such a crime has been committed inside the rsa by a person;
- Who is a citizen of the rsa;
- Who is not a citizen of the rsa but is ordinarily resident in the rsa;
- Who is, after commission of the crime, present in the rsa; or
- Who has committed the said crime against a rsa citizen or against a person who is ordinarily resident in the rsa.
- However, no such prosecution may be instituted against a person without the consent of the national director of prosecutions.
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means –
(a) a grave breach referred to in Article 50 of the First Convention;
(b) a grave breach referred to in Article 51 of the Second Convention;
(c) a grave breach referred to in Article 130 of the Third Convention;
(d) a grave breach referred to in Article 147 of the Fourth Convention; or
(e) a grave breach referred to in Article 11 or 85 of [the 1977 Additional] Protocol I.
3) Any person who within the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.
(4) Any citizen of the Republic who outside the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.
5) A person convicted of an offence contemplated in subsection (1), (3) or (4) is liable to a fine or to imprisonment, including imprisonment for life, or to such imprisonment without the option of a fine or to both a fine and such imprisonment.
(1) Any court in the Republic may try a person for any offence under this Act in the same manner as if the offence had been committed in the area of jurisdiction of that court, notwithstanding that the act or omission to which the charge relates was committed outside the Republic.
(2) The Cabinet member responsible for the administration of justice must, in consultation with the Chief Justice of South Africa and after consultation with the National Director of Public Prosecutions, in writing designate an appropriate Court to try a person contemplated in subsection (1).
(3) Whenever this Act is enforced outside the Republic, any finding, sentence, penalty, fine or order made, pronounced or imposed in terms of its provisions is as valid and effectual, and must be carried into effect, as if it had been made, pronounced or imposed in the Republic.
(4) Nothing in this Act must be construed as precluding the prosecution of any person accused of having committed a breach under customary international law before this Act took effect.
South Africa’s Prevention and Combating of Torture of Persons Act (2013) states:
Offences and penalties
4. (1) Any person who –
(a) commits torture;
(b) attempts to commit torture; or
(c) incites, instigates, commands or procures any person to commit torture,
is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life.
(2) Any person who participates in torture, or who conspires with a public official to aid or procure the commission of or to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life.
(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture.
6. (1) A court of the Republic has jurisdiction in respect of an act committed outside the Republic, which would have constituted an offence under section 4(1) or (2) had it been committed in the Republic, regardless of whether or not the act constitutes an offence at the place of its commission, if the accused person –
(a) is a citizen of the Republic;
(b) is ordinary resident in the Republic;
(c) is, after the commission of the offence, present in the territory of the Republic, or in its territorial waters or on board a ship, vessel, off-shore installation, a fixed platform or aircraft registered or required to be registered in the Republic and that person is not extradited pursuant to Article 8 of the  Convention [against Torture]; or
(d) has committed the offence against a South African citizen or against a person who is ordinarily resident in the Republic.
(2) If an accused person is alleged to have committed an offence contemplated in section 4(1) or (2) outside the territory of the Republic, prosecution for the offence may only be instituted against such person on the written authority of the National Director of Public Prosecutions contemplated in section 179(1)(a) of the Constitution, who must also designate the court in which the prosecution must be conducted.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
In 2014, in the International Crimes case, South Africa’s Constitutional Court stated:
Complementarity under the Rome Statute
31. The preamble to the  Rome Statute affirms that states parties are determined “to put an end to impunity for the perpetrators of [grave] crimes and thus to contribute to the prevention of such crimes” and it recalls “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”.
32. The need for states parties to comply with their international obligation to investigate international crimes is most pressing in instances where those crimes are committed by citizens of and within the territory of countries that are not parties to the Rome Statute, because to do otherwise would permit impunity. If the 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 of these alleged crimes by state parties under the Rome Statute.
South Africa’s jurisdiction in respect of the international crime of torture
33. South Africa was the first African state to domesticate the Rome Statute into national legislation. This was done in terms of section 231(4) of the Constitution through the enactment of the  ICC Act. …
34. It is clear that a primary purpose of the [2002 ICC] Act is to enable the prosecution in South African courts or the ICC, of persons accused of having committed atrocities, such as torture, beyond the borders of South Africa. …
37. Along with torture, the international crimes of piracy, slave-trading, war crimes, crimes against humanity, genocide and apartheid require states, even in the absence of binding international treaty law, to suppress such conduct because “all states have an interest as they violate values that constitute the foundation of the world public order”. Torture, whether on the scale of crimes against humanity or not, is a crime in South Africa in terms of section 232 of the Constitution because the customary international law prohibition against torture has the status of a peremptory norm.
38. Furthermore, along with genocide and war crimes there is an international treaty law obligation to prosecute torture. …
40. Because of the international nature of the crime of torture, South Africa, in terms of sections 231(4), 232 and 233 of the Constitution and various international, regional and sub-regional instruments, is required, where appropriate, to exercise universal jurisdiction in relation to these crimes as they offend against the human conscience and our international and domestic law obligations.
Is presence a requirement for the investigation of international crimes?
47. The Supreme Court of Appeal undertook an informative examination of comparative foreign and international law, which we need not repeat here. It would appear that the predominant international position is that presence of a suspect is required at a more advanced stage of criminal proceedings, when a prosecution can be said to have started. This position accords with the section 4(3) [of the 2002 ICC Act] requirement of presence for the purposes of prosecution. In regard to presence for purposes of investigation, customary international law is less clear. Scholars point out, however, that presence is generally not required for an investigation and there is no international law rule that imposes that requirement. This reasoning conforms to our Constitution which requires an accused “to be present when being tried”. Accordingly, the exercise of universal jurisdiction, for purposes of the investigation of an international crime committed outside our territory, may occur in the absence of a suspect without offending our Constitution or international law.
48. This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.
49. … South Africa may, through universal jurisdiction, assert prescriptive and, to some degree, adjudicative jurisdiction by investigating the allegations of torture as a precursor to taking a possible next step against the alleged perpetrators such as a prosecution or an extradition request. The contention by the SAPS [South African Police Service] that it could not investigate without a suspect’s presence must therefore fail.
Limiting the duty to investigate international crimes
61. … [T]he universal jurisdiction to investigate international crimes is not absolute. It is subject to at least two limitations. The first limitation arises from the principle of subsidiarity. It requires that ordinarily there must be a substantial and true connection between the subject-matter and the source of the jurisdiction. And once jurisdiction is properly founded, the principle of non-intervention in the affairs of another country must be observed; investigating international crimes committed abroad is permissible only if the country with jurisdiction is unwilling or unable to prosecute and only if the investigation is confined to the territory of the investigating state. Simply put, we may not investigate or prosecute international crimes in breach of considerations of complementarity and subsidiarity.
62. These considerations require that South African investigating institutions may investigate alleged crimes against humanity committed in another country by and against foreign nationals only if that country is unwilling or unable to do so itself. …
63. The second limiting principle is practicability. Before our country assumes universal jurisdiction it must consider whether embarking on an investigation into an international crime committed elsewhere is reasonable and practicable in the circumstances of each particular case. That decision must be made in the light of all the relevant circumstances. None of these factors alone should be dispositive of the enquiry. Each case must be determined on its own merits and circumstances.
64. Foremost amongst these considerations are whether the investigation is likely to lead to a prosecution and accordingly whether the alleged perpetrators are likely to be present in South Africa on their own or through an extradition request; the geographical proximity of South Africa to the place of the crime and the likelihood of the suspects being arrested for the purpose of prosecution; the prospects of gathering evidence which is needed to satisfy the elements of a crime; and the nature and the extent of the resources required for an effective investigation. In some instances a preliminary investigation to test the reasonableness of undertaking a full-blown investigation may be necessary. …
Analysis of the SAPS’s duty and the applicable test with reference to the facts
73. The SAPS advanced as its first reason that it has no extra-territorial jurisdiction and that the mere anticipated presence of a suspect at some future time in this country was not sufficient to clothe the SAPS with the requisite power and jurisdiction. As set out above, this is a misconception of the SAPS’s domestic legal duty. And, for the reasons stated previously, presence of any kind, even anticipated presence, is not a prerequisite for an investigation into the torture allegations.
74. A second reason given was that any investigation would be potentially harmful to South Africa–Zimbabwe relations on a political front. The cornerstone of the universality principle, in general, and the Rome Statute, in particular, is to hold torturers, genocidaires, pirates and their ilk, the so-called hostis humani generis, the enemy of all humankind, accountable for their crimes, wherever they may have committed them or wherever they may be domiciled. An approach like the one adopted by the SAPS in the present case undermines that very cornerstone. Political inter-state tensions are, in most instances, virtually unavoidable as far as the application of universality, the Rome Statute and, in the present instance, the  ICC Act is concerned.
Conclusion on the merits
78. Given the international and heinous nature of the crime, South Africa has a substantial connection to it. An investigation within the South African territory does not offend against the principle of non-intervention and there is no evidence that Zimbabwe has launched any investigation or has indicated that it is willing to do so, given the period of time since the alleged commission of the crimes. Furthermore, the threshold for the SAPS to decline to investigate, bearing in mind the particular facts and circumstances, has not been met in this case. There is a reasonable possibility that the SAPS will gather evidence that may satisfy the elements of the crime of torture allegedly committed in Zimbabwe.
80. The Supreme Court of Appeal was therefore correct to rule that on the facts of this case the torture allegations must be investigated by the SAPS. Our country’s international and domestic law commitments must be honoured. We cannot be seen to be tolerant of impunity for alleged torturers. We must take up our rightful place in the community of nations with its concomitant obligations. We dare not be a safe haven for those who commit crimes against humanity.
81. The SAPS’s decision not to conduct an investigation was wrong in law. The High Court and the Supreme Court of Appeal were correct in setting it aside. … I agree with the reasoning of the Supreme Court of Appeal that the duty to investigate international crimes may be limited by considerations like resource allocation. This judgment formulates limiting principles and finds that anticipated presence of a suspect in South Africa is not a prerequisite to trigger an investigation. It is only one of various factors that needs to be balanced in determining the practicability and reasonableness of an investigation. Therefore, mainly for the reasons the Supreme Court of Appeal gave, though subject to the qualification stated, the appeal must be dismissed.
[footnotes in original omitted]