Erga Omnes

The South African High Court’s judgment that the government must investigate Zimbabwean officials accused of torture under Robert Mugabe’s regime has been hailed as a “landmark ruling.”  It no doubt is.  It’s the first successful attempt to apply South Africa’s universal jurisdiction law (the International Criminal Court Act of 2002), bracketing the government’s immediate appeal.  As commentators like Naomi Roht-Arriaza note, the case shifts universal jurisdiction’s reach into the Global South, beyond the purview of Western democracies.  And it marks an “historic opportunity,” as South Africa comes full circle on the world stage, from a position of human rights pariah-state to a carefully honed image of rights promoter on the continent.

The case also symbolizes, somewhat unexpectedly, the politics of universal jurisdiction.  First, it highlights the significance of domestic political cleavages, especially judicial-executive relations.  Legal scholar Diane Marie Amann views the case as illustrating the burdens of complementarity, or the limits of states’ willingness/ capacity to investigate and prosecute.  A closer look at domestic politics reveals why contending pressures play out the way they do.  The independence of the judiciary (here represented by High Court Judge Hans Fabricius), the activism of rights groups like the Jo’burg-based Southern Africa Litigation Centre, the role of the media and of trade unions like the ANC-affiliated Cosatu movement all help to account for why political leaders respond as they do to the demands of complementarity.

Second, the case counters the trend of former colonial powers monopolizing universal jurisdiction; states in the Global South can also promote universal jurisdiction.  And it suggests even more tellingly that regional powers, those in closest geographic and socio-cultural proximity to their peers, may be uniquely positioned to pursue transnational justice.  As Peter Godwin implies in The New York Times,

Although South African prosecutors cannot try the perpetrators in absentia, the case will still have a galvanizing effect on the situation in Zimbabwe.  Anyone there who is under investigation will now risk arrest by coming to South Africa, a country frequented by the Zimbabwean elite for shopping, medical treatment, catching international flights or visiting their vacation homes in Johannesburg or Cape Town…  This ruling would have a far greater impact than the current American and European Union sanctions, which impose a travel ban and asset freeze on Mr. Mugabe and his inner circle, who still routinely manage to travel to United Nations gatherings in the United States and Europe by exploiting diplomatic exemptions.

Certainly in Africa, regional dynamics will only grow in significance once the African Court of Justice and Human Rights gets off the ground.

Third, the case represents how universal jurisdiction is making headway in international diplomatic signaling, with activists pressuring foreign governments to pressure their counterparts in Pretoria.  We’re used to seeing governments invoke diplomatic relations as an excuse for not pursuing universal jurisdiction.  Yet in this case, governments are incorporating universal jurisdiction into diplomacy.  No matter that they’re doing so only when it suits their interests.  Most intriguing is how the normative, transnational value of prosecuting crimes against humanity is on the rise, inserted into global political discourse.

But back to basics:  on March 27, 2007, over 100 people were arrested and then allegedly tortured, repeatedly over the course of several days, in Harare.  Their gathering was targeted only because they opposed the ruling Zanu-PF party.  For those Zimbabweans, human rights accountability will necessarily be refracted—through the prism of domestic, regional, and international political considerations.

Even if it turns out that this month’s path-breaking ruling in South Africa is remembered mostly for its symbolic effects, the alternative of unchallenged impunity remains far worse.  And, besides, so much of reality is constituted by groups adopting, discussing and contesting the meaning of symbols.  That’s not a bad thing; it’s just part of the uncertainty (and possibility) of political life.  It’s also why the real power of the South African case may be indirect, as people are moved into action.