By Nam Le
In the international community, there exists the powerful, and thus controversial, universality principle. Applicable only in the most internationally abhorrent of crimes, a crime against “the entire community of nations,” it enables all states, regardless of boundaries, to claim jurisdiction to prosecute solely based on “the nature of the crime—rather than any connection to a particular country.”[1] Torture, the subject of National Police Commissioner of the South African Police Service (SAPS) v Southern African Human Rights Litigation Centre, definitively qualifies as a crime against humanity.[2] Though universal jurisdiction harbors much ambiguity and variance, inspection of this interaction between South Africa and Zimbabwe with theory and comparable history sheds some light on its utilization by other states in the international community. Implementing international relations theory, social constructivism explains when states prosecute under principles of universal jurisdiction, and its analysis in the context of sovereignty norms and realist power reveals variation in success.
The Justification for Universal Jurisdiction
Social constructivist theory most capably explains invocation of universal jurisdiction. Worded by Carey Law Professor Beth Simmons, constructivists emphasize international law as a social construct with the potential to “solve problems… condition actors’ self-understandings, references, and ultimately their behavior.”[3] Such a theoretical framework places a high premium on social norms in the anarchic international order as the driving force in explaining international relations and law, meaning international norms play an integral role in state behavior. When analyzing universal jurisdiction, its justification depends upon precisely that — namely, the violation of an international norm so heinous states consider it a crime against humanity. Because of the alleged torture occurring in Zimbabwe, South Africa’s use of universal jurisdiction responded to the breach of a “peremptory norm… binding… without requiring a state’s consent or enactment as domestic law.”[4] Then, normative frameworks not only enable universal jurisdiction, but they also take precedence over state interests, communicated as “consent.” If universal jurisdiction allows any state to prosecute with its domestic court or corresponding legislation, it implies that the crime affects and violates values held by all states, and it suggests the perpetrators’ violation of a fundamental international norm merits prosecution regardless of whether or not it threatens a vital interest.
Similarly, constructivism underscores how the obligation to prosecute heinous crimes and to abide by the normative laws that prohibit them compound in the universal principle. Empirically, there exists an “intrinsic inertia of state authorities to act.”[5] A constructivist might argue that in addition to the norm to prosecute crimes, a duty associated with the state’s law-abiding, democratic identity motivates its involvement outside its borders when egregious infringements occur. In fact, the Constitutional Court referred to the investigation in Zimbabwe as a “[constitutional] obligation,” implying South Africa’s responsibility to protect regardless of relation. Furthermore, the significance of legal discourse in social constructivism highlights when and why states employ universal jurisdiction. For constructivists such as Reus-Smit, the advantage of judicial proceedings manifests in “norm-use,” which presents international law as a process where legal rhetoric and reasoning affect state behavior.[6] Accordingly, states might use universal jurisdiction to capitalize on the robustness of the forum’s “mutual conditioning.”[7] Thus, the Southern African Human Rights Litigation Centre could possess objectives deeper than simply halting the torture in Zimbabwe. Their hopes might instead include persuading Zimbabwe to refrain from torture and signaling to the international community that condemnation and persecution of crimes against humanity persist with universal jurisdiction. A cycle of discourse and persuasion, socialization and identity formation, interest realization, and law constructs a shared meaning that states might want to pursue with this principle. Shamila Batohi, the director of the National Prosecuting Authority (NPA), proclaimed their intention to “utilise the legal framework” to prosecute similarly heinous crimes in apartheid, another example of a crime against humanity that aligns with social constructivism.[8] Punctuations in crimes against humanity, international state responsibility and identity, and legal discourse effectively explain when and why states utilize universal jurisdiction in social constructivist theory.
Then, if approximately 147 states have domestic statutes in place implementing universal jurisdiction and authorizing prosecution in domestic courts, what explains why some states might withhold prosecution, despite the observation of "piracy; slavery; war crimes; crimes against peace; and crimes against humanity”?
Explaining Variation: Sovereignty & Realism
The modern concept of sovereignty, as worded by Slomansan, applies when “[a state] is able to act independently of the consent or control of any other state.”[9] States, the entities to which sovereignty belongs, must meet criteria such as government and capacity for international relations for the title and associated recognition. Given that, recognition of sovereign states inherently entails political considerations, notably the concept of juridical statehood, “derived from a right of self-determination.” All considered, while universal jurisdiction imaginably infringes on sovereignty, it is largely unopposed, and it fails to threaten the integrity of sovereignty for strong states.
By imposing the laws of a domestic ruling in an extraterritorial manner, a state extends its jurisdiction; this occurs with universal jurisdiction. SAPS’ ability to investigate alleged torture in Zimbabwe undoubtedly harbors the potential to interfere with the state’s independence and sovereignty. However, South Africa’s ruling explicitly permits investigation so long as it does not “impinge on Zimbabwe’s sovereignty.”[10] Even when an alleged crime against humanity warranted an investigation, the South African court still considered the state’s sovereignty. Additionally, if Zimbabweans “tortured opposition party leaders,” then concerns of legitimacy might arise for the state. An effective government being a punctuated criterion by the 1930s, universal jurisdiction might have an opportunity to infringe on the sovereignty of an illegitimate state here as well, claiming Zimbabwe lacked the capacity to address it independently.[11] Torture of political opponents surely raises doubts about effective government, but norms have changed. The juridical condition of self-determination outlived the former empirical one; in other words, even if other states perceived Zimbabwe as a failed state where torture of political opposition occurs, the international community still respects the norm of juridical sovereignty.
Notwithstanding social constructivism’s explanatory value in the invocation of universal jurisdiction, a realist perspective more accurately illustrates the final product of South Africa’s unwillingness to investigate Zimbabwe. Realism champions the prevalence of state interests as it manifests in power, the underlying foundation of all international relations. Morgenthau characterizes international law as “a primitive type of law” because of its decentralized structure in legislation, adjudication, and enforcement.[12] Such criticism, particularly the last, proves relevant in the South African court’s ruling and subsequent complications, and they suggest the actual investigation contradicts the stated intent of universal jurisdiction. Zimbabwe allegedly violated a peremptory norm despite its fundamental nature in international law, already violating the crux of constructivist worldview. The decentralized, weak model of enforcement in international law offers opportunities for states such as Zimbabwe to disobey the peremptory norm against torture. The extreme ambiguity and discretion the court bestowed upon SAPS, from method to speed, to conduct their investigations signals this.[13] With the “lethargy” displayed by SAPS, their failure in the past six years epitomizes the decentralized, weak enforcement.[14] No sufficient, powerful enforcement in the anarchic realm rallied to the aid of the tortured in Zimbabwe; rather, even the utilization of universal jurisdiction failed to overcome enforcement shortcomings.
Also, with regards to extraterritoriality, Raustiala takes a realist approach in analyzing extraterritorial trends such as universal jurisdiction, claiming it “reflects power and interest.”[15] In cases such as Zimbabwe, the universal jurisdiction aside, the apparent indifference of SAPS could reflect South Africa’s power and lack of interest in investigating. To continue with this analysis of power, a distinction between the safety of sovereignty for strong states and weak states can be made. The ruling for the investigations into Zimbabwe, the court’s respect for sovereignty aside, still creates an opening for infringement for the relatively weaker state. As observed with the United States’ criminal and regulatory law, strong states projecting their interests with extraterritorial law “generally benefit from the extension of its law abroad.”[16]
When considering how the reverse might unfold, specifically for universal jurisdiction on the United States by a weaker state, its hegemonic power stands in the way. Though worry exists that universal jurisdiction may haunt the United States in the future, the past shows a different story: when Belgium attempted to invoke international jurisdiction in 1993, the United States’ threat to relocate NATO’s headquarters prompted Belgium’s concession.[17] The consequences of universal jurisdiction and its potential threat to sovereignty lose significant potency when the defendant is a powerful state. Conversely, as seen with South Africa and the United States with international criminality and regulation, these states are comfortable with applying domestic law to other states, despite the former’s sluggish prosecution. Ultimately, the outcome of this struggle between constructivist normative strength and realist power yields to the latter. Articulated by Hurrell regarding boundaries, “where solidarist cooperation is weak… imperatives of pluralist law continue to flourish.”[18] Solidarist referring to normative significance and pluralist to power, universal jurisdiction and its consequences for sovereignty are partially inhibited by norms and primarily governed by power.
Conclusion
Social constructivism explains the invocation of universal jurisdiction, but the influence of realism overshadows the former in understanding of sovereignty. A constructivist underlines the normative justifications to pursue universal jurisdiction. While constructivism offers plausible implications for state sovereignty, the realist focus on state power and interest presents a more compelling understanding between strong and weak states. Between South Africa and Zimbabwe, many of these concepts are observable, but the future consequences of universal jurisdiction’s popularity and its relationship with sovereignty will be a product of state norms and power.
A sophomore in the College of Arts and Sciences and a prospective International Relations major, Nam Le holds a position as a political science research assistant, serves as John Marshall Pre-Law Society's External Chair, and competes as a Penn Taekwondo Club board member.
Footnotes
[1] William R. Slomanson, “Extraterritorial Jurisdiction,” in Fundamental Perspectives on International Law (Boston, MA: Wadsworth, 2011), 253.
[2] Atilla Kisla, “Cases Of Torture In Zimbabwe: Six Years After The Torture Docket Case,” NewZimbabwe.com, May 23, 2020, https://www.newzimbabwe.com/cases-of-torture-in-zimbabwe-six-years-after-the-torture-docket-case/.
[3] Beth A. Simmons, “International Law,” Handbook of International Relations, 2013, pp. 2-26, https://doi.org/http://dx.doi.org/10.4135/9781446247587.n14, 7.
[4] Atilla Kisla, “Cases Of Torture In Zimbabwe: Six Years After The Torture Docket Case.”
[5] Atilla Kisla, “Cases Of Torture In Zimbabwe: Six Years After The Torture Docket Case.”
[6] Christian Reus-Smit, The Politics of International Law (Cambridge: Cambridge University Press, 2004), 40-41.
[7] Christian Reus-Smit, The Politics of International Law, 43.
[8] Atilla Kisla, “Cases Of Torture In Zimbabwe: Six Years After The Torture Docket Case.”
[9] William R. Slomanson, “Extraterritorial Jurisdiction,” in Fundamental Perspectives on International Law (Boston, MA: Wadsworth, 2011), 240.
[10] Ruchi Parekh, “Universal Jurisdiction: The South African Chapter,” Just Security, December 12, 2013, https://www.justsecurity.org/4075/universal-jurisdiction-south-african-chapter/.
[11] Atilla Kisla, “Cases Of Torture In Zimbabwe: Six Years After The Torture Docket Case.”
[12] Hans Morgenthau, “The Main Problems of International Law,” in Politics Among Nations, 1985, 211.
[13] Ruchi Parekh, “Universal Jurisdiction: The South African Chapter,” Just Security, December 12, 2013, https://www.justsecurity.org/4075/universal-jurisdiction-south-african-chapter/.
[14] Atilla Kisla, “Cases Of Torture In Zimbabwe: Six Years After The Torture Docket Case.”
[15] Kal Raustiala, “The Evolution of Territoriality: International Relations and American Law,” SSRN Electronic Journal, 2005, pp. 219-250, https://doi.org/10.2139/ssrn.700244.
[16] Kal Raustiala, “The Evolution of Territoriality: International Relations and American Law.”
[17] Ruchi Parekh, “Universal Jurisdiction: The South African Chapter.”
[18] Andrew Hurrell, “International Law and the Making and Unmaking of Boundaries,” States, Nations and Borders, 2003, pp. 275-297, https://doi.org/10.1017/cbo9780511613937.014.
