Does universal jurisdiction in the South African legislation implementing the Rome statute provide some solution to impunity in the African context

Abstract

After the arrest of Augusto Pinochet more than a decade ago, universal jurisdiction was a political and legal reality and became a white hot subject of global controversy. Universal jurisdiction was hailed as one of the magic bullets in the campaign against impunity. Universal jurisdiction is the doctrine that allows any country to punish certain egregious crimes, regardless of wherever or by whomever they have been committed, even if it has no direct connection with the offense and there is an absence of the traditional grounds for jurisdiction. However Schabas rightly indicate that universal jurisdiction past is mysterious and its future uncertain. Some say there is decline of universal jurisdiction or even state that there is a demise of universal jurisdiction. Still some other commentators assert that universal jurisdiction simply does not exist. There are those who view the broadening of the scope of universal jurisdiction with extreme skepticism. The critics fear for the slippery slope which could lead to a radical and dangerous encroachment on the sovereignty of nations. Today there are those that see a “backlash” or “downtrend” in the movement for universal jurisdiction especially after the Arrest Warrant case. It is stated that the universal jurisdiction movement appears to be a moving train without its locomotive. Maybe it only lost some of its steam. On the other hand NGO’s assert that there is no question of the growing practice of states in regard to universal jurisdiction and the principle is supposed to be uncontested. Over exaggerated statements expressing support for universal jurisdiction are often found. Notwithstanding that Prof Schabas state that universal jurisdiction is an ideal subject for research; he has nevertheless opined that universal jurisdiction generates more heat than light. Many of the reports describe universal jurisdiction as important component in the struggle against impunity. According to him it is, but a small component or as stated by Bottini: “its application remains negligible.” Schabas is of the opinion that international tribunals and truth commissions seem a better investment for scarce resources.