Amnesty laws – International standards1
I. DEFINITION
An amnesty refers to legal measures that have the effect of
(a) prospectively barring criminal prosecution and, in some cases, civil action against certain
individuals or categories of individuals in respect of specified criminal conduct committed
before the amnesty’s adoption, or
(b) retroactively nullifying legal liability previously established. 2
Amnesties do not prevent legal liability for conduct that has not yet taken place, which would be an
invitation to violate the law.
An amnesty is distinct from
 a pardon, which refers to an official act that exempts a convicted criminal or criminals from
serving his, her or their sentences.
 various forms of official immunity under international law, such as Head of State and
diplomatic immunities, which shield officials from the exercise of a foreign State’s jurisdiction
under certain circumstances.3
 other elements of impunity that do not fall within the definition of amnesty used here but
which may achieve similar effects. These include States’ failure to enact laws prohibiting
crimes that should, under international law, be punished; to bring criminal prosecutions
against those responsible for human rights violations even when their laws present no barriers
to punishment; to provide prosecutors the resources they need to ensure effective
prosecution; and intimidation of witnesses whose testimony is needed to ensure a full legal
reckoning.
II. CATEGORIES OF AMNESTIES
Various commentators have proposed to classify amnesty laws. Here is the UN classification4:
Self-amnesties are amnesties adopted by those responsible for human rights violations to shield
themselves from accountability. Human rights treaty bodies, jurists and others have strongly criticized
self-amnesties, which by their nature epitomize impunity.
Blanket amnesties exempt broad categories of offenders from prosecution and/or civil liability without
the beneficiaries’ having to satisfy preconditions, including those aimed at ensuring full disclosure of
what they know about crimes covered by the amnesty, on an individual basis. Blanket amnesties have
been nearly universally condemned when they cover gross violations of human rights and serious
violations of humanitarian law.
Conditional amnesties exempt an individual from prosecution if he or she applies for amnesty and
satisfies several conditions, such as full disclosure of the facts about the violations committed. 5 A
conditional amnesty often involves a prior investigation to allocate individual responsibility. Conditional,
accountable amnesties could be considered for less serious crimes to facilitate truth-recovery and
reconciliation initiatives. However, they must impose on the perpetrators applying for amnesty certain
conditions such as: acknowledgement of harm done, seeking an apology, full disclosure of the facts
1
For a detailed analysis, please refer to Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools
for Post-Conflict States: Amnesties, 2009, HR/PUB/09/1, available at: United Nations, Rule of Law Tools for Post-Conflict
States: Amnesties, 2009, HR/PUB/09/1, available at: http://www.ohchr.org/Documents/Publications/Amnesties_en.pdf (hereafter
“OHCHR”).
2
OHCHR p.43.
3
OHCHR p.43.
4
OHCHR pp.43-44.
5
Such amnesties might not strictly come within the general definition of amnesty used here, as they effectively suspend rather
than extinguish criminal responsibility. See Prosecutor v. Kondewa, Separate Opinion of Justice Robertson, para. 15.
1
about the violations committed, commitment to cooperate with truth telling procedures (national and/or
traditional) aimed to promote reconciliation. 6
De facto amnesties describe legal measures such as State laws, decrees or regulations that
effectively foreclose prosecutions. While not explicitly ruling out criminal prosecution or civil remedies,
they have the same effect as an explicit amnesty law. Such amnesties are impermissible if they
prevent the prosecution of offences that may not lawfully be subject to an explicit amnesty.
Disguised amnesties can take various forms. For example, they include amnesties whose operation
is prescribed in regulations interpreting laws that, on their face, may be compatible with international
law but which, as interpreted by their implementing regulations, are inconsistent with a State’s human
rights obligations. Such amnesties are impermissible if they prevent the prosecution of offences that
may not lawfully be subject to an undisguised amnesty.
III. CONFORMITY WITH INTERNATIONAL LAW
Despite the increased codification of international crimes, no international convention explicitly
prohibits amnesty laws.7 However, a substantial body of international law sets limits on their
permissible scope.
Under international law, amnesties are impermissible if they
(a) prevent prosecution of individuals who may be criminally responsible for war crimes,
genocide, crimes against humanity or gross violations of human rights;
(b) interfere with victims’ right to an effective remedy; or
(c) restrict victims’ or societies’ right to know the truth about violations of human rights
and humanitarian law.
Moreover, amnesties that seek to restore human rights must be designed with a view to
ensuring that they do not restrict the rights restored or in some respects perpetuate the
original violations.
(A) Amnesties that are inconsistent with international law
A number of widely ratified international human rights and humanitarian law treaties explicitly
require States parties to ensure punishment of specific offences either by instituting criminal
proceedings against suspected perpetrators in their own courts or by sending the suspects to another
appropriate jurisdiction for prosecution. It is generally accepted that an amnesty that foreclosed
prosecution of an offence that is subject to this type of obligation would violate the treaty concerned.8
Amnesties have also been found to be incompatible with human rights treaties that do not explicitly
address prosecution but which have consistently been interpreted to require States parties to
institute criminal proceedings when serious violations occur. Amnesties for gross violations of
human rights and serious violations of humanitarian law may also violate customary international law.9
UN Office of the High Commissioner for Human Rights, “UN Position on Uganda’s Amnesty Act 2000, Submission to the Hon.
Minister
of
Internal
Affairs”,
May
2012,
pp.15,17.
Available
at:
http://jlos.go.ug/uploads/UN%20Position%20on%20Uganda%20Amnesty%20Law%20.pdf
7
Louise Mallinder, “Amnesties and International Criminal Law”, p. 4 in William A. Schabas and Nadia Bérnaz (eds) Handbook
on
International
Criminal
Law
(Routledge,
2010).
Available
at:
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1531701_code635316.pdf?abstractid=1531701&mirid=3
8
See, for example, Special Court for Sierra Leone, Prosecutor v. Morris Kallon, case No. SCSL-2004-15-AR72(E), and
Prosecutor v. Brima Bazzy Kamara, case No. SCSL-2004-16-AR72(E), Appeals Chamber, Decision on challenge to jurisdiction:
Lomé Accord Amnesty (13 March 2004), para. 73; Antonio Cassese, International Criminal Law (Oxford University Press, 2003),
p. 314.
9
International tribunals have had few opportunities to address the question whether States’ obligations under customary
international law may be violated by an amnesty. A 1998 decision by a Trial Chamber of the International Criminal Tribunal for
the former Yugoslavia suggested, however, that an amnesty for torture (and, by implication, for other conduct whose prohibition
in international law has the status of a peremptory norm) would be “internationally unlawful.” Prosecutor v. Anto Furundžija, case
No. IT-95-17/1-T, Judgement of 10 December 1998, para. 155. See also Prosecutor v. Morris Kallon and Prosecutor v. Brima
Bazzy Kamara, para. 82.
6
2
With the exception of the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide, each of the human rights treaties summarized in this section10 explicitly requires that
victims of specified violations should have access to remedies.11 An amnesty that interfered with civil
remedies would violate these treaty provisions. Moreover, victims of genocide and other human rights
violations enjoy the right to an effective remedy, including reparation, under general international
law.12
Accordingly, the following crimes can never be amnestied:13
1. Genocide
 The 1948 Convention on the Prevention and Punishment of the Crime of Genocide
(Articles I & IV: obligation to punish)
 Customary International Law
2. Crimes against humanity
 Rome Statute of the International Criminal Court (Preamble: obligation to punish and
prosecute)
 Human Rights treaties (ICCPR, IACHR: interpreted to require punishment of crimes
against humanity)14
3. War crimes
 In international armed conflict:
o
The four Geneva Conventions of 1949 and Additional Protocol I of 1977 (in
international armed conflict: obligation to search for persons allegedly
responsible for grave breaches and to ensure that they are prosecuted).
o
The Rome Statute of the International Criminal Court (Article 8.2:
enumerate 26 “other serious violations of the laws and customs applicable
in international armed conflict” that can be prosecuted by the ICC).
o
Customary International Law.
 In non-international armed conflict:
o
Common Article 3 of the four Geneva Conventions of 1949 and the
Protocol Additional to the Geneva Conventions of 12 August 1949
o
Rome Statute (Article 8.2.c: punish serious violations of common article 3;
Article 8.2.e)
o
Customary International law
An amnesty that encompassed serious violations of the laws of war governing noninternational armed conflicts would be of doubtful validity. Indeed, article 6.5 PA II
stipulates that at the end of hostilities, the authorities in power shall endeavour to grant the
broadest possible amnesty to persons who have participated in the non-international
armed conflict, or those deprived of their liberty for reasons related to the armed conflict,
whether they are interned or detained. The ICRC has affirmed that article 6.5 aims at
Encouraging a sort of release at the end of hostilities, for those detained or punished
for the mere fact of having participated in hostilities. It does not aim at an amnesty for
those having violated international law. While excluding war crimes, article 6.5 of
Additional Protocol II encourages States to grant former rebels amnesty for such
crimes as rebellion, sedition and treason. States can also grant rebels amnesty for
legitimate acts of war, such as killing members of the opposing forces under
circumstances not amounting to a war crime.
10
29 These include the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the
African Charter on Human and Peoples’ Rights, the European Convention for the Protection of Human Rights and Fundamental
Freedoms, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the
International Convention for the Protection of All Persons from Enforced Disappearance.
11
States parties to the Genocide Convention can, however, seek reparations for violations of the treaty. See International Court
of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), Judgment of 26 February 2007, para. 460.
12
See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law (General Assembly resolution 60/147).
13
OHCHR, pp.11-24.
14
See, for example, Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal obligation
imposed on States parties to the Covenant, para. 18; Inter-American Court of Human Rights, Almonacid-Arellano et al. v. Chile,
Judgment of 26 Sept. 2006, para. 114.
3
4. Torture
 The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment ( Articles 4.1, 4.2: obligation to criminalise and punish;
Article 7.1: obligation to extradite or prosecute)
 Customary international Law (ICRC Study). The ICTY has expressed the view that an
amnesty for torture would be “internationally unlawful.” 15
5. Enforced disappearance
 The 2006 International Convention for the Protection of All Persons from Enforced
Disappearance (Article 6.1: obligation to hold criminally responsible; Article 7.1:
obligation to punish; Article 11.1: obligation to extradite or prosecute; Article 24.4:
victim’s right to obtain reparation and prompt, fair and adequate compensation)
 ICCPR, regional human rights and international humanitarian law treaties (obligation
to institute criminal proceedings, to provide reparation, and to ensure that the fate of
direct victims of enforced disappearance is discovered and disclosed). 16
 Customary International Law
It should be noted that many States do not include in their criminal codes a crime of “enforced
disappearance” as such. In these States, enforced disappearances might be prosecuted as
unlawful detention or arbitrary arrest and detention. It is thus important, when considering the
scope of a proposed amnesty, to ensure that the proposed law does not prevent States from
punishing enforced disappearances by including in the proposed amnesty crimes that appear
to be ordinary crimes but which in fact, under relevant national law, provide the principal basis
for prosecuting the crime of enforced disappearance.
6. Other gross violations of human rights
 International and regional human rights treaties (obligation to conduct effective
investigation, ensure prosecution and victim’s right to a remedy and reparations)
 United Nations principles and guidelines 17
Although the phrase “gross violations of human rights” is widely used in human rights law, it
has not been formally defined. It is generally assumed that this category includes:
 genocide;
 slavery and slave trade;
 extrajudicial, summary or arbitrary executions;
 enforced disappearances;
 torture or other cruel, inhuman or degrading treatment or punishment;
 prolonged arbitrary detention;
 deportation or forcible transfers of population;
 systematic racial discrimination;
 and the gender-specific instances of these violations, such as rape.
Deliberate and systematic deprivation of essential foodstuffs, essential primary health care,
and/or basic shelter and housing may also amount to gross violations of human rights.
In those 6 instances, the aim of the amnesty law is irrelevant. Invalid amnesties are impermissible
even if they are used as an inducement for rebels to demobilize or secure a stable transition to
democracy and promote reconciliation. Similarly, democratic processes cannot transform an amnesty
that would otherwise be invalid into a lawful amnesty.
Moreover, when States adopt amnesties that exclude war crimes, genocide, crimes against
humanity and other violations of human rights, they must take care to ensure that the
ICTY, Prosecutor v. Anto Furundžija, case No. IT-95-17/1-T, Judgement of 10 December 1998, para. 155.
See, for example, Quinteros v. Uruguay, communication No. 107/1981, in Selected Decisions of the Human Rights
Committee under the Optional Protocol, vol. II (United Nations publication, Sales No. E.89.XIV.1); European Court of Human
Rights, Kurt v. Turkey, No. 24276/94, Judgement of 25 May 1998; Inter-American Court of Human Rights, Velásquez-Rodríguez
Case, Judgement of 29 July 1988, Series C, No. 4, para. 172.
17
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law (preamble).
15
16
4
amnesties do not restrict or imperil the enjoyment of human rights, including those that are
ostensibly restored.
For examples,

Amnesties that expunge the conviction of persons previously convicted for their nonviolent
political dissent. In these instances granting amnesty to a prisoner of opinion is tantamount to
an implicit acknowledgement that his conduct was criminal. A better option would be to
consider that prisoner as innocent.

Amnesties that seek to restore human rights and encourage political exiles to return home by
removing the threat of prosecution. Such amnesties should not be subject to the condition of
actual return, as various personal constraints may limit beneficiaries’ ability to exercise their
right to freely leave and enter their own country.
(B) Legal effect of amnesties
An amnesty for gross violations of human rights or serious violations of international humanitarian
law would not prevent prosecution before foreign or international courts.18
The ICTY expressed its view that a domestic amnesty covering crimes whose prohibition has the
status of a jus cogens norm, such as the prohibition of torture, “would not be accorded international
legal recognition.”19
The Special Court for Sierra Leone further observed that “one consequence of the nature of grave
international crimes against humanity is that States can, under international law, exercise universal
jurisdiction over such crimes.” “Where jurisdiction is universal,” it concluded, “a State cannot deprive
another State of its jurisdiction to prosecute the offender by the grant of amnesty.” 20
Finally, human rights treaty bodies have repeatedly affirmed their right to review the validity of
amnesties adopted by States parties. For example, in Malawi African Association et al. v. Mauritania,
the African Commission concluded that a domestic amnesty law that “had the effect of annulling the
penal nature of the precise facts and violations of which the plaintiffs” were complaining could not have
the effect of precluding review by the Commission itself.
(C) Issues to consider in an amnesty situation
1. Is a proposed legal measure an amnesty? Does it have the legal effect of foreclosing criminal
prosecutions, civil remedies, or both?
2. Does a proposed amnesty fully and clearly exclude all categories of conduct that, under
international law, should be subject to an effective investigation and, where the evidence
warrants, a criminal prosecution? Are the excluded conduct effectively criminalised in national
law? Is it clear what crimes are encompassed by the phrase used?
3. Does a proposed amnesty interfere with victims’ right to an effective remedy?
4. Does a proposed amnesty restrict victims’ or societies’ right to know the truth about violations
of human rights and humanitarian law?21
(D) Amnesties and measures of transitional justice
Public deliberations considering human rights policies aimed at strengthening a transition to
democracy should be strongly encouraged. However, a democratic process cannot transform an
amnesty that would otherwise be invalid into a lawful amnesty.
Truth, justice and reparations are complementary rather than alternative responses to gross
violations of human rights and serious violations of international humanitarian law.
18
OHCHR, p.29.
ICTY, Prosecutor v. Anto Furundžija, para. 155.
20
See Prosecutor v. Morris Kallon and Prosecutor v. Brima Bazzy Kamara, paras. 70 and 67. See also Prosecutor v. Kondewa.
21
OHCHR, pp.37 et seq.
19
5
While in some instances an individual’s full disclosure of the truth about violations may justify a
reduction in sentence, measures of transitional justice such as the establishment and operation of a
truth commission should not fully exempt perpetrators from criminal process in exchange for their
testimony.
Even when reduced in exchange for a full confession, the sentence imposed on an individual
responsible for a gross violation of human rights or a serious violation of humanitarian law must be
proportionate to the gravity of the offence; and victims’ right to an effective remedy must not be
compromised.
Similarly, providing victims reparations for violations of human rights and humanitarian law does not
relieve States of their obligation to ensure prosecution of war crimes and gross violations of human
rights.
Even when amnesties are used to promote the disarmament, demobilization and reintegration of
combatants, States may not grant amnesties that are inconsistent with their international legal
obligations.22
(E) United Nations policy
United Nations is not opposed to amnesties per se, but set limits on their permissible scope. It
recognized that amnesties can play a valuable role in ending armed conflicts, reconciling divided
communities and restoring human rights – provided that they do not grant immunity to individuals
responsible for genocide, crimes against humanity, war crimes or gross violations of human rights.
Indeed, experiences show that amnesties exempting from criminal sanction those responsible for
atrocious crimes in the hope of securing peace have often failed to achieve their aim and have instead
emboldened their beneficiaries to commit further crimes.23
The United Nations has recognized that justice and peace are not contradictory. Rather, properly
pursued, they promote and sustain one another. Experience has shown that a culture of impunity and
a legacy of past crimes that go unaddressed are likely to undermine a lasting peace. 24
IV. RECENT JURISPRUDENCE
Landmark case for international criminal justice in South Africa
Southern African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public
Prosecutions and three others, Case Number: 77150/09, South Africa: High Court, 8 May 2012,
available at: http://www.unhcr.org/refworld/docid/4fad28f52.html
Backrgound
In March 2012, SALC and ZEF challenged the refusal of the National Prosecuting Authority (NPA) and
the South African Police Services (SAPS) to launch an investigation into crimes against humanity
carried out by Zimbabwean police against supporters of the main opposition party during the 2007
elections. Brought in terms of South Africa’s International Criminal Court Act, which defines torture as
a crime against humanity, the applicants' argued that the NPA and SAPS had failed to take into
account South Africa’s international and domestic law obligations to investigate and prosecute
perpetrators of international crimes regardless of where they are committed or by whom.25
22
OHCHR p.45.
OHCHR, p. V.
OHCHR p.45.
25
Implementation of the Rome Statute of the International
http://www.info.gov.za/gazette/acts/2002/a27-02.pdf
23
24
Criminal
Court
Act
27 of
2002.
Available
at:
6
Legal basis
The section 4(1) of the South Africa‘s Implementation of the Rome Statute Act 27 of 2002 (the ICC
Act) states:
‘Despite anything to the contrary in any other law in the Republic, any person who commits [an
international] crime, is guilty of an offence.’
Then, section 4(3) states:
‘In order to secure the jurisdiction of a South African court for purposes of this Chapter, any
person who commits [an ICC] crime outside the territory of the Republic, is deemed to have
committed that crime within the territory of the Republic if –
(a) …
(b) …
(c) that person, after the commission of the crime, is present in the territory of the Republic
Arguments of the parties
In the light of the collapse of the rule of law in Zimbabwe, concern for the safety of the victims, and the
unlikelihood of securing accountability in a Zimbabwean court, the applicants maintained that South
Africa was legally required to investigate these crimes against humanity, regardless of whether they
were committed in South Africa or by South African nationals. They argued that section 4(3)(c) merely
conditioned the exercise of enforcement jurisdiction by the courts on the presence of the accused
while South Africa’s prescriptive jurisdiction is provided for by section 4(1) of the ICC Act and was not
conditional on the presence of the accused. 26 In their view, section 4(3) only required the presence of
the perpetrators for initiating a prosecution, thus outlawing trials in absentia. They submitted evidence
that those Zimbabwean officials identified visited South Africa from time to time and contended that, if
and when they do so, South Africa was under a duty to apprehend and prosecute them if possible. 27
The respondents refused to respond to the request to investigate, mainly on grounds of inadequacy
of evidence. They claimed that section 4(3) established a so-called conditional universal jurisdiction
regime in terms of which South Africa could not exercise jurisdiction in any form over crimes until the
accused was present in the Republic. In their view, section 4(3) required the presence of the
perpetrators for both opening an investigation and initiating a prosecution. They also argued that the
undertaking of any investigation would in addition to negatively impacting on South Africa’s diplomatic
initiatives in Zimbabwe, compromise the political position of the SAPS. They finally claimed that
there was no point investigating because the Zimbabwean authorities were unlikely to cooperate. 28
Ruling
The High Court found that the NPA and SAPS’ decision not to initiate an investigation into torture as a
crime against humanity committed in Zimbabwe was unlawful. They failed to take into consideration
South Africa’s international and domestic Rome Statute obligations to investigate this crime regardless
of where the crime is committed or by whom. The NPA and SAPS were therefore ordered to
investigate allegations of torture committed in Zimbabwe which were brought to the attention of NPA
and SAPS in 2008.
The case highlighted (i) South Africa’s duty to investigate crimes against humanity; (ii) the sufficiency
of the evidence presented by SALC to the NPA and SAPS to trigger an investigation; and (iii) how
irrelevant considerations – such as political concerns – improperly influenced the decision.29
(i) The Court found that based on the ICC Act, the South African authorities have a duty to investigate
and prosecute perpetrators of international crimes, regardless of where they are committed, by who
Christopher
Gevers,
“The
'landmark'
Zimbabwe
Torture
Docket
decision”,
9
May
2012,
http://warandlaw.blogspot.co.uk/2012/05/landmark-zimbabwe-torture-docket.html
27
Rosalind English, “South Africa shrinks from investigating Zimbabwe torture allegations”, 14 May 2012,
http://ukhumanrightsblog.com/2012/05/14/south-africa-shrinks-from-investigating-zimbabwe-torture-allegations/
28
Ibid.
29
Southern African Litigation Centre, “Judgment Day: North Gauteng High Court to Rule on Zimbabwe Torture Case”, 7 May
2012,
http://www.southernafricalawcenter.org/news/item/Media_Advisory_Judgment_Day_North_Gauteng_High_Court_to_Rule_on_Z
imbabwe_Torture_Case
26
7
and where is located the accused. The Court in substance accepted the Applicants’ submission that
section 4(3)(c) of the ICC Act relates to the exercise of enforcement jurisdiction. This decision sends
out a clear message that perpetrators of international crimes will not be accommodated in South
Africa, and the impunity that so many enjoy ends at the Zimbabwean, or other countries’ borders. In
this regard, it is worth mentioning that the effect of this construction of section 4 of the ICC Act is not
limited to South Africa - Mauritius recently adopted implementing legislation in respect of the Rome
Statute which contains a very similar provision on universal jurisdiction.30
(ii) The Court endorsed the position that in order for a domestic investigation to be initiated under the
ICC Act in South Africa the correct question is whether there is a ‘reasonable basis’ to proceed.
(iii) The Court ruled that political considerations or diplomatic initiatives are not relevant at the
investigatory phase having regard to the purpose of the ICC Act. Indeed, the ICC Act itself denies
explicitly diplomatic immunity to government officials accused of committing ICC Act crimes. However,
such considerations may become relevant for the prosecutions but, when they are considered, they
are to be made by a senior official, not an investigating officer.31
Appeal
The NPA and SAPS challenged this decision on a number of grounds. They argued that the High
Court’s finding that the ICC Act required South Africa to investigate core international crimes when
committed outside of South Africa was incorrect. The NPA and SAPS maintained that South Africa
only had jurisdiction to prosecute these crimes. It was also argued that the Court had erred in
accepting that SALC and ZEF had legal standing to bring this case.
On 7 June 2012, the North Gauteng High Court dismissed the NPA and SAPS’s application for leave
to appeal. Judge Hans Fabricius dismissed both arguments finding that NPA and SAPS failed to
demonstrate that this case was not brought in the public interest and in the interest of the Zimbabwean
torture victims. He also found that the NPA’s and SAPS’ interpretation would render South Africa’s
domestic Rome Statute Act meaningless and that they ignored the fact that investigations are a
necessary component of prosecutions. In dismissing the application, Judge Fabricius concluded that
an appeal has no reasonable prospects of success and noted that even if leave to appeal had been
granted he would not have suspended the initiation of an investigation pending the outcome of an
appeal.32
Remarks
On 7 August 2012, South Africa initiated opened its first ever investigation into crimes against
humanity on the basis of universal jurisdiction established by the South Africa's ICC Act. The National
Prosecuting Authority (NPA) will investigate the abuses committed in Madagascar in 2009, with a view
to prosecuting the country's ousted former President Marc Ravalomanana for his role in their
commission. Since as Mr Ravalomanana is currently in exile in South Africa, section 4(3) is not an
issue.
However, the NPA's announcement makes it clear that the applicable standard for the opening of an
investigation is whether there is 'reasonable suspicion' that crimes against humanity have been
committed. The use of a 'reasonable suspicion' test as opposed to the Rome Statute's 'reasonable
basis to believe' standard - which was endorsed by the High Court in the Zimbabwe Torture case - is
regrettable, but it remains to be seen whether there is any practical difference between the two
evidential standards.33
Christopher
Gevers,
“The
'landmark'
Zimbabwe
Torture
Docket
decision”,
9
May
2012,
http://warandlaw.blogspot.co.uk/2012/05/landmark-zimbabwe-torture-docket.html
31
Ibid.
32
Southern African Litigation Centre Blog, “Investigations Must go Ahead – SA High Court Dismisses Appeal Application in Zim
Torture Case”, 7 June 2012, https://salcbloggers.wordpress.com/2012/06/07/investigations-must-go-ahead-sa-high-courtdismisses-appeal-application-in-zim-torture-case/
33
Christopher Gevers, “South Africa investigating 'crimes against humanity' in Madagascar”, 7 August 2012,
http://warandlaw.blogspot.co.uk/2012/08/south-africa-investigating-elleged.html
30
8