Charging decisions, legal framing and transitional justice: The prosecution of wouter basson

Abstract

Charges brought against an alleged human rights abuser vary, with some charged with core international crimes and others with ordinary crimes rooted in domestic law. This article examines such variation through the charging decisions of South African prosecutors tasked with prosecuting Wouter Basson, an apartheid official accused of egregious human rights violations. Why did prosecutors initially charge Basson with domestic crimes, only to later reframe his conduct as core international crimes? Through a frame analysis supported by interviews with trial prosecutors and trial document analysis, this article argues that domestic and international law functioned as frames shaping the interpretation of Basson’s offences. Initial characterisations of Basson’s conduct as ‘ordinary crimes’ were driven by the institutionalisation of the domestic law frame during apartheid. While the 1996 constitu-tionalisation of international law expanded the range of potential charges brought against Basson, this expansion was mediated by the backgrounds of individual prosecutors, counter-framing behaviour of other legal actors and changes in judicial venue. Charging decisions are a vital pathway for the indirect enforcement of international criminal law; analysis of the Basson case thus provides insight into the decision-making dynamics of prosecutors who continue to regulate South Africa’s involvement in the international justice system today.