SA questions impartiality of International Criminal Court

November 22, 2015, 11:14am

By Jenni Evans, News24, on Business Day Live. Picture: REUTERS/SIPHIWE SIBEKO

SOUTH Africa has questioned why the International Criminal Court (ICC) does not try to arrest leaders involved in conflicts in Palestine and Afghanistan in the "current era of disorder" with the same vigour it pursues Sudanese President Omar al-Bashir.

"We ask ourselves, as have many, why no investigations have been opened in Afghanistan, Iraq and Palestine after long periods of preliminary analysis, notwithstanding clear evidence of violations," International Relations Minister Maite Nkoana-Mashabane said in a speech prepared for delivery at a meeting of the Assembly of State Parties (ASP) at the Hague in Netherlands on Wednesday.

"Is it because those investigations have the potential to implicate the ‘great powers’? Many will think we are only raising these issues because of the events of June this year. But I remind you that we have been raising these issues since at least 2010," Ms Nkoana-Mashabane said, referring to SA allowing Mr Bashir to leave the country in an alleged violation of a court order that stipulated he should wait to hear whether the country was compelled to arrest him for the ICC earlier this year.

"In the sixty-fifth session of the General Assembly we observed that the one-sided justice being dispensed by the ICC ‘will have a negative impact on the image, credibility and integrity of the court’. So these are issues we have been raising for some time, and it is time that the ASP seriously consider them," she told ICC president Judge Silvia Fernández de Gurmendi and other parties attending the meeting.

Condolences to all victims of terror

Speaking after Friday’s shootings in Paris, Ms Nkoana-Mashabane pointedly expressed condolences on behalf of President Jacob Zuma and SA to France, Lebanon, Afghanistan, Kenya, Iraq, Nigeria "and other victims of terror and violence throughout the world over the past few months".

"These acts of terror and violence remind us that it is no exaggeration to say that the world has entered a new era of disorder," the minister said.

She added that SA had adopted the Rome Statute, which established the ICC as part of a new world order after the Cold War and the fall of apartheid, and it had looked forward to the promotion of peace and human rights in an "international rules-based system".

SA actively participated in this and also played a part in transforming the Organisation of African Unity into the African Union (AU) to focus on peace and stability in the region and the "principle of intervention against war crimes, genocide and crimes against humanity".

SA’s commitment to human rights and the fight against impunity was "beyond question", said Ms Nkoana-Mashabane, adding it would not be quiet if it thought there were serious flaws in how the ICC interpreted the Rome Statute.

"We will not join in the dangerous chorus of uncritical loyalty," she said. "This is our court, and we have a responsibility to interrogate whether this institution is still reflective of the principles and values which guided its creation."

Questions on use of Security Council veto

She questioned whether it had become the universally accepted institution for justice as hoped for, or whether some permanent members of the United Nations Security Council could protect themselves and their allies from the court. This was a reference to superpowers who have a veto at the council, and who used that veto to stop investigation requests from being forwarded to the ICC.

Last year Russia and China used their powers of veto on the council to stop requests to the ICC for an investigation into events in Syria.

On the ground, SA is involved in peacekeeping, occasionally had to "enforce peace" and is diplomatically involved in inter-related peace processes in the Darfur region of Sudan and in South Sudan, on a bilateral basis and as part of AU mandates.

But these mandates led to conflicting international law obligations which had to be interpreted "within the realm of hard diplomatic realities", she said.

"We then used the mechanism of consultation available under Article 97 of the Rome Statute, the first State Party to do so, but to no avail. Needless to say, we are disappointed that the process did not yield the intended results," said Ms Nkoana-Mashabane.

Clarity on Article 97 consultations

There also seemed to be no procedures to guide the Article 97 consultations and this needed to be urgently clarified so that if parties found themselves in a similar position again, they could deal with it through agreed procedures.

SA asked that this be put on the agenda, and that the ASP also discuss the implementation of Article 98, which dealt with immunities in customary international law and in treaties, and how this works with Article 27, which stated that the statute should apply equally to everybody regardless of official capacity and in particular, that no head of state or government be immune.

"It is highly unsatisfactory that such an important question is the subject of conflicting and mutually exclusive interpretations by ICC Pre-Trial Chambers," she added.

"In complex and multi-faceted peace negotiations and sensitive post-conflict situations, peace and justice must be viewed as complementary and not mutually exclusive ... We are at the crossroads. The ICC is in critical need of emergency support and we hope that the ASP will do what it must to restore our confidence in this institution of ours."

The Bashir situation

The South African government has already indicated that it intended reviewing its ratification of the Statute after an international outcry during Mr Bashir’s visit in June for an AU summit. The ICC asked South African authorities to detain him and hand him to the ICC for prosecution for alleged crimes against humanity in the Darfur region of Sudan.

The South African Centre for Legal Studies applied for an urgent order to force SA to do so and was granted an interdict to keep Mr Bashir in the country until the court ruled on the matter.

During a postponement for the State to prepare its court papers, Mr Bashir’s aircraft was moved from Durban to the Waterkloof Airforce Base in Pretoria and while it was being argued in the High Court in Gauteng the following day, Beeld reporter Erika Gibson spotted the jet taking off. That evening it was confirmed Mr Bashir had indeed gone home, despite the order.

The court ordered an investigation into how this had happened, but in the ensuing outrage over government officials allegedly violating a court order, questions were asked over whether the ICC was applying its principles fairly.

• According to the ICC’s website, a preliminary examination into the situation in Palestine is running its course after the lodging of an article 12(3) declaration by the Government of Palestine and accession to the Rome Statute earlier this year.