Politics will always be part of the International Criminal Court`s functioning

It should be said at the outset that the establishment of an International Criminal Court was no easy feat. Efforts to do so date back to the intended prosecution of the German Kaizer at the end of the First World War. In 1937, the Convention for the Prevention and Punishment of Terrorism and the Convention for the creation of an International Criminal Court were drafted by the League of Nations but neither ever came into force. Consequently, the ANC applauded the establishment of the ICC in 2002 as a step in the right direction in the search for international peace, justice and security.

By way of background, South Africa signed and ratified the Rome Statute in July 1998 and subsequently domesticated the obligations in the Rome Statute into South African law by passing the Implementation of the Rome Statute of the International Criminal Court Act, 27 of 2002.

The ICC acts in a complementary relationship with domestic states that are party to the Rome Statute. The principle of complementarity ensures that the ICC operates as a buttress in support of the criminal justice systems of States Parties at a national level and as part of a broader system of international criminal justice.

In terms of the Rome Statute, State parties are legally obliged to comply with the court such as arresting and transferring indicted persons or providing access to evidence or witnesses. It is only where a State Party is unwilling or unable to investigate and prosecute international crimes committed by its nationals or on its territory, that the ICC is then seized with jurisdiction.

From inception, the ICC was dogged by the challenge of universal jurisdiction. Major countries such as the United States, Russia, China and India did not ratify the Rome Statute and join the ICC. The Peoples Republic of China opposed the ICC on the basis that it goes against the sovereignty of nation-states and the court may be open to political influence. India objected to the broad definition given to crimes against humanity. The United States did not trust the neutrality of the Party States to deal with its nationals in a fair manner.

When the ICC was established, many commentators were of the view that the Palestine/Israeli situation could present a major challenge. This scenario is fast becoming a reality after the ICC admitted the Palestinian Authority as a member in April this year. So contentious is the situation that the United States and Israel not only challenged the ICC for admitting a non-State member, but the United States went further and threatened that it would withdraw its financial support for the Palestinian Authority – estimated to be $400m per annum – if Palestine instituted war crime allegations against Israel.

The Al-Bashir situation is just as contentious. Before the North Gauteng High Court ruling in June this year, there were seven cases of non-cooperation by African States to arrest President Al-Bashir.

On 4 March 2009 the ICC issued a warrant of arrest for Omar Al-Bashir for war crimes and crimes against humanity. In the same month the Organisation of Islamic Conference labelled the ICC’s pursuit of Al-Bashir as ‘void and lacking sound reasoning’ and suggested that the ICC activities were a threat to the sovereignty, independence and territorial integrity of Sudan.

On 3 July 2009 the African Union put forward a proposal that all member states should withdraw from the ICC or refuse to co-operate on the Al-Bashir indictment.

On 12 July 2010 the ICC issued a second warrant for Al-Bashir’s arrest for genocide.

At the ICC’s First Review Conference in 2010, Malawi, speaking in its capacity as the Chair of the African Union, stated that in terms of Article 98(1) of the Rome Statute, the indictment of Heads of State could jeopardise Africa’s co-operation with the ICC. In 2012 the African Union stated publicly that Article 98(1) of the Rome Statute provided immunity to Al-Bashir.

These decisions placed African states in the unenviable position of having to choose between their obligations as member states of the African Union, on the one hand, and their obligations as States party to the Rome Statute on the other. It also raised a number of critical questions about the direction of international law and international law-making from both a normative and an institutional perspective.

From an institutional perspective the decision raised questions about the relationship between the African Union and the United Nations, the relationship between the African Union and its member states vis-a-vis broader international issues, and the relationship between international organisations and their African member states vis- a-vis African Union decisions.

From a normative perspective the decision raised questions about the reality of a new value-based international law centred on the protection of humanity and human rights and whether such a new international law could escape accusations of neo-imperialism.

The African Union position also raised questions about the respective roles of peace and justice. It forced us to confront the question of whether the ICC’s pursuit of Al-Bashir threatened the peace process in Sudan. The African Union requested the UN Security Council to defer the Al-Bashir indictment for 12 months so as not to undermine the delicate peace process in Sudan and to combat impunity.

In considering why Malawi did not arrest Al-Bashir, the ICC decided that the issue of President Al-Bashir’s immunity was separate from Malawi’s failure to arrest and surrender President Al-Bashir. In short, the ICC ducked the issue of immunity.

In 2012 South Africa expressed concern about the ICC’s decision not to consider a complaint about Israel lodged by Palestine on the grounds that Palestine was not a member of the ICC. South Africa also complained about the one-sidedness of the ICC’s investigations in Libya.

The Rome Statute itself has many ambiguities. Many commentators and legal academics have concluded that Articles 27 and 98 are in conflict. On the one hand Article 27 takes away all immunity attaching to Heads of State and other government officials such as Foreign Ministers and diplomats. Article 98, on the other, provides that Courts cannot proceed with a request for surrender which will require the requested State to act inconsistently with its international obligations. The African Union pointed out this contradiction to the ICC. Our government also referred to this ambiguity in relation to the court proceedings in the North Gauteng High Court.

The United States has been able to exploit the loophole in Article 98(2) to protect its service members stationed in different parts of the world. After the Rome Statute came into operation, the United States passed a law which allowed it to withdraw military assistance from a number of non-NATO states and only restore this aid after those states signed bilateral immunity agreements with the United States in terms of Article 98(2) that they would not hand over any US national to the ICC without United States consent.

This law also empowered the US President to use military force to free American soldiers held by the ICC.

A second ambiguity arises from the dichotomy between peace and justice in the Rome Statute. The primary objective of the Rome Statute is to maintain peace and security. Article 53 gives the ICC the discretion to make decisions ‘in the interest of justice’. Some commentators link this phrase to the Article dealing with the preservation of peace. In other words, they maintain that in order to close the impunity gap, the ICC can decide to waive the investigation of certain situations if it would be in the interest of justice to do so.

Former South African President, Thabo Mbeki, set in motion an irreversible peace process in Sudan. By June this year, when the application to surrender President Al-Bashir was heard in the North Gauteng High Court, Sudan was divided into two states – Sudan and south Sudan. If the objective of the Rome Statute is to preserve peace, one could hypothetically ask whether the peace in Sudan was so fragile in June 2015 that the justice element in the peace/justice dichotomy prevailed and warranted the arrest of Al-Bashir for the sake of humanity.

The inconsistency of member states and the way the ICC functions also contributed to its loss of legitimacy. Until 2011, anyone in Britain could request an arrest warrant from a Judge. After the 2008 war in Gaza, pro-Palestinian activist groups in 2009 sought an arrest warrant against Tzipi Livni over her role in Operation Cast Lead at the time when she was serving as Foreign Minister of Israel. On hearing this, she decided not to go to Britain and the Court subsequently annulled the warrant. However, in 2011 Livni arrived in London after Britain amended its law to prevent private citizens from seeking arrest warrants against Israeli officials in Britain.

Gaza 2014 is the one ICC situation that requires minimal effort to investigate but which the ICC has not moved on. Its constituent atrocities have been broadcast live for much of the 50 days of the attack and documented by respected international organisations. The Dahiya Doctrine, on which Israel relies for its foreign policy in Palestine and other Arab countries is a publicly announced one and amounts to a final solution to the issue of lebensraum in Israel and Palestine. Its author, Major General Gadi Eizenkot, and promoters Ehud Olmert and Colonel Gabriel Siboni would seem to have at least a prima facie case to answer.

In June 2011 the ICC issued arrest warrants for Muammar Gaddafi and two others for allegedly committing crimes against humanity. Four days later the African Union decided that its members should not comply with the ICC decision because it was discriminatory since it targeted Africans while ignoring the acts of northern powers in Iraq and Afghanistan.

When the man considered to have been responsible for the gassing of the Kurds at the behest of Saddam Hussein, Ibrahim al-Douri, went to Austria to receive medical treatment, it was hoped that he could be arrested. However, despite international pressure, Austria put its obligation to Saddam Hussein’s government above its obligations to international law and allowed al-Douri to return to Iraq.

Similar choices have been made by the Saudi Arabian and US governments (regarding Idi Amin and former Peruvian Intelligence Service Major Ricardo Anderson Kohatsu respectively).

In each case, politics trumped human rights.

The unilateral determination by the ICC Prosecutor to set up thresholds to determine the gravity of atrocities and which cases should be investigated contributed to the ICC’s credibility and impartiality. It became politically and ethically problematic for the ICC and created the perception that the ICC was choosing sides in a conflict and pursuing its mandate with impunity.

The South African government is of the view that the ICC acted in bad faith in the Al-Bashir saga. Our government has stated publicly that on 28 May 2015 the ICC invited South Africa to hold consultations with it regarding the execution of the warrant of arrest. South Africa accepted the invitation to consult with the ICC in terms of Article 97 of the Rome Statute and hoped for a constructive discussion on the difficulties experienced in executing the warrant of arrest. The first meeting between South Africa and the ICC took place on 12 June 2015 and a second meeting was scheduled for 15 June 2015. The ICC sought an earlier meeting and that was arranged for Sunday 14 June 2015. However, late on Saturday night, i.e.13 June, the ICC Prosecutor made an urgent application to the ICC in the following terms: “Prosecutor’s Urgent Request for an Order clarifying whether Article 97 consultations with South Africa have concluded and that South Africa is under an obligation to immediately arrest and surrender Omar Al-Bashir”

The Prosecutor made the urgent request to the ICC without giving any notice whatsoever to South Africa. The Prosecutor asked that details of the Urgent Request remain confidential but that the decision of the ICC be made public. The ICC heard the matter immediately and decided that the Article 97 consultations with South Africa had ended and that South Africa was under an obligation to arrest and surrender President Al-Bashir.

Politics will always be part of the ICC’s functioning. Moreover, the interplay between perception and reality is very narrow. It becomes even more pronounced when one is dealing with political actors who guard their state sovereignty jealously. The ICC lost its way when it failed to manage the collision between law and politics, thereby allowing perceptions to reinforce the view that it was established and functions for purposes other than the primary purpose of preserving international peace, justice and security.

South Africa’s withdrawal from the ICC must be seen as constructive. The ANC has no intention to detract from the country’s prioritisation of human rights. In fact, by withdrawing, South Africa would be holding up a mirror to the ICC to give it an opportunity to confront its shortcomings.

The following action steps would go a long way to restore the legitimacy of the ICC and perhaps afford South Africa an opportunity to reconsider its decision to withdraw:-

• The ambiguities in the Rome Statute need to be removed and the opportunity for some states to blatantly use the ICC for political purposes must end;
• What is clear is that not every atrocity crime can be investigated. Consequently, a transparent and objective regulatory framework should be introduced to determine the criteria for the referral of cases

for investigation, the ranking of crimes and the establishment of gravity thresholds acceptable to all member states;

• The wide discretion given to the ICC Prosecutor should be curtailed;
• The ICC should make a conscious effort to get all states to accept and ratify the Rome Statute;
• Permanent members of the UN Security Council, many of whom are not members of the ICC, should either join the ICC or not have the power to refer cases to the ICC for investigation; and
• Certainty should be given to the relationship between the functioning and legal framework of the ICC and legal concepts such as customary international law, the immunity of Heads of State, what legal duties are owed to Party states and the legal position of non-states vis-a-vis the ICC.

The ICC Second Review Conference is scheduled to take place in 2017. The ICC should use that opportunity, in the words of President Zuma, to reconstruct and reconstitute itself.

This paper was delivered at a Panel Discussion of The Cape Law Society on the 30th of October 2015.

Comrade Krish Naidoo is a member of the ANC Legal Research Group