The Business Day
UNTIL the last 15 years of the 20th century, international criminal justice did not exist. Since the establishment by the United Nations (UN) of the International Criminal Tribunal for the former Yugoslavia in 1993, the growth and development of international justice for war criminals has grown at a dramatic pace.
The successes of the Yugoslavia tribunal and the Rwanda tribunal that followed in 1994 were sufficient to spur many nations to move towards the establishment of a permanent International Criminal Court (ICC). They also spawned the so-called mixed or hybrid tribunals for East Timor, Sierra Leone, Cambodia and Lebanon.
These criminal courts demonstrated that international criminal justice can work efficiently, that fair trials in international courts are possible and that their work advances the development of the law. The most important development has been the prosecution of gender-related crimes and especially systematic mass rape.
The Rome Treaty of 1998 established the ICC. It required the ratification of 60 states to bring its provisions into operation. Even its most optimistic supporters did not anticipate that it would take less than four years for that to happen. SA has been one of the ICC’s most active supporters and helped gain important support from other governments in our region. The ICC became operational on July 1 2002. Today, there are 113 nations that have joined the ICC by ratifying the Rome Treaty. The African region leads, with 31 ratifications, followed by every member of the European region.
This wide support for the ICC was accompanied by the unexpected reference of its first investigations by three African governments — Uganda, the Democratic Republic of Congo and the Central African Republic. The court did not seek those referrals — those governments sought the intervention of the court. The fourth situation — that of Sudan and the crimes committed in Darfur — was referred by the UN Security Council itself. Only the fifth, Kenya, has come about as a result of the p rosecutor’s initiative.
This last situation arises from the violence that accompanied the 2007 elections in Kenya and followed a recommendation from former UN Secretary-General Kofi Annan and a Kenyan commission of inquiry.
The ICC became involved only after Kenya’s parliament decided not to set up its own domestic investigation.
It thus becomes apparent that the allegation that the ICC is in some way biased against African states or was set up to deal only with Africa is unfair and without substance. In addition, the prosecutor has made clear he is investigating other situations in Latin America and the Middle East.
The ICC operates on a system of “complementarity”. This means that the court has no jurisdiction at all in any case if the government of the nationality of the suspect is willing and able to investigate and, if there is sufficient evidence, to prosecute that person. Such a domestic investigation undertaken in good faith is conclusive regardless of the outcome and will deprive the ICC of any jurisdiction in the matter. The ICC is thus a court of last and not first resort. Modern international criminal law recognises that it is more appropriate for war criminals to be investigated and prosecuted by domestic rather than by international mechanisms.
The courts of Sudan are clearly not willing or able to investigate Sudanese leaders who have credibly been found by the ICC to be answerable for the most serious crimes, including genocide. The ICC has issued arrest warrants for a number of Sudanese leaders, including President Omar al-Bashir. The governments of nations that have ratified the Rome Treaty are legally obliged to arrest those people, To its credit, the South African government warned al-Bashir that should he visit SA, he stands to be arrested and handed over to the ICC. That is an obligation SA undertook when it ratified the Rome Treaty. It is also its obligation pursuant to the terms of a binding and peremptory resolution of the UN Security Council when it referred the Darfur situation to the ICC.
It is a matter of deep regret that Kenya failed to live up to those same obligations when al-Bashir recently visited Nairobi. Kenya has been roundly criticised for failing to uphold its international obligations. The only body that is able to sanction Kenya for flouting its international obligations is the s ecurity c ouncil. The law is clear and what is necessary is the political will to do something about it. The s ecurity c ouncil has the power and the right to impose appropriate sanctions against Kenya. If the s ecurity c ouncil fails to take such action, its own credibility will be called into question. It would be recognising the ability of member states of the UN to flout binding resolutions of the council.
Even in the absence of appropriate action by the s ecurity c ouncil, Kenya has made itself an international outlaw and has diminished its standing in the international community. Countries that do not uphold and implement their international obligations, seriously assumed, will undoubtedly suffer other prejudicial consequences, especially in the sphere of international trade and commerce. The adherence by nations to their international obligations is an important benchmark for major nations entering into trade and other relationships.
It was because of the system of complementarity that recognises the right of nations to investigate allegations against their own citizens that the UN and the European Union called upon Israel, the Palestinian Authority and Hamas to investigate the serious findings contained in the fact-finding mission on Gaza that I headed last year. Secretary-General Ban Ki-moon also called on the parties to hold independent domestic investigations into the conduct and consequences of the Gaza conflict.
In March, the UN Human Rights Council decided to establish a panel of independent experts to monitor the independence, effectiveness and genuineness of the investigations and their conformity with international standards. That panel is being led by one of Europe’s leading international lawyers, Prof Christian Tomuschat.
To date, Hamas has launched no investigations at all. The Palestinian Authority, for its part, did establish an independent domestic investigation and its findings were recently handed to the s ecretary-g eneral. The Israeli military conducted its own investigations behind closed doors. Those inquiries have confirmed some of the most serious incidents detailed in the Gaza report. Judgment on the extent to which the parties have carried out their international obligations in this regard must await the report of the Tomuschat panel. That report is soon to be presented to the Human Rights Council.
From the foregoing, it should be apparent that international criminal justice has developed at an impressive pace in recent years. At its core is the protection of civilians during times of war. Too many millions of innocent children, women and men have died in the wars that plague our planet. For too long there has been effective immunity for the war criminals responsible. That immunity is steadily being withdrawn as many nations join the ICC. South Africans should take pride in our government having been one of the leaders in this movement.
– A former judge of the Constitutional Court, Goldstone will be giving a public lecture reflecting on International Accountability for War Crimes on September 27 at the University of Johannesburg.