Three South Africans, Justice Bernard Ngoepe, Justice Navanethem Pillay and Professor John Dugard have accepted nominations as the South African candidate for a position as a judge at the International Criminal Court (ICC).
One of these three will join 10 others who have been nominated by other African states for appointment to the ICC panel of judges. Nominations for the positions of judges and the prosecutor have to be submitted to the ICC before the deadline of November 30.
So far, nine nominations from African states have been received for the prosecutor position, seen by many as the most powerful and high-profile job at the ICC. South Africa’s Justice Richard Goldstone’s name is not on the list, yet, given his experience with the International Criminal Tribunal for the former Yugoslavia, he seems an ideal candidate.
The judges and prosecutor of the ICC will have jurisdiction over four crimes: genocide, crimes against humanity, war crimes and the crime of aggression. The last crime, aggression, has not yet been defined by the ICC and must still be negotiated by parties to the Rome Statute.
The appointment of judges and a prosecutor is the next significant step in the development of the ICC, an international criminal justice institution based in The Hague.
The ICC came into being when the Rome Statute of the ICC was first opened for signature and ratification in July 1998. Since then, 84 states have ratified the statute, Zambia being the most recent. Of the 54 African states 44 have signed, though only 15 have ratified the statute.
The ICC has defined six broad aims: ”to achieve justice for all”, ”to end impunity, ”to help end conflicts”, ”to remedy the deficiencies of ad hoc tribunals”, ”to take over when national criminal justice institutions are unwilling or unable to act”, and ”to deter future war criminals”.
How effectively the ICC can pursue these aims will depend largely on the credibility of its judges and prosecutorial team.
The credibility of the ICC is still the subject of some debate. While many states have signed the Rome Statute, the actual ratification of the statute has been slow. For an institution claiming ”automatic” global jurisdiction, these details cannot be overlooked or rushed.
States supporting the ICC have up to now failed to persuade the United States to accede. Given the US’s prominent role in international affairs, this failure will remain an obstacle no matter how the issues are argued. The current tactic of trying to shame or bully the US into compliance seems to have had little effect.
A far bigger challenge for the ICC is perhaps the complete absence of both Russia and China from the list of state parties. The debate on US involvement has obscured the fact that neither of these two influential states has ratified the Rome Statute. Yet supporters of the ICC seem confident enough to proceed without them or any significant support from Arab states. An advance party set up in The Hague began its work in July and the first prosecution could begin as early as mid-2003.
Holding murderous tyrannical leaders accountable for their deeds is certainly a good thing and essential to a more peaceful global order. The Rome Statute hopes, among other things, to end the blind respect for national sovereignty that protects those leaders who murder their own citizens. The creation of international multilateral institutions reflects the repeated failure of the sovereign state system to impose justice where required. But elevating the responsibility for trying these criminals from a national to a global level brings with it certain risks. Three of them are particularly pertinent.
One risk is that the multilateral approach to justice may prove to be just as ineffective as its predecessor. For all their faults, and there are many, nation states were able, at times, to impose short periods of peace and a semblance of justice on a chaotic system. The record of the United Nations and regional organisations is not without blemishes. The genocide in Rwanda showed how multilateral prevarication could be just as lethal as the most bloodthirsty unilateral nationalism. The subsequent ad-hoc tribunal has done admirable work but the damage had already been done despite the threat of a tribunal. The ICC may have the unenviable task of gathering the evidence of its own lack of deterrence.
A second risk is that the court may promote its own prosecution over other, more local, methods of dealing with serious crimes such as genocide and war crimes.
This is, of course, an advantage when citizens of a state are powerless to prosecute their oppressors. If the ICC decides that a state is unwilling to prosecute the right people, it is authorised to step into the breach and mount its own prosecution. This ability to override national sovereignty also places tremendous power in a position far removed from popular accountability.
A third risk is that despite its best efforts the ICC may be perceived as a tool of one or another political or geographic grouping. To its credit, the ICC has done what it can to ensure a balance of gender and regional representatives. However, as other multilateral institutions have found, perceptions count and no amount of carefully worded public relations messages can change them. Ordinary African citizens have seldom had reason to cheer about global multilateral efforts.
While the nomination of some African judges to the ICC is guaranteed, African influence over the ICC is likely to pale beside the efforts of those who hold more commanding positions in the current system of global governance.
The prospects for the ICC may seem gloomy to some but nothing worthwhile is achieved without some risk. Indeed, South Africa’s own attempt to deal with injustice through the Truth and Reconciliation Commission held considerable risk.
Having already ratified the Rome Statute, South Africans would do well to find out more about the ICC so that when South Africa is required to assist in the work of the ICC, it can do so effectively.
Andre Snyders is publications coordinator at the Institute for Security Studies