You can run but you can't hide

International Criminal Court President Sang-Hyun Song was in South Africa this week. Sello S Alcock and Percy Zvomuya asked him about the court’s role in Africa

Is it your feeling that African countries do not support the court?
Perhaps without Africa’s support, the court would never have been created. Of the 108 states parties, 30 are African, making Africa the most heavily represented region. The trust and support came not only from the governments but also, and this is very significant, from civil society organisations.

You are asking African countries to support the court’s judicial status. Why should they, when the United States under George Bush refused to recognise it?
I was recently elected court president and in this capacity I’ve started official visits to various countries to meet government representatives, academics and representatives of NGOs. Africa is indeed the first continent in our list of priorities, but for reasons different to those you raise.

I believe it is relevant to maintain a dialogue with the representatives of African states and members of their civil society. They have been, and continue to be, engaged in many aspects of the court’s work. In the discussions before the Rome Conference, and also at the conference where the statute was adopted, the most meaningful declarations about the court came from Africa. Perhaps without Africa’s support, the Rome Statute would never have been adopted.

Furthermore, three of the four situations under investigation at the ICC were referred to the court by African governments themselves. Between 2003 and 2005, the governments of the Democratic Republic of Congo, Uganda and the Central African Republic voluntarily requested the court to look into the alleged crimes committed in their territories.

What is the court doing to ensure that influential countries such as the US and China sign the Rome Statute?
The rules of the Rome Statute have safeguards to ensure that the ICC remains apolitical. During the years there has been a growing interest in and appreciation of the court’s work, not only by states but also by their populations.

Let’s not forget that the court became operational only a few years ago, in July 2002. The Law of the Sea Convention took 12 years before it entered into force, while the statute of the court took only four years. Relatively speaking, that is quite a success. I think that, having 108 ratifications and soon 109, with Chile, after its short existence is very good indeed.

What success has there been in ensuring that those fingered for atrocities in Africa are prosecuted?
The case of Thomas Lubanga is the first of three cases arising from the prosecutor’s investigation into the situation in the DRC. Lubanga is charged with enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. The alleged crimes were committed from 2002 to 2003 in the context of an armed conflict in Ituri in eastern Congo.

His trial started on January 26 this year, and by April 30, 18 witnesses called by the prosecutor had testified. It is foreseen that during the second half of the year the prosecution will rest and the defence will start presenting its case.

The second case in the DRC is that of Germain Katanga and Mathieu Ngudjolo Chui, who have been charged with war crimes and crimes against humanity. The trial is scheduled to commence on September 26. The third is that of Bosco Ntaganda, who is still at large.

With regard to Uganda, the suspects in the case against Joseph Kony and other commanders of the Lord’s Resistance Army, Vincent Otti, Okoi Odhiambo and Dominic Ongwen, are still at large. In October last year, Pre-Trial Chamber II initiated a review of the admissibility of the case in light of the establishment of a new division in Uganda’s High Court to try serious crimes in the conflict in northern Uganda. In March 2009, after considering submissions from the government of Uganda, the chamber found that the case remains admissible.

In the Central African Republic, the only suspect, Jean-Pierre Bemba Gombo, is in the court’s detention centre. If the charges against him are confirmed we’ll move to the trial stage.

The situation in Darfur after July 1 2002 was referred to the court by the UN Security Council. On March 4 the court issued a warrant of arrest for Omar Al-Bashir, the president of Sudan. The judges found there were reasonable grounds to believe he is responsible for war crimes and crimes against humanity as a co-perpetrator. The counts include murder, forcible transfer, torture, intentionally directing attacks against a civilian population or individual civilians not taking part in hostilities. Besides the Al-Bashir case the Court has also issued warrants of arrest for Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman, also known as Ali Kushayb. They remain at large.

Most recently, the court issued a summons requiring Bahr Idriss Abu Garda to appear before the court. He voluntarily appeared on May 18. The court is also reviewing the prosecutor’s application for the issue of warrants or summonses to appear for two other individuals.

Many leading African countries see the ICC as a neo-colonial tool ...
The ICC is not imposed. It is the result of a treaty agreed upon among a lot of countries. It is an independent court and its decisions are based on legal criteria and are issued in accordance with the provisions of the Rome Statute and other legal texts.

When the states, including African states, drafted the Rome Statute, they included detailed safeguards against politicisation. Four central attributes of the ICC ensure that the court remains apolitical.

Firstly, it has a limited jurisdiction, clearly defined in the statute, only over war crimes, crimes against humanity and genocide.

States accept the court’s jurisdiction when they become a party to the statute. The ICC may exercise jurisdiction over crimes by their nationals or in their territories. The only other circumstance in which the Court can exercise jurisdiction is if the UN Security Council refers a situation to the court in the interest of peace and security.

Secondly, the ICC is a court of last resort—it can only act where states are unwilling or unable to investigate and genuinely prosecute crimes themselves. It was not set up to replace, interfere with or overrule national courts. If states fulfil their duties, the ICC will not and cannot become involved.

Thirdly, oversight by independent, impartial judges ensures that cases before the ICC comply strictly with the statute. For instance, one of the key elements of the system is that the prosecutor cannot open an investigation without the authorisation of a panel of three judges.

Finally, the ICC Statute enshrines the rights of the accused and the principles of due process throughout proceedings.

In practice, the court has adhered strictly to its limited judicial mandate. There has not been the slightest suggestion that the judges have acted with anything but the utmost independence, fairness and impartiality.

There has been an uproar over the arrest warrant issued for Sudan’s Omar Al-Bashir. What are the implications for Sudan’s already fragile peace process?
Darfur was referred to the court by resolution 1593 of the UN Security Council, whose preamble stated “that the situation in Sudan continues to constitute a threat to international peace and security”. The Security Council re-affirmed not only that justice and peace are compatible, but also that justice is an important factor in restoring peace and security.

One must make a distinction between a political process and a judicial one. The ICC does not have a humanitarian mandate and has no jurisdiction with respect to peace negotiations. Its role in helping to bring peace to Darfur lies in holding fair judicial proceedings.

Percy Zvomuya

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