It has taken humanity something like 150,000 years, from the time our species migrated from southern Africa, to write the Universal Declaration of Human Rights.
Its Preamble commences:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world;
“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…”
The Preamble sets the scene for the first Article of the text:
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Three hundred years ago it would probably have been impossible to articulate such ideas that embraced all humankind.
When the Universal Declaration was adopted by the United Nations on 10 December 1948, South Africa refused to sign it. Is it necessary to explain to South Africans why this was delayed until 1996, when Nelson Mandela signed South Africa’s present Constitution into law?
It took another 50 years – from 1948 to 1998 – for humanity to draw up the United Nations Rome Statute of the International Criminal Court. Is it seriously proposed that South Africa must take a step back from such victories for humanity?
The answer lies in the triumph which the ICC embodies. The Preamble to the Rome Statute includes three paragraphs which read:
“Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation;
“Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes;
“Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes…”
There are two complementary doctrines of international law which bind every single state and which have been invoked over the centuries. Troublingly, they have not been invoked when they ought to have been.
The first is summarised in a terse Latin phrase: erga omnes – “rights and duties owing to, and enforceable by, all states without exception”. It gives substance to the second doctrine with which it is linked.
This is summarized in another Latin phrase, also binding on all states without exception: Aut dedere, aut prosecutor – “either extradite or prosecute that person”. This dates back to 1625, when Hugo de Groot, one of the great commentators on international law, formulated it.
These doctrines are designed to frustrate perpetrators’ attempts to escape justice. There must be no shelter in a state which, for various reasons, is unable or unwilling to mount a prosecution. It is in the service of humanity as a whole that human rights offenders must be denied sanctuary and be prosecuted.
However, the doctrines may be crusted over with political considerations which enable criminals in practice to escape.
The crimes involved are set out in the Rome Statute of the ICC. They are: a) The crime of genocide; b) Crimes against humanity; c) War crimes; and d) The crime of aggression.
These are defined in some detail in the Rome Statute, and may now conveniently be regarded as the crimes covered by the erga omnes and the aut dedere, aut prosecutor doctrines. The crime of apartheid is one of the crimes against humanity.
That political considerations can make it difficult to secure justice is illustrated by what happened during the war in Vietnam. Humanity works slower than we would wish; it took years, but the ICC emerged from the growing understanding that the atrocities that were committed there and elsewhere need better responses than were given. The alternative is impunity.
The accounts and frightful photographs of the My Lai massacre in 1968 and its aftermath are all in the public domain now. There was an attempt, with lies, distortions and denials, to cover up what happened, but it failed – in great measure due to some courageous and shocked soldiers and journalists who gave publicity to what they knew.
The outcome of the prosecution of Lieutenant William Calley, who gave the order to kill hundreds of unarmed civilians in My Lai village, is an illustration of the need for an independent court with powers to investigate, prosecute and sentence where the state responsible fails to deal adequately with matters.
American political considerations contaminated the proceedings. Calley was convicted of murder at a court martial, sentenced to life imprisonment, but released three days later and placed under house arrest by order of President Richard Nixon. Thereafter, following a procedural maze through the American courts, Calley served three and a half years under house arrest for crimes for which one senior officer said he should have been sentenced to death.
The Preamble of the Rome Statute refers explicitly to the problem of impunity. The ICC is designed to plug a gap created by how humanity conducts its affairs, though it is not the primary solution to impunity but the court of last resort. It is to be invoked if states fail to discharge the duty stated explicitly in the Preamble to exercise their jurisdiction over those responsible for international crime, as explained in the two doctrines of international law.
The ICC certainly has problems but instead of turning our backs on it, the first thing to do is to ensure that its jurisdiction need not be invoked. States which are robustly confident in their democracy are the answer to attempts by those responsible for grave human rights crimes to seek shelter from the consequences of their actions. None of this is to suggest that the operation of the International Criminal Court is satisfactory, but the solution to the complaints against it lies with us.
We should not allow dust to be thrown in our eyes by the fact that those convicted and sentenced for the grave crimes within the jurisdiction of the ICC are African. If we do not wish Africans to go before the ICC, then the answer lies in how African states conduct their affairs. To put the matter bluntly, humanity gets the justice we deserve; if we do not like it, then the solutions lie in our own hands to prevent tyrants from taking power.
This is obviously the subject of a different essay and the task is immense, but between the African Union and the capacity of states to conduct their own affairs appropriately, it is a task that can be done.
However, it is true also that the states which predominate in the funding and staffing of the ICC are former colonial powers. This creates the impression that the ICC is intended to be a tool of continued colonialism. It is up to the 123 signatories of the Rome Statute to take up this problem to ensure that the independence of the court is protected by its practices.
Great power lies in the hands of these States Parties to the Rome Statute. It cannot be beyond human wit and ingenuity to devise sanctions against any state which frustrates the operation of the aut dedere doctrine. Each has the powers given to them by Article 14 of the Rome Statute:
“A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”
Further, Article 15 states that “the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”. The Latin simply means that on the Prosecutor’s own initiative an investigation may be commenced.
The United States has taken the line that, as Professor Ziyad Motala writes in a recent Sunday Times article, “international accountability is not for Americans”.
Americans are prohibited from cooperating with the ICC in any way, and the US has enacted that the president may use military force to free its servicemen or those of its allies in the hands of the ICC. The legislation also prohibits any American party from cooperating with the ICC, providing any information to the court, or extraditing any person from the US to the ICC.
In fact, as Prof Motala comments, there was never any intention that there would be prosecutions for crimes against humanity committed within the jurisdiction of Western countries. He writes, “the absence of those against whom deserving complaints have been laid and not proceeded with call for a response, not meek passivity.”
This is precisely why Article 15 is of such importance. It provides access to the ICC to the world at large to present information to the prosecutor which might result, at the least, in an investigation. The family of Shireen Abu Akleh, an Al Jazeera journalist who was shot in May 2022 by an Israeli soldier, have used this access in their attempt to open an investigation into her death. This is possible in terms of the Rome Statute in view of the refusal of the states of which she was a citizen – the United States and Israel – to take action.
Further, the ICC decided in 2021 that its territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.
The reasoning behind this decision is of the utmost significance. It makes it clear that those countries which have acceded to the ICC have power for protecting human rights if they act together to discharge their duties, and to secure the objectives of the ICC.
It is of the greatest importance to understand that the decision was taken regardless of the status of Palestine under general international law, and related exclusively to what happened on its territory.
In brief, the court ruled that it could not go behind a decision of the Assembly of States Parties. The Assembly is established by Article 112 and oversees the management of the ICC. The Statute itself is open to accession by all states and Palestine decided to subject itself to the jurisdiction of the ICC, and to become a State Party.
The assembly agreed to this, even though Israel is not a member of the court and does not recognise its authority. The result is that the ICC accepted that it has a mandate to investigate crimes in the occupied Palestinian territories. Almost certainly this reasoning would apply to any other territory, thus giving greater force to the two doctrines referred to above.
It ill behoves South Africa to withdraw from the ICC on the grounds of its failure to act when it ought to have done. It was due to no failure on the part of the ICC that Omar al-Bashir did not appear before it, but of South Africa’s failure to comply with the valid Interpol warrant of arrest against him, and the orders of our own courts that South Africa was obliged to do so.
When the struggle for human rights has empowered countries to act so creatively, how absurd it would be for South Africa to distance itself from the ICC. DM