By: Richard J. Goldstone, Former Justice of the Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor

There is a wide perception in many African circles, political, legal and civil society, that the International Criminal Court was set up by Western countries to police African countries. This perception has also encouraged support for an African court  to have exclusive jurisdiction in African situations. Strenuous objections have been voiced by the African Union against the arrest warrants that were issued against sitting heads of state, President al-Bashir of Sudan and President Muammar Gaddafi of Libya. The latter was overtaken by his death in October 2011 at the hands of opposition forces.

Let us first consider the facts and then return to the perception. There are seven situations presently before the ICC. Four of them have been referred to the Court by their own governments. These are Uganda, the Central African Republic, the Democratic Republic of the Congo and the Ivory Coast. Two of the situations have been referred to the Court by the Security Council of the United Nations. These are Sudan (Darfur) and Libya. It is only the violence that accompanied the 2009 elections in Kenya that has now come before the ICC in consequence of the Prosecutor using his own powers (called in the Rome Statute, his proprio motu powers). In all seven situations, a pretrial chamber, on the application of the Prosecutor, has held that crimes falling within the jurisdiction of the Court appear to have been committed. Arrest warrants were issued against government officials and others. On the other side, however, there is the consideration that the Court has now been in operation for almost a decade and not one non-African situation has been brought before it.

The ICC itself has thus initiated an investigation into only one of the seven situations currently before it. It is hardly fair to accuse the Court for aiming its sights only on African situations. It should also be taken into account that there are eight other situations under investigation by the Office of the Prosecutor. Six do not relate to African nations. They are Afghanistan, Colombia, Georgia, Guinea, Honduras, Republic of Korea, Nigeria and Palestine. The Office of the Prosecutor previously reported on examinations on Chad, Iraq and Venezuela that did not lead to any formal investigations.

The objections to the arrest warrant against heads of state is similarly without merit. International law does not protect heads of state from the criminal jurisdiction of international courts. Slobodan Milosevic of Serbia was indicted by the ICTY during the time of his presidency. So, too, was Charles Taylor, then the president of Liberia, by the Special Court for Sierra Leone. Section 27(2) of the Rome Statute provides that sovereign immunity shall not bar the ICC from exercising jurisdiction over persons enjoying such immunity. In any event, both warrants were issued in pursuance of a reference of the two situations by the Security Council acting pursuant to its peremptory powers under Chapter VII of the Charter of the United Nations.

It follows that this criticism of the ICC as being Afrocentric is factually without merit. What about the perception? It is trite that perceptions are facts, As such, they have to be considered by the ICC, its supporters and all who desire to defend its integrity.

It is not as though serious war crimes have been committed only on the African continent. One thinks of situations in Sri Lanka, the Middle East, and Chechnya. In those cases the nations involved have not ratified the Rome Statute and the crimes have not been committed by nationals of countries that have ratified the Rome Statute. The ICC, under the Rome Statute, therefore has no jurisdiction over them.

Negative perceptions of the ICC are also fueled by the refusal thus far of some large and powerful nations to ratify the Rome Statute. I refer here to the United States, Russia, China and India. It is not in the interests of international criminal justice that the ICC should have jurisdiction over the nationals of small and weak nations but not those of the large and powerful.  I would suggest that the answer is not on this account to criticize the ICC but rather to put greater pressure on the nations that have failed to join the ICC to do so. The endeavor to withdraw impunity from war criminals is an important one and especially for the victims of egregious war crimes. Universal ratification of the Rome Statute would exert significant pressure on all governments to ensure that their armed forces did not commit war crimes whether at home or abroad.

What can the ICC do in the meantime? The Court should certainly give greater publicity to the manner in which the African situations have come to it. In my experience there is much ignorance in this regard, not only amongst the general public but also in legal circles. This is true in Africa and no less on other continents. The Court’s outreach program should devote more attention to this issue.

The Assembly of States Parties, the representatives of the 120 nations that have ratified the Rome Statute, have recently elected a new Chief Prosecutor to replace Luis Moreno Ocampo of Argentina, whose term of office ends in June of this year. They have chosen an African woman, Fatou Bensouda, of Gambia. She is a former Minister of Justice of that nation and for some years has been the Deputy Chief Prosecutor of the ICC. She brings considerable experience to the office and has clearly been appointed both on merit as well as being African. That a woman has been appointed to this high office also sends an important message to the global community.

The misperception about the ICC that I have addressed is likely to continue until non-African situations come before the Court. That this will happen is clearly a matter of time. Until it is does happen, however, the Court should be more proactive in responding to the perception in a more proactive manner. Fatou Bensouda will no doubt be able to assist in this endeavor.

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