By: Richard J. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor Monitor
The African Union and
some African States have protested the alleged bias of the International
Criminal Court (ICC) toward Africa. In support of this allegation reliance is
placed on the fact that eight of the nine situations currently before the Court
relate to African States. This is a hollow argument - four of those situations
were referred to the ICC by African governments themselves, two were referred
by the Security Council, with the support of the African members of the
Council. Only the remaining two situations are the consequence of the
Prosecutor using his or her own power to seek an investigation by the Court. It
has been more a case of Africa using the ICC than the ICC choosing to prosecute
in African situations.
A more convincing
argument also advanced by some African States and their leaders is the
unfairness of the ICC not having before it investigations into the notorious
and far more egregious war crimes that have been committed and are still being
committed in Syria and those that were committed in Sri Lanka. The reason for
those glaring omissions is firstly, the lack of jurisdiction absent
ratification of the Rome Statute by those States and, secondly, the protection
afforded to Syria and Sri Lanka by one or other permanent member of the
Security Council. The ICC can only assume jurisdiction over war crimes
committed in Syria or Sri Lanka by way of a referral by the Security Council
under Article 13 of the Rome Statute together with its peremptory powers under
Chapter VII of the Charter of the United Nations. The result is certainly
unfairness and imbalance in the manner in which the investigation of the most
serious war crimes come before the ICC.
The appropriate
response to the ignominious shield given by some permanent members of the
Security Council to war criminals is not to withdraw from Rome Statute. It is
rather to shame and hold to account those member states who exercise their veto
in such a brazen and shameless way. That conduct should receive far more open
criticism in the halls of the United Nations and especially in the Security
Council. That conduct reflects badly on the Security Council itself. It makes a
mockery of the equality of nations that underlies the Universal Declaration of
Human Rights and the United Nations Charter.
There is yet a more
serious criticism of the Security Council with regard to its relationship to
the ICC. In order for the Council to refer a situation to the ICC under Article
13 of the Rome Statute, it must determine that there is a threat to
international peace and security and that the referral is for the purpose of
removing that threat. The ICC is not bound to accede to such a referral. The
ICC Prosecutor, under Article 53 of the Rome Statute, may decline to institute
an investigation where she or he comes to the conclusion that “there is no
reasonable basis to proceed” or that “an investigation would not serve the
interests of justice.” In the cases of both situations referred to the ICC by the
Security Council, Sudan and Libya, the Prosecutor instituted an investigation,
and the Court issued arrest warrants directed to individuals in each of the
respective States.
Those two Security
Council referrals have been anything but to the credit of either the.Council or
the ICC. The first problem relates to the terms of the Security Council
resolutions which embodied the requests. In order to avoid a veto from the
United States, the Security Council, firstly, resolved that the referrals would
not bind any member states, (other than Sudan and Libya, respectively), that
had not ratified the Rome Statute. This was to ensure that nationals of the
United States, and especially its military personnel, were not subject to the
jurisdiction of the Court. Secondly, the resolution explicitly provided that no
United Nations funds might be used to assist the ICC with regard to the
situations referred to it. Sufficient members of the Security Council
considered that these unmeritorious and indeed extortionate conditions were
worth the price demanded by the United States for not exercising its veto. In
the case of Sudan, the United States abstained and in the case of Libya it
voted in favour of the relevant resolution. To its credit Brazil abstained in
the first case to protest the Council having acceded to the demands of the
United States.
The next setback for
the ICC arose from the referral of the situation of Sudan and the war crimes
allegedly committed in its Darfur region. Sudan refused any