THE negative perception of the International Criminal Court (ICC) as unfairly targeting Africans had more to do with the actions of the United Nations Security Council than the court, South Africa’s Deputy Justice Minister Andries Nel said this week.
The ICC is viewed by many as a key institution in the fight against impunity — the ability of war criminals and those responsible for genocide and crimes against humanity to evade justice.
But it has also been the subject of intense criticism, not least because all the ICC’s cases so far, both investigations and prosecutions, have been against Africans. Other prosecutions, such as in Balkan state war crimes, have been conducted by special tribunals outside the ICC.
Former commissioner of the African Union Jean Ping said in 2009: "We think there is a problem with the ICC targeting only Africans, as if Africa is a place to experiment with their ideas."
South Africa has always supported the ICC and has incorporated the Rome Stature, which established the court. into domestic legislation. But SA has also called for the reform of the security council, saying its structure — with China, France, Russia, the UK and the US as permanent members and 10 rotating nonpermanent members from the rest of the world — is undemocratic and unfair.
Of the eight cases being dealt with by the ICC, Libya and Darfur were referred to the court by the UN Security Council.
Mr Nel was speaking to Parliamentarians for Global Action on the eve of the 11th session of the Assembly of States Parties to the Rome Statute in The Hague. He said there was a "pattern" in Security Council practice that raised "a question about the seriousness with which the council takes the ICC as a dispenser of justice".
In both the Libya and Darfur resolutions, not all member states were obliged to co-operate as was normally the case. The resolutions also created exemptions from the court’s jurisdiction for the nationals of some states in the "situation country".
"How can the council be deemed to trust the court, and thus expect others to trust the court, when it is unwilling to subject nationals of its members to ICC scrutiny ?"
Where there had been instances of noncooperation, there had been no follow-up by the Security Council, Mr Nel said. South Africa was "convinced" that for so long as the Security Council remained "unrepresentative and undemocratic", the decisions of the council would continue to negatively affect the ICC.
Speaking to the session of the assembly on Thursday, Mr Nel again called for reform of the UN Security Council, saying such reform would establish a correct relationship between the court and the council.