Cassel and the Court

The African National Congress finds itself in 'proposing policies' mode because of its forthcoming National General Council and the 53^rd National Conference later in the year.

One of the suggestions made by Premier Cassel Mathale MPL, at the Limpopo Provincial General Council, was that South Africa might do well to withdraw its membership from the International Criminal Court (ICC).

In his address, Premier Mathale states in particular: “…The fact that President Al Bashir is not welcome in our countries, based on our membership to [sic] the International Criminal Court and the selective approach of the Court to issues, gives us solid reasons to review our subscription to the Court.”

As his address points out, this particular instance, of  the first sitting head of state to be indicted by the court, President Omar al-Bashir of Sudan, does have the possibility of dividing, if it has not already, the African continent. Malawi has regrettably cancelled its hosting of the African Union (AU) Summit in July because of the insistence of the AU Commission on the presence of President al-Bashir at the Summit. Not to contravene international law (and offend donors!), Malawi was placed in a tight spot.

South Africa would certainly not be the first country to ponder this question of withdrawing. In considering its obligations towards the court, on the one hand, and its own process of national reconciliation, on the other, Kenya has also proposed withdrawing its membership of the court. Libya too is in the process of negotiating with the court on whether it should hand over Saif Al-Islam Gaddafi or have a trial for him at home. Should the court refuse and insist he be tried in The Hague, it will be interesting to see Libya’s reaction to this. Yet these cases, Malawi, Kenya, Libya and even now South Africa, are steeped in political rather than legal questions.

The indictments or trials of Laurent Gbagbo, Joseph Kony, Jean-Pierre Bemba Gombo, and even Charles Taylor, among others, could be argued to be political questions rather than legal ones. The fact that the overwhelming majority of those indicted by the court are Africans points to a political challenge. Undoubtedly, because the African continent is the region with the most members of the Statute of Rome, the founding charter of the court, it lends itself to this political anomaly. Needless to mention, that the ICC is, strictly speaking, not meant to evaluate or handle cases of its own volition but that it is requested to investigate atrocities and often those who request are themselves not signatories of the Statute; this in itself is a political power play as well. Fifteen cases, in seven situations, all in Africa, indeed Premier Cassel Mathale has reason to be concerned.

Somewhat aware of these political concerns, it seemed the ICC did well in appointing a female African as the lead prosecutor. But the reality is that on the one hand this does not necessarily mean that the court will look more towards the West for possible war crimes prosecutions nor does her appointment mean that ‘international justice’ will be viewed more fairly.

When looking at the ‘broader political picture’, two considerations could be made. Firstly, we must be able to propose a justice system, especially within a post-conflict scenario, which is much more based on restorative (and by extension redistributive) justice rather than retributive justice. Retributive justice is based on the axiom of ‘might is right’ (at the time) and this does not necessarily mean bringing about a process of stability and reconciliation. South Africa is a good example of restorative justice, through its Truth and Reconciliation Commission, though it has not gone far enough in its redistributive justice program.

In Libya, Cote d’Ivoire, Sudan and South Sudan as well as Egypt, to mention but a few examples, a process of restorative justice, where opponents sit down and talk, negotiate the future together and navigate the sensitivities of nation building side by side, is important. Already reports are in that while Gbagbo sits in The Hague, his supporters are planning an offensive. Courts, and legal processes, don’t necessarily bring about restorative justice nor do they bring about nation building.

Secondly, besides the ICC, ‘special courts’ have also been set up by the United Nations and the host country, where the atrocities have taken place. We have seen this in the instance of the Sierre Leone, Rwanda, Lebanon and Bosnia, among others, where a court is established by the UN and the country involved. This allows for the country itself to use the process as a way to ‘end that chapter’ in the history of that particular country/region. As Libya correctly argues, trying Libyans in some distant place in The Hague will not affect the country in the same manner as it would if those same people were tried at home.  

At the same time, the idea has emerged that Africa itself invest in the possibility of establishing its own court. This too strengthens the idea of ‘localising’ justice and allowing for people to see justice, albeit retributive justice, take place. Again, it gives flesh to ‘African solutions for African challenges’.

Those accused of war crimes and/or crimes against humanity were often involved in political processes and/or political situations. More than anything, these are ultimately political crimes for we have yet to see the court try international bankers, human traffickers or drug tycoons. Maybe this is because our international law is not yet that developed. The people, accused by the court, have emerged from political conditions and their indictments have political implications.

Politically it is therefore an important consideration for Africa, how the continent responds to the court’s decisions and the African Union would do well to discuss it; of course, if it can offer member states an alternative it would be even better. Premier Mathale is therefore wise to bring this matter up for discussion in South Africa.