Agencia de Informacao de Mocambique (Maputo)
3 July 2009
Maputo — Claims that the International Criminal Court (ICC) is "targeting" Africa, and is in the service of Western interests, are the result of disinformation, according a Brazilian ICC judge, Sylvia Steiner, interviewed in Friday's issue of the independent daily "O Pais".
Steiner was one of the speakers at this week's conference on the ICC, organised in Maputo by the Mozambican Bar Association (OAM).
Steiner pointed out that African states were actively involved in setting up the ICC at a conference in Rome in 1998, and that of the 109 countries who have signed the Rome Statute of the ICC, 30 are African (that is, a clear majority of African Union member states have signed up to the ICC statute).
It is true that all four cases currently before the ICC involve African countries, but Steiner pointed out that in three cases it was the African states themselves (Uganda, the Democratic Republic of Congo, and the Central African Republic) which referred the matters to the ICC. These cases all involve alleged crimes against humanity committed by rebel groups in the course of armed conflicts. Unable to bring the suspects before national courts, the three governments had called on the services of the ICC.
"We didn't go looking for those cases - it was the African states themselves that sent them to us", said Steiner.
But it is the fourth case that has stirred controversy. This concerns war crimes committed in the Darfur region of Sudan, and has led to the ICC issuing an arrest warrant for Sudanese President Omar al-Bashir. Steiner said that this too was not an ICC initiative - it was the United Nations Security Council that sent the Darfur dossier to the ICC and asked that the ICC prosecutor investigate.
"Four or five years ago a commission appointed by the UN investigated the situation in Darfur, and concluded that serious crimes were being committed", she said. "Based on this, the UN Security Council remitted the case to the ICC".
The ICC prosecutor investigated for a further three years, and then asked the court to issue an arrest warrant for al-Bashir. Steiner pointed out that the ICC could not be swayed by political considerations about whether the warrant might cause problems for the Arab League or the African Union, or whether it might endanger peacemaking efforts in Darfur.
"The ICC doesn't have to go to the country in question, and hold discussions with the politicians and with the armed forces, and conclude whether it is expedient or not to issue a warrant", she said. "An impartial and independent court doesn't make these judgments of convenience. A judgment of convenience is political and we avoid doing that'.
"The sole material to which the three judges in the case have access is the material from the investigation, which is analysed from the legal point of view and not a political point of view", she added. "The ICC does not and cannot undertake political analyses".
When the interviewer pointed out that some of the African states that have ratified the Rome Statute have also expressed solidarity with al-Bashir, Steiner replied that those states which have ratified the Rome Statute have an obligation to cooperate with the ICC.
Failure to cooperate could lead the ICC to send a communication to Assembly of States-Parties, consisting of all states that have ratified the Statute, so that they "can take the measures deemed necessary".
"The Rome Statute is a treaty, and when a state signs a treaty it promises to comply with the treaty", said Steiner. "This is the principle of good faith in international law. A state which does not comply with its obligations is committing an international offence, and it will be up to the Assembly of States-Parties to decide whether to take any measures".
She had no idea what such measures might be, since this matter is not regulated in the Statute. It would thus be "a political decision of the Assembly".
The matter has not yet arisen because, since the arrest warrant was issued, al-Bashir has been careful not to set foot in any country that has ratified the Rome Statute. His visits abroad have been to countries that are not part of the treaty (such as Eritrea, Zimbabwe and Libya). He did not try to attend the inauguration of South African President Jacob Zuma, doubtless because he feared arrest the moment he set foot on South African soil.
Steiner pointed out that al-Bashir is not the only person defying an ICC warrant. Warrants were issued five years ago for the arrest of leaders of the Ugandan rebel movement, the Lord's Resistance Army, but so far it has not been possible to take these individuals to the Hague.
"The ICC always depends on cooperation from states", she said. "If states do not cooperate, because they are unable or unwilling to do so, that creates a legal problem of lack of cooperation. But there is nothing the ICC can do".
Furthermore, the ICC has no provision for trying suspects in absentia - so if al-Bashir evades arrest by restricting his travel plans to countries that have not ratified the Rome Statute, he may succeed in escaping international justice.
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ICC has become a big bully towards Africa. It has started to over ride legal frame work of African countries. ICC is pretending to be the so-called "nice" people helping Africa, but we Africans should reject the work of ICC. If they are not targeting Africa alone, why are they not targetting bringing George Bush to justice for being involved in killing almost a million Iraq without cause? Why is Tony Blair free to roam around the world when he was involved in the massacre of Iraq children.