African criticism of ICC unfair: Goldstone

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The criticism that the International Criminal Court (ICC) is against African countries is unfair, Judge Richard Goldstone says. “It is unfair to say the court is being used against African countries,” Goldstone said at a lecture at the University of Johannesburg.

He acknowledged that this was a perception because of Africans appearing before the court, the South African Press Association reports. The ICC has opened up five investigations into the Democratic Republic of the Congo (DRC), the Central African Republic, Uganda, Kenya and Darfur in Sudan.

Goldstone said, however, this would change in the near future as individuals in Latin America were coming under investigation. He added that the ICC only began its activities after officials in those countries declined to open their own investigations, SAPA said. In the case of Kenya, the country’s parliament refused to begin an investigation into post-election violence in 2007. “It’s a court of last resort, not a court of first resort,” said Goldstone.

The ICC was established in July 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the “crime of aggression”. The wikipedia says the creation of the ICC is “perhaps constitutes the most significant reform of international law since 1945. It gives teeth to the two bodies of international law that deal with treatment of individuals: human rights and humanitarian law.”

It adds the establishment of an international tribunal to judge political leaders accused of war crimes was first made during the Paris Peace Conference in 1919 by the Commission of Responsibilities. The issue was addressed again at conference held in Geneva under the auspices of the League of Nations in November 1937, but no practical results followed. The United Nations states that the General Assembly first recognised the need for a permanent international court to deal with atrocities of the kind committed during World War II in 1948, following the Nuremberg and Tokyo Tribunals.

At the request of the General Assembly, the International Law Commission drafted two statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.

The idea was revived in 1989 when Arthur Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.

Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalising a treaty, the wikipedia adds. The conference adopted the Rome Statute of the International Criminal Court by a vote of 120 to 7, with 21 countries abstaining the next month. The Rome Statute became a binding treaty in April 2002, when the number of countries that had ratified it reached 60.

The first of the Ad hoc tribunals was the “International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia, established by the United Nations Security Council in May 1993.

Those tried before it ranged from common soldiers to generals and police commanders all the way to Slobodan Miloševi?, the first sitting head of state indicted for war crimes. Other high level indictees included Milan Babi?, President of the Republika Srpska Krajina; Ramush Haradinaj, former Prime Minister of Kosovo; Radovan Karadži?, former President of the Republika Srpska; Ratko Mladi?, former Commander of the Bosnian Serb Army and Ante Gotovina, former General of the Croatian Army.

The International Criminal Tribunal for Rwanda (ICTR) was established in Arusha in Tanzania in November 1994 by the United Nations Security Council in order “to judge people responsible for the Rwandan Genocide and other serious violations of the international law in Rwanda, or by Rwandan citizens in nearby states.

The Special Court for Sierra Leone followed in 2002 as an independent judicial body set up to “try those who bear greatest responsibility” for the war crimes and crimes against humanity committed in Sierra Leone after 30 November 1996 during the Sierra Leone Civil War. Located in Freetown,
this court was set up with the agreement of Sierra Leone and operates under both Sierra Leone domestic law and international humanitarian law.

The Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, commonly known as “Cambodia Tribunal”, followed the Sierra Leone pattern and was established in 2006 as national court pursuant to an agreement between the Royal Government of Cambodia and the United Nations to try senior members of the Khmer Rouge for serious violations of Cambodian penal law, international humanitarian law and custom, and violation of international conventions recognised by Cambodia, committed during the period between 17 April 1975 and 6 January 1979.

Goldstone also commented on Kenya’s hosting of Sudanese president Omar al-Bashir at a ceremony celebrating its new constitution. Al-Bashir has been indicted by the ICC for crimes in Darfur. As a signatory to the ICC treaty, Kenya was obligated to arrest but refused to do so. This is in contrast, said Goldstone, to South Africa where Al-Bashir was warned not to enter the country for President Jacob Zuma’s inauguration or risk arrest.



Goldstone said that while no action could be taken against country’s such as Kenya, they did risk becoming “pariah states”. “There is no action against countries that do not fulfil their obligations under the treaty except to become pariah states,” he said.