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How must international law be applied in an imperfect world

OPENING STATEMENT BY MS MAITE NKOANA-MASHABANE, MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION OF SOUTH AFRICA, DELIVERED AT THE GENERAL DEBATE OF THE FOURTEENTH MEETING OF THE ASSEMBLY OF STATES PARTIES OF THE INTERNATIONAL CRIMINAL COURT, THE HAGUE, 18 - 26 NOVEMBER 2015

Mr President,

First of all, I wish to express, on behalf of the President and the people of South Africa, our deepest condolences to the governments and peoples of France, Lebanon, Afghanistan, Kenya, Iraq, Nigeria and other victims of terror and violence throughout the world over the past few months.

These acts of terror and violence remind us that it is no exaggeration to say that the world has entered a new era of disorder. As South Africans we recall the days of the early 1990s, when we gained our freedom, when the Cold War ended and we all looked forward to a new world order of peaceful co-existence between States, where human rights, human security and democratisation would be promoted in an international rules-based system.

The adoption of the Rome Statute establishing the world's first permanent international criminal court, a process in which South Africa actively participated, is an achievement of this hopeful period of in our history.

When we transformed the OAU into the African Union (AU), with its strong focus on promoting human security, peace and stability on the continent and codifying in its Constitutive Act the principle of intervention against war crimes, genocide and crimes against humanity, we were inspired by a new world order.

Mr President,

It is time that we ask ourselves how must international law be applied in an imperfect world, where an idealistic view that strives for justice and accountability competes with the immediate objectives peace, security and stability.

Mr President,

South Africa's commitment to human rights and the fight against impunity is beyond question, and was forged in the struggle for liberation against the inhumanity of Apartheid.

We condemn in the strongest terms human rights violations and international crimes wherever they may occur and we call for the accountability of those responsible. We remain committed to all the fundamental principles to which we adhered when we emerged from Apartheid.

However, South Africa cannot and will not be silent in the face of serious flaws in some of the practices of the Court in the interpretation of the Statute.  We will not join in the dangerous chorus of uncritical loyalty.

This is our Court, and we have a responsibility to interrogate whether this institution is still reflective of the principles and values which guided its creation.

Has this Court become the universally accepted institution for justice as initially hoped for when we established it? Or has the fact that some Permanent Members of the Security Council remain outside the Court with the ability to protect themselves and their allies from the reach of the Court endangered the ideal of universality and equality before the law?

Mr President,

I wish to be absolutely clear.  The perceptions of inequality and unfairness in the practice of the ICC do not only emanate from the Court's relationship with the Security Council.  We ask ourselves, as have many, why no investigations have been opened in Afghanistan, Iraq and Palestine after long periods of preliminary analysis notwithstanding clear evidence of violations.

Is it because those investigations have the potential to implicate the "great powers"?  Many will think we are only raising these issues because of the events of June this year.  But I remind you that we have been raising these issues since at least 2010.  During the sixty-seventh session of the United Nations General Assembly, for example, we questioned the decision of the former Prosecutor regarding Palestine.

In the sixty-fifth session of the General Assembly we observed that the one-sided justice being dispensed by the ICC 'will have a negative impact on the image, credibility and integrity of the Court'.  So these are issues we have been raising for some time, and it is time that the ASP seriously consider them.

Mr President,

Let me share with you some of our own experiences. On a practical level, South Africa is today involved in international peacekeeping missions in Africa: our troops put their boots on the ground to keep and, occasionally, enforce peace. However,  our commitment goes much further:  to keep peace, one must first make peace: due to our commitment to ensure peace, human security and stability on the continent, South Africa is diplomatically involved in inter-related peace processes in the Darfur region of Sudan and in South Sudan, on a bilateral basis as well as part of AU mandates.

Mr President,

Due to these overlapping mandates, earlier this year South Africa found itself in the unenviable position where it was faced with conflicting international law obligations, which had to be interpreted within the realm of hard diplomatic realities. We then used the mechanism of consultation available under Article 97 of the Rome Statute, the first State Party to do so, but to no avail.  Needless to say, we are disappointed that the process did not yield the intended results.

Furthermore, it became clear that there are no procedures to guide Article 97 consultations. There is an urgent need to obtain clarity on the implementation of Article 97 in order for Parties that find themselves in a similar position in future, to have the confidence that they can do so on the basis of agreed procedures.

This is the background against which South Africa has requested that this meeting considers an agenda item on the Rules and Procedures relating to Article 97 consultations.  South Africa also requested that the ASP discuss the application and implementation of Article 98, dealing with immunities provided for in customary international law and in treaties, and its relationship with Article 27.  It is highly unsatisfactory that such an important question is the subject of conflicting and mutually exclusive interpretations by ICC Pre-Trial Chambers.

Delegates will recall that in our previous statements to this meeting we have emphasised that peace and justice are two sides of the same coin: we cannot pursue one without regard to, or at the expense of, the other. In complex and multi-faceted peace negotiations and sensitive post-conflict situations, peace and justice must be viewed as complementary and not mutually exclusive.
Mr President,

In conclusion, let me say this: We are at the cross-roads.  The ICC is in critical need of emergency support and we hope that the ASP will do what it must to restore our confidence in this institution of ours.

Thank you.

Dirco

Photo: Unati Ngamntwini

 

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