Acronymia nervosa: the CIA and the ICC

11 September 2014

Even if he embarrassed the country, Kebby Maphatsoe, Deputy Minister of Defence and Veterans, at least did new members of the diplomatic corps in Pretoria a favour by accusing Public Protector Thuli Madonsela of being a CIA agent.

Many diplomats still arrive in this country under the naïve impression that they are coming to serve in the land of Mandela, a rather idyllic rainbow nation in love with itself and the entire world.

Maphatsoe's crude suggestion that the United States (US) was using Madonsela as an agent to undermine President Jacob Zuma would have been a wake-up call, alerting them to the sort of ideological sentiment that still runs strongly beneath the surface here, and sometimes emerges.

It quite obviously didn't occur to Maphatsoe, who is also the chairperson of the Umkhonto weSizwe (MK) Military Veterans' Association, that his remark might also offend the US. For an MK vet, the US is still the great Satan, and accusing one's enemy of being a CIA agent is as natural and as involuntary as breathing.

And so he seemed taken aback when US Ambassador Patrick Gaspard - otherwise judicious in his choice of words - called his accusation ‘baseless and offensive' and said he would lodge a complaint through diplomatic channels.

That, and Madonsela's threat to take action against him through her official powers, persuaded the government to have Maphatsoe retract his remark and apologise, even though grudgingly. Significantly, he did not also apologise to Gaspard or to the US. The embassy, knowing the lie of the land, so to speak, settled for the retraction of the remark.

It is easy to dismiss the previously obscure Maphatsoe as merely an absurd anomaly, an anachronism. He recalls those dogged Japanese soldiers who were reputedly still found dug into their foxholes in Pacific Islands, years after World War Two had ended. No one had told them the hostilities had ceased and, sadly, that their side had lost.

Likewise, no one seems to have told the war vet Maphatsoe that the Cold War ended about 25 years ago and, sadly, his side also lost. But, in some ways, he does not so much contradict as caricature the attitude and sentiment that underpin much government behaviour, almost like a collective unconscious.

Maphatsoe had made his offending remarks while unveiling the tombstone of Umkhonto we Sizwe combatant Linda Jabane in Soweto. But a sentiment that was not so different surfaced in very different circumstances later in the week, at a high-level conference in Johannesburg on the troubled relationship between the International Criminal Court (ICC) and Africa. The conference, organised mainly by Africa Legal Aid, brought an unprecedented concentration of international judges and jurists to South Africa, including the heads or other representatives of all the courts in The Hague.

ICC Prosecutor Fatou Bensouda; Navi Pillay, who has just retired as United Nations (UN) Human Rights Commissioner; and Tiina Intelmann, the President of the Assembly of States Parties to the ICC were on a panel with Chief Justice and President of the Constitutional Court Mogoeng Mogoeng to discuss ‘Africa and the ICC: One Decade On.' (The presidents of The Hague-based courts were in South Africa as part of the Dialogues for Peace and Justice programme, organised by the embassy of the Kingdom of the Netherlands.)

Perhaps it is naïve to expect judicial detachment from a discussion on such a fraught topic, but even so, Mogoeng's remarks took many of the audience by surprise because they were so political. As many others have done, Mogoeng lamented the fact that all cases before the ICC had to do with gross human rights violations by Africans.

‘This has resulted in the ICC being criticised by some African states as being selective and of questionable impartiality ... a concern persists that the ICC appears to be targeting Africa in pursuit of political expediency.' He added, ‘This perception is fuelled by the reality that gross human rights violations have taken place and continue to take place beyond the borders of Africa and yet, so say the critics of the ICC, there does not seem to be as much enthusiasm to deal with those atrocities as is the case with those committed in the African continent.'

The African Union's reaction to the ICC's indictment of two sitting presidents, Sudan's Omar al-Bashir and Kenya's Uhuru Kenyatta were ‘nothing less than red flashing bright lights' - warning of the need to repair relations between the ICC and Africa before they severely damaged the fight against impunity, which the ICC was all about, Mogoeng said.

So far, so good. While sticking to his prepared remarks, he had maintained judicial detachment, with caveats such as ‘so say the critics of the ICC.' But then he went ‘off road,' so to speak, by departing from the text and the going got rougher. ‘I think it is a bit hypocritical for the permanent members, or at least some of the permanent members of the UN Security Council [UNSC], not to sign the Rome statutes,' said Mogoeng.

‘Talk about democracy, talk about the levelling of the playing field, talk about constitutionalism, the rule of law, you name it and yet the ones, notwithstanding their questionable track record in relation to the elimination of atrocities, [would] be the ones to decide who is to be taken to the ICC. 

‘It undermines the good intentions that underpin the establishment of the ICC; the good intentions that inform the coming into being of the Rome statutes.'

Mogoeng went on to say that the ICC was really only addressing the symptoms of the problems of Africa and that ‘we have got to confront tendencies by some of these powerful countries to sponsor unconstitutional regime changes.

‘And those behind these undemocratic tendencies that often culminate in a massive loss of life must be exposed, the world must get to know that this and that power, even if that power happens to be a permanent member of the UNSC, is responsible for this and they are sponsoring these gross human rights violations...'

While he never mentioned the US by name, it seemed, by deduction, that this was the country to which he was referring: a permanent member of the Security Council which has not signed the Rome Statute, but nevertheless refers others to the ICC for prosecution. (Something the other two permanent members of the Security Council that have not signed the Rome Statute, Russia and China, are not inclined to do.)

Former ICC judge Pillay, who was next up, insisted - ‘despite the remarks of the previous speaker' - that even if the ICC judges did receive referrals from the UN Security Council, they always considered them on their legal merits.

Of course, there is nevertheless something clearly wrong and unduly political about the Security Council having power to decide which atrocities are referred to the ICC and which are not. But the question was whether it was an appropriate role for South Africa's highest judge to roll up his sleeves and get into what was clearly a very political wrestling match in this way.

Mogoeng, incidentally, also perplexed everyone in the audience, and apparently just about everyone in the legal community, when he added that it was necessary for him to be frank even though that was ‘dangerous.' He explained that he knew about such danger because, as a result of his frankness, about a month ago, he had come across ‘very desperate attempts to frame me for criminal acts you can't even begin to imagine.'

He added: ‘But that is the price to pay for pursuit of what is in the best interest of all the people; that is the price to pay for selflessness, so we dare not take cover when atrocities are committed not only in Africa but elsewhere in the world...'

By conflating America's alleged abuse of the ICC for its own supposedly nefarious ‘regime-change' ends with these mysterious attempts to frame him, was the Judge President suggesting the US was after him? Or was that just a coincidence? It was hard to say. But it seemed his train of thought was not a million miles away from that of Maphatsoe.

Peter Fabricius is Foreign Editor, Independent Newspapers, South Africa.

This article first appeared in ISS Weekly, the weekly online newsletter of the Institute for Security Studies.

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