The ICC marriage is in need of counseling

Mark D Young considers the status of the relationship between the ICC and the signatories to the Rome Statute.

While we in South Africa are beating our chests about the headlines regarding the presence in our country of the sitting President of Sudan – seemingly without fear of arrest on an International Criminal Court (ICC) warrant - the rest of the world's news agencies are leading with a story about the death of an alleged terrorist leader in a western initiated strike in the Middle East.

Local Twitter users, as one can expect, are churning-up a festival of indignation about the apparent lack of principle of the South African government in the matter of Mr Bashir.

It is my view that an objective assessment of the matter is needed. I do not dare to debate the merits of the ICC case against Mr Bashir - I wish merely to try and view the entire ICC issue in some perspective. Perhaps this might assist others considering the matter.

I will concede that in purely legal terms, as so succinctly set out by Judge Kriegler in the CFCR article elsewhere, South Africa has signed an international agreement and having ratified same in our law, the country is – in the strictest letter of that law – bound to comply with the provisions thereof and arrest Mr Bashir in terms of the ICC warrant.

However, my research has shown that as in all law, where there is a lack of good faith on the part of one or both parties to the agreement and that lack of good faith is such that it erodes the foundation of trust upon which all agreements rest, then it can be said to go to the very root of the agreement.

In civil matters where there is an obvious indication that, when entering into the agreement, one of the parties was negotiating with less than – shall we say – all their cards on the table and had an agenda different to the one they attempted to convey in negotiations, then that could constitute the requisite a lack of good faith affecting the root of the agreement.

Notwithstanding that little gem, all parties to an agreement have the duty, while the agreement is in force, to continue to act in the utmost good faith. Failure to do so will also provide grounds for the cancellation of the agreement. In such a case one or the other party can consider themselves no longer bound by the terms of the agreement.

In the case of the ICC and the countries that signed the Rome Statute in 1998 (which effectively gave birth to the ICC) there would have been a rightful expectation from those very signatories that the ICC would be fair, transparent and always act in the utmost good faith. After, all, if the ICC wishes signatories to effect its warrants, it would need to have a proven track record of utmost good faith during the life of the agreement.

As in a marriage, when both parties promise to do their utmost for the other, an expectation is created that both parties will use their best efforts to carry out the agreement throughout the life of that agreement – as is so famously quoted “until death” - which gives rise to the fact that agreements cannot, normally, ever be unilaterally canceled.

If, however, one party is discovered to have been – for example – stashing a secret partner in a love nest somewhere, or not having disclosed all their assets, then the other party – upon discovery of this lack of utmost good faith - would have recourse in terms of law to have the matters addressed.

In certain cases, such a lack of utmost good faith by one or the other party to the agreement renders the entire agreement null and void. (Legal beagles do not like this fact to be known as it can affect their business, however, I digress.)

Most commonly in marriages one would see some sort of effort on the part of one or both partners towards saving the agreement. Typically, outside counseling by a neutral third party would be one possible route to follow.

Considering the the ICC as one partner in a marriage and the signatories of the Rome Statute as the other, we can more clearly see the nub of the issue which confronts our government and others.

When signing up to the noble ideals espoused by the European Union (which funds the ICC), South Africa rightly had the expectation that the process would be as noble as it sounded. Other countries would also have expected the other party to act in the utmost good faith for the duration of the marriage. There would have been a rightful expectation that any grievances would be discussed in an adult manner and corrective action would be taken to keep things on an even keel.

In reality, however, the ICC suffers, on an objective analysis, from some pretty basic issues that strike – in my view and perhaps in that of the AU – at the very heart of the agreement which underpins its existence.

The primary one is that United States, Russia and China are not signatories of the Rome Statute. Technically, therefore, if Mr Bashir were to visit either of those countries they would not be obligated to arrest him.

Furthermore, this means that it is highly unlikely that any atrocities allegedly committed by the forces or Presidents of any of those three countries will ever be called to account by the ICC – quite simply as they do not recognise its authority.

Furthermore, in practice – as has been seen - many cases of atrocities allegedly committed by Nato, EU and US forces in Afghanistan, Iraq and elsewhere have never made it on to the ICC roll in spite of complaints having been filed with the court.

The sole focus of the ICC seems to have been – based on its case history – to clean up Africa and try and run it according to the dictates of its founding funders.

While not passing comment on the rights or wrongs of African governments, I nevertheless can see that there are some pretty basic issues that explain the position which the AU is adopting in terms of the ICC.

While the US summarily convicts, condemns and executes suspected terrorists without trial using drones and NATO operates at will in Afghanistan and elsewhere – disrupting millions of lives in the process – the myopic focus of the ICC on Africa has, unsurprisingly, eroded the foundation of trust in the ICC of African governments.

Thus, while astute legal minds might argue technicalities and the strict letter of the law, there is a wider issue at stake in this matter which negates – in my view - any clear-cut solutions.

Whatever else the noble intentions of the Rome Statute may have been, the conduct of the ICC as one partner in the marriage needed to make it effective has been less than a best effort in the eyes of the other partners – in particular the governments of Africa.

If the ICC wishes to have any credibility with African leaders – and the governments and populations they serve – perhaps the entire Rome Statute process needs intensive counseling. The ICC must show a demonstrable willingness to act with its very best efforts to dispel its obvious bias in the targets it pursues and the consequent perception that it lacks the utmost good faith required to make the Rome Statute stick.

Certainly, without universal co-operation and the ability to bring anyone guilty of international crimes to book, the ICC cannot claim any credibility.

It is this lack of credibility that has brought South Africa to the position in which it finds itself today.

Perhaps before the yelling and shouting drowns out logic, all parties need to consider counselling to decide if there is a marriage worth saving?

The very real problem, however, is that there is no trusted, neutral third party which could fulfil the vital role of mediator on the planet.

And this is likely to leave all parties stuck in a union which is both abusive and damaging to all.