Allow me to begin by thanking the moderator/chair of this session. I also wish to thank Parliamentarians for Global Action for organising this event on a very important topic, the relationship between the International Criminal Court (ICC) and the Security Council. Let me also say that South Africa is pleased to be a co-sponsor of this event.
The importance of this topic is illustrated by the number of meetings held on the subject in recent times. In March, Parliamentarians for Global Action together with Chatham House, hosted a meeting in London to consider this issue. Just last month the Security Council held an open debate on the relationship between the ICC and the Security Council.
The segment in which I have been asked to speak is the role of the Security Council in ensuring support for cooperation and I have been asked to focus on States Parties and the ASP. I wish, however, to begin by setting the context, namely the relationship between the Council and the ICC which significantly affects cooperation.
The relationship between the Council and the ICC is reflected most starkly in the Council's powers to refer situations to the Court under Article 13(b) of the Statute and Article 16 of the Statute which makes provision for the Council to defer investigations and/or prosecutions.
For South Africa, the relationship between the Council and the ICC has to be based on the mutual respect of their respective mandates. The Council should thus avoid undermining the ICC just as the ICC should not undermine the Council. I wish, in this respect, to raise four issues in Council practice which could have the effect of undermining the Court and in this way negatively affecting the will to cooperate.
First, Security Council referrals of situations to the ICC have, to date, not obliged all Member States, as is the norm with the Chapter VII resolutions, to cooperate with the Court. Under resolutions 1593 and 1970, only the situation country is obliged by the Council to cooperate. As we all know the reason for this is to exempt some permanent members from the duty to cooperate. Secondly, both resolutions create exemptions from ICC jurisdiction for nationals of some states for alleged ICC crimes in the situation country.
Third, both resolutions preclude the possibility of UN funding for related ICC investigations and prosecutions notwithstanding the fact that when the Council acts under Chapter VII, it does so on behalf of the United Nations. Finally, when there have been instances of non-cooperation, the Council has not followed up, behaving as if referral was an end in itself.
Collectively, this pattern raises a question about the seriousness with which the Council takes the ICC as a dispenser of justice. How can the Council appear to be supportive of the ICC if it is unwilling to subject its members to the duty to cooperate, to fund the latter’s activities flowing from referrals or to act when there is non-cooperation? How can the Council be deemed to trust the Court, and thus expect others to trust the Court, when it is unwilling to subject nationals of its members to the scrutiny of the ICC. All of these could negatively impact on the willingness to cooperate.
The question is what should States Parties do to enhance the cooperation between the Security Council and ICC and contribute to greater pressure on the part of other States to cooperate with the Court.
The first point to make is that at any given time there will always be States Parties on the Security Council. It is thus up to States Parties within the Security Council to ensure that the referral resolutions are crafted in a manner that will not lead to undermining the ICC in the manner described above. States Parties not on the Security Council should also apply pressure on Council members to ensure credible referral resolutions.
We are aware of proposals to enhance dialogue between the ICC and the Council, including through the creation of a Working Group or the extension of the mandate of the Working Group on Tribunals. While we do not oppose these, we wish to caution against thinking that new structures will solve old problems. We all know where the problems and solutions lie. What we need is the political will to effect the necessary changes.
We are convinced that as long as the current structure of the Security Council remains unrepresentative and undemocratic, the decisions of the Council will fail to live up to expectations and will all continue to negatively affect the ICC. States Parties, individually and collectively, thus have the responsibility to support UN processes for early reform of the Security Council.
This point was emphasised by President Jacob Zuma to the High-level Meeting of the 67th Session of the General Assembly on the Rule of Law at the National and International Levels, I quote:
"[...], [W]e need to consider the fairness of the rules of international law.
We need to ask whether the international community can be said to be governed by a system in which all role players are accountable under law which is equally enforced and independently adjudicated. Secondly [...], we need to look at the composition of the UN Security Council, and how this may impact on the promotion of international law, and the rule of law in particular.
We are concerned that given the undemocratic and unrepresentative nature of the UN Security Council, its decisions will constantly be attacked for lack of legitimacy – regardless of the content of the decision.
It is common cause that the current configuration of the Council is unfair. It does not reflect the contemporary geo-political realities especially with respect to Africa. The African continent is both generally under-represented and specifically un-represented in the permanent category.
Adherence to the international rule of law will continue to elude us as long as the organ with the primary responsibility for the maintenance of international peace and security is unrepresentative and undemocratic.
Let me emphasise that South Africa remains committed to the global promotion of the rule of law, and will continue cooperating with the UN system to ensure success of the international human rights architecture."
Despite the fact that out of the 8 situations being dealt with by the court, 4 (DRC, CAR, Uganda, Mali) were referred by states themselves, 2 (Kenya and Cote d'Ivoire) were initiated by the prosecutor and 2 (Darfur and Libya) were referred by the UN Security Council, there is a perception that the ICC has unfairly and disproportionally "targeted" African countries and leaders.
These negative perceptions can, I believe, be ascribed less to the actions of the Court and more to the nature and actions of the Security Council.
The relationship between the ICC and the Council in a way reflects the relationship between peace and justice. If the Council behaves in a manner that undermines the ICC, then it undermines this relationship. We hope this discussion will contribute to an honest stocktaking of how to better manage this relationship.
I thank you.
