Session Moderator, Mr Sanele Sibanda, Senior Lecturer, Wits School of Law,
Prof Loyiso Nongxa, Vice- Chancellor and Principal, University of the Witwatersrand
Prof Angelo Pantazis, Head of the School of Law, University of the Witwatersrand;
Ms Silvania Arbia, Registrar of the International Criminal Court
Justice Emmanuel Ayoola, Vice President of the Special Court for Sierra Leone
Mr Hassan Jallow, Prosecutor of the International Criminal Tribunal for Rwanda
Mr Adama Dieng, Assistant Secretary-General of the United Nations and Registrar of the International Criminal Tribunal for Rwanda
Mrs Mmasekgoa Masire-Mwamba, Deputy Secretary-General of the Commonwealth
Professor Tiyanjana Maluwa
Distinguished participants
Ladies and gentlemen
Dumelang! Sawubona! Moleweni! Goeie More! Avuxeni! Ndi masiari! Good morning. Welcome to South Africa! Boa tarde. Sejam bem-vindos a Africa do Sul! Bonjour. Soyez les bienvenus a l'Afrique du Sud!
In greeting and welcoming you I would like to convey the greetings and best wishes of the Minister of Justice and Constitutional Development, Minister Jeff Radebe, to this very important conference.
We would like to begin by reiterating the deep felt condolences expressed by President Jacob Zuma on behalf of the government and the people of South Africa to the government and the people of Uganda and, in particular, to the families and relatives of those who died in Kampala, Uganda on Sunday 11 July, and also to wish those who were injured a speedy recovery.
The South African government condemns, in the strongest possible terms, these acts of terrorism aimed at maiming and hurting innocent people. We believe that, whatever reasons prompted the perpetrators of these deeds, it does not justify the killing of innocent people.
We would like to thank the Wits Programme in Law, Justice and Development in Africa and the Africa Interest Group of the American Society of International Law - both for organising this important conference as well as for extending an invitation to the Minister of Justice and Constitutional Development to open it.
The University of the Witwatersrand and its School of Law in particular, played an important role in the struggle against apartheid. Its alumni include: Nelson Mandela, Joe Slovo and George Bizos to name but a very few.
This conference brings together minds that are world renowned in the field of International Criminal Justice and are well placed to contribute to a discussion on Africa and the future of international criminal justice.
Indeed, as my comrade and friend, Mandla Nkomfe, argues in Umrabulo, the journal of the African National Congress, "African intellectuals played a leading role in the emancipation of Africa. WB Du Bois defined the basic question that would occupy the minds of the world as that of colour line. Against this backdrop, African intellectuals were inspired to mobilise for the liberation of the continent. By their actions and visions, they demonstrated that a new and better world is possible. This bold vision was undermined by the new post-independence African elite. He continues:
"The confluence of political, economic and military factors (at the end of the last century) resulted in new possibilities for the rebirth of the continent. We have moved with speed to reorganise our political, economic and educational institutions. The African Union (AU) and the New Partnership for Africa's Development (NEPAD) have become beach-heads in an all-round struggle to rebuild our continent. We have stable political institutions and peace in most parts of the continent. Intellectuals have a critical role to play in ensuring that we do not go back to where we were forty years ago.
"The performance of our political and economic leaders should be carefully monitored. As we do that, our intellectuals should be driven by a sense of progress and informed by the history of the continent. The challenge is not to romanticise the past to the extent of African nativism that glorifies reactionary ideas and our supposed unchanging nature - glorifying the past as if Africans have an innate and unchanging form. The contributions of the African continent to the development our world should be understood within the challenges posed by globalisation."
It is significant that this conference takes place only three days after the final whistle blew in what has generally been hailed as one of, if not the most successful FIFA World Cup, and the first to be held on the African continent.
On a lighter note, I recall that eight weeks ago, during the Review Conference of the Rome Statute in Kampala, I asked the President, the Prosecutor and the Deputy Prosecutor of the International Criminal Court whether they would be attending the 2010 FIFA World Cup in South Africa and whether they would be on standby to hear any cases involving manifestations of the crime of aggression on the football field.
Fortunately, I am told that, in addition to being one of the most peaceful and crime free competitions off the field, the 2010 FIFA World Cup had the distinction of being the most peaceful on the field, with the lowest number of yellow and red cards handed out.
No doubt participants in this conference will find time during some of its late night break-away sessions to discuss certain of the refereeing decisions in the context of the ongoing debate regarding the relationship between peace and justice.
It is also significant that this conference takes place four days before we celebrate the birthday of former President Nelson Mandela, an illustrious alumnus of the Wits School of Law, on 18 July. In celebrating his life and contribution, the people of South Africa and the world are called to contribute 67 minutes of their time in honour and emulation of his iconic example of 67 years of service to humanity.
May his example as a committed lawyer, freedom fighter and statesperson guide us in the deliberations of this conference. In this regard, I would like to quote from his opening address at the 2nd Conference of African National Institutions for the Promotion and Protection of Human Rights in Durban on 1 July 1998, where he said that:
"The third development referred to is the process which we hope will lead to the establishment of an International Criminal Court. We have sought to ensure that the International Criminal Court (ICC) is guaranteed independence and bestowed with adequate powers. Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimised, had there been an effectively functioning International Criminal Court."
Shortly after he delivered that address South Africa became the 23rd state to ratify the Rome Statute on the International Criminal Court on 17 July 1998, almost exactly 12 years ago. And on 16 August 2002, the Implementation of the Rome Statute of the International Criminal Court Act of 2002 (Act No 27 of 2002) commenced, thereby making the Rome Statute an integral part of our domestic law.
It has, therefore, been a source of ongoing surprise to us that others find it surprising that we are committed, indeed obligated, to honour our undertakings to the ICC in terms of the Rome Statute, both by international law as well as our own domestic law.
We hope that this annoyance will come to an end, and that our President will not be called upon to restate our position - which is, quite frankly, restating the obvious – every time curious persons examine the guest list of an international event hosted by South Africa.
At the time that the negotiations for the Rome Statute were taking place, South Africa was in the process of finalising its own democratic Constitution. Millions of South Africans suffered for generations the humiliation and human rights abuses associated with apartheid. It was, thus, gratifying that the crime of apartheid was criminalised in article 7(2)(h) of the Rome Statute as a crime against humanity.
Our support for the International Criminal Court is a principled one that reflects our commitment to the foundational values of our own Constitution as well as that of the African Union. The AU Constitutive Act affirms the sovereignty of the state as represented by the people and not just governments. It grants participation of African people in the activities of the union and promises never again to be blind, deaf or mute to the evils of war crimes, genocide and crimes against humanity by granting powers to the union to intervene in States where these crimes are committed.
It was no accident of history, therefore, that African States were amongst the most ardent proponents of the creation of the International Criminal Court during the negotiations leading to the adoption of the Rome Statute. It is also no accident that with 30 States Parties, Africa remains the biggest single regional block in the Assembly of 111 States Parties to the Rome Statute. It was, and continues to be the expectation of those thirty States that through, amongst others, the International Criminal Court, the AU principles of respect for democratic principles, human rights, the rule of law and good governance can be safeguarded and strengthened in the international sphere.
In this regard, we must welcome the fact that, last week, from 7 to 9 July, 2010, Judge Sang-Hyun Song, President of the International Criminal Court (ICC), paid a two day visit to Addis Ababa, Ethiopia, the headquarters of the African Union, where he met with, amongst others, the Chairperson of the African Union Commission, H.E. Dr Jean Ping, who reiterated the African Union’s commitment to end impunity.
During the meeting Dr Ping and President Song agreed that the African Union and the ICC share the common value of ending impunity and bringing about lasting peace. They also agreed to work to facilitate the establishment of an ICC Liaison Office at the headquarters of the AU that would encourage dialogue and exchange of information for the mutual benefit of the two institutions.
South Africa views the Rome Statute, and the International Criminal Court it created, not in isolation, but as an important element in a new system of international law and governance. This system is characterised by greater solidarity which, while remaining true to the principle of sovereignty, prioritises the common good.
The foundations for this system of law are, of course, contained in the United Nations (UN) Charter and, in particular, the Purposes and Principles of the United Nations, namely to “maintain international peace and security” and to bring about peaceful solutions to conflict “in conformity with the principles of justice and international law.”
The importance of the International Criminal Court needs to be seen in the context of the need for the fundamental reform of the system of global governance. Last week, President Jacob Zuma, addressing the Investec Asset Management Global Investment Conference, Cape Town, said that, "We argue that the affairs of the world of today cannot continue to be managed by the existing institutions of global governance unless they undergo fundamental reform.
We have further argued that the role and contribution of developing countries in global economic expansion must begin to be reflected in their voice, share holding and representation in these international institutions. Our participation in the G20 cannot and must not be divorced from our participation in the multilateral institutions such as the United Nations and others. Our participation in the G20 adds to these international interfaces, as it provides real possibilities to advance our objectives in multi-lateral institutions such as the International Monetary Fund (IMF), World Bank and the World Trade Organisation (WTO). "
In this regard, and in relation to the International Criminal Court, former UN Secretary-General Koffi Anan, speaking during the opening session of the Review Conference of the Rome Statute in Kampala said:
"And questions of credibility will persist so long as three of the five permanent members of the Security Council refuse to reconsider their position and join those who have taken the courageous step to become parties to the Statute. The same is valid for countries that aspire to permanent membership. Indeed, the problem is not limited to the Security Council. Six of the G20 have not ratified the Rome Statute.
"The States Parties to this historic Statute must therefore pose the question, “What kind of leadership is this which would absolve the powerful from the rules they apply to the weak?” A laggard leadership is no excuse.
"The States Parties to the Rome Statute are on the right side of history. You are in the majority. There are G20 and P5 countries among you. You can demand that those who claim the mantle of global leadership accept the duty of promoting global values."
Indeed our world is changing, and it is changing fast. These are times of globalisation and interdependence, times that are giving rise to new configurations of global power relations. There is an urgent need for global governance and effective multilateral coordination that reflect these realities.
Most major threats and challenges faced by our world can only be effectively combated and met on a global scale, including that of impunity. Just as with climate change or terrorism, there can be no exceptions or exemptions when it comes to setting up enforcement regimes.
Let us proceed in the spirit that led to the creation of the United Nations in 1944 when we pledged to create a system of global governance founded on the coordinated work of universal institutions working in harmony. A strong and independent ICC working together with other institutions of global governance will further the goal of a peaceful and just world order.
The Review Conference of the Rome Statute that was held in Kampala, Uganda was the first opportunity to amend the Rome Statute and to review the direction and impact of the Court. As you all may know by now, the Conference adopted a resolution by which it amended the Rome Statute to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime. The actual exercise of jurisdiction is subject to a decision to be taken after 1 January 2017. Most African States Parties favoured the inclusion of the crime of aggression without these qualifications.
The Review Conference also provided the opportunity to stock of the international criminal justice in the areas of: the impact of the Rome Statute system on victims and affected communities;
peace and justice; and cooperation and complementarily.
South Africa and Denmark were the so-called "focal points" for the stocktaking on complementarity.
It is important to remind ourselves that the International Criminal Court is based on the principle of complementarity. The ICC only operates when a State that has jurisdiction is genuinely unable or unwilling to carry out investigations and prosecutions. Underlying the Rome Statute is the understanding that justice, like charity, should begin at home.
However, the reality is that many States Parties face real challenges in this regard. In this context South Africa and Denmark advanced the notion of "positive complementarity", i.e. the need actively to assist each other to strengthen national jurisdictions effectively to investigate and prosecute these crimes. We hope that this conference will have the opportunity to reflect on this matter and to give guidance.
It is clear that international criminal justice has come to a critical juncture in its development. Its future direction is in our hands. Let Africa, once again, be a leading force in steering its direction.
Before I conclude I would like to address the issue of xenophobia and violence against foreign nationals.
The South African Government takes any threats of violence against foreign nationals seriously and we have reiterated that no such attacks will be tolerated. This is a message that has been articulated consistently by the leadership of our society in all sectors and spheres: political, civic, religious, labour and business.
Last week Government announced a strategy to act in partnership with various organs of civil society to proactively curb and avert the threat of violence against foreign nationals.
This strategy includes the extension of the 2010 FIFA World Cup National Joint Committee and the swift policing and justice approach that was witnessed during the World Cup. Law enforcement agencies will not hesitate to act speedily and decisively against anyone found to perpetrate or to incite violent acts against foreign nationals.
Other key elements of this strategy include the proactive facilitation of a societal dialogue as well as reinforcing civic education in society and within the law enforcement agencies. This has taken place at various areas around the country comprising of police, churches, community policing fora and non-governmental organizations (NGOs). Communities need to blow the whistle against any criminals that masquerade behind xenophobia.
In short, to use the language of football, we have given notice that any manifestation of violence against foreign nationals will be given a massive red card and also that the entire justice, crime prevention and security cluster is ready to ensure that the instigators and perpetrators of such violence are banned from future matches.
We wish you a successful conference and express our confidence in your collective ability to contribute to defining a clear vision of the kind of society we wish to become and to play an active role in the realisation of that vision: A better Africa in a better World.
I thank you. Nkosi kakhulu. Baie dankie. Ngiyabonga. Ke a leboga. Inkomu. Ndi a livhuwa. Muito obrigado. Merci beaucoup.
