By: Carl ‘Mpangazitha’ Niehaus
The well-intentioned motivating principles for the creation of the International Criminal Court (ICC) were born out of the hope that all countries in the world could benefit from multilateralism rooted in international law and the institutions that uphold it.
It was the hope of the ICC founders that accountability for serious human rights violations by all sides to a conflict is essential for achieving a sustainable and lasting peace.
It was also based on the abecedarian principle that where there is no accountability for grave human rights violations, it is the victims seeking justice and people longing for lasting peace who are paying the hefty price. The Rome Statute was supposed to guarantee the highest criteria of justice and provide a crucial avenue to address impunity for the world’s most serious crimes.
How do I know this? Because I was there when the ICC was established, and my signature is on some of the documents leading up to the establishment of the ICC, I was, at that time, appointed by the Mandela government as South Africa’s Ambassador to the Netherlands, and, in that capacity, I was fully briefed about all matters involving the ICC.
The seat of the ICC is in The Hague.
Fast forward to March 2023, and it has become crystal clear that the ideals behind the founding of the ICC will never be realised as long as Western imperialism exists and as long as the United States and the major European powers continue to exert their pernicious influence on the ICC. Western imperialism poses an existential threat to any rules-based international order.
It is not a coincidence that the ICC has been hijacked as a tool of US imperialism—it has been used to shield US allies and, at the same time, has been manipulated to target ideological adversaries of the US around the world. In the Syrian conflict, in which the US is a full participant, the ICC was asked to investigate Iranian and Syrian officials, despite the US participation in drone attacks that killed and maimed thousands of civilians in Syria and Iraq.
It did not come as a surprise that in Latin America, the International Criminal Court recently announced that it was opening a formal investigation into allegations of torture and extra-judicial killings committed by Venezuelan security forces under socialist President Nicolás Maduro’s rule, the first time a country in Latin America is facing scrutiny for possible crimes against humanity from the court.
The US and its Nato allies have engaged in war crimes and atrocities that have not been punished and for which they have not been held accountable.
War crimes are defined as acts that violate the laws and customs of war established by the Hague Conventions of 1899 and 1907 or acts that are grave breaches of the Geneva Conventions and Additional Protocols I and II. In the aftermath of the September 11, 2001 attacks in the US, the Americans adopted several new measures in the classification and treatment of prisoners captured in the War on Terror, including applying the status of unlawful combatant to some prisoners, conducting extraordinary renditions, and using torture (‘enhanced interrogation techniques’).
All these measures were undoubtedly illegal under the Geneva Conventions.
The US torture decision emanated from the presidential memorandum of February 7, 2002, which authorised U.S. interrogators of prisoners captured during the War in Afghanistan to deny the prisoners the basic protections required by the Geneva Conventions and thus authorised and ordered violations of the Geneva Conventions, which are war crimes.
Legal experts, such as Professor Paust, have agreed that the president's memorandum was a plan to violate the Geneva Convention, and such a plan constitutes a war crime under the Geneva Conventions.
George Bush was never indicted for that.
The same pattern of egregious violations and war crimes by US occupation forces continued when a group of soldiers committed a series of human rights violations, including physical and sexual abuse against detainees in the notorious Abu Ghraib prison in Iraq.
Again, neither Bush nor Tony Blair were indicted for those atrocities.
Nothing illustrates the political bias and imperialist control of the ICC by the US more than the ICC’s 2019 investigations concerning alleged crimes against humanity and war crimes in the territory of Afghanistan. It was classified into three ‘categories’ according to the different groups allegedly responsible for the crimes, namely (i) the Taliban and other armed groups, (ii) Afghan Forces, and (iii) US Forces and the CIA.
Shockingly, in 2019, the Pre-Trial Chamber ("PTC") II of the ICC announced that "it would not be in the interest of justice" to pursue an investigation of US and Nato war crimes in Afghanistan.
The ICC reports expose stalling tactics and the outright refusal of US authorities to cooperate with the investigation.
The ICC stated that specific information on national proceedings was sought from US authorities but "not received," leaving it unable to obtain sufficient information "despite a number of efforts taken".
The ICC rewarded the US by deciding not to authorise an investigation on the basis of a lack of state cooperation; in other words, a suspect war criminal could frustrate their own investigation by simply refusing to cooperate.
This not only excuses such behaviour but incentivises such behaviour. In the future, the US and its Nato allies can use all manner of stratagems to frustrate an investigation into their war crimes, and the ICC will sheepishly acquiesce despite the existential threat to the ICC's authority posed by the US and its allies.
Nothing is more nauseating than the hypocrisy of the US in regard to the ICC for the past 20 years. In 2002, the US Congress passed, on a bipartisan basis, a very draconian piece of legislation called the American Service Members Protection Act that strictly limits the US' ability to cooperate with the court.
The same US suddenly changed its tune and is now a vociferous supporter of the ICC's investigation of Russia. Even worse, the US has refused to be a member of the ICC and yet, has no qualms about portraying itself as being at the forefront of international criminal justice.
The same US has made it clear that it believes Israel is above the law and should be absolved of atrocities and war crimes committed in the occupied Palestinian territories.
Those who see the ICC as a Neo-colonialist institution pursuing a Western agenda that seeks to control African politics through ICC investigations and prosecutions are fully justified.
In the case of South Africa’s relationship with the ICC and US imperialist dictates to our country, it is no coincidence that the same week President Putin’s indictment was announced, the South African Justice Minister, Ronald Lamola, announced the withdrawal of a Bill that was pending before Parliament and which required the country’s withdrawal from the ICC.
This Bill was fully in accord with the ANC 2017 National Conference resolution.
At that time, South Africa was among the African states that had announced that they would be withdrawing from the ICC. Burundi, The Gambia, and South Africa had accurately accused the tribunal of victor's justice for white people.
But the about-turning position of South Africa under the current leadership pursuing a Neo-liberal agenda must come as no surprise.
Having failed to implement the ANC resolutions, such as land expropriation without compensation, the nationalisation of the Reserve Bank, establishing a state bank, diminishing the status of our embassy in Tel Aviv, Israel, and withdrawing from the International Criminal Court (ICC), to mention just a few, the next agenda for the Ramaphosa administration is to weaken and destroy the BRICS.
Based on the Constitutional Court precedent in the Al Bashir case, South Africa will be obligated to arrest President Putin should he ever travel to our country. BRICS poses a credible threat to Western imperialism, and using the Putin indictment in terrorem can be a way to disrupt the business of BRICS.
I do not claim to be an expert on the matter, but we all know this: A cursory review of the Putin indictment clearly shows that the ICC’s document is based on flimsy and insubstantial grounds. It has indicted President Putin and the children’s commissioner, Maria Lvova-Belova, for the alleged mass abduction of Ukrainian children.
The court’s pre-trial judges said there were ‘reasonable grounds’ to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.
Given the raging war in Ukraine, all sides evacuated civilians and children. In the same vein, Russia has presented its actions as a humanitarian mission to save Ukrainian children from the war.
But for propaganda purposes, Ukraine has accused Russia of genocide and described its actions as war crimes.
What is obfuscated by the propaganda noise is that there are ethnic Russians in Ukraine, and some of the children who moved to safety from the occupied areas were also from the Donetsk and Luhansk regions, which have been fighting for their independence from Ukraine since 2014, at least. It is alleged that some orphaned children travelled to Russia unaccompanied by their parents. In addition, several hundred children allegedly moved with the consent of their parents but were then not returned.
It is also alleged that about 90% of Ukrainian children who were living in state care at the time of the special military operations were ‘social orphans’, meaning they had relatives, but those family members were unable to take care of them.
There are cases where children ended up in Russian state care after fleeing the fighting in Ukraine on evacuation buses to Russia. These children have been identified and are still alive.
The attempt to build a "genocide and abduction case" on such a confusing state of affairs points to a sinister propaganda campaign in the Ukrainian war instead of a genuine search for justice.
*Former Ambassador Carl ‘Mpangazitha’ Niehaus is the National Chairperson of the Working Board of the African Radical Economic Transformation Alliance (ARETA).