By Tshepo Rakumakoe

Goedemorgen, I am back again this time around I am heading to the world’s headquarters of the International Justice System. The Hague where the International Criminal Court is biased or should I say captured.

Though, someone might have asked why I speak a foreign tongue in my greetings at the opening of this piece. My reason will be dull as I will sound by saying that we are speaking about International Criminal Court on their favoured decisions when it comes to the cases that need their expertise.

Since the 17th of July 1998 when 120 states reached an agreement to utilize the Roman Statute with the purpose of  prosecuting the perpetrators of  killing innocent people. But allow me to tell you about the Roman Statute as what it is, what is it all about and how does it entail and stuff.

The International Criminal Court’s Rome Statute is the treaty that founded the International Criminal Court (ICC). On July 17, 1998, it was adopted at a diplomatic summit in Rome, Italy. It went into effect on July 1, 2002. The act has been signed into law by 123 states as of November 2019. It establishes the function, jurisdiction, and structure of the court, among other things. It establishes four fundamental international crimes: genocide, crimes against humanity, war crimes, and aggression. These offences shall be exempt from any statute of limitations. According to the Rome Statute, the ICC can only investigate and punish the four basic international crimes when governments are “unable” or “unwilling” to do so themselves; the court’s authority is complementary to domestic courts’ jurisdictions.

I will further state why I am saying I feel like this institution is unfair.  Though, we can remember well that in 1945 George Orwell did state in his first work that was titled “Animal Farm”. I quote “All animals are equal, but some animals are more equal than others”. From my own understanding is that this statement does elaborate or even explain how people in power might be the same as us who not in power, but they will get more privilege than us who are not in power. Let me explain how this is so true especially looking at the International Criminal Court.

Looking at it from the Rome statute perspectives, we have so many countries that have broken every detail of this statute but none of their leaders were tried in the Hague. But what does the statute actually entail? Though, I have mentioned this in the beginning I also feel that I need to state more on this. The ICC has jurisdiction over these crimes in three cases: first, if they occurred on the territory of a State Party; second, if they were committed by a national of a State Party; and third, if the UN Security Council reported the crimes to the Prosecutor. If the crimes were submitted by the UN Security Council or a State Party requested an inquiry, the ICC may commence an investigation before getting a warrant. Otherwise, the Prosecutor must request permission from a Pre-Trial Chamber of three judges before proceeding with an inquiry proprio motu (on its own initiative). The only sort of immunity recognized by the ICC is that it cannot prosecute persons who were under the age of 18 at the time the crime was committed. No authorities, not even the president, are free from prosecution. The Rome Statute created three bodies: the International Criminal Court (ICC), the Assembly of States Parties (ASP), and the Trust Fund for Victims. The ASP has two sister organizations.

Beside being called the International Criminal Court, the ICC has only 123 members that include our own South Africa. Though, our country has not been a great spot at all this comes after the government declined the call to arrest the then Sudan president Omar Al-Bashir some years back. The Court announced its first ruling in 2012, convicting Congolese rebel leader Thomas Lubanga Dyilo of war crimes linked to the use of child soldiers. The Rome Statute states parties met in Kampala, Uganda, in 2010 for the first Review Conference of the Rome Statute of the International Criminal Court. This was after the death of the former President of the Federal Republic of Yugoslavia, Slobodan Milošević back in 2006.  I do understand he was tried for his war crimes in the former Federal Republic that happened in the 1990s. He was tried from 2002. This leads to the point that makes me think that the court is really captured and biased.

Before I share that is that I have just realised that a first president was tried while still in charge. The former Liberian President Charles Taylor was found guilty by an international tribunal of planning, assisting, and abetting war crimes. This is the first occasion since World War II that a current or former head of state has been convicted of crimes committed while in office by a tribunal. This was apparently for his roles that happened in the 1990s. But the saddening part is how many USA presidents have ever been tried by the court for the atrocities they have done during their time. It is only the loudest of them in Donald Trump who cannot be counted here. I will explain who is supposed to be tried from Ronald Reagan, Bill Clinton, George Bush Sr, Barack Obama and George Bush Jr.

I know the reader can ask me question like “What did the US presidents do in a way that I wish that they can be tried at The Hague?”. From my own understanding is that no form of war in any way or strategy can be regarded as non-violent or not contravening with the articles within the Rome Statute.  Especially when that innocent people lost their lives because of the USA’s selfishness of thinking that they are the Higher power of our world. I still do think that nobody has more power judicial than the other one because we have constitutions that are there for a reason.

I am saying this because the same USA in conjunction with the ICC is calling for South Africa to help in the arrest of the Russian President Vladimir Putin for invading Ukraine. By that time, none of these countries (Russian, Ukraine and the USA) are members of the ICC. Why are the other two which are Ukraine and USA instructing us as Mzansi to arrest the Chemical engineer graduate? I do think they have no right to tell us what to do at all costs, because they must give us their ICC membership first.

I am not trying to say that I do condone what Putin is doing to Kiev. I am just stating that the court needs to get its house together by making sure that they are consistent due to the fact that nobody is above the law. I mean the USA since the World War 2 have been the main culprit and nothing was done to its presidents. They have invaded Cuba, Dominican Republic, Vietnam, Cambodia, Laos, Grenada, Iraq (1991), Afghanistan, Iraq (2003), and Libya. All this happened between 1961 and 2011 meaning for 50-years the USA have been invading countries while killing innocent people and nothing happened or their presidents got tried in the ICC for war crimes. Why should we trust International Criminal Court that it will solve any cases against the biggest murderers in the world that is the USA?

This really do show that Orwell in his book “Animal Farm” that indeed the world is no fair place at all. The best way that this can be sorted it can be when the USA presidents who participated in the invasions of other countries including killing of innocent people in those countries be tried and even be sentenced accordingly. Indeed, as we all know nobody is above the law.