On 1 July 2002, the Rome Statute entered into force thereby establishing the International Criminal Court (ICC), after the mandatory 60 state ratifications was achieved and surpassed on 11 April 2002. Currently there are 139 signatories and 90 States Parties (ratifications) of the Rome Statute. The ICC is currently based in the Netherlands with 18 judges, a prosecutor and a registrar having been appointed.

As the first anniversary of the ICC was reached on 1 July 2003, already 200 cases have been referred to it. The ICC will be now able, in principle, to prosecute individuals for war crimes, crimes against humanity and genocide. These crimes include crimes committed in both international and non-international armed conflict, of murder; enslavement; deportation or forcible transfer of populations; torture, sexual violence (such as rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization) and apartheid. It also includes persecution against any identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds. Fundamentally, the ICC is important because it will be able to investigate and bring to justice people who commit the most serious violations of international humanitarian law.

Such crimes have only increased in recent years, especially in Africa, as civilians more frequently become the target of conflict. Some aspects of the ICC are groundbreaking in terms of international law. They include recognition of sexual violence as a war crime (first recognized in the tribunal for the former Yugoslavia), special services to victims and witnesses, and the ICC's independence from the UN Security Council.

The scale of conflicts in Africa has grown over the last two decades. The most disturbing aspect of conflict in Africa is the increasing use of extreme violence, especially over the last ten years.

Africa has a poor record of adjudication of criminal offences against populations. The reasons for this are complex, but include the presence of on-going conflict; the inability of victims to report such offences; the inability of civil society, media and peace, safety and security agencies and national institutions to monitor, investigate and report such offences to national nor international bodies; derogation of the separation of powers and the lack of independence of national courts; constraints in the establishment of ad hoc criminal tribunals and their inherent inability to react to early-warnings of such offences against populations and their lack of deterrent effect they have in light of their ad hoc nature; the absence, hitherto, of a permanent international tribunal that has jurisdiction over target countries to immediately investigate reports of such offences and to prosecute perpetrators whomever they are and to provide reparation to victims; and the lack of political will and/or capacity of governments to ratify and harmonise domestic legislation with that of international conventions that would extend the jurisdiction of these conventions to the target countries.

But while the coming into force of the ICC is a historical event, the ICC is far from being empowered to carry out its work in Africa. This is partly due to the low number of ratifications on the continent and the US's attempts to weaken the effectiveness of the ICC.

Thus far, only 22 African countries have ratified the ICC. By not ratifying and enacting implementing legislation, governments avoid the jurisdiction of the ICC extending to their states thereby avoiding prosecution by the ICC. Aggravating the low number of ratifications is the US's attempts to obstruct the work of the ICC.

One of the very last acts of the Clinton administration was to sign the Rome Treaty in late 1998. Instead of subsequently ratifying the Treaty, in May 2002, the Bush administration withdrew the US signature. Since then, the US has intensified its efforts to undermine the ICC. Also in 2002, the US enacted the American Service Members Protection Act (ASPA). The ASPA set 1 July 2003 as a deadline whereby ICC State Parties receiving US military assistance will lose financial packages unless there is a US Presidential waiver of this provision (like with the NATO allies), or if they sign bi-lateral agreements with the US agreeing not to hand over US nationals and army personnel on their territory to the ICC for prosecution of human rights crimes. The fact that this deadline coincides with the first anniversary of the coming into effect of the Rome Statute must be perceived as an ominous signal.

Many countries have not bowed to US pressure, including the EU and in Africa, South Africa. Of the 22 countries in Africa which have ratified the ICC, 8 have signed bi-lateral agreements with the US. In total, 49 countries have signed these agreements (13 from Africa; 12 from Asia; 6 from the Pacific and 5 from Europe).

Eric Hoffer once wrote, “It is when formidable power is wedded to chronic fear that it becomes formidable”. It seems apparent that the US fears that the ICC is an impediment to its expansion of power in the world. It does not want to be held accountable for its actions in sovereign states and it is this fear that drives the US into an ever growing and formidable campaign against the ICC. In its defence the US alleges that its soldiers stationed in foreign territories could be prosecuted before the ICC on trumped-up, politically motivated charges. This argument is fallacious and unfairly brings into question the independence and impartiality of the ICC's judges and the statutory checks and balances that would ensure that false charges motivated by political considerations would not be prosecuted.

If the entry into force of the Rome Statute of the ICC constitutes a necessary precondition for the prevention of impunity and further conflict on the continent, it is by no means sufficient. The next step in the process may turn out to be more arduous than that which led to the coming into force of the ICC. The ICC has the potential to bring stability to the region by acting as a deterrent to future violations as well as bringing perpetrators to justice. However, unless there is a critical mass of African states that ratify the Rome Statute, draft implementing legislation and aggressively resist signing bi-lateral agreements that will undermine the ICC, impunity will continue to be a feature of the region.

How then can this be achieved? Internationally, and to a much lesser extent, within Africa, there has been considerable momentum built by NGOs and other civil society organisations in support of the establishment of the ICC. That momentum is in danger of being dissipated by the understandable complacency that can follow victory in the establishment of the ICC and efforts by the US to undermine the ICC.

If African governments are to be persuaded to ratify the Rome Statute, to begin the process of introducing strong domestic implementing legislation and resisting attempts to undermine the ICC, then this will be achieved only if concerted efforts are made to increase public awareness, to strengthen the capacity of civil society organisations to campaign within each country as well as to engage their own governments in a constructive dialogue. In addition, the media, parliamentarians, the judiciary, lawyers and law enforcement agencies need to be won over to the necessity for ratification and/or implementing legislation, to understand what their own contributions towards such a goal might be, and the implications for their own work in relation to cooperation with and support for a strong ICC. The momentum already created in support of the establishment of the ICC needs to be built upon if such campaigns are to succeed. The South African Coalition for an ICC (SACICC) and Fahamu (www.fahamu.org) are in the process of planning a strategy on these and individuals and organisations interested in collaborating on this project as well as networking and establishing national and regional networks on the ICC issue may send a message to [email][email protected]

* Anil Naidoo is Convenor of the South African Coalition for an ICC and Firoze Manji is Director of Fahamu
* Please send comments for publication in the Letters and Comments section of Pambazuka News to [email protected]
* More ICC stories in Pambazuka News:
- ICC MARKS FIRST BIRTHDAY
- WHITE HOUSE HOBBLES INTERNATIONAL CRIMINAL COURT, WORLD SECURITY
- US SLAPS MILITARY AID EMBARGO ON SA

DO YOU SUPPORT PRESS FREEDOM AND FREEDOM OF EXPRESSION?
http://www.ipetitions.com/campaigns/freeafricanmedia/
Do you support Press Freedom and Freedom of Expression? Would you be happy to sign a petition aimed at the African Union & its member states calling for the release of all incarcerated African Journalists & for the repeal of Anti-media and Anti-free expression legislation? If Yes, click on the link to sign the petition. If you would like to do more, please make this message part of your signature and/or forward it to like-minded people.
* See the Media section of Pambazuka News for statements in support of the petition and a list of organisations and individual statements of those who have already signed up.
* Visit