![\"Justice](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/11\/Goldstone.jpg?ssl=1\")
<\/a>Last night, 16 November 2016, Justice Richard Goldstone, former Justice of the Constitutional Court of South Africa and the first Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), delivered the second lecture in the joint lecture series co-hosted by Temple Garden Chambers (TGC) and the British Embassy. His lecture, fittingly titled The International Criminal Court \u2013 Current Challenges<\/em>, was a sobering reminder on just how political and politicized international courts are, starting with his own appointment as ICTY and ICTR Prosecutor (members of the UN Security Council could not agree on a prosecutor primarily over petty political and sometimes retaliatory reasons).<\/p>\n The theme permeating Justice Goldstone\u2019s lecture was that international justice is susceptible to external and internal politics, and unavoidably, this is the crux of the International Criminal Court\u2019s (ICC) current problems. This is hardly news.<\/p>\n Ever since Nuremberg, politics has been an issue: who gets prosecuted and for what?\u00a0 Who gets to decide? Who gets a pass on being prosecuted because of events on the ground (best not rock the post-conflict boat, especially when our guys are at the helm \u2013 however responsible they may have been for past events)?<\/p>\n Justice Goldstone gave a poignant example on external politics being at play from his ICTY days: the United Nations Protection Force (UNPROFOR) refused to hunt down and arrest indicted war criminals in Bosnia and Herzegovina (BiH). UNPROFOR would only make an arrest if it happened to come across someone indicted by the ICTY \u2013 at least that was the United State\u2019s (US) approach.\u00a0 According to Justice Goldstone, forces from other nations contributing to UNPROFOR followed suit. Of course, one should take into consideration the environment in BiH in 1994, 1995, 1996 and beyond; the signing of Dayton Peace Agreement did not necessarily make post-conflict BiH stable.\u00a0 Also, UNPROFOR was not there for the benefit of the ICTY; it had its own mandate. \u00a0But there is another point at play: with no police or military force, international tribunals must rely on national authorities, which, depending on the circumstances, could be an obstacle and not just an uneasy or unwilling partner.<\/p>\n I was somewhat surprised that Justice Goldstone seemed to ignore or downplay reality in the face of pursing international justice. He, of all persons, knows first-hand that pragmatism and politics are two sides of the same coin, especially in international affairs and international justice. Some may call it a form of necessary situational justice<\/em>; others may call it simply diplomacy or realpolitik.<\/p>\n As ICTR Prosecutor, Justice Goldstone effectively allowed the Indian authorities to handover Froduald\u00a0Karamira, the Vice President of the MDR Hutu Party (French acronym for the Rwandan Republican Democratic Movement), to the Rwandan authorities, as opposed to exercising the ICTR\u2019s primary jurisdiction.\u00a0 In doing so, Karamira\u2019s fate was sealed: death by firing squad<\/a>. The Rwandan authorities were itching to have some of the high-level alleged perpetrators returned to Rwanda to be tried, convicted, and publicly executed \u2013 a lesson for the masses. Whether Karamira was a means to mend\u00a0fences\u00a0with the Rwandan government, or a capitulation to Rwandan government blackmail, is unclear.\u00a0 What is clear, however, is that by having the prosecution office in Kigali, the ICTR\u00a0compromised\u00a0itself, and thus was under constant political pressure from Rwanda\u2019s strongman, Paul Kagame.<\/p>\n Under Justice Goldstone\u2019s watch, and that of his successor, Louise Arbour, no\u00a0efforts were ever made to pursue Tutsi perpetrators. Finally, when Carla Del Ponte made a move to investigate Tutsis<\/a> alleged to have committed crimes under the ICTR\u2019s jurisdiction (let\u2019s not forget the ICTY and ICTR are creatures of the UN Security Council), her wings were clipped; no longer would the ICTY and ICTR share the same Prosecutor (rumors abound that this was the handiwork of US and the United Kingdom). The selective prosecution of only Hutu by the ICTR can be viewed as a necessary, pragmatic inconvenience. Viewed differently, it validates claims by the Rwandan Hutu that the ICTR was not pursuing justice objectively. Politics.<\/p>\n Justice Goldstone sees the UN Security Council as having been overly passive, if not obstructive, in not supporting the ICC in bringing to book the President of Sudan, Omar Hassan Ahmad Al Bashir, over his alleged crimes (including genocide).1<\/a><\/sup><\/p>\n He also criticized the African Union (AU) of fanning the flames for African states to leave the ICC and rely on regional courts.\u00a0 He credits Al Bashir for this movement though he also hinted that Uhuru Muigai Kenyatta and William Samoei Ruto, Kenya\u2019s President and Deputy President, shared some credit. I can agree with his take on the UN Security Council not getting involved; some of the five permanent members (P5) have no interest in pursuing matters of international justice where their economic interests will be impacted. But the AU is a regional organization, and as such, it is expected to get engaged in matters that impact member states or when it is called upon to assist on matters within its mandate.<\/p>\n Justice Goldstone is spot-on in linking national politics to the current ICC challenges.<\/p><\/blockquote><\/div>Justice Goldstone is spot-on in linking national politics to the current ICC challenges. He sees sovereignty and local politics at play, dismissing as bogus and politically expedient the claims by some African heads of state that the ICC is biased<\/a> and only willing to target Africans. I agree<\/a>.<\/p>\n On South Africa he seemed confident that the government is likely to be unsuccessful in leaving the ICC since the Rome Statute has been \u201cdomesticated\u201d into South African law and therefore it will take more than the stroke of the executive branch pen to disengage South Africa from the ICC. Justice Goldstone seemed optimistic in the outcome now that the South African courts are weighing in.<\/p>\n Where I found Justice Goldstone\u2019s optimism a bit over-the-top was when he suggested that ad hoc tribunals are not the answer; that the ICC was essentially the only international court capable or appropriate or desirable to deal with international crimes of the magnitude we see playing before our eyes around the world.\u00a0 I disagree.<\/p>\n The ICC, as I have noted<\/a>, cannot be all that it claims to be or wants to be.\u00a0 It must manage its own expectations (and those of the international community) and come to the realization that it is not the only venue.\u00a0 Indeed, from what we have seen thus far \u2013 and I do not see the ICC getting any more efficient or productive or less controversial any time soon \u2013 the ICC lacks the capacity to deal with crimes that are taking place on a large scale, such as in Syria.<\/p>\n The ICC may need to adopt a smorgasbord approach: target manageable and discrete crimes, and crimes that have yet to be included into the mainstream of international crimes prosecuted at international(ized) courts.\u00a0 ICC Prosecutor Fatou Bensouda seemed to intimate that this may be a part of the OTP\u2019s new direction as reflected in the recent Policy Paper on Case Selection and Prioritisation<\/em><\/a>, wherein it is noted that \u201cthe destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land\u2026\u201d will be given particular consideration.(( See<\/em> my previous post discussing this Policy Paper, ICC-OTP sets out its vision: a look at the horizon<\/a>, 16 September 2016.)) To this extent, the ICC can be a vehicle in expanding the contours of international criminal law; advancing international justice in areas that are seen as less important or not as grave to warrant the attention of international courts.<\/p>\n Suffice it to say, the tent is big and wide and inviting.\u00a0 Ad hoc tribunals are more nimble and focused, and arguably, more capable of delivering the goods within a reasonable time for a reasonable price. So, let us not lament the shrinking ICC or the erosion of its status.\u00a0 Just as open markets foster competition, and competition fosters creativity, efficiency, and excellence, the international community should embrace alternative tribunals to the ICC at the domestic, regional, and international level.<\/p>\n Justice Goldstone\u2019s lecture could not have been more opportune.\u00a0 The Assembly of States Parties (the legislative body of the ICC, if you will) are meeting in The Hague over the next two weeks. No doubt, much of what Justice Goldstone highlighted will be in the forefront of many discussions and side events by stake holds, NGOs and concern advocates of civil society.\u00a0 The debate on how the ICC can meet its current challenges, inclusive of which are its shortcomings, should be welcomed. To this extent, we owe a debt of gratitude to Justice Goldstone (and the host of this lecture series) for not shying away from discussing the significances that external and internal politics have not just the ICC, but on international justice in general.\u00a0 \u00a0Recognition is the first step to recovery, with solutions hopefully to follow.<\/p>\n It was interesting hearing an assessment of the ICC from someone with the kind of historical perspective and in-the-trenches experience Justice Goldstone brings to the topic.\u00a0 His willingness to speak candidly about some of the unfortunate political influences on international(ized) courts was a sobering breath of fresh air.\u00a0 His reluctance to cast his fine critical eye over some of his own decisions was less satisfying, though perhaps to be expected. \u00a0On the whole, this was a valuable addition to the ICC conversation and well worth the investment of an evening.<\/p>\n <\/p>\n<\/a>Justice Goldstone is also optimistic on the future of the ICC despite its current challenges.\u00a0 He was dismissive of Russia\u2019s symbolic withdrawal<\/a> of its signature to the ICC (though it has not ratified<\/a> the Rome Statute).\u00a0 He is under no illusions that the US under Donald Trump\u2019s presidency will be a friend of the ICC; President-elect Trump is considering appointing former US Ambassador to the UN John Bolton as Secretary of State, who is reported to have said that the \u201chappiest moment<\/a>\u201d of his government service was \u201cunsigning\u201d the Rome Statute by depositing US\u2019s withdrawal notice with the UN.((See also <\/em>Mark Kersten\u2019s post on John Bolton\u2019s remarks about whether Hillary Clinton\u2019s administration would have joined the ICC, Justice in Conflict, <\/em>John Bolton says Hillary Clinton Would Join the ICC. Is He Right?<\/a> 22 June 2016.))<\/p>\n