Pubblicato in: Devoluzione socialismo, Giustizia, Persona Umana

International Criminal Court. Anche il Sud Africa la disconosce.

Giuseppe Sandro Mela.

2016-10-24.

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«The International Criminal Court (ICC or ICCt)[2] is an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer investigations to the Court. The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC’s foundational and governing document. States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC. Currently, there are 124 states which are party to the Rome Statute and therefore members of the ICC.» [Fonte]

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Non deve essere confusa con l’International Court of Justice.

«The International Court of Justice (French: Cour internationale de justice; commonly referred to as the World Court or ICJ) is the primary judicial branch of the United Nations (UN). Seated in the Peace Palace in The Hague, Netherlands, the court settles legal disputes submitted to it by states and provides advisory opinions on legal questions submitted to it by duly authorized international branches, agencies, and the UN General Assembly.

Established in 1945 by the UN Charter, the Court began work in 1946 as the successor to the Permanent Court of International Justice. The Statute of the International Court of Justice, similar to that of its predecessor, is the main constitutional document constituting and regulating the Court.

The Court’s workload covers a wide range of judicial activity. After the court ruled that the United States’s covert war against Nicaragua was in violation of international law (Nicaragua v. United States), the United States withdrew from compulsory jurisdiction in 1986 to accept the court’s jurisdiction only on a case-by-case basis. Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce Court rulings. However, such enforcement is subject to the veto power of the five permanent members of the Council, which the United States used in the Nicaragua case.»

Si noti come la versioni in lingua italiana di Wikipedia ometta completamente la vertenza Usa – Nicaragua. Più papisti del papa.

Si noti anche come gli Stati Uniti

«withdrew from compulsory jurisdiction in 1986 to accept the court’s jurisdiction only on a case-by-case basis»

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Nel mondo ci sono 206 stati, dei quali 196 sono riconosciuti essere sovrani. 193stati sono membri delle nazioni Unite.

Ma solo 124, 123 sarebbe meglio dire, riconoscono il valore legale dell’International Criminal Court.

Quindi, essere “Corte Internazionale” non significa automaticamente che essa sia universalmente accettata.

Sicuramente possono esservi motivazioni politiche alla base di accettare o meno un simile autorità, ma il problema sembrerebbe essere ben più profondo.

Se un Tribunale si definisce “Court of Justice“, dovrebbe agire secondo giustizia. Ma la giustizia è una ed una soltanto. È oggettiva, non relativa.

Ed il Tribunale di Norimberga ha ben correttamente evidenziato come il concetto di “giustizia” non corrisponda a quello di “legale“.

Sulla sola base legale, i gerarchi nazionalsocialisti avrebbero dovuto essere tutti assolti: avevano infatti semplicemente applicato le leggi a suo tempo in vigore nel loro stato. Erano stati legalmente irreprensibili.

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Ogni potere in atto, che sia forte a sufficienza, proclama che il proprio diritto positivo corrisponde a giustizia. Lo fecero anche i comunisti sovietici così come i nazionalsocialisti ed i fascisti. Adesso lo fanno le élite occidentali.

E questi poteri avevano, hanno, tutti i mezzi per imporre con la forza la loro visione.

Ora come allora. Gli egemoni non differiscono in nulla dai comunisti sovietici oppure dai nazionalsocialisti.

La International Criminal Court e la International Court of Justice hanno per decenni ritenuto essere giusto e legale ciò che rientrava negli interessi ed aspettative americane, condannandone a torto o ragione tutti i nemici.

Queste Corti erano diventate un braccio armato, né più né meno di quanto era accaduto nell’Unione Sovietica o nella Germania nazionalsocialista.

Ora inizia la ribellione.

Questo è uno dei segni evidenti del declino della potenza americana.

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«South Africa has become the second African country to announce that it plans to leave the International Criminal Court, a decision that campaigners for international justice say could lead to a devastating exodus from the embattled institution.»

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«There is a real chance that there will now be large-scale African withdrawals»

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«The Rome Statute “is in conflict and inconsistent with” South Africa’s law giving sitting leaders diplomatic immunity, Mr. Masutha said at a news conference on Friday.»

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«Including Burundi, the court has 124 members, 34 in Africa.»

 


Reuters. 2016-10-22. South Africa to withdraw from war crimes court-document

UNITED NATIONS (Reuters) – South Africa is withdrawing from the International Criminal Court, according to a document seen by Reuters on Thursday, a move that would take effect one year after notice is formally received by United Nations Secretary-General Ban Ki-moon.

A U.N. spokesman declined to confirm receipt of the document, which is signed by South Africa’s Minister of International Relations and Cooperation Maite Nkoana-Mashabane and dated Oct. 19.

“The Republic of South Africa has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court,” according to the document.

South Africa’s foreign affairs department spokesman Clayson Monyela declined to comment, saying the justice minister would hold a news conference on the issue at 0800 GMT.

The International Criminal Court, which opened in July 2002 and has 124 member states, is the first legal body with permanent international jurisdiction to prosecute genocide, crimes against humanity and war crimes.

Burundi appeared set to become the first state to withdraw from the Rome Statute, the 1998 treaty establishing the global court, after its parliament voted last week to leave. President Pierre Nkurunziza signed a decree on Tuesday, but the United Nations has not yet been officially notified.

South Africa said a year ago that it planned to leave the ICC after its government was criticised for ignoring a court order to arrest Sudanese President Omar Hassan al-Bashir, who is accused of genocide and war crimes, when he visited last year.

Several African countries have expressed concern that the focus of the Hague-based court has been on Africa rather than elsewhere in the world.

“The Republic of South Africa is committed to fight impunity and to bring those who commit atrocities and international crimes to justice and as a founding member of the African Union promotes international human rights and the peaceful resolution of conflicts on the African continent,” the document said.

“In complex and multi-faceted peace negotiations and sensitive post-conflict situations, peace and justice must be viewed as complementary and not mutually exclusive,” the South African document said.


The Guardian. 2016-10-22. South Africa to quit international criminal court

Justice minister says court’s obligations are inconsistent with domestic laws giving sitting leaders diplomatic immunity.

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South Africa says it is pulling out of the international criminal court, making the country the second this week, after Burundi, to move to leave the tribunal that pursues the world’s worst atrocities.

The ICC’s obligations are inconsistent with domestic laws giving sitting leaders diplomatic immunity, the country’s justice minister, Michael Masutha, said.

Pretoria said last year it planned to leave the ICC after receiving criticism for ignoring a court order to arrest the visiting Sudanese president, Omar Hassan al-Bashir, who is accused of genocide and war crimes. Bashir has denied the accusations.

On Friday at a press conference in the capital, Masutha said: “The implementation of the Rome statute of the International Criminal Court Act 2002 is in conflict and inconsistent with the provisions of the Diplomatic Immunities and Privileges Act 2001.”

Under the Rome statute, countries have a legal obligation to arrest anyone sought by the tribunal. Any move to leave would take effect one year after notice is formally received by the United Nations secretary general, currently Ban Ki-moon.

Earlier on Friday, the public broadcaster SABC published a document outlining the withdrawal plan.

The document was signed by South Africa’s minister of international relations and cooperation, Maite Nkoana-Mashabane, and dated 19 October.

“The Republic of South Africa has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the international criminal court,” the document states.

The international criminal court opened in July 2002 and has 124 member states. It was the first legal body with permanent international jurisdiction to prosecute genocide, crimes against humanity and war crimes.

Burundi appeared set to become first state to withdraw from the Rome statute, the 1998 treaty establishing the global court, after its parliament voted last week to leave. The president, Pierre Nkurunziza, signed a decree on Tuesday, but the UN has not yet been officially notified.

Several African countries have expressed concern that the focus of the Hague-based court has been on Africa rather than elsewhere in the world.

Human Rights Watch said: “South Africa’s proposed withdrawal from the international criminal court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes.”


The New York Times. 2016-10-22. South Africa to Withdraw From International Criminal Court

South Africa has become the second African country to announce that it plans to leave the International Criminal Court, a decision that campaigners for international justice say could lead to a devastating exodus from the embattled institution.

The move on Friday came three days after Burundi’s president signed a decree making his country the first to withdraw from the court, which had planned to investigate political violence that followed the president’s decision last year to pursue a third term.

“There is a real chance that there will now be large-scale African withdrawals,” said David L. Bosco, an associate professor of international studies at Indiana University who has written a book on the court. “The Burundi decision was easy to dismiss as a government seeking to avoid direct scrutiny; South Africa’s is much more significant. The African Union has been a forum for anti-I.C.C. sentiment, and countries like Kenya and Uganda may now seek to capitalize on the momentum.”

Henry Oryem Okello, a Ugandan minister, told The Associated Press on Friday that his country was “undecided” about whether to remain in the court, and that the “hot issue” of African participation might be taken up at an African Union summit meeting in January.

Several African leaders and other critics say the court — tasked with prosecuting war crimes, crimes against humanity and genocide — has disproportionately focused on Africa. All of the people it has convicted so far are Africans, though the court has initiated preliminary investigations in other countries, like Georgia and Afghanistan.

But the court also has supporters in the region. At an African Union summit meeting in July, the Democratic Republic of Congo, Ivory Coast, Nigeria, Senegal and Tunisia were among the countries that opposed a Kenyan-led drive for a group walkout from the tribunal.

On Friday, a statement by 25 African-based human rights and legal groups called on the Pretoria government to reconsider its decision. Stella Ndirangu of International Commission of Jurists-Kenya said a withdrawal without a public debate “is a direct affront to decades of progress in the global fight against impunity.”

South Africa signaled its discontent last year, saying it would leave the court in response to criticism that it had ignored an order by the tribunal to arrest President Omar Hassan al-Bashir of Sudan.

Mr. Bashir, who faces charges of war crimes, crimes against humanity and genocide in the Darfur region of Sudan, was allowed to leave South Africa after a visit last year, even though a local court had ordered the government to prevent his departure because of a warrant for his arrest. (Mr. Bashir has denied the accusations.)

Under the Rome Statute, the 2002 treaty that established the court, countries are obligated to arrest anyone sought by the tribunal. “Legal uncertainty” around the statute blocks South Africa from resolving conflicts through dialogue, including inviting adversaries for visits, Justice Minister Michael Masutha said, and handing over a foreign leader to the court would have amounted to an infringement of South Africa’s sovereignty.

The Rome Statute “is in conflict and inconsistent with” South Africa’s law giving sitting leaders diplomatic immunity, Mr. Masutha said at a news conference on Friday.

After South Africa sought unsuccessfully to clarify its responsibilities under the statute, a “difficult choice had to be made,” Mr. Masutha said. He added that the government would submit a bill to Parliament to withdraw from the international court.

Foreign Minister Maite Nkoana-Mashabane formally notified the United Nations secretary general, Ban Ki-moon, this week of South Africa’s intention to withdraw from the court. Leaving it would take about a year.

Richard Goldstone, a former justice of the Constitutional Court of South Africa, called the notice of withdrawal “unfortunate on legal, moral and political grounds.”

Observers note that African governments overwhelmingly supported the creation of the court, which came at least in part in response to the Rwandan genocide of 1994 and the Balkan wars of the 1990s. (The crimes of those conflicts were tried by separate tribunals.)

But in recent years, support for the court has waned, particularly after it indicted top Kenyan politicians, including the president and vice president, on charges stemming from postelection violence in 2007. The cases collapsed because of witness intimidation, bribery and a lack of cooperation, according to prosecutors.

Since 2011, the court’s top prosecutor has been Fatou Bensouda, a lawyer from Gambia, who often points out that six of the nine African cases handled by the court were brought by African governments and that two were referred by the United Nations Security Council. Only the Kenyan cases were initiated by the court’s prosecutors.

Nonetheless, some African leaders have called the court an instrument of modern colonialism, noting that all of those convicted have been Africans: Thomas Lubanga, a Congolese warlord who conscripted child soldiers; Germain Katanga, a Congolese militia leader, an accomplice to war crimes; Jean-Pierre Bemba, a Congolese politician, found guilty of war crimes, crimes against humanity and — this week — witness tampering; and Ahmad al-Faqi al-Mahdi, a member of a Qaeda-linked jihadist group, who destroyed holy sites in Timbuktu, Mali, and was convicted of destruction of cultural heritage as a war crime.

Including Burundi, the court has 124 members, 34 in Africa.

Professor Bosco said the focus on Africa was partly a result of the difficulties of conducting inquiries in other places, like Afghanistan, the Palestinian territories and Colombia, and partly a reflection of the prosecutorial strategy of going after the high-level perpetrators. “In Sudan, Kenya and Libya, that meant going after heads of state and senior ministers,” he said. “That choice generated a lot of anger in African capitals, where court processes were seen as an obstacle to diplomacy.”

Stephen J. Rapp, a former United States ambassador at large for global criminal justice, called the decisions by Burundi and South Africa “a betrayal of the victims of atrocious crimes.”

He said in a telephone interview from Tanzania: “What we have here is an attempt to protect the leaders accused of horrible crimes in Burundi, Darfur, and Kenya among others and a continuation of impunity, but nothing for the people who are suffering from the crimes.”

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