International Criminal Court Needs to Reform

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Ken Sibanda is an American constitutional lawyer born in South Africa. Known affectionately as 'Tecumseh,' in South Africa, for his contribution to law and literature which started at a fairly young age. This is part of a paper entitled - Reform and Practice: The International Criminal Court.


There is a veritable rule of law which says: there is no obligation to help one’s neighbor. This rule is supplanted by another rule, the Good Samaration Rule; that if one is a mediator in a situation he is under an obligation to act so in good faith and not harm the person he is helping.

Jurisdiction to the ICC should also be based on United Nations membership where such rules are a part of the moral thread. In most Nations, a president has immunity for civil actions but not for criminal actions, US v. Nixon, 418 U.S. 681 (1974); South African constitutional law follows similar jurisprudence or reasoning.

There exists a serious security risk, and threat to peace, in Zimbabwe between Zimbabwean people on one side pitted against Mugabe's security agents and army on the other side. As Zimbabwe attempts to change government through the electoral process, the process will get bloody.

The reality in Zimbabwe, far from what Mugabe says, is the politicization of the military. And the militarization of the police. Robert Mugabe, who in later years, has become somewhat of a Henry Kissinger without the proper political standing, political skills and talents. Mugabe's poliltics and ambition far exceed his individual talents. It is one thing to be chosen by African nations, it is another to be respected by the whole world and to effect lasting change. Respect is not based on convincing a few people from your village or country or political party to write praise songs about your greatness. Respect, of the kind I am writing about, is earned in the eyes of the powerless, not the powerful.


In 2002 Thabo Mbeki mediated in the Zimbabwean situation, he then made a statement to the world to the effect that the Zimbabwean elections, that were marked by torture, rape and murder, were free and fair. It is time for the Zimbabwean people to file a complaint at the ICC, an order to appear, to ask Mbeki to account for his observations and the Khampepe report (not made public for 12 years). What indeed was so fair and free about those elections? The report of Judge Khampepe said those elections were not free and fair:


However, having regard to all the circumstances, and in particular the cumulative substantial departures from international standards of free and fair elections found in Zimbabwe during the pre-election period, these elections, in our view, cannot be considered to be free and fair.



As a mediator Mbeki owed Zimbabweans, at a minimum, a duty of care similar to that of the good samaritan outlined above. Mbeki, given his rhetoric on African Renaissance, must set the record straight. And either withdraw these remarks en blanche or try and explain again what was so democratic about Zimbabwe’s elections of 2002. Since then Zimbabwe, like a fledgling comet, has catapulted into economic chaos and has almost but disappeared from the world map. Mbeki who is on record as saying, "Zimbabwean problem should be solved by Zimbabweans, " must take some blame for regional insecurity as a result of Zimbabwe's imminent collapse.


South Africa is a member of the ICC and so there is jurisdiction here: to bring a subject who was in power who shielded a tyrant that consequently brought about human rights abuses in another territory. In US law we call it the RICCO law.  Zimbabweans were seriously harmed by this latent endorsement that was given by Mbeki in 2002. The alliance of a country is to another country. No country, forcing its citizens, owes an alliance to another country's political party -- there is criminality in this. Most South Africans will not agree with Mr. Mbeki's definition of 'bilateral agreements.' Bilateral agreements are not strategic internal party agreements for unconditional support between a country's ruling party and another country's ruling party, i.e ANC-ZANU PF, but are intended as country-to-country. South Africans do not owe Zanu-PF any thing.

However, South Africa does owe Zimbabwe, each nation does, brotherhood as outlined by the United Nation's Charter: Chapter IX, Article 55. Nations have a shared responsibility for peace and stability. This brotherhood includes encouraging peace and security. If South Africa as a nation continues to feel it owes its neighboring countries 'nothing,' as Mr. Mbeki once stated, then it should resign from the United Nations. In this light, the case of Zimbabwe should be discussed further by the security council to fully understand the gravity of this regional problem ( refugees, food, and human rights): UN Charter: Chapter VII, Article 39.

Shakespeare wrote, in Julius Ceasar:

We, are at the height, are ready to decline.
There is a tide in the affairs of men,
Which taken at the flood leads on to fortune:
Omitted, all the voyage of their life
Is bound in shallows and in miseries. 
 IV.iii


There is no better time than now given the extreme conditions of Zimbabwe, with 3 million refugees in South Africa, this leads to xenophobia, for Thabo Mbeki to step in. Indeed, Mr. Mbeki has the international stature to help Zimbabweans and South Africa, in the process, by retracting the belief that Zimbabwe is a democracy with Mugabe at the helm. 



The facade in Zimbabwe is a bitter and sad one. As an American, watching from a distant I can not help but wonder why it is that South Africa feels that this country Zimbabwe, is not worthy of help. Given the fact that South Africa was assisted by non-South Africans in its fight to end Apartheid.

The idea that South Africans are far removed from Zimbabwe is false. Zimbabweans are by blood South Africa’s cousins. Many of the ethnic groups in South Africa ( with the exception of the Shona) are in South Africa — the Zulu, Xhosa, Lemba, Venda, Ndebele, Sotho etc. It is blind to think and suggest that what happens in zimbabwe stays in Zimbabwe, as if Zimbabwe is Vegas. In reality what happens in Zimbabwe, as we have seen with the recent xenophobic episode, has reverberations even in Durban, South Africa.

My point is this, Mr. Mbeki perverted democracy in Zimbabwe in 2002 by saying those elections, conducted with the most brutal of violence in recent memory were free and fair. You don’t have to be a Zimbabwean by birth to feel their pain; as much as you did not have to be South African by birth to fight Apartheid. What is wrong is wrong, it does not matter if the perpetrating person is white or black. Mugabe through a perverted logic has made Africans feel like his liberation history means he can do whatever he wants with Zimbabwe - even destroy it. This idea that only Zimbabweans should fight for Zimbabwean freedom is rooted in a xenophobe's world view: it assumes that freedom is not a universal ideal - that there is another type of lesser freedom of which the South African can ignore.

When history looks back at the role South Africa, and South Africans played in aiding Zimbabwean democracy we should hope that it says South Arica stood on the side of justice given its history with Apartheid. That when the night was darkest the most for Zimbabwe; South Africa lit a light - a bright light for the whole of Africa. It is time for  Mr. Mbeki to correct his mistakes. He has done a grave injustice for the legacy of ‘African Renaissance.’

I am increasingly convinced that the reason why African leaders do not their write memoirs is in avoidance of inadvertently making incriminating confessions. Books that can be used by ICC prosecutors as admissions. Only statesman like Madiba sat down and tried to explain the circumstances and facts that shaped their politics. Politics is not another form of shamanism - perhaps African politics has deteriorated to this -  where politicians are supposed to die with their secrets.  Mugabe's memoirs are also needed, if anything because of his contribution and sharp intellect,  but his political presence has become a hinderance to progress in Zimbabwe. Mugabe must be honored for his past but not his present.

It is a testament to South Africa’s neglect of international affairs, the state of rot in Zimbabwe. South Africa has spent a great deal of its time arguing with President Jacob Zuma and trying to prove he is corrupt (Nkandla) - Mr. Zuma who is yet to understand that likeability is key to successful leadership. You cannot lead a country that essentially believes you are corrupt! This is a vote of no confidence.

When Robert Mugabe can stand in Pretoria and attack Nelson Mandela's legacy of peace and nation building. The question is if we love our founding father (Madiba) - why is it that we can’t even defend him and his legacy. Part  of this legacy is peace. Love, we are reminded, means more than mere words.


Ken Sibanda is an American constitutional lawyer born in South Africa. Known affectionately as 'Tecumseh,' in South Africa, for his contribution to law and literature which started at a fairly young age. This is part of a paper entitled - Reform and Practice: The International Criminal Court.
 
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