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Statement by the Deputy Minister of Justice and Constitutional Development, Government of the Republic of South Africa the Honourable Mr Andries Nel, MP, on the occasion of the Workshop on Ratification and Implementation of the Kampala Amendments to the Rome Statute of the ICC, Botswana, 15-16 April 2013

Chairperson, H.E. Mr. Phandu Skelemani, Minister of Foreign Affairs, Republic of Botswana;
H.E. Ms. Aurelia Frick, Minister of Foreign Affairs, Principality of Liechtenstein;
Hon. Mr. Ndelu Seretse, Minister of Defence, Justice and Security of the Republic of Botswana;
Mr Zachary Muburi-Muita, Special Representative of the UN Secretary General to the AU;
Hon Mr Tommy Nambahu, Deputy Minister of Justice of the Republic of Namibia;
Judges of the ICC and Special Tribunal of Lebanon;
Ms Athaliah Molokomme, Attorney General of Botswana;
Distinguished participants;
Ladies and Gentlemen;

Mr. Chairperson, on behalf of the Government of South Africa, it is my honour and pleasure to thank the Government of Botswana, for hosting this Workshop on the Ratification and Implementation of the Kampala Amendments to the Rome Statute of the International Criminal Court.

We would also like to thank the Permanent Mission of Liechtenstein to the United Nations and the Global Institute for the Prevention of Aggression for co-hosting this important conference, and for inviting the Government of South Africa to participate in the deliberations of this important workshop. I would like to recognize Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein to the UN, both for his tenure as President of the Assembly of State Parties as well as the role that he continues to play in promoting support for the ICC.

We are encouraged by the fact that this festival of ideas takes place after two similar workshops were successfully conducted in the United States and in The Hague during 2012.

Mr. Chairperson, the Republic of South Africa is proud to have been one of the ardent proponents of, and an active participant in, the negotiation and adoption of the Rome Statute of the International Criminal Court in 1998, creating the first permanent international criminal tribunal to combat impunity for the most serious crimes of concern to the international community, namely crimes of genocide, crimes against humanity, war crimes, and let us not forget the crime of aggression.

At the time that the negotiations for the Rome Statute were taking place, South Africa was in the process of finalizing its own democratic Constitution. Millions of South Africans suffered for generations the humiliation and human rights abuses associated with apartheid, and it was thus gratifying that the crime of apartheid was criminalized in Article 7(2)(h) of the Rome Statute as a crime against humanity.

It is significant then that the opening session of this workshop on 15 April coincides with the 17th anniversary of the opening session of South Africa’s Truth and Reconciliation Commission on 15 April 1996.

It is fitting that we recall how the apartheid regime engaged in aggressive wars and destabilized our neighbors, for their solidarity in the struggle to end apartheid.

Indeed we recall with pain that this workshop dealing with amongst others, the crime of aggression, takes place here in Gaborone – itself the target of numerous acts of aggression by the apartheid regime against the people of Botswana as they supported us in our struggle for national liberation, democracy and justice.

South Africa supported the amendments to the Rome Statute agreed to at the Review Conference in Kampala in 2010, including those relating to the crime of aggression.

We did so based on the conviction expressed in the Freedom Charter adopted by the people of South Africa in 1955 at the Congress of the People, that “There Shall be Peace and Friendship!” and accordingly, that “South Africa shall be a fully independent state which respects the rights and sovereignty of all nations and that South Africa shall strive to maintain world peace and the settlement of all international disputes by negotiation - not war.”

Our support for the Kampala Amendments, as indeed for the International Criminal Court is a principled one that reflects our commitment to the foundational values of our own Constitution as well as that of the African Union.

It is based on an understanding of the intimate inter-connection between peace, stability, democracy, human rights, co-operation and development.

The AU Constitutive Act affirms the sovereignty of the state as represented by the people and not just governments. It grants participation of African people in the activities of the Union and promises never again to be blind, deaf or mute to the evils of war crimes, genocide and crimes against humanity by granting powers to the Union to intervene in States where these crimes are committed.

Speaking at the second Conference of African National Institutions for the Promotion and Protection of Human Rights in Durban on 1 July 1998, former President Nelson Mandela said that:
"We have sought to ensure that the International Criminal Court is guaranteed independence and bestowed with adequate powers. Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimized, had there been an effectively functioning International Criminal Court."

African States were amongst the most ardent proponents of the creation of the International Criminal Court during the negotiations leading to the adoption of the Rome Statute. It is also no accident that with 34 members, the latest being Côte d’Ivoire, Africa remains the biggest single regional block in the 122 member Assembly States Parties to the Rome Statute.

South Africa views the International Criminal Court, not in isolation, but as an important element in a new system of international law and governance.

The importance of the International Criminal Court needs to be seen in the context of the need for the fundamental reform of the system of global governance.

As President Jacob Zuma has said, "We argue that the affairs of the world of today cannot continue to be managed by the existing institutions of global governance unless they undergo fundamental reform."

A point that he again during the High-level Meeting of the 67th Session of the General Assembly on the Rule of Law at the National and International Levels:
"Adherence to the international rule of law will continue to elude us as long as the organ with the primary responsibility for the maintenance of international peace and security is unrepresentative and undemocratic.

Let me emphasize that South Africa remains committed to the global promotion of the rule of law, and will continue cooperating with the UN system to ensure success of the international human rights architecture."

We also recall the words of former UN Secretary-General Koffi Anan, speaking during the opening session of the Review Conference of the Rome Statute in Kampala where he said:
"The States Parties to this historic Statute must therefore pose the question, “What kind of leadership is this which would absolve the powerful from the rules they apply to the weak?” A laggard leadership is no excuse.”

We have argued that it is the lack of transformation of these institutions, the UN Security Council in particular, as well as less than judicious pronouncements in the past by certain officials linked to the Court that are responsible for the, in our view incorrect, perceptions regarding the relationship between the ICC and the African continent.

Although the Kampala Review Conference has emerged with the definition of this crime, the Assembly of States Parties to the Rome Statute still have the last leg to deliver on the expectations of the international community in 2017 through a singular action of agreeing on the exercise of jurisdiction over the crime of aggression and entry into force of this crime.

The amendments to the Rome Statute by adding three acts on war crimes is equally important, these are to enter into force one year after the deposit of the required number of ratifications. The Handbook on Ratification and Implementation of the Kampala Amendments to the Rome Statute of the ICC serve as a good basis for discussion during this Workshop.

We extend our gratitude to the Permanent Mission of the Principality of the Liechtenstein, Global Institute for the Prevention of Aggression and Liechtenstein Institute of Self-Determination, including the International Committee of the Red Cross which assisted in drafting Part II of the Handbook.

The Handbook raises a number of questions, such as why ratify, when to ratify, and ratifying and implementing simultaneously. Furthermore, the Handbook talks to technical issues regarding the understanding of the Resolution RC/Res 6 on the Crime of Aggression and Resolution RC/ Res 5 on War Crimes and domestication of these crimes.

These are indeed important and complex issues that require both political and technical attention.

However, what is of utmost and urgent importance is the matter of ratification of Resolution 5 on the Crime of Aggression and War crimes by the required number of States Parties to enable the Assembly of States Parties to reach agreement on the exercise of jurisdiction over the Crime of Aggression and eventual entry into force of this crime.

This can be preceded by the required number of ratifications of Resolution 6 on the crime, or ratification simultaneously with Resolution 5 on war crimes. The domestication of these crimes can be done after ratification or simultaneously with ratification, where appropriate.

South African Perspective
South Africa was one of the first countries to enact legislation domesticating and implementing the Rome Statute, namely the Implementation of the Rome Statute of the ICC Act, 2002 (Act no 27 of 2002). We remain ready and willing to share our experience in this regard with other States and support initiatives such as this workshop.

We are currently preparing the necessary Cabinet memorandum seeking approval to submit the Kampala Amendments in Resolutions 5 and 6 to Parliament for ratification. We are confident that this process will be completed in the near future.

We congratulate our neighbor Botswana and in particular his Excellency President Seretse Khama Ian Khama for the leadership shown through the signing of the instrument of ratification of the Kampala Amendments this morning.

We also support the domestication of the Kampala amendments in line with the Principle of Complementarity.

Mr. Chairperson, in conclusion, in exactly a week’s time - on 22 April, we will commemorate the 26th anniversary of detonation of a car bomb in Gaborone by apartheid security forces in 1987, that killed three citizens of Botswana: Mmaditsebe Phetolo (33 years old), her daughter Kgomotso (7 years old) and her infant niece Tshegofatso Mabeo (9 months old), as well as causing many injuries and extensive damage to property.

May their souls rest in peace knowing that women and men committed to justice and the fight against impunity met here in Gaborone to ensure that the actions that caused their deaths are recognized as amongst most serious crimes of concern to the international community.

Robala ka kgotso.
Re a leboga.