Recent Case: International criminal law

• Jurisdiction: South Africa
• Published date: 11 September 2019
• Pages: 266-276
• Citation: (2019) 32 SACJ 266
• Author: Gerhard Kemp
• Date: 11 September 2019

International Criminal Law

GERHARD KEMP

University of Stellenbosch

1 Introduction

In June 2018, a conference was hosted by the German Embassy to

the Netherlands in The Hague to reec t on the Rome Statute of the

International Crim inal Court, 20 year s after that treaty ’s adoption.

Scholars from various regions, including Af rica, Europe, North

America, Asia and the Midd le East, as well as ofcials and judges

of the ICC, debated the many institutiona l, substantive, procedural

and perceptional issues perta ining to the Rome Statute and the ICC.

The papers presented at the conference were published early in

2019 (G Werle and A Zimmermann (eds) The Internation al Criminal

Court in Turbulent Times (2019)). It is perhaps risky to draw general

conclusions from the wide range of views expressed at the conference,

but I will offer this: The Rome Stat ute, twenty years after its adoption,

is an imperfect inst rument that gave birth to an imper fect institution,

the ICC. However, this institution, for all its faults and despite the

many challenges that it faces, is still wort hy of support, albeit not

uncritically, and certainly wit h an eye on necessary reform (see also,

J Goldston ‘Don’t give up on the ICC’ (2019) Foreign Policy, 8 August

2019, available at https://foreignpolicy.com/2019/08/08/dont-give-up-

on-the-icc-hague-war-cr imes/, accessed on 9 August 2019). Two recent

decisions by the ICC are emblematic of the promises and pitfall s of the

world’s rst permanent international court wit h jurisdiction over the

most serious crimes under inter national law (genocide, war crimes,

crimes against huma nity and the crime of ag gression).

The rst decision, Kingdom of Jordan, on the question of im munities

of Heads of State before the ICC and how that relates to state cooperation

is illustrative of the complex political environment i n which the ICC

operates. It illustrates the lim itations of the ICC, which heavily depends

on state cooperation for its effective functioning. It also exposes t he

fault lines in the international com munity, and, more specically, the

Assembly of States Parties (ASP) of the Rome Statute of the ICC. T he

decision by the Appeals Chamber of the ICC in the i mmunities case

shows the ICC at its most vulnerable; an international cour t caught up

in the real world of global politics and at the intersection of var ious

competing international legal and policy cla ims.

The second decision is the guilt y verdict in the Ntagand a case in

which the accused was found guilty of war cr imes and crimes agai nst

266 SACJ . (2019) 2

(2019) 32 SACJ 266

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