Minister Mmamoloko Kubayi: High Level Retreat on Review of the Kampala Amendments

Honourable Dr Dominic Akuritinga Ayine – Attorney General and Minister of Justice of the Republic of Ghana
His Excellency Judge Miatta Maria Samba – International Criminal Court
Madam Evelyn A. Ankumah – Executive Director of Africa Legal Aid and Special Advisor to the ICC Prosecutor
Ministers Deputy Ministers
Attorney Generals Jurists
Distinguished academics Legal Scholars
Ladies and Gentlemen Good morning

I am privileged to join you in this follow-up retreat to discuss this very important issue regarding the review of the Kampala amendments on the crime of aggression.

Fundamentally the issues that are central to our discussions are peace, security, human rights, accountability and justice.

The truth is that crimes against international law are committed by men/women and not by abstract entities, and holding individuals who commit such crimes accountable is the only way we can achieve the objectives of international law.

In addition to getting justice for the victims, it is our desire that accountability and punishment for the wrongdoers should serve as a deterrent for those who might be tempted to commit similar crimes in the future.

Our desire is to create a peaceful world in which all peoples of the world can live together in harmony.

I say this because I believe that the work we are engaged in to find appropriate mechanisms of holding people who engage in harmful activities accountable stems from our deep desire for peace across the world.

The real existing world is such that people through state and non-state parties plan and commit acts of violence against each other which violate human rights thus requiring mechanisms for holding the perpetrators of human rights violations accountable.

We in South Africa know all too well the use of state power to violate the rights of innocent civilians.

Those who held leadership positions during apartheid planned and executed acts of violence against innocent civilians and for the longest of time they did so with impunity.

Having recognized that wrongs were committed, South Africans amongst themselves decided that in the interest of creating sustainable peace we are not going to set up wartime tribunals or pursue a road to revenge and retribution but instead we put together a reconciliation project.

We pursued what John Galtung, principal founder of the discipline of peace and conflict studies, defines as the two aspects of peace, negative and positive.

Not only did we want the absence of violence which is the negative aspect but we also insisted on reconciliation, in order to make peace a long-term and sustainable one which is the positive aspect of peace.

Naturally a question has arisen and it has been debated the world over where there has been war or conflict and that is: is it possible to pursue peace and justice at the same time? Furthermore: does the pursuit of justice threaten the achievement of peace?

In our case in South Africa we had agreed that those who had committed crimes and did not come forward to the Truth and Reconciliation Commission to reveal what happened would be prosecuted.

We are indeed pursuing justice against those who refused to participate in the process of reconciliation. We currently have one hundred and four (104) new investigations stemming from the TRC which have been re-opened since 2021.

There are currently a total of one hundred and twenty-six (126) cases under investigation. Since September 2021, the original findings of five (5) inquests have been overturned, with multiple inquests and re-opened inquests, set to commence in 2025.

Our pursuit of justice for the apartheid crimes is with the understanding that South Africans who are victims of these crimes have the right to justice, in their own country, on account of what they have suffered.

I make mention of this to emphasize the point that much as we have prioritized reconciliation we have not neglected the pursuit of justice.

However, we have not pursued justice in a manner that threatened the achievement of sustainable peace.

This is not to claim that we have found a solution to the questions I have raised above, but I am highlighting that each conflict requires us to think thoroughly about the best way to achieve sustainable peace without abandoning the pursuit of justice.

The stratification of the world is such that the power distribution amongst the countries is skewed such that those with power can violate international law with impunity.

So too is the power distribution within countries, it is divided between those who control the levers of power and those who are ordinary citizens when conflicts arise those who control the levers of power are often tempted to abuse power and commit crimes.

The skewed nature of the power distribution has often been a determining factor in deciding who can and cannot be held accountable for criminal actions.

It is for this reason that calls have been made that the international justice system must be applied equitably and consistently.

The system must not be seen to apply the George Orwell principle which says: “All animals are equal, but some animals are more equal than others”.

The International Criminal Court has in the past come under heavy criticism for what has been perceived as the selective pursuit of justice.

As we engage in discussions towards the adoption of the Kampala amendments that deal with the crime of aggression, we need to be cognisant of this criticism.

The ICC relies on the confidence of its member states so that it is incumbent on all of us to protect its independence and fairness.

This is because the ICC is an important instrument through which we can achieve a just and equitable international order.

The International Criminal Court (ICC) judges’ decision of issuing of arrest warrants against senior Israeli leaders and a Hamas official in the face of strong opposition is a welcomed development in ensuring equity and independence of the court.

It is through occasions such as this one that we have an opportunity to make proposals that can go a long way in ensuring that as member states we take a leadership role in promoting the international legal order and the fight against impunity.

The Kampala Amendments to the Rome Statute, adopted in 2010, have expanded the International Criminal Court's jurisdiction to include the crime of aggression and our discussions should ensure that they help us to achieve the objectives of international law.

We need to ensure that what we adopt, increases the confidence of the member states that justice will be applied equitably and consistently, regardless who has committed the crime.

As I conclude, South Africa reaffirms its support for the Rome Statute and its role in achieving a just and peaceful world in which all of us can live in harmony.

I expect our deliberations in these two days to be fruitful and to bring hope to the victims and the vulnerable.

I thank you

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