In a speech prepared for delivery at the University of Pretoria, Motlanthe said: “My thesis is that Africa needs its own court, vested with universal jurisdiction over the three core international crimes of genocide, crimes against humanity, and war crimes.”
The African Court on Human Rights (African Court) already existed, but its jurisdiction was related to the interpretation of the African Charter on Human and Peoples’ Rights, and other human rights instruments it had ratified.
Motlanthe said the African Court therefore should also incorporate the three international crimes of genocide, crimes against humanity, and war crimes.
“What is worth noting about this proposition, however, is that the African Court is not envisaged as a substitution for the ICC,” he said.
“Instead, it is an initiative necessitated by the challenges that seem to impair the efficacy of the ICC with regard to the African situation.”
The African Court would fill such a void, given the widening gulf that was beginning to emerge between what the ICC was intended to be and what it was turning out to be in the eyes of its African detractors and many in the developing south.
“Such a court will be able to refer matters to the ICC in cases where it experiences innate limitations or where, in the context of its relationship with the ICC, it is ideal to do so in the interests of justice.”
Motlanthe said the African Court should be structured in such a way that if the victims felt thwarted in their efforts for justice, they could take the matter up with the ICC of their own accord.
“As an international tribunal, the ICC is charged with the responsibility to throw the book at perpetrators of mass commission of crimes against humanity, war crimes, and genocide,” Motlanthe said.
“There has been restlessness from many African nations prompted by the perception that the ICC is biased against Africans.”
Some Africans had even pointed out a few cases outside the African continent where the ICC could have set its judicial sights but inexplicably had not.
Such accusations had been met with the formal endorsement of the African Union, giving the matter political gravitas.
Such accusations against the ICC provided the necessary and sufficient grounds to re-imagine a judicial scenario which could respond to the needs of ordinary Africans seeking justice.
“For a start, I would argue that in modern history any understanding of international institutions of governance cannot succeed until it takes into account prevailing meta-context,” Motlanthe said.
“By which I mean the character of current geo-political power relations.”
Power came in two forms, being hard and soft power.
Hard power was characterised by raw aggression typified by the phrase “survival of the fittest” while soft power was often a nuanced and considered nudging of the world into particular directions.
“In either case the ultimate object of wielding power is to serve the interests of the powerful, the global hegemons,” he said.
“Further, it is a fact that at this point in history the West, meaning developed nations of Europe and North America, are perched at the commanding heights of global power.”
The lived reality meant Western political norms constituted the matrix in which the rest of the world derived its shape.
“In this way ethos of the powerful global forces is universalised as naturally beneficial to the international community,” he said.
“History is depicted as unidirectional, going against which is not only disastrous to one’s interests but to those of humanity at large.”
As a result, the ICC was beginning to be seen as a transnational legitimisation of hegemony.