South Africa's Chief Justice Sandile Ngcobo has dismissed the widely held view in Africa that the International Criminal Court (ICC) is prejudiced against Africa and Africans as "troubling" but largely unfounded..
In a recent address at a conference at the University of the Witwatersrand on the future of the international criminal justice system, the Chief Justice pointed out in three of the cases ICC investigations and/or trials were carried out at the request of African governments.
In three of countries where the ICC was operating it was at request of the African governments; the three countries were Uganda, the Democratic Republic of Congo and the Central African Republic.
The remaining two African countries where the ICC is presently involved are Sudan - where President Omar al-Bashir has been indicted on charges of genocide, crimes against humanity and war crimes - and Kenya, where the ICC is investigating the violence that took place during Kenya's general election in January 2008.
Chief Justice Ngcobo offered another reason why the ICC investigations were necessary in Africa: abuses in sub-Africa ranked with the most serious in the world and intervention was thus in the interests of international criminal justice.
The most controversial - and arguable the most serious - of the Africa cases in which the ICC is involved is the one focusing on the Sudanese president, who is the first head of state to be indicted by the ICC.
Aside from that, however, there is another reason why it is particularly important: the charges relate mainly to al-Bashir's alleged complicity in the attacks on the people of Darfur by the Janjaweed militia who have reportedly killed and displaced tens of thousands of Darfur inhabitants.
Prima facie it appears to be ethnic cleansing on a huge scale against people of Darfur, who appear to have more in common with South Africa's black people than the people of Arab descent in Khartoum.
In July 2008, shortly after the warrant of arrest was issued against al-Bashir the African Union (AU) passed a resolution urging its member states not to arrest al-Bashir if he set foot on their soil. South Africa failed to oppose the resolution.
As a report on a war crimes website put it: "At the AU summit, South Africa remained silent and let the resolution pass - despite being a signatory to Rome Statute - giving tacit approval to the decision to ignore al-Bashir's arrest warrant although it is legally obliged to co-operate in his arrest."
Later, however, the department of foreign affairs sought legal advice on whether or not it would be bound to arrest al-Bashir if he visited South Africa. The department was told that its commitment to arrest al-Bashir had not been nullified and if the Sudanese president visited South Africa the authorities would be legally obliged to detain him.
Since then al-Bashir has twice been invited to visit South Africa, initially to attend the inauguration of President Jacob Zuma in May 2009 and later during the opening of the World Cup in South Africa. The Sudanese president wisely declined both invitations
It may be concluded that the Zuma administration, like Zuma himself, is practising a form of Orwellian double-think or, to put it differently, holding two opposing views at the same time and thereby giving the impression of concurred with the AU resolution while receiving contrary advice from its legal buffs without challenging it.
Al Bashir has thus far avoided putting the Zuma administration to the test by accepting an invitation to visit South Africa and risking arrest. Perhaps, however, the Zuma administration has resolved the dilemma by formally inviting the Sudanese president to visit while privately warning him not to.
If the Chief Justice's generally positive view on the ICC induces a change in tack by the Zuma administration to one that is less ambiguous and more inclined to contribute positively to the "preservation of peace and the attainment of justice" instead of running with the hare and hunting with the hounds.
It is, of course, true that South Africa has contributed to peace-keeping operations in Darfur by sending a small contingent of peace-keepers operate there under the dual authority of the United Nations and the AU
It is true, too, that former president Thabo Mbeki has been mandated by the AU to seek a negotiated solution to the troubles in Darfur and an end to the impasse in Sudan between the Sudanese government and the ICC. Mbeki faces a difficult task, if not a "mission impossible," particularly as the ICC investigation in Sudan was authorised by the UN Security Council.
While the indictment by the ICC of el-Bashir id is unprecedented in that he is a presiding head of state, it is the sequel to the arrest and trial of two high-ranking African politicians: Charles Taylor and Jean-Pierre Bemba.
Taylor, a former president of Liberia, is facing trial in the UN Special Court for Sierra Leone in the Hague (where the International Court of Justice has its headquarters).
Taylor, who faces charges of crimes against humanity and war crimes, is at present giving testimony in his own defence, argument by his lawyers for an acquittal verdict at the end of the prosecution's case having been rejected by the court.
Taylor's crimes were alleged committed in Sierra Leone, from which he launched his war to topple Liberia's former president, Samuel Doe.
Bemba, a former presidential candidate in the Democratic Republic of Congo who was dubbed a "warlord" by the media, faces charges in the ICC for crimes against humanity and war crimes alleged committed in the Central African Republic.
Seen in the context of the arrest in Britain of the former Chilean dictator Augusto Pinochet in 1998, the trials of Taylor and Bemba and the warrant of arrest against al-Bashir stand out as a clear warning to dictators that the day of impunity are gone and that dictators are at risk when they step beyond their borders, even though Pinochet escaped trial in the end because of his advanced age.
In a sense dictators are exposed to a form of double-jeopardy: rebellion from within by their own people and judicial nemesis from beyond the borders of their fiefdoms.
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