The End of Southern Africa’s Regional Human Rights Court?

In a recent report which first appeared here in the Open Society Foundations website, Richard Lee examined the decision of the SADC member states to kill its Tribunal’s individual human rights complaints mandate. According to Lee, "[Leaders of the Southern Africa Development Community (SADC) took a momentous decision in Maputo over the weekend—to shut the doors of the SADC Tribunal, preventing the region’s citizens from seeking justice for human rights abuses. The shocking decision, which was taken at the annual summit of SADC Heads of State and Government in Maputo, not only left the tribunal in limbo but also rendered it completely toothless by denying individual access to the court. “The decision to deny the region's inhabitants any access to the tribunal is astounding and entirely without any lawful basis,” said Nicole Fritz, Director of the Southern Africa Litigation Centre (SALC). “Civil society groups were worried that SADC leaders would conspire to weaken the tribunal but this is far worse than we had feared. SADC has destroyed it.” The summit's final communiqué explains that SADC leaders have “resolved that a new Protocol on the Tribunal should be negotiated and its mandate confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States.” The original tribunal protocol made it clear that individuals also had access to the court. In fact, all previous cases heard by the tribunal had been brought by individuals. “The decision flies in the face of the recommendations of both the SADC-instituted review of the tribunal and SADC's own Ministers of Justice and Attorneys General,” said Fritz. “It is also completely at odds with the best practice of other regional institutions and undermines the protection of human rights and hopes for future economic growth and development.” The SADC Tribunal has been defunct for the past two years after SADC leaders demanded a review of its powers and functions, following a series of cases in which it had ruled against the Zimbabwean government. Despite a campaign spearheaded by legal bodies, civil society organizations, and individuals such as Archbishop Emeritus Desmond Tutu, SADC’s leaders decided not to the revive the tribunal immediately and to ensure that in future it will be little more than a shell. “Our leaders have shown their contempt for all of us in southern Africa and for the rule of law,” said Fritz. “Not only did they deny the region’s citizens access to the tribunal but member states almost never bring legal cases against each other so the court will be a complete waste of taxpayers’ money.”]"

An African Dilemma called the International Criminal Court

Saif al Islam Gaddafi

It is not often that African governments and the continent’s civil society groups agree on any issue. Both sides are most times at loggerheads. African governments, it is trite to state, are hardly the best advertisements for responsible political leadership. That is the reason its extensive natural resource endowments have done little to stop the continent lagging behind all other regions of the world in developmental terms. But the International Criminal Court (ICC) is already changing all of that. It is pressuring Africans, government and civil society alike, into an uneasy coalition of forces. This coalition believes strongly and with justification that the ICC is upon a worn stereotype. They say the court is traveling a bombed out route. Along that route is a conspicuous sign with as clear a message as daylight which is that bad things happen only in Africa.  While there has always been and might continue to be challenges in Africa, the ICC has apparently landed the continent at a crossroads of a different kind. A court established for the highest values and best intentions (that of bringing the worst war criminals and human rights violators to justice) is seen to be openly victimizing Africa and redefining the very idea of global criminal justice. All current cases at the ICC involve African countries – Cote D’Ivoire, Libya, Central African Republic, Darfur in Sudan, Democratic Republic of Congo, Northern Uganda and Kenya. The court also claims to be examining different situations in countries such as Afghanistan, Chad, Colombia, Georgia, Guinea, Honduras, Nigeria, the Occupied Palestinian Territories, and the Republic of Korea. But only a few Africans are taken in by what seems to be the afterthought of examining situations outside the continent. The statistics that count are far more poignant. Earlier this year, Thomas Lubanga Dyilo of the Democratic Republic of Congo became the first individual ever convicted by the ICC of war crimes for enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in the DRC between September 2002 and August 2003. More of such indictments involving citizens of the DRC are still pending at the court. Last year the ICC’s pre-trial Chamber issued warrants of arrest against the late Libyan leader, Muammar Mohammed Abu Minyar Gaddafi, his son Saif Al-Islam Gaddafi, and Abdullah Al-Senussi, Director of Military Intelligence, for alleged crimes against humanity (murder and persecution) committed in Libya from 15 February until at least 28 February 2011. There is also currently a pending global warrant for the arrest of Sudanese leader, Omar Al Bashir for alleged crimes related to the Darfur crisis. Besides the situations referenced above in which the court claims to be looking at events in some countries outside Africa, the roll call of those either already indicted or facing the court’s indictment process show a troubling picture for equality before the court and the credibility of its procedures. There is a strong, justifiable feeling among African political leaders that the ICC is biased against the continent. And nothing better illustrates this feeling than the difference in international response to the analogous Libyan and Syrian crisis situations. Bashar Assad has by far exceeded whatever crimes may have excused the indictment of Gaddafi, his son and chief spy. Yet the same international community that acted with some urgency on Libya has simply not shown up in the case of Syria. No system of justice survives such blatant discrimination without forcing its legitimacy to the surface. While one is not excusing the atrocities of Gaddafi, Lubanga or Bashir, yet the processes of international accountability for crimes against humanity must go round all those whose actions merit them. Significantly, the major global powers that should have their weight firmly in support of the ICC have chosen to operate outside its jurisdiction. Yet the court has remained attractive to Africans only because accountability procedures at domestic and continent-wide levels are either lacking or inefficient. And this is the core of the continent’s dilemma. Are victims of atrocities in Africa to be left without justice? Or should a discriminatory international system be relied upon even where its methods merely reinforce anti-African stereotypes? In my view while non-justice is unacceptable, discriminatory justice sinks to that same level.