Let’s integrate some international law into SA?processes

2014-09-12 06:45

Deputy Chief Justice Dikgang Moseneke explains why we need to integrate international law into domestic legislative processes

Has international law afforded Africa peace and justice? The seductive answer is “no” but the picture is chequered.

Africa has produced the bad and ugly, as well as the good. A good starting point would be the criticism that the normative scheme of international law is “un-African”.

It is an unwarranted imposition of neoliberal and Eurocentric notions on a world order that is moved, not by law, but by unequal power relations between developed and underdeveloped nations. It is so that the realpolitik places power, vital security and the commercial interests of nations ahead of the “niceties” of ethics and international law norms of peace and justice.

But realpolitik should not oust the usefulness of an international order under the rule of law. Public international law developed because the world order could not countenance military aggression or wars.

Nor could it sit back and suffer internal war, insurgencies or crimes against humanity. The atrocities of World War?2 led to a global recognition of the need to protect human life and welfare by holding states accountable to a universally accepted code.

International law encompasses humaneness, compassion, human dignity and conformity to the basic norms of collective unity. Its underlying norms are in harmony with the African principle of ubuntu.

International pressure has undoubtedly played a role in ending, or limiting, suffering and injustice in African states. Had it not been for the imposition of economic sanctions and an arms embargo by the UN Security Council on apartheid South Africa, President FW de Klerk’s decision to abandon apartheid in 1990 might have been fatally delayed.

The redirection and withdrawal of aid by foreign donors have arguably been the driving force behind the speedy nullification of the draconian Anti-Homosexuality Act by the Ugandan Supreme Court.

Last year, the international community succeeded in exerting pressure on Rwanda to end its military support of the M23 rebel group in eastern Congo. The loss of Rwanda’s support and the bolstered military capacity of UN peacekeeping troops left M23 with no choice but to end its protracted military insurgency in December last year.

International law has played a role in maintaining peace and justice in Africa. Africans have been the primary beneficiaries of the emerging Responsibility to Protect norm.

After its invocation in Kenya in 2007/08 and Ivory Coast in 2011, the international community intervened in the Central African Republic (CAR) and South Sudan last year to prevent the mass slaughter of civilians on religious and ethnic grounds.

South Africa has intervened under the African Union security system in domestic insurgencies in the CAR, Burundi and elsewhere in Africa to restore peace and stability.

Africa needs adequate space to accelerate social and economic development to banish poverty, ignorance and ill-health as its people find their true potential. Peace, stability and justice are prerequisites for this. Our states and judiciaries should look to the norms of international law to enrich our domestic settings.

Africa’s domestic courts will do well to look at international law obligations for guidance when giving meaning to their constitutions and municipal law.

In Glenister v President of the Republic of South Africa, our Constitutional Court drew from the country’s international obligations to give flesh to the constitutional requirement to set up a dedicated and independent corruption-fighting unit. They have also proved to be willing and capable of enforcing international criminal justice alongside international criminal courts.

In 2011, the High Court of Kenya handed down a ground-breaking ruling in issuing an arrest warrant for Sudan President Omar al-Bashir if he were to set foot in Kenya again.

This followed the issuing of arrest warrants by the International Criminal Court against him for war crimes, crimes against humanity and genocide.

Last year, our Constitutional Court’s judgment in the Government of the Republic of Zimbabwe v Fick case once again displayed a willingness to enforce international criminal justice. The court developed common law to enforce against Zimbabwe in South Africa, a cost order made by the now defunct Southern African Development Community’s regional tribunal.

With the looming extension of criminal jurisdiction to the African Court on Human and Peoples’ Rights, we expect to pursue with vigour the prosecution of international crimes.

Many African countries are emerging from dire conflicts. They are adopting new constitutions infused with principles of international law and are endorsing international criminal justice.

More African nations are trying to come to terms with a past characterised by external aggression, insurgency and sometimes pervasive ethnic conflict and violence. We should revert to the indispensable notion of conflict resolution through mediation and reconciliation under law and justice. Human solidarity is embedded in African traditions.

Sometimes international law falters as it fails to bring peace and justice. It has been ineffective on the Israeli occupation of east Jerusalem, the West Bank and Gaza, which Israel continues to occupy from outside through its control of most of Gaza’s border crossings, its airspace and its offshore waters.

Far from complying with the UN Security Council’s 1967 resolution calling on it to withdraw, Israel has built housing for more than 500?000 settlers on occupied Palestinian land, a violation of the Fourth Geneva Convention and a war crime under the International Criminal Court’s Rome Statute.

Israel has also built a wall in east Jerusalem and the West Bank, which, in 2004, the International Court of Justice found “contrary to international law”.

The wall stands today despite the court’s conclusion that Israel is under an obligation to “dismantle [the wall] forthwith” and “make reparation for all damage caused”. The Supreme Court of Israel upheld the legality of the wall and has refused to rule on the legality of the settlements.

In 2012, after noting the wall and the separate legal systems and roads for Jewish-Israelis and noncitizen Palestinians living in the West Bank, the UN Committee on the Elimination of Racial Discrimination drew Israel’s attention to international law against policies and practices of racial segregation and apartheid, and urged it “to take immediate measures to eradicate any such policies or practices”.

There can’t be peace and stability without justice, and there cannot be justice without the rule of law.

Moseneke is the deputy chief justice of South Africa. He will chair a public debate tomorrow from 4pm to 6pm at Wits University’s Great Hall. The debate – with the topic Transitional Justice at a Crossroads: Lessons from South Africa, Comparative Perspectives and Ideas for the Future – will include International Criminal Court president Judge Sang-Hyun Song as well as other experts from South Africa and beyond. For more information, visit www.wits.ac.za

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