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Africa

Why Kenya Won’t Withdraw from the ICC

by Kevin Jon Heller

There has been much consternation and hand-wringing about the Kenyan parliament’s decision to table a motion to withdraw from the ICC. I understand the fear; Kenya’s withdrawal would obviously be a sign that Kenyatta and Ruto no longer intend to cooperate with the Court. Withdrawal could also encourage other African states to leave the ICC, which they have not seemed particularly keen to do, despite their incessant protests that the Court is little more than a neo-colonial instrument of the West that is (in one memorable description) “hunting” Africa.

That parade of horribles, however, presumes that Kenya will actually withdraw from the ICC. I strongly doubt it will, for one basic — and seemingly underappreciated — reason:

Kenyatta and Ruto will very likely be acquitted.

As Thomas Obel Hansen points out in the comments to a recent post by Mark Kersten at Justice in Conflict, “Kenya’s Treaty Making and Ratification Act 2012 makes it clear that it is the prerogative of the executive branch of government to initiate ratification as well as denunciation of international instruments.” The decision to withdraw from the ICC thus rests squarely on Kenyatta and Ruto’s shoulders. And why would they want Kenya to withdraw — at least at this point? As Mark notes in another recent post, withdrawing from the Court will neither terminate the cases nor eliminate Kenya’s obligation to cooperate with the Court. As a result, the ICC would almost certainly respond to a decision to withdraw by immediately replacing Kenyatta and Ruto’s summonses with arrest warrants. Kenyatta and Ruto would likely find it relatively easy to avoid arrest. But arrest warrants would make it much more difficult for the two men to function as Kenya’s heads of state — a problem that would be even more significant for them, newly elected, than for a head of state like Omar al-Bashir, who was in power for nearly two decades before the ICC brought charges against him.

If Kenyatta and Ruto were likely to be convicted, the costs of withdrawing from the ICC would almost certainly be worth it. But does anyone think conviction is likely? The “Ocampo Six” quickly became the “Bensouda Four,” with the Pre-Trial Chamber refusing to confirm the charges against Henry Kosgey, the Industrialisation Minister, and Mohammed Hussein Ali, the former police commissioner. And it seems that hardly a day goes by without another prosecution witness or two deciding not to testify. Nothing would be better for Kenyatta and Ruto — both domestically and internationally — than to be acquitted after cooperating fully with the ICC. So why would they withdraw from the Court now, when the cases against them seem to be falling apart? Why not at least wait until their conviction seems more likely? Withdrawal now would simply be bad strategy.

Mark my words: Kenya will not withdraw from the ICC.

Yet.

Emerging Voices: Teeth but No Bite–Can SADC Curb Election Fraud in Zimbabwe?

by Drew Cohen

[Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa.  He is also a contributing columnist for US News and World Report where he writes about comparative constitutional law, international human rights and global legal affairs.]

Recently, Botswana called on the South African Development Community (SADC) to open an investigation into voting irregularities in the recent Presidential election in Zimbabwe where the incumbent Robert Mugabe won with 61-percent of the total votes amid voluminous allegations of ballot fraud.  Two members of the Zimbabwe Electoral Commission, concerned with voting irregularities, have already resigned.  And Zimbabwe’s Movement for Democratic Change (MDC), the major opposition party, is currently gearing up to legally challenge the election results.

Botswana’s request for SADC to intervene is an intriguing one.  One the one hand, Botswana stressed that any initial inquiry should be limited to fact-finding (i.e. an independent audit) out of fear that launching a more invasive investigation into the alleged voting irregularities would hamper relations between the two countries.  On the other hand, SADC has been gaining traction in the region as an sharp, effective check against state-sanctioned human rights abuses as well as a mechanism to uphold the rule of law.

A bit of background about the SADC Treaty – which provides a binding framework to adjudicate disputes amongst Member States – is useful to understand how the organization could be deployed to ferret out, remedy and, in the future, prevent instances of election fraud.

SADC was constituted under a Treaty signed in Windhoek in August 1992 by a number of Southern African states, including Zimbabwe and Botswana.  The treaty was ratified by the signatory states and came into force in 1993.  The Preamble of the Treaty states that its Members are committed, inter alia, to ensuring “through common action, the progress and well-being of the people of Southern Africa.”  Article 4 of the Treaty, in turn, requires SADC and its Members to act, broadly, in accordance with the principle of “human rights, democracy and the rule of law”.  To give effect to that principle, SADC can create “appropriate institutions and mechanisms,” pursuant to Article 5(2)(c).  This provision, in conjunction with Article 4 of the Treaty, would presumably provide the legal basis for Botswana’s proposed commission to investigate Zimbabwe’s presidential election results.

In the event that Member States are unable to resolve their disputes through internal executive and legislative institutions…

Syria, Chemical Weapons, and the Incoherence of the VCLT

by Kevin Jon Heller

My friend Dapo Akande has a superb post at EJIL: Talk! discussing whether the ICC could prosecute the use of chemical weapons by the government in Syria. I agree almost entirely with Dapo’s analysis, but I do want to offer a couple of thoughts about his discussion of the Vienna Convention on the Law of Treaties:

The argument that chemical weapons are not covered by Art. 8 is thus based on the removal of the explicit prohibition and the fact that it was thought that it would be the annex to the Statute that would set out those weapons like chemical weapons that are deemed are indiscriminate and cause unnecessary suffering.

However, it is erroneous to interpret a treaty primarily by reference to drafting history. Under Art. 32 of the Vienna Convention on the Law of Treaties, the drafting history is only to be used as a supplementary or secondary tool of interpretation to resolve ambiguity. As Art. 31 of the VCLT indicates and ICJ has stated, the interpreter must start with the text of the treaty. Thus one must start by looking to see what the words of the treaty as agreed actually means.  It seems to me that the words “poison or poisoned weapons” and more clearly “asphyxiating, poisonous or other gases” would cover a variety of chemical weapons. The latter wording is taken from the Geneva Gas Protocol which was intended to cover chemical weapons. Although the Chemical Weapons Convention of 1993 does not use this wording (referring instead to “Toxic chemicals”), this does not mean that the wording of the ICC Statute does not extend to chemical weapons. Although weapons not in the form of a gas are not covered by para xvii, it is also arguable that ‘poison’ and ‘toxic chemicals’ are largely synonymous.

I have no doubt that Dapo is correctly applying the VCLT. But that means — as I have long thought — that the VCLT’s approach to treaty interpretation is incoherent. Treaties are an expression of sovereign will; states are free to draft treaty provisions however they want, subject only to peremptory norms of international law, and no state is required to ratify a treaty that does not reflect its values, even one it played an important role in drafting. States should thus be able to expect that the VCLT will not lead judges to interpret critical treaty provisions in a manner that runs directly counter to their intended meaning.

Yet that is precisely what the VCLT seems to allow with regard to chemical weapons. No one contests the idea that numerous states in the Global South would not have ratified the Rome Statute if Art. 8 had directly criminalized the use of chemical and biological weapons (the poor man’s WMD), but not nuclear weapons (the rich man’s WMD). That is why the explicit prohibition on their use was removed during the drafting of the Rome Statute. So what possible justification could there be for the VCLT analysis Dapo provides above, one that ignores the actual intent of the Rome Statute’s drafters in favor of a mechanical application of dictionary definitions? That analysis quite literally says the following to all of the states that opposed including chemical weapons in Art. 8: “sorry, we know you would have refused to ratify the Rome Statute if it had directly criminalized chemical weapons, but Art. 8 criminalizes chemical weapons anyway because you allowed a word to remain in Art. 8 (“poison”) whose dictionary definition can be construed to include them. Better luck next time the international community creates a permanent international criminal court.”

I’m not exaggerating. That is precisely what the VCLT says to states in the Global South if Dapo’s analysis is correct — which, again, I’m sure it is, because he knows more about the VCLT than I ever will. That said, I can imagine at least one analysis that is both arguably VCLT-consistent and would not directly undermine the sovereign will of the numerous states that ratified the Rome Statute thinking it did not directly criminalize the use of chemical weapons. That analysis would emphasize Art. 31(4), which provides that “[a] special meaning shall be given to a term if it is established that the parties so intended” — a provision that indicates the drafters of the VCLT recognized, however imperfectly, that it is impossible to separate the “ordinary meaning” of a word from its intended meaning. Given that Art. 8 was specifically drafted to exclude a direct prohibition on chemical weapons, it seems clear that the drafters intended “poison” to have a special meaning, one that did not include chemical weapons.

I agree with Dapo that, under the VCLT, “it is erroneous to interpret a treaty primarily by reference to drafting history.” But it shouldn’t be. When the intent of the drafters is clear, there is no conceivable justification for ignoring it in favor of “ordinary meaning.”

Libya’s Says It Can’t Surrender Saif — But It Can Prosecute Him

by Kevin Jon Heller

Just when I thought its position couldn’t get more ridiculous, Libya argues the following — presumably with a straight face — in response to the defence’s complaint that it is violating its obligation to surrender Saif to the ICC:

It is clear, as Mr. Gaddafi noted in the Request, that the issue of admissibility – in particular ability to pursue a domestic criminal process – is distinct from that of whether there is a failure to comply with the co-operation provisions of the Rome Statute. Libya has submitted on appeal that “the central Libyan Government [is] exercising its authority in Zintan in relation to the domestic
proceedings alongside the Zintan Brigade, which is responsible for supervising his detention.” It has submitted further that the progressive integration of the local authorities into new Libyan democratic institutions, and the negotiated transfer of Mr. Gaddafi from Zintan to Tripoli, is taking place “in a transitional context where the consolidation of the State is necessarily a complex and gradual process.” Libya has submitted that these circumstances do not constitute inability “to obtain the custody of Mr. Gaddafi”, at least at the investigative stage of proceedings. Equally, they do not constitute bad faith on the part of Libya in “deliberately refusing” to surrender Mr. Gaddafi as alleged by the Defence.

Translated: Libya has enough control over Zintan that it cannot be deemed unable to prosecute Saif, but not enough control over Zintan for it to be found in violation of its obligation to surrender Saif to the Court. Now that’s chutzpah!

The next Libyan motion will no doubt claim that the government cannot transfer Saif to the ICC because the dog ate its transfer order.

Emerging Voices: Does International Law Forbid Complicity in the Death Penalty?

by Bharat Malkani

[Bharat Malkani is a lecturer at Birmingham Law School, University of Birmingham, where he also runs the Birmingham Law School Pro Bono Group. You can also follow him on Twitter at @bharatmalkani]

Recently, Ali Babitu Kololo was sentenced to death by a Kenyan court for his role in the murder of David Tebbutt, and the kidnapping of David’s wife, Judith, in September 2011. David and Judith were British holidaymakers in Kenya at the time of their ordeal, and British police were heavily involved in the investigation into these crimes. Officers from the Met’s Counter Terrorism Command (SO15) travelled to Kenya and played a major role in securing the arrest and conviction of Kololo. The officers provided forensic expertise, assistance with preparing the prosecution’s case, and also provided support to the victims’ family. Commander Richard Walton, the Head of the Met’s Counter Terrorism Command, said: “The investigation team, led by Detective Superintendent Neil Hibberd, have… shown great skill and tenacity in assisting this Kenyan investigation.”

It is only right that British authorities should help to bring the killers and kidnappers of British citizens to justice, and Kololo should be punished severely for the crimes he committed. But it is questionable whether the British authorities should contribute to the imposition of the death penalty. The UK has long rejected capital punishment for even the most serious of crimes, and the UK currently plays a leading role in promoting abolition of the death penalty in other countries. At the very least, it is starkly hypocritical for the UK to condemn other countries for using the death penalty on the one hand, while on the other hand actually assisting those countries like Kenya impose the death penalty.

Moreover, though, it might actually be illegal for British authorities to be complicit in the death penalty. It is arguable that, under international law, a norm is emerging that prohibits states that have abolished the death penalty from assisting its use elsewhere, comparable to the prohibition on complicity in torture and the prohibition on complicity in other internationally wrongful acts (Article 16 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts) .

The starting point for this claim can be found in extradition law. Both the European Court of Human Rights and the United Nations have made it clear that abolitionist states are forbidden from extraditing individuals to states where there is a real risk that they will face the death penalty. The principle behind this prohibition is simple: to do otherwise would be tantamount to aiding and assisting a practice that is forbidden.

Wider obligations to refrain from being complicit in the death penalty can be extrapolated from this principle…

Libya’s Flexible Approach to Time

by Kevin Jon Heller

On July 10, counsel for Al-Senussi filed a motion with the Pre-Trial Chamber complaining that Libya had announced it would begin Al-Senussi’s trial no later than the end of Ramdan — August 7 — despite the fact that Libya’s admissibility challenge was still pending before the ICC. On August 5, Libya filed its response, arguing that it has no obligation to spend domestic proceedings during consideration of its admissibility challenge. Substantively, this is a rare instance in which I completely agree with Libya. The problem is not that Al-Senussi’s prosecution is moving forward; there is indeed nothing in the Rome Statute that requires a state to put domestic proceedings on hold while it challenges admissibility. The problem is that Libya has made it all too clear that it has no intention of ever turning Al-Senussi over to the ICC — even if the Appeals Chambers orders it to.

That said, although I agree with the substance of Libya’s reply, I can’t help but marvel at its rather flexible approach to time. As Libya acknowledges, despite having nearly a month to file its reply, it filed the reply one day late. It’s excuse? Ramadan:

The Government is aware that this Response has been filed one day after the  requisite time limit. The holy month of Ramadan commenced in the Islamic world on 9th of July and will conclude on 7th of August. During this period, hours of work in Libya are dramatically reduced due to the requirements of intense prayer and fasting which the Libyan people (including Libyan Government officials) adhere to. This has complicated the receipt of instructions and finalisation of the filing. The Government accordingly seeks the Court’s indulgence to extend the time limit to today, pursuant to Regulation 35 (2). The Government notes that, given the nature of the Defence Application, the fact of the short delay is unlikely to have caused any prejudice to the Defence.

I don’t in any way want to slight Islam, but really? Libya’s team of three Western lawyers couldn’t write an 11-paragraph motion that contains not a single fact concerning Al-Senussi’s case — the motion focuses solely on what the Rome Statute says about Libya’s obligation to cooperate with the ICC — in a month? Color me skeptical.

Even worse is Libya’s proposed resolution to Al-Senussi’s motion. The reply argues that if Libya is required to provide the ICC with information about the timetable for Al-Senussi’s domestic prosecution, it should be given six weeks to do so. In other words, it should be allowed to wait until five weeks and five days after Al-Senussi’s trial is supposed to begin (according to Libya’s own statements) to discuss when Al-Senussi’s trial is supposed to begin. The reply provides no justification whatsoever for the six-week deadline. Nor does it explain why it needs so long now that Ramadan is over.

With Libya, it’s always “heads Libya wins, tails the defence loses.”

Emerging Voices: Taking Forced Marriage out of the “Other Inhumane Acts” Box

by Frances Nguyen

[Frances Nguyen is a recent J.D. graduate of Lewis & Clark Law School.]

Forced marriage is a complicated subject. The multilayered acts of brutality frequently overlap with sexual slavery, enslavement, rape, and arranged marriage. This can create confusion leading scholars, courts, and legal practitioners to either disregard forced marriage or shelve it into the box of “other inhumane acts” under crimes against humanity. The purpose of this post is to facilitate a proper discussion and address the legal complexities of forced marriage. More importantly, this post is calling for a robust recognition of forced marriage as an international crime. Instead of putting it under the general rubric of “other inhumane acts” it should be explicitly listed and placed alongside other sex and gender-based crimes under the International Criminal Court (ICC)’s Rome Statute.  In doing so, the criminalization of forced marriage by the international community will gain ground. This will lead to greater punishment against the perpetrators and properly accord the victims justice. Victims of forced marriage often endure severe long-term physical and emotional trauma due to their continuous and exclusive relationship with their perpetrators. For example, Fatmata Jalloh was selling pancakes on a rural road in Sierra Leone when a rebel soldier kidnapped her and made her his wife. “I was a child. I didn’t know anything about love at that time. But he said, “If you don’t take me [as your husband], I’ll kill you,” Jalloh said. As his wife, Jalloh was forced to perform sexual acts and domestic duties for two years until Sierra Leone’s civil war ended. “There was no way not to do it. If I would leave, I would have no food. He would kill me.”

Jalloh’s story is representative of many young women and girls who were forced to become “bush wives,” women who were forced into marriage and essentially became domestic and sexual slaves to militia soldiers. From 1991 to 2002, Sierra Leone was embroiled in a civil war, which resulted in the national government fighting against rebel groups. At least 50,000 people died, while an estimated 100,000 suffered from mutilation. While massive atrocities were prosecuted by the Special Court for Sierra Leone (SCSL), forced marriage remained a neglected issue until 2008 when the SCSL in Prosecutor v. Brima, Kamara, and Kanu formally recognized forced marriage as a crime against humanity as an “other inhumane act.”

(more…)

Libya Thumbs Its Nose at the ICC — Again…

by Kevin Jon Heller

As I recently noted, the Appeals Chamber has rejected Libya’s request to suspend its obligation to surrender Saif Gaddafi to the ICC pending resolution of its admissibility appeal. Libya, of course, has no intention of complying with that obligation. Indeed, it admitted as much today:

According to Libya’s Justice Minister Salah al-Marghani, Seif, who is being detained in the Libyan city of Zintan by order of the General attorney, will soon be transferred to Tripoli to stand trial. But the ICC wants to try him, and Gaddafi’s brother-in-law and former intelligence chief Abdullah Senussi on the same charges.

On July 18 the Hague-based ICC rejected Tripoli’s request to keep Seif in Libya for trial, saying that Libya remained “obliged” to hand over Seif to the court.

Libya’s representative to the ICC, Ahmed al-Jehani said that as soon as Seif is transferred to Tripoli, the Libyan government would again appeal the ICC decision.

Mr al-Jehani added: “The ICC decision is based on Seif al-Islam’s detention in Zintan and not under the control of the judicial authorities in Tripoli. This (ICC) decision is not final. Libya’s right to try Seif al-Islam is linked to his transfer to Tripoli.”

Salah al-Marghani said that Libya would appeal the Court’s decision as soon as it meets the three demands expressed by the ICC, namely, the transfer of the Seif to Tripoli and the appointment of lawyers for Seif and Abdullah Senussi. He pointed out that the Public Prosecution would handle the investigation.

He added: “The provision of lawyers, we are working on, that, as well as on several different investigations other than rape and murder.”

Put more simply: Libya will not comply with a binding order to surrender Saif to the ICC, but it fully expects the ICC to let it file a second admissibility challenge. The Rome Statute does, in fact, leave open the possibility of multiple admissibility challenges; Art. 19(4) provides that, “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial.” But there is nothing exceptional about Libya’s circumstances that would justify a second admissibility challenge; Libya simply wants to be rewarded for ignoring the Court’s surrender order long enough to fix the problems with its initial challenge. For that reason alone, the Court should reject any Libyan request to file a second admissibility challenge — a decision that, as Art. 19(4) makes clear, is left to the Court’s discretion.

As an aside, I feel obligated to point out that Ahmed el-Gehani, the same man who regularly makes clear to the press that Libya will not surrender Saif to the ICC — and who once told Saif that he was the “architect” of the domestic charges against him — also signs each and every legal document that Libya files with the Court. (See, for example, Libya’s latest brief.) In my view, a strong case can be made that el-Gehani’s actions violate the ICC’s Code of Professional Conduct for Counsel (CPCC) which specifically applies to “counsel acting for States.” Art. 7(3)  of the CPCC provides (emphasis mine) that “[c]ounsel shall comply at all times with the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and such rulings as to conduct and procedure as may be made by the Court, including the enforcement of this Code.” Moreover, Art. 25(1) provides (emphasis mine) that “Counsel shall at all times maintain the integrity of evidence, whether in written, oral or any other form, which is submitted to the Court. He or she shall not introduce evidence which he or she knows to be incorrect.” Those obligations seem difficult to reconcile with el-Gehani’s actions.

Emerging Voices: Distinction without a Difference – The UN’s Attempt to Fight A War Without Fighting A War

by Leslie Schildt

[Leslie Schildt is a criminal prosecutor at the Monroe County District Attorney's Office in Rochester, New York and previously worked in the Office of the Prosecutor at the International Criminal Court in the Hague.]

Earlier this year, the United Nations created its first ever offensive combat force – the “Intervention Brigade.”  It enters the Democratic Republic of Congo (DRC) as part of MONUSCO, the long-standing United Nations peacekeeping operation in the DRC.  According to Security Council Resolution 2098, the Intervention Brigade will act unilaterally or alongside the Congolese army.  The Brigade is a creature of Chapter VII of the UN Charter, which governs peace enforcement operations.  The force will execute “robust, highly mobile … targeted offensive operations” to find, engage, “neutralize,” and disarm the heavily armed rebel forces.  This is an unprecedentedly aggressive humanitarian combat force that arguably is the first of its kind.

The Intervention Brigade raises serious questions regarding how the offensive mission might affect the non-combatant peacekeepers in MONUSCO.  To understand the potential dangers to peacekeepers and how to avoid them, one must first understand the core legal distinctions between peacekeepers and peace enforcers.

UN peacekeeping operations operate under three bedrock principles: (1) Consent of the main parties, (2) impartiality, and (3) non-use of force except in self-defense and in defense of mandate.  Consent of the parties requires commitment and acceptance from the main parties to the conflict.  Without consent, “the peacekeeping operation risks becoming a party to the conflict; and being drawn towards enforcement action.”  Impartiality requires the peacekeepers’ even-handed treatment of all parties to the conflict, but not neutrality in execution of their mandate.  Indeed, where one party commits blatant violations, “continued equal treatment of all parties by the United Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil.” (Brahimi Report)  Peacekeepers also cannot use force except in self-defense or in defense of mandate.  “Defense of mandate” may accommodate offensive use of force in some circumstances (e.g., to protect civilians under imminent threat), but peacekeepers certainly cannot lawfully conduct offensive seek-and-disarm missions.

Because peacekeepers are not “used outside the humanitarian function to conduct hostilities,” they remain protected as civilian non-combatants.  During an armed conflict, “all persons who are neither members of the armed forces of a party to the conflict . . . are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.”  This attribute enables combatants to distinguish lawful enemy targets from protected persons.  However, it is another matter entirely when peace enforcement units conduct aggressive seek-and-pacify operations. (more…)

US Calls on Rwanda to Stop Supporting M23

by Kevin Jon Heller

Outside of Kigali, no one really doubts that the Rwandan government and military have financed, supplied, and at times even directed M23′s actions in the DRC. But it’s still nice to see the US government acknowledging that fact:

It is the first response by Washington to recent M23 clashes with Congolese government forces near Goma, the largest city in the DRC’s mineral-rich eastern region, but stayed clear of directly implicating Rwandan President Paul Kagame, a U.S. ally whose poverty-fighting programs are often heralded by donors.

“We call upon Rwanda to immediately end any support for the M23 (and) withdraw military personnel from eastern DRC,” State Department spokeswoman Jen Psaki said.

The call comes two days before U.S. Secretary of State John Kerry chairs a special session of the U.N. Security Council on Africa’s Great Lakes region.

M23 began taking parts of eastern Congo early last year, accusing the government of failing to honour a 2009 peace deal.

A U.N. report in June this year said the M23 recruited fighters in Rwanda with the aid of sympathetic Rwandan army officers, while elements of the Congolese army have cooperated with the Rwandan Hutu rebel group FDLR.

The report prompted the United States and European states to suspend military assistance to Kigali.

Psaki said the latest concerns over M23 follow credible evidence from Human Rights Watch that said the rebels were to blame for executions, rapes and forcible recruitment of men and boys while receiving support from Rwanda.

It’s a shame that the US didn’t specifically place blame on Kagame, whose close relationship with the US can be explained far more by his love of western multinationals than by his commitment to fighting poverty. But the US statement is still welcome.

Is Google News Editorializing?

by Kevin Jon Heller

As I was checking my news feeds on Google News, I came across this:

International Criminal Court

The snail photo is not actually part of the Washington Post article. So does that mean Google shares my concern with Libya’s endless stall tactics?

Emerging Voices: Engaging with African Human Rights Law

by Chelsea Purvis

[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG).  Opinions expressed here are her own and do not necessarily reflect those of MRG.]

The African region has long been perceived as a recipient, not a creator, of international human rights law.  But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence.  Africa should be recognized as a generator of innovative human rights law.  Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law.

An example of innovative African law-making is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which came into force in 2005.  The Maputo Protocol builds on existing women’s rights law: Like the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the Maputo Protocol obligates States parties to combat discrimination against women in all areas of life.  And like the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Maputo Protocol prohibits physical, sexual, and psychological violence against women.  But the Protocol goes further than these earlier treaties.  For the first time in any international instrument, it prohibits verbal and economic violence against women.

The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances.  It also takes a conceptual leap forward in its treatment of culture and tradition.  Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South.  It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture.  The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography.

Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights.  (more…)