Opinionista Khadija Patel 28 August 2013

The tilted scales of international justice

As the Palace of Justice in The Hague celebrates its 100th anniversary this week, the instruments of international justice come under intense scrutiny for their ability to effectively prevent and mediate conflict.

Leidse Square in Amsterdam is languidly coming to life on Monday morning as Chris Borgen, a law professor at St. John’s University in New York and the co-founder of the OpinioJuris blog, the world’s best read international justice blog, chats to a group of bloggers about the curious position of the United States regarding the International Criminal Court.

The US, despite its pious invocations – and unsolicited policing – of international law, is actually not a signatory of the ICC. Borgen says that initially the Bush administration took the decision to veer away from the ICC as part of its greater strategy of disengagement with multilateral bodies.

“Let me put it this way, if Al Gore were president, we’d be participating in the ICC,” Borgen said.

And while the Bush years are long past (though his legacy remains in Iraq, Afghanistan and Pakistan, just to name a few), to the uninitiated observer there still appears to be little inclination from the White House to take the necessary steps to become part of the ICC.

Borgen however, says co-operation between the US and the ICC continues to improve. He says it is only logical for the US to eventually sign on to the ICC.

Like the US, however, a number of other countries have also withheld co-operation, among them, global powers like Russia, India and China, deeply diminishing the scope of the court.

Despite Borgen’s confidence, for now the only interest in the ICC in the US appears confined to an American sitcom loosely based on the court. After enjoying a chuckle at the expense of the vagaries of American television, it is the relevance of the instruments of international justice to South Africa that is also of note.

Just last week, the Second Circuit Court of Appeal in the US dismissed the South Africa Apartheid Lawsuit, which sued corporations with significant US-based operations for their direct support of Apartheid security agencies. The court felt US-based companies should no longer be held accountable for human rights violations that did not take place within the United States.

A statement released by the Khulumani Support Group, a group that seeks to represent victims of Apartheid, said in response to the ruling, “The latest decision highlights limitations in international law to hold transnational corporations accountable for complicity in the perpetration of gross human rights violations.”

And they have a point.

More than 40 years of Apartheid in South Africa saw gross human rights violations, which included massacres, torture, the imprisonment of opponents to the regime and a crippling racial discrimination from which we are still reeling. While states are irrevocably in charge of their own systems of justice, from security to foreign policy to internal affairs, the welfare of South Africa’s economy was underpinned by these same multinational corporations. To excuse companies as if they are apolitical organisms functioning in a parallel universe is disingenuous.

South Africa’s own failure to prosecute Apartheid crimes has, however, prompted queries about the role of international law. The idea of international law dictates that states punish crimes against humanity. It is supposed to be common sense for the crime like Apartheid to be tried under international law.

And yet, it was not. There was no Nuremberg-style tribunal. And while the Truth and Reconciliation Commission certainly did its job – laying the foundations of a new South Africa – some believe the TRC ultimately stopped short of bringing justice to the victims of Apartheid South Africa.

There are as many people who criticise the failures of international justice in South Africa, as there are people who believe a more thorough probing of the crimes of the Apartheid state would endanger the peace that nation has achieved.

Furthermore, former president Thabo Mbeki felt the international pursuit of justice for victims of Apartheid, like the efforts of the Khulumani Support Group against American businesses, undermined South Africa’s own attempts to bring redress to the victims of Apartheid. His reservations extend the opinion of some that a more zealous international justice system may amount to interference in the affairs of a sovereign state.

But as South Africa prepares to hail the 20th anniversary of the official dismantlement of the Apartheid state in 2014, the sense of reconciliation that South Africa has achieved is flawed.

Last week, the current administration of Egypt accused South Africa of “trying to export its failed reconciliation process that hasn’t achieved real coexistence or [realised the] basic needs of its people, who suffer some of highest world rates of crime, corruption, poverty, unemployment and epidemics.” While South Africans can point out that we seem to be doing better than Egypt currently is, that barb is not altogether amiss.

What remains to be scrutinised, however, is our definitions of reconciliation and justice, as well as our perception of what justice is supposed to accomplish.

As we leave Amsterdam for The Hague, hoping for a better understanding of how exactly the instruments of international justice remain relevant to the world, Amsterdam slowly awakens to a new day. But a sense of international justice that is just, equitable and accessible to all seems quite distant. And sustaining peace without justice in South Africa may yet test the great rainbow nation. DM

Khadija has travelled to the Netherlands to participate in the Influentials Programme at the invitation of the Dutch Ministry of Foreign Affairs and Radio Netherlands Worldwide on the occasion of the centenary of the Palace of Justice. She is enjoying the stroopwafels, but she writes what she likes.

Read more:

  • US Corporations can’t be sued for Apartheid, court rules, in Daily Maverick
  • General Motors concedes to Khulumani in Apartheid reparations case, in Daily Maverick
  • Magazine Feature: Apartheid’s Legal Legacy, in Law Dragon

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