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Monday, May 15, 2017

Linking Human Rights Education with Empowerment in Development Cooperation



The word empowerment as it relates to women’s rights has become a popular catchword used by development agencies and organisations in development cooperation in recent years. Commonly defined, empowerment means women taking control of their lives through the development of their own skills, confidence and economic status. In other words ‘empowerment’ essentially means the cultivation of agency, comprising both economic and self -worth. Strategies to support the empowerment of vulnerable groups in society such as for women in particular have been said to assist the latter in realizing their own potential, capacity and worth as agents for both personal and structural change. In terms of women’s rights the term empowerment has therefore been closely linked to change particularly where cultural and gender norms are concerned with promoting self-reliance and self –confidence, encouraging women to act independently and to make their own choices. Within the framework of development co-operation it is often understood that development agencies and organisations are not in a position to empower women per se but merely to support and aid such empowerment. Empowerment bluntly understood is thus contingent on the agency and the ‘enlightenment’ of women themselves who come to the realization mainly through the conduit of human rights education that their rights are being violated.

Ethical concerns may however arise if development institutions support or promote gender equality but in the process are culturally insensitive and impose their own views and interests on the culture concerned in terms of gender relations, all the while taking it upon themselves to define those issues or aspects of culture steeped in strong gender roles that require change. In some instances a lack of recognition is given to the fact that each society has embedded and different views on gender relations and that if in fact change is to be envisaged, women themselves need to be the initiators and drivers of such change.  Recognition thus needs to be given to either the initiated or ongoing efforts of women who already continue to challenge certain harmful cultural values or practices by seeking equality on their own accord. Instead noteworthy or incremental steps undertaken by women in their own particular communities are often overlooked for fear that they do not meet the predetermined standard of what “empowerment” should represent or look like to the outside world, to development organizations themselves, and to the latter’s targeted public sector and relevant sponsors and donors.

Furthermore, cognizance must also be given to the fact that members of these targeted communities in some cases also succumb to the influence, power and money of development aid and mimic or pretend to be empowered for lack of education, money and lack of a better future. The resultant effect of this is that the actual empowerment of women in these targeted communities becomes questionable especially because it is arguably less genuine, thereby making the impact of development work in this area difficult to assess and measure. So in other words, difficulty arises in the assessment of the impact of targeted development strategies especially if ‘empowerment’ comes to be based only on external indicators such as group demonstrations, marches and picketing that aim to outwardly invoke a display of empowerment rather than an inward change or transformation. While on a more personal level and within the immediate and extended social circle or family, a women’s preconceived cultural gender role remains unchanged still preventing her from making or taking the necessary decisions and exercising the choices she deems relevant or life changing. In other words “empowerment” becomes a catchword bereft of any true power or efficacy, and which in many cases might be indicative of an outward show of power rather than a truly inward transformation of power having little or no real impact.         

The value of development agencies and organizations in the effective protection and promotion of human rights can be seen as a pivotal conduit through which the spread of human rights can take place, especially if and when they operate from the bottom up keeping the local and cultural context of the communities in which they work in always in mind. The well-known anthropologist Sally Engle Merry for instance has recognized the value of intermediaries such as development agencies, social movements and NGO’s for the development and promotion of human rights. She believes that such intermediaries may be the most suited in translating ideas from the global arena down to the local level and from the local level up to the global arena because they understand both worlds well enough to serve as intermediaries between distinct social worlds but at the same time she also recognizes that such groups are also vulnerable to manipulation and divided loyalties, such as the pressure put onto them by donors. So while these actors may in some instances be intimately connected to competing interests they nevertheless can still play a valuable part in promoting the rights of the disenfranchised and oppressed. The shift to a rights based approach to development in recent years in Merry’s view, has brought the disciplines of human rights and development closer to one another with the resultant effect that human rights education is seen as key to the empowerment of peoples and therefore hence to development.

Thursday, February 9, 2017

The AU´s Withdrawal Strategy: Is the Glass Half Full or Half Empty?

AU 28th Ordinary Session, January 2017, Addis Ababa, Ethiopia
The 28th ordinary session of the Assembly of the African Union, finally came to an end on the 31st of January 2017 in Addis Ababa. One of the many topical issues towards the end of the summit was the adoption of the common strategy document on withdrawal from the International Criminal Court (ICC). The grievances that African states have with the international criminal justice system are well documented, however, it appears the lack of progress in resolving those contentions has led to the adoption by the AU Assembly, of the withdrawal strategy document. At first instance, this move might tempt one to envision doom and gloom for the continent, let alone the international criminal justice system. However, when one considers the strategy in its entirety, not all is lost, in fact, one could argue that the strategy is a reflection of the glass being half full as opposed to being half empty.  

The withdrawal strategy is a separate document that was adopted within the AU Assembly decision on the ICC. The decision does not provide any details about the contents of the strategy but simply adopts it. The withdrawal strategy document itself, which is on file with the author, seems to detail its main objective, as the achievement of equity in the application and enforcement of global justice in order to enable the establishment and development of a regionalised system of international criminal law. In order to achieve this, the strategy details two avenues, firstly, by way of legal and institutional strategies such as the implementation of the amendments to the Rome Statute; reform of the UNSC; strengthening national criminal justice mechanisms of member states; ratification of the Malabo protocol as well as increasing African representation in the ICC. The second avenue contained in the withdrawal strategy document entails political strategies which involve engagement with the UNSC, Assembly of  State Parties (ASP) and the ICC´s Office of the Prosecutor (OTP) among others. Given the already long struggle by the African group of states for UNSC reform, it would seem most of the legal and institutional strategies have already been in motion for a number of years but to no avail. Some of the main goals expected from the second approach comprising of political engagements include ensuring the withdrawal of the Sudan referral situation by the UNSC as well as ensuring that the permanent 5 members of the UNSC do not veto a resolution to that effect. Given the previous refusal by the UNSC to defer not only the Sudanese situation but also the Kenyan situation, it seems rather unrealistic to expect a change in stance.

Additionally, the withdrawal strategy acknowledges that collective withdrawals are not recognised by international law and alludes to the possibility of individual withdrawals by African states. The document does not in any way explicitly give instructions, nor a timeline for African states to collectively withdraw from the Rome statute. Instead, it outlines a comprehensive contextual (political and historical) background as well as the legal implications for individual African states, should they decide to trigger the withdrawal clause within the Rome Statute. Therefore, any inferences that claim that the adopted strategy implies “collective withdrawal” seems rather misleading as it gives the impression that a mass exodus of African states from the ICC has been triggered. Similarly, the title of the document, “withdrawal strategy” leads to misconceptions and has polarising undertones as it allows for the impression of a mass withdrawal to be created. For the most part, the document is actually rather constructive and puts into perspective some of the most contentious issues in the application of international criminal justice matters whilst calling for continuous dialogue in order to resolve the matters.

Legal implications of the ICC withdrawal strategy

Given that AU Assembly decisions are generally binding upon member states, which may be inferred from Article 23 (2) of the Constitutive Act, it means the decision on the ICC is legally binding. However, according to the 1971 ICJ advisory opinion on the presence of South Africa in Namibia (para. 114) the ICJ opined that the text of a resolution must be analysed in order to assess its binding nature and in that regard, non-mandatory language which does not create obligations for states nor affect their legal rights is non-binding. Since paragraph 8 of the decision simply adopts the withdrawal strategy and does not explicitly provide any instruction to member states, this implies that member states do not accrue any obligations from paragraph 8 of the decision. Consequently, the said withdrawal strategy, which is a separate document from the decision, is legally non-binding on AU member  states as it also creates no binding obligations upon AU member states. The withdrawal strategy can simply be equated to a political message, proposal or recommendation to African states. The Assembly´s adoption of the strategy on the other hand indicates that African leaders continue to be dissatisfied with the current international criminal justice system and might be running out of patience to continue in dialogue.

Given the lack of clear and concise instructions, timeline or repercussions upon non-compliance within the decision as well as the strategy document, each individual state still holds the sovereign right to individually decide and embark upon the withdrawal process as provided for by article 127 of the Rome Statute if they so wish. This implies that, should African states hypothetically individually decide to simultaneously withdraw from the ICC, there would be no new legal implications for  each withdrawing African state apart from those laid out by article 127 of the Rome Statute. 

Possibly due to the fact that the withdrawal strategy document was not circulated to state delegates before the AU Summit, it is my observation that the legal implications of the withdrawal strategy might still be unclear to member states. Additionally, the misleading title of the strategy might have triggered unnecessary panic. This might explain the 13 states which expressed reservations based on the fact that they viewed the strategy document as a violation of the principle of the sovereignty of states. Additionally, that the AU, not being a state and therefore lacking the capacity to ratify treaties, cannot adopt decisions that have implications on the membership of state parties to the ICC. This would be true if the withdrawal strategy was binding and if state parties risked facing sanctions upon non-compliance but the withdrawal strategy makes no such suggestion.

Friday, November 4, 2016

THE ICC AND THE AU: A CALL FOR DIALOGUE

Gambian President Yahyah Jammeh declares Gambia to Leave ICC

In the wake of recent news that Burundi, South Africa and now Gambia are to withdraw from the Rome statute of the ICC, there are, justifiably, tense moments among the legal and wider fraternity that constitutes the so called international criminal justice project: are the steps taken by these nations the beginnings of a mass walk-out by African states (which constitute the single largest continental membership bloc), and can the ICC survive an event of such proportions, or would such a walk-out even matter? The OTP’s Fatou Bensouda, herself a Gambian has already provided an answer to the latter question. In a typically dismissive fashion, she has noted that the ICC will march on regardless. However, a more politically grounded president of the ASP, Sidiki Kaba, has signaled that dialogue should be embraced by all parties to avert a potential disaster, and this is as it should be.

The prevailing narrative on the intended withdrawals and any further potential cases from Africa is the much repeated and equally robustly rebutted notion that the ICC is unfairly targeting African nations in its fight against global impunity, the so called African bias. Both sides of this argument have been so exhaustively prosecuted in contemporary legal and political discourse that any further pronouncements on the argument here would be rather futile. What I propose here is that the problem between the ICC and the disaffected African states lies quite outside of this oft repeated premise, and any attempts to understand it must look both to the attitude of the ICC and to the internal political dynamics of the states concerned.

SA. President Zuma Recently Implicated in State Capture Report
Accordingly, South Africa’s notification of its intention to withdraw has been linked by some to the difficulties surrounding the government after its own courts embarrassed it by declaring its reception of Al Bashir, the ICC’s most wanted fugitive, a breach of the law. The government’s own protestation that it had to choose between loyalty to the AU and pandering to the ICC rings hollow. However, the decision comes at a time when the composition and integrity of the current ANC leadership faces a mounting political existential threat: the prospect of damaging corruption revelations in a report on state capture by the outgoing public protector has sent Zuma’s government clutching for straws. Further, an apparently politically motivated and ill advised decision by the SA National Prosecuting Authority to go after the current finance minister has, as widely expected, ended in fiasco and reinforced perceptions of a Zuma government engaging in a witch-hunt. I venture to suggest that SA’s decision will eventually unravel as a poor attempt at political diversion with little if anything to do with the government’s official position and everything to do with Zuma and the ANC’s political calculus, and the SA opposition and civil society are likely to successfully petition the courts to declare it null and void on administrative procedural and constitutional grounds. Similarly, the Burundi and Gambia decisions must be understood within the context of their internal political dynamics. This does however not absolve the ICC from its role in building up the perception of bias towards African states. The ICC and in particular the OTP has by its attitude and political stance provided ammunition for local political players and given them enough reasons to legitimize their actions in front of their local supporters.

The ICC claims to be non-political (and only legal) when the opposite is clearly the case. More than anything else, it is its claim to being a purely legal entity that does not engage in any politics that exposes the ICC to claims of dishonesty and bias. A quick look at the actions of the ICC in Kenya, Uganda, and Ivory Coast for example reveals its political hand in at least three ways: overtly as when it engages in direct negotiations with Uganda in obtaining its self-referral; the ICC was thus effectively co-opted by Museveni in his personal pursuit of Kony et al, and bringing  the ICC dimension into the equation was meant to up the stakes against Kony and the Lord’s Resistance Army ; covertly when it gets itself inserted into and manipulated by local politics as we saw in the Ivory Coast situation where some political contestants sought to tip the balance of power in their favor by ‘accepting’ the sovereignty of the court while in actual fact putting their opponents away; and indirectly when its inaction and/or inefficiency with regards to prosecutorial decisions and case turnover creates cause for concern with serious ramifications on its legitimacy and universal acceptance. Thus, insisting that it is an institution concerned solely with the law while overtly making political considerations and allowing itself to be manipulated by politicians in furthering local political interests only serves to legitimize the anti-ICC crusade. This stance has simply straight-jacketed the ICC into a self-defeating legal formalism and held it back from engaging with the AU in a politically viable manner.