UPDATE, September 24, 2009
“SADC Executive Secretary Tomaz Salamao told VOA that Harare’s move to repudiate the tribunal has been referred to the ministers of justice of the regional bloc’s member nations who have been asked to provide legal guidance to SADC heads of state.”
I know, I know. “Not another rant about international courts and why they are so fantastic,” you say. Well, fooled you. I am not going to defend international tribunals as a concept or theory. It’s been done to death. However, I am asserting that if you are going to go through all the bother and effort of establishing an adjudicating body, setting up rules and procedures, selecting judges, hiring staff and building a brand spanking new courthouse, maybe you should first make sure the tribunal has the proper legal authority to try cases at all.
The Tribunal was established in 1992 as an institution of the Southern Africa Development Community’s (SADC) originating Treaty and was sworn in November 2005. It has jurisdiction over disputes between SADC States or disputes between persons and member States; but in order for a person to bring a case before the court, they have to have exhausted all legal options first in that State. Since the Tribunal received its first case in 2007, five suits have been filed; two contract claims against SADC, a contract claim against Zanzibar and two cases against the government of Zimbabwe.
And now we come to the crux of the issue. One case against Zimbabwe deals with demands for compensation for injuries suffered as a result of political violence and is still pending. The other case, Campbell v Republic of Zimbabwe, is a land seizure case decided in May 2008. The Tribunal determined that the plaintiff’s farms were illegally seized by the government and the plaintiffs were owed compensation. In the course of litigation, the plaintiffs were granted orders demanding that the government cease expulsions from the farms under litigation. Not only did the government of Zimbabwe not comply with the cease and desist order, it failed to comply with the final decision in Campbell. Now, Zimbabwe is saying that the tribunal has no force and refuses to recognize it as a legitimate body of legal authority. Thus, it can ignore decisions on any pending or decided cases.
SADC itself was established by an overarching treaty that contains language stating a tribunal will exist. The structure, rules etc of the Tribunal were then laid out by a Protocol to that Treaty. Zimbabwe’s argument hinges upon ratification of that Protocol; to enter into force, it required ratification by two-thirds of the SADC member States. Not only has Zimbabwe itself not ratified the Protocol, only five SADC members have ratified thus far.
The problem is contradictory language. Zimbabwe Human Rights NGO Forum argues the SADC Treaty states the tribunal is exempt from the requirement that all protocols be ratified by two-thirds of member States. Therefore, the Tribunal became a binding legal authority when the SADC Treaty was ratified. However, the Protocol itself states that it requires two-thirds ratification to take effect. Under international law, the Treaty should trump an underlying Protocol; getting that in writing is a different story.
So what are the options? SADC’s annual summit convenes this week. SADC can expel Zimbabwe for non-compliance, but if it wasn’t expelled following the election violence of last year it is unlikely to expel it for a breach of the SADC Treaty that is arguably not a breach at all. SADC can push for ratification at the Summit to close this loophole, however Zimbabwe can still say the Tribunal had no binding force until such time as the ratification process is complete and still claim cases decided prior to that time are nullified. If SADC does not ratify the Protocol, there is nowhere Mike Campbell or future potential plaintiffs seeking to sue any party at the Tribunal can turn to for redress as there is no higher applicable legal authority. The court for the African Union, the African Court on Human and People’s Rights is not functioning.
So what does all this mean? It means Campbell was awarded a hollow victory. It means one more instance where Zimbabwe eludes the rule of law, although this time its due to sloppy language creating a loophole large enough to drive a legal train wreck through. It means future litigants have no recourse. It means SADC needs to step up and get its act together. It means the SADC Tribunal is in the same league as the Inter-American Court of Human Rights, the ECOWAS Community Court, the International Criminal Court etc in struggling for legitimacy and compliance with its jurisprudence. On the other hand, the US Supreme Court had the same problem once upon a time and seems to do okay now. I always try to end on a glass half full note.
On a side note, the Campbell farm was burnt to the ground yesterday including crops and a linen factory, destroying the livelihoods and housing for over 60 people. An independent documentary, Mugabe and the White African, detailing the Campbell’s legal battle in the SADC tribunal is also showing in limited locations.
A new Amnesty International report about the recent conflict in Gaza concludes that Israel wantonly destroyed civilian infrastructure in Gaza, which could not be justified on grounds of “military necessity”. More than 3,000 homes were destroyed and some 20,000 damaged in Israeli attacks which reduced entire neighbourhoods of Gaza to rubble and left an already dire economic situation in ruins.
Hamas and other Palestinian armed groups fired hundreds of rockets into southern Israel, killing three Israeli civilians, injuring scores and driving thousands from their homes. These kind of attacks are indiscriminate and are thus clearly in violation of international law.
Another key finding of the report is that there is no evidence that Palestinian armed groups used civilians as “human shields”.
The Israeli navy intercepted, boarded, and took control of a Greek cargo ship carrying foreign peace activists, including former US congresswoman Cynthia McKinney and Nobel prize winner Mairead Maguire. Their ship was carrying humanitarian aid cargo for the residents of Gaza.
The Israeli military instilled a blockade June 2007 in Gaza; a response to the rise in power of Hamas. Since then, the sanctions have made it incredibly difficult to get the bare essentials to the population, such as food, fuel, and medicine.
Israeli senior officials yesterday said that Israel is open to a 3-6 month complete settlement freeze (including natural growth) in order to allow for Palestinian negotiations to take place. Officials asked they not be named, as the issue is so “explosive” within Israel that they do not wish to be associated with the idea yet.
Despite the officials’ claims, Israeli Defense Minister Ehud Barak, who meets with US envoy George Mitchell this week, has shied away from the subject, saying “the matter mentioned in the headlines has not been finalized.”
This freeze, however, would allow for existing settlement construction to continue. Currently, over 2000 new buildings are under construction across the Palestinian West Bank. While not meeting US calls for a complete freeze, a brief halt to new settlements is indicative of the Israeli desire to move on from the current tension between the two countries.
Settlements are illegal under International Law. Last month, President Obama and Secretary Clinton made vocal requests for Israel to completely end its creation of new settlements in the West Bank.
The Middle East Quartet are set to meet this Friday, June 26, in Trieste, Italy. The meeting comes at a critical time with hopes of re-starting peace negotiations between Israel and the Palestinian Authority. President Obama has repeatedly stated his position that the Jewish only settlements in both the West Bank and east Jerusalem are ‘illegitimate’ to the chagrin of Israeli officials use to a ‘nudge nudge wink wink’ policy where they do what they want concerning settlement activities while the U.S. looks the other way. This tacit behavior was the norm during past administrations. The U.S. position on the illegitimacy of settlements is in line with international law and international consensus which has long viewed settlements as illegal. Israeli authorities, including Prime Minister Benyamin Netanyahu, have repeatedly stated their intentions to continue what they call ‘natural growth’ building.
Secretary of State Hillary Clinton heads to Trieste soon and AIUSA has sent a letter to her and cc’d Special Envoy to the Middle East George Mitchell urging her to stand firm in the U.S. position on a complete settlement freeze and also containing a few more pressing concerns that we hope Sec’y Clinton remembers in discussions with other members of the Quartet (the EU, the UN and Russia).
The letter to Clinton not only re-iterates the illegality of the Jewish-only settlements in the Occupied Palestinian Territories, but outlines the effect that settlements have had and are having on the local Palestinians living there. Not only have settlements negatively impacted the Palestinians’ standard of living, housing, education, health and work, but are inherently discriminatory in nature. Settlements, land surrounding settlements and by-pass roads built for easy commutes to Israel are exclusively for Israelis. Not only is water accessed in the OPT being re-directed to settlers and Israel at a 4:1 ratio, security measures taken by Israel, including over 600 roadblocks, checkpoints and the wall/fence much of which is being built on Palestinian territory have long been detrimental to any peace negotiations.
AIUSA believes previous attempts at resolving the conflict failed in part because they did not address these key issues. And actions must include more than just dismantling recently established settlements, referred to as “unauthorized outposts”. Israel should never have transferred its civilian population into the OPT and given that successive Israeli governments have consistently encouraged Israeli civilians to move to the OPT, Israeli authorities should now provide compensation for settler evacuations and assist them to re-settle. A study conducted by Shalom Achshav (Peace Now) in 2003 found that the majority of Israelis living in settlements would re-locate if offered an adequate economic incentive.
The letter also addresses our continuing concerns about human rights violations in areas under Palestinian Authority control despite training provided under the leadership of Lt. General Keith Dayton, U.S. Security Coordinator for Israel and the Palestinian Authority. Arbitrary detentions, disregard for due process and ill-treatment and torture of detainees in PA detention centers continue to be reported.
We asked that these issues be raised and that U.S. training of PA security forces results in a professional force that respects human rights while providing security.
UPDATE 6/26/09: Ha’aretz, an Israeli daily, published ‘Quartet to urge Israel: Freeze all settlement activity’. A European diplomat said that the Quartet would tell Israel Friday to put a freeze on all settlement activity, including “natural growth”.
Palestinian land was declared ’state lands’ recently by Israel to expand the settlement of Efrat, near Bethlehem. This announcement was made just two weeks before Secretary of State is due to meet with newly elected government officials in Israel.
Settlements aren’t only illegal under international law, but are at odds with American policy. Former Secretary of State Condoleezza Rice repeatedly made trips to Israel, often having to repeatedly condemn settlement activity.
Settlements are an impediment to peace, but also a catalyst for human rights violations including (but not limited to) evictions and home demolitions. Often Palestinian lands are confiscated for direct construction or ‘security reasons’ created by settlement expansion and water confiscation and shortages are a major issue.
B’tselem video on water shortages due to settlement activity:
The expansion of Efrat specifically threatens the environs of Bethlehem such as the Hope Flowers School which is supported by peace groups and churches here in the US. Back in 2007, the BBC wrote a story already alluding to the expansion of Efrat saying,
“Officials say the order was issued because the cafeteria [at Hope Flowers School] was built without a permit, but staff believe it is to make way for the expansion of the adjacent Jewish settlement of Efrat.”
Special Envoy George Mitchell strongly condemned illegal Israeli settlements in his report in 2001 calling on Israel to freeze all settlement activity. President Obama made overtures to the Arab world and showed that he is willing to listen and show respect for their perspectives and human rights
But, will Sec’y Clinton, when she’s in Israel this March, go farther than parroting diplomatic sound bites? Will there be any constructive pressure put upon the parties to move forward, adhere to international law and prior peace agreements or will she continue to spout empty words like Sec’y Rice?
The new administration and Congress should take the necessary measures to ensure accountability and remedy for human rights violations committed by or at the instigation of the USA, including by, among other things:
Setting up an independent commission of inquiry into all aspects of the USA’s detention and interrogation policies and practices since 11 September 2001.
Ensuring that all allegations of particular violations of individuals’ rights under international human rights or humanitarian law are thoroughly and effectively investigated.
Ensuring that all those responsible for crimes under international law are brought to justice, including through criminal prosecution with sentences that take account of the grave nature of the acts concerned.
Tuesday, 27 January: Under the Geneva Conventions, medical personnel searching, collecting, transporting or treating the wounded should be protected and respected in all circumstances. Common Article 3 of the Conventions says that the wounded should be collected and cared for, including combatants who are hors de combat.
These provisions of international law have not been respected during the recent three-week conflict in the Gaza Strip. Emergency medical rescue workers, including doctors, paramedics and ambulance drivers, repeatedly came under fire from Israeli forces while they were carrying out their duties. At least seven were killed and more than 20 were injured while they were transporting or attempting to collect the wounded and the dead.
In one case Arafa Hani Abd-al-Dayam, a paramedic, was killed by flechettes, tiny metal darts packed 5-8,000 to a shell, which should never be used in civilian areas (see yesterday’s post).
On 4 January 2009, an ambulance arrived about 15 minutes after a missile strike in Beit Lahiya that apparently targeted five unarmed young men. It was hit a few minutes later by a tank shell filled with flechettes.
Two paramedics were seriously wounded in the incident. One of them, Arafa Hani Abd-al-Dayam, later died. Examining the wall of the shop beside where the ambulance had been, we found it pierced by hundreds of these darts.
In another case, three paramedics in their mid 20s – Anas Fadhel Na’im, Yaser Kamal Shbeir, and Raf’at Abd al-‘Al – were killed in the early afternoon of 4 January in Gaza City as they walked through a small field on their way to rescue two wounded men in a nearby orchard. A 12-year-old boy, Omar Ahmad al-Barade’e, who was standing near his home indicating to the paramedic the place where the wounded were, was also killed in the same strike.
After the four were killed in the missile strike, their bodies could not be removed for two days as the ambulances crews who tried to approach the site again came under fire from Israeli forces and could not approach.
In yet another case, on 12 January, several ambulances arrived rapidly after a six-storey apartment building had been hit by two missiles. Local residents were already trying to evacuate bodies of wounded and dead from the upper floors.
Dr Issa Abdel Rahim Saleh and a paramedic, Ahmad Abdel Bari Abu Foul, were the first emergency medical workers at the scene and started evacuating the wounded. However, as they climbed down the stairs between the sixth and fifth floor an Israeli tank shell came through a window, slicing through the head and body of Dr Saleh who was standing on the landing.
With several ambulances in the street below, and paramedics plainly visible by their phosphorescent jackets, it must have been clear to the Israeli surveillance drones hovering above the area and the tank crews a few kilometres away in the Jabal Raiss area that there were medics in the house, yet they fired nevertheless.
– Originally posted to Livewire by Donatella Rovera, Middle East & North Africa Researcher at the International Secretariat of Amnesty International in London
Amnesty International works to protect human rights worldwide. We have more than 2.2 million supporters, activists and volunteers in over 150 countries, and are completely independent from government, corporate or national interests.
Learn more about us at AmnestyUSA.org »
Cristina Finch nch currently serves as a government relations director for Amnesty International USA (AIUSA) and as an adjunct law professor at George Mason University School of Law. At AIUSA, Cristina focuses on economic, social and cultural rights, multilateral issues, and women’s human rights. Prior to joining AIUSA in October 2009, Cristina served as senior counsel to the Human Rights Campaign (HRC) from 2005 to 2009. Her work focused on lobbying and advising Congress on human rights issues including hate crimes, immigration, military, judicial nominations, work/family legislation, and the separation of church and state. Before HRC, she served as legislative counsel to Congressman Alcee Hastings (D-FL); as house legal counsel to the Congress of the Republic of Palau; as a litigation associate at the law firm Thiemann, Aitken and Vohra; and, as a fellow at the U.S. Department of State. Cristina is also a former AIUSA intern. She holds a JD from George Mason, and a BA from the University of Michigan. See all »
Tuesday, 27 January: Under the 
