INTRODUCTION

In writing about Africa and the International Criminal Court (ICC) over the past two decades, the temptation to allude to Epic narratives has been ever-present, and one in particular has haunted our collective reflections on the subject. We have written about ‘stormy years’, ‘being caught between Scylla and Charybdis’ and on more than one occasion, an early draft has had the phrase ‘the Odyssey continues’ lurking somewhere in the text, if not the title. Recently, employing Homer's Epic became more difficult, as the Odyssey appeared to be headed towards a precipitous and premature end when African states started making plans for their collective withdrawal from the Rome Statute. While threats of a mass withdrawal have simmered – in the end only Burundi followed through (South Africa demurred) – there seems to be little hope of a rapprochement. In fact, recent developments in the Afghanistan situation suggest another storm might be on the horizon.

On reflection, in our writings at least, it has been unclear who was steering the ship: was the hero of the story the ICC navigating the waters (and avoiding the Siren calls) of international politics, or were African states navigating the waters of international law? In this chapter we want to focus specifically on the role that the ICC has played, not as hero but as protagonist, in Africa over the past two decades. We do so, jumping mythologies, with the intention of neither burying nor praising the ICC, but in order to reflect critically on the role it has played in the demise of this once promising relationship, and we consider whether the story might have turned out differently (or might yet still). For, while much of the blame is currently placed solely at the feet of African states and their hostility towards specific investigations (particularly against heads of state), this chapter aims to show that: (1) the fractures within this relationship have come about as a result of the actions (and inactions) of the ICC and its supporters; and (2) as far as African states’ complaints are concerned, these were general concerns they had about the ICC that were present at its founding in 1998, and these concerns have come to be realised, for the worse, with each passing year.

INTRODUCTION

In international criminal justice circles, as between international law academics, and over discussions between government officials within and outside Africa, one theme dominated June of 2015: SouthAfrica's decision to host President Omar Al-Bashir of Sudan who had been invited to attend the African Union (AU) Summit in SouthAfrica.

The ingredients for drama were all there. First, Al-Bashir is a suspected international criminal wanted for an unholy trinity of crimes – genocide, war crimes and crimes against humanity. Second, SouthAfrica is a leading African democracy whic his a member of the International Criminal Court. Third, Al-Bashir's rumoured presence at the summit turned into a reality as images of him standing alongside President Zuma and other African leaders were beamed around the world. Fourth, ANC spin doctors and government spokespersons proclaimed that SouthAfrica was obliged to honour the AU's call to respect Al-Bashir's immunity as a head of state. Fifth, and perhaps quite significantly, urgent court action was mobilised by civil society to ensure his arrest. Sixth, contradictory accounts were given by government lawyers to the Court about his continued presence in SouthAfrica, and controversially, while the Court was ordering that he not leave SouthAfrica, he was in fact leaving under protection of a blue light brigade allegedly courtesy of the SouthAfrican government.

As one hears the back and forthbetween legal luminaries, academics, judges and politicians, the debate is reduced to one about competing obligations. The argument goes that regarding AU member states that are also states parties to the Rome Statute, there would appear to be a conflict between the binding obligations imposed by the Rome Statute and the binding obligations imposed by the Decisions of the AU. Given that there are obligations that pull in two different directions, the argument (by those attempting to justify SouthAfrica's behaviour) is that SouthAfrica can't be blamed for how it dealt withAl-Bashir's visit – since it was caught in a norm conflict.

The suggestion is that SouthAfrica was a rabbit caught in the headlights (one beam shone from the ICC demanding arrest; the other light lasering in from the AU demanding respect for Al-Bashir's immunity).

INTRODUCTION

During the immediate post-apartheid period, much legal discourse in South Africa focused on the promise, set out in the country's new democratic constitution, of a better life for all South Africans. In light of South Africa's dark history under colonialism and apartheid, it is perhaps not surprising that much legal and scholarly discourse was, and still is, imbued with a sense of optimism that the constitutional project on which the country has embarked will eventually secure true dignity and substantive equality for the majority of South Africans. It is difficult to dispute the great strides that have been made in many areas of social life in the country, from the delivery of housing, water and electricity to hundreds of thousands of poor households, to the promotion and protection of the dignity of minority groups, through groundbreaking measures such as the recognition of gay marriages. In no small part, many of the important advances brought about in pursuance of substantive equality and true dignity for all South Africans have been due to the enlightened and impressive jurisprudence developed by the South African Constitutional Court since 1995.

Despite all the achievements of the post-apartheid period, however, it is the contention of this chapter that dissonant notes are increasingly being sounded within the legal and scholarly discourse referred to above. An alternative legal discourse has begun to emerge which is far more critical of South Africa's constitutional project and its prospects for success. In some cases, this alternative legal discourse seems to draw inspiration from the broad traditions of the critical left and appears, to us, to resonate with the broad approach adopted by the Critical Legal Studies (CLS) Movement which was popular during the 1970s and 1980s. It is the purpose of this chapter to trace various elements of the emerging critical discourse, making use of a CLS-inspired approach. Among the broad questions posed by this chapter is whether or not post-apartheid South Africa, in particular its legal system and new constitutional order, has lived up to the expectations of those who struggled for so long to end the apartheid system.

In this collection of essays, we bring together the reflections of some of South Africa's leading scholars on a number of aspects of South Africa's transition to democracy and the country's efforts at ‘nation-building’ since 1994, and set them in comparative and historical perspective with the addition of some international contributions.

Last week, South Africans mourned the passing of former President Nelson Mandela and celebrated his long and remarkable lifetime of struggle, commitment and service. In April 2014, South Africa will mark the elapse of twenty years since its first democratic elections. These significant events in the life of the country and its people are generating both internal and international deliberation on the current state of the nation.

The range of topics included in this volume is deliberately broader than one might conventionally expect to find in a book published in a series on transitional justice. We take the view (as Catherine Jenkins argues in Chapter 1) that the narrower definitions of transitional justice to which we have become accustomed, which focus heavily on accountability for past crimes, are accidents of history, based largely on the origins of the battle against impunity in the relatively wealthy and developed countries of Latin America. In our view, these definitions of transitional justice are inadequate and inappropriate for most African states, in which deep and widespread poverty is a major concern and democratic institutions and processes may never have been firmly rooted. For these countries, the concept of justice in transition must, we suggest, be wider, reflecting the demand for both bread and freedom and the need for extensive reform and institution-building. In the case of South Africa, the constant references in political discourse since 1994 to the need for ‘nation-building’ and ‘transformation’ reflect both the enormity of the legacy of apartheid and the daunting scale of the socio-economic undertaking facing post-apartheid South Africa. In the light of South Africa's commitment to a new constitutional dispensation and to legal regulation, we have chosen to give a particular focus to the ways in which law and lawyers have played a role in social and political change since the early 1990s, though the contributions in the volume are not exclusively from scholars with a disciplinary background in law.

THE MAGNITUDE AND MULTITUDE OF GROSS HUMAN RIGHTS ABUSES

This book must start with a confession and an apology.

First the confession. A work such as this is not able to do justice to a topic as broad as that set out in the title i.e. reparations for gross human rights abuses. The main focus of this book, the central shocking social fact which gives rise to all the nuanced legal and political debates discussed in this work, is that human beings are capable of treating other human beings with unspeakable cruelty. If this book has a heart, it lies in the recognition of the fact that both ancient and recent human history is littered with examples of widespread and gross violations of human rights. These violations, serious outrages to humanity, continue in places such as Darfur in the Sudan, the Democratic Republic of the Congo, and Iraq, even as this work is being written. The sheer extent of the past and present abuses of human rights makes it impossible for the topic of reparations for such abuses to be dealt with in one short book.

Then the apology. This book is an eclectic mix of perspectives, dealing with a range of specific widespread abuses, which occurred at different times in various parts of the world. Because of the nature of the book, it deals with gross human rights abuses in a highly selective and somewhat arbitrary manner. And because this work deals selectively with only a small fraction of the wide range of gross human rights abuses which have taken place during the relatively recent past it is appropriate that an apology be offered at this early stage of the book. The reader should not lose sight of the broader picture of human suffering captured in the phrase ‘gross human rights abuses’. As Michael Osborne (whose chapter on reparations for apartheid is included in this book at pages 231-293) writes: ‘Fundamental human rights continue to be violated with impunity almost everywhere. The human rights revolution is not just unfinished. In a sense, it has yet to attain material reality’.

INTRODUCTION

Around two centuries ago the anti-slavery movement of the 19th century campaigned to abolish the slave trade that had become a part of ‘civilised’ European and American life. While the anti-slavers and their movement achieved victory in their campaign to outlaw slavery and the trade, a new campaign is currently underway. That crusade – driven by a group that I shall term ‘reparationists’ – is for compensatory justice for the acts of slavery committed in previous centuries. The stakes in this crusade are high, and the issues are controversial.

This chapter discusses reparation for slavery as a vehicle for broader discussion about reparation claims for past injustices. The perspective is that of an international lawyer. In the context of slavery reparation, as is the case with many other contexts involving reparation claims for mass atrocities, international law principles are engaged and often expressly relied upon. As we shall see in the slavery context, for instance, African States are claiming reparation against Western States, and are casting their claims in the language of international law – State responsibility, crimes against humanity, genocide – and calling for reparation in the form of restitution, compensation, and/or satisfaction, terms that are reflected in the international law rules on State responsibility.

Although I express my doubts about the viability of a claim for reparation for slavery from within the current international law paradigm of State responsibility, a brief discussion of the international law on responsibility remains relevant. The paradigm provides the frame of reference for any slavery reparation claim, and indeed, the forms of reparation that exist in the legal paradigm are the forms of retributive and compensatory justice which reparationists argue for when pursuing their claims. Because of the weaknesses identified in respect of legal claims for slavery reparation, as an alternative I have considered ways in which political strategies might be employed to achieve reparation. In so doing, I have considered the difficulties that face slavery reparationists in their attempts to secure reparation (in its various forms). While there are no firm answers, the suggestion here is that the topic of reparations requires creative and strategic thinking.

In our introductory chapter to this work we state that, if this book has a heart, it lies in the recognition of the fact that both ancient and recent human history is littered with examples of widespread and gross violations of human rights. Appalling violations of fundamental human rights continue to be perpetrated in the present day. Despite the enduring and widespread nature of gross human rights violations, however, it is an unfortunate fact that, of the millions of people whose lives have been shattered by torture, rape, the murder of loved ones, or other gross violations of their human rights, only a tiny fraction have any hope of receiving any meaningful form of reparation.

This book may be regarded as a single modest attempt to address the problem outlined above. It is our hope that the individual chapters contained in this book will stimulate debate on the issue of reparations, and that this debate will lead to increased visibility for the many deserving groups striving for some form of meaningful recognition or recompense for past injustices visited upon them.

We do not claim that this book covers the field of reparations in a comprehensive or systematic way. Rather, it is eclectic in nature, due to the diverse areas of interest and expertise of the various contributing authors. Therefore, it should be regarded as a work designed to stimulate debate on a number of themes pertinent to the important topic of reparations, rather than as a text book which sets out to describe an entire field of study. The book is intended for practitioners and other human rights experts who are engaged in the struggle for reparations for gross human rights abuses.

This is a truly international work. As editors we are grateful to have collaborated with a range of outstanding academics and practitioners from around the world, whose individual chapters form the fabric of the book. We have not sought to sensor the, at times robust, political and legal opinions of the various authors, but point out that the views and opinions expressed by the authors are not necessarily those of the editors of this book. Our heartfelt thanks are due to each of the authors.