This afternoon began the first lengthy session of speeches from States Parties to the Assembly at the World Forum in The Hague. To no one’s surprise, many of the States took the opportunity to address the withdrawal of South Africa, Burundi, and the Gambia from the Court in their remarks and no doubt this will continue to be the case as the speeches continue tomorrow. Overwhelmingly the sentiment from the States who spoke, such as Australia, Canada, Colombia, the Republic of Korea and Slovakia (on behalf of the European Union), was one of regret. Regret that these three States have taken the step towards leaving the Court, rather than continue a dialogue within the Assembly of States Parties (ASP) about their concerns with the Court. Regret that these developments have flown in the face of efforts to see the Rome Statute be truly universal. Regret, because when States parties leave the court, the enforcement of international criminal law becomes harder.
Along with their expressions of regret, States were quick to note that these decisions to withdraw were nonetheless legal decisions by sovereign states, made following the rule set forth by Article 127 of the Rome Statute. They also urged dialogue with these States as well as other States who have expressed concerns in recent weeks and months. As the Representative from Ecuador stated, it is much better to be within an institution if you seek changes, rather than on the outside. However, most States were equally firm in stressing, that while open to and encouraging of dialogue, no compromise of the fundamental values of the Court would be had, they stressed that the integrity of the Court is of utmost importance. Perhaps the strongest voicing of this sentiment came from Switzerland, which declared it would rather have an effective ICC supported by many states, than a weakened court supported by all.
The specific content of these fundamental values was rarely elaborated upon by States; however, Italy clearly and unequivocally stated that the principle of irrelevance of official capacity in Art 27 remains the central pillar of the treaty adopted in Rome in 1998. Canada’s Minister of Foreign Affairs, Stéphane Dion, noted, with regard to Head of State immunity, that equality before and under the law is a bedrock principle of the Court. Finally, Costa Rica stressed that action against the perpetrators of genocide, war crimes, and crimes against humanity should be taken without consideration of the official status of the individual.
CONSTITUTIONAL COURT OF SOUTH AFRICA
INVITATION FOR APPLICATIONS FOR FOREIGN LAW CLERKS
The Justices of the Constitutional Court of South Africa are pleased to invite applications from outstanding recent law graduates and young lawyers interested in serving as foreign law clerks. Candidates may be appointed to start as soon as 1 July 2014.
South Africa continues to be regarded as one of the most intriguing and compelling examples of constitutionalism in the transition to democracy. Its Constitution is viewed as one of the world’s most progressive founding charters.
The Constitutional Court, the country’s highest court, is the guardian of that promise. It has, in a range of ground-breaking decisions, given content to the Constitution’s guarantees by, for instance, ruling the death penalty unconstitutional; upholding full equality for gay and lesbian people; declaring that resident non-citizens are entitled to social benefits; and ordering the government to make anti-retroviral treatment available to pregnant mothers living with HIV/AIDS.
A highly respected commentator, Justice Ruth Bader Ginsburg of the United States Supreme Court, stated the following in the context of a discussion of new democracies:
“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. . . . It really is, I think, a great piece of work that was done.”
More on the position, and instructions for applying, after the jump.
This post originally appeared on December 10, 2013, and is reposted now with minor editorial changes.
During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.—Nelson R. Mandela, 1964
Madiba is at peace. Our thoughts are with those he loved and with the people of South Africa for whom he gave his freedom and life. Lawyer, revolutionary, civil and human rights advocate, political prisoner, master political strategist, statesman, democratic political leader, Nobel Peace Prize laureate–a salute and gratitude to him for having dedicated his life to making positive social change for the people of South Africa and for the world. Yes, a single individual, working with dedicated social movements, can begin to change the world. His greatest legacy will be the continuing struggle for justice carried on by its peoples. We are not really ready for him to leave now. But we celebrate his extraordinary life and his singular impact on the world, nevertheless. Nothing more can be asked of him; a life truly well-lived.
We remember the violence and racism of the apartheid regime and the many who gave their lives and freedom to end it. But because of Mandela and other great leaders and activists, there are also all those unforgettable moments of inspiration and hope:
- Protests and arrests outside the apartheid regime’s embassies.
- Shantytowns on university campuses in solidarity with the people of South Africa.
- Free South Africa movement signs on the lawns of religious institutions across the globe.
- Artists and Athletes Against Apartheid and millions singing “Free, Nelson Mandela!”
- The U.S. Senate Override of President Reagan’s veto of the 1986 Anti-Apartheid Act.
- The Free South Africa Movement organized by TransAfrica and other groups in the 1970s, 1980s, and 1990s.
- Freed political prisoner Nelson R. Mandela and anti-apartheid activist Winnie Mandela walking hand in hand as Mandela was released from 27 years of imprisonment..
- The 1994 first democratic elections in South Africa, with miles-long lines of African people who had never previously been allowed to vote.
- President Mandela taking the oath of office.
- President Mandela stepping down from his term in office.
- The recognition and elaboration of social, economic, and cultural rights; the prohibition on the death penalty.
- The voices of ordinary witnesses testifying before the Truth and Reconciliation Commission.
- Mandela advocating for HIV/AIDS prevention and accessible treatment.
- Madiba and freedom fighter and lawyer Graca Machel finding friendship, political engagement, love, and companionship as he retired from public life.
Then, there was that smile. Some commentators interpret Mr. Mandela’s famous light up the room smile as “harmless” or “conciliatory.” To me it was a smile of joy at finally being able to spend time with his children and grandchildren and a smile at his own wry sense of humor that helped sustain him and his fellow prisoners for so many years. It was also a smile of expectation and transformation. For this iron-willed man, that smile challenged his former enemies, comrades, and admirers alike not simply to continue as before, but to transform–to become our best selves. It was a smile that said, “anything is possible, why don’t you try?”
God bless Madiba. God bless Africa. Amandla! Awethu!
In 1984, Mary Manning, an employee of Dunnes Stores, one of Ireland’s largest supermarkets, refused to check out an Outspan grapefruit. She was upholding a Union directive that none of its members would handle South African fruit or vegetables in protest to the apartheid regime. Manning was suspended immediately, bringing about a strike that was to last almost three years. The picketers lived on £21 a week for the duration of the strike, with some even losing their homes as a result. The strike ultimately ended in a ban imposed by the Irish government on the import of all products from apartheid South Africa. It is a fascinating chapter in the history of apartheid. In the words of one of the strikers: “Twelve workers got government to change the law. Even one person can make a change.”. There is a full interview with Cathryn O’Reilly, one of the Dunnes Stores workers, here. Some of Mary Manning’s thoughts on Mandela’s passing can be found here.
Each of us will remember Nelson Mandela, who died today at age 95, in our own way. Powerful for me is the memory of Mandela’s almost incomprehensible forgiveness – his setting-aside of violence in order to bring to all of his people the promise of peace. (credit for 1994 photo)
But I will also remember what a judge from Burundi once told me was Mandela’s greatest gift:
‘He was the first African leader to leave office after a single term, to permit a peaceful transition of power. He showed us the way.’
(Cross-posted from Diane Marie Amann)
In collaboration with the International Criminal Tribunal for Rwanda, the University of Johannesburg, South Africa, is hosting a conference on the legacy of the ICTR. The conference will be held on 31 October and 1 November 2013. It is envisaged that leading academics as well as judges, prosecutors, and defense counsel of the ICTR will present their views at the conference.
With the ICTR nearing its end, it becomes important to evaluate the successes and failures of the ICTR for the future of international criminal law. The conference will cover a wide variety of topics including: the Tribunal’s contribution to international law; transitional justice and reconciliation; and the challenges of international criminal prosecutions in Africa.
The organizers are currently calling for papers. A short abstract must reach email@example.com by May 24, 2013.
More information on the conference is available here.