Global Policy Forum

By Cesare P.R. Romano *

New African court

Sunday was a milestone in the history of Africa and the international protection of human rights. It marked the entry into force of the protocol for the establishment of the African Court on Human and Peoples' Rights. After Europe and the Americas, Africa will be the third continent with a regional court to bindingly adjudicate human rights violations. Yet one crucial insight gained from a century of establishing international courts and tribunals is that while it is essential to keep momentum, there is no second chance to do it right. The African protocol was signed in 1998 by more than 20 states, but until the end of 2002 only a handful had ratified it in their national parliaments. In 2003, several more states, each for independent reasons, decided to join. The fact that Libya, an influential member of the African Union , decided to change its foreign policy tack and improve its international standing gave the final and sudden impetus. The birth of an African human rights court is to be feted. Yet its launch should be deliberate, not rushed, or it risks foundering in the docks. In Africa, the process is progressing at a startling, and worrying, pace. Nominations for the first bench are due by the end of April, with the aim of holding elections at the African Union summit in Addis Ababa starting July 5. Past experience teaches that once the judges have been appointed and the rules of procedure adopted, they are there to stay - with all their faults and shortcomings. Building sound international judicial bodies takes time and resources, and a lot of support. It took more than four years from the adoption of the Rome Statute to the appointment of the judges of the International Criminal Court, and endless meetings and travail to establish the tribunal. It required a massive effort both by the United Nations, several major countries and hundreds of NGOs and think tanks.

Admittedly, sometimes time is a luxury. The International Criminal Tribunal for the former Yugoslavia and the one for Rwanda, established on the spur of ongoing heinous crimes, opened shop in less than a year. However, the price of the rush has been evident. As cases started flowing in, the statute and the rules of procedure had to be patched on the fly. The statute of the Yugoslavia tribunal has been amended four times, and the rules of procedure no less than 27 times. Figures for the Rwanda tribunal are only slightly better. That is a poor record for courts of law. The tinkering was possible because there was consensus in the UN Security Council on the need not to stall these trials. But most of the time it is simply impossible to find the majority and support necessary to modify the statutes and rules of procedure of international courts and tribunals. They are documents that, time and again, have shown themselves remarkably resistant to change. To be effective, courts need to be independent from political power. But this can only be achieved if the right conditions are created from the onset. Selection of adequate candidates for judicial appointment is key. In the European human-rights system the process takes place by involving civil society at large and through the severe scrutiny of the Parliamentary Assembly of the Council of Europe. It is only through an open and transparent process that the best candidates, those who give the greatest guarantees of independence, can be identified. That takes time. Moreover, the first bench of any international court is fundamental, as it is typically entrusted to those judges to prepare and adopt a series of other key documents, such as rules of procedure, internal regulations and financial regulations. As the ICC experience teaches, appointment of judges is only the last step of a long preparatory work. African heads of state would be better off discussing in Addis Ababa where the court will be located and, even more critically, how it will be financed, rather than rushing to nominate judges of a forum that is still largely on the drawing board. Africa needs a strong human rights court that commands respect by African states and governments. Fifty years after Europe and 25 years after the Americas, it is about to attain that. To do it right, it can take a few more months.

About the Author: Cesare P.R. Romano is assistant director of the Project on International Courts and Tribunals, and an associate of the Center on International Cooperation, New York University

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