The upcoming Arab League summit in Egypt on March 28–29 will mark the 70th anniversary of the organization’s founding. On the agenda will be reform of the League itself, as many believe its initial post-war role as a pan-Arab institution to confront the colonial legacies of its states has left it ill-equipped to address growing disunity and the collapse of several of its members, from Libya to Yemen, Syria, and Iraq. In this context, a major question looming over the summit will be how to achieve accountability for the gross human rights violations, transnational sectarian violence, and humanitarian crises left in the wake of the region’s growing instability.
Part of the League’s answer to the question has been the proposed establishment of a human rights court to provide a common judicial mechanism to respond to the region’s needs. The court, to be housed in Bahrain, will become operational if seven states ratify its recently adopted statute. The court’s jurisdiction would rest within the framework of the Arab human rights system, namely the 2008 Arab Charter on Human Rights. It is intended to provide redress for human rights abuses among the League’s member states. Yet controversy and doubt surround the proposal. Regional and international human rights defenders claim the statute does not uphold international standards of human rights or guarantee the protection of procedural justice and due process.
The Arab League has a long-standing policy of non-interference, and this has at times hampered investigations of allegations of mass atrocities in the region—ranging from its lack of a significant role in the Gulf wars of 1990 and 2003 to its current uncoordinated stance on the Syrian crisis. There are some notable exceptions where the League interfered, including after the uprisings of 2011, when it voted to impose a no-fly zone over Libya and unsuccessfully called for Assad’s resignation in Syria. The League also supported the UN Security Council’s unanimous referral of Libya to the International Criminal Court (ICC) to try the crimes of Muammar Qaddafi. Although it ultimately failed to bring the former leader before the court, the League’s support marked a departure from its previous refusal to refer Sudan President Omar al-Bashir to the ICC in 2009. Yet these overtures are not enough to cause the international human rights community to overlook the continued abuse of human rights at the national level among many of the League’s member states and the fact that only four of the League’s 22 members have ratified the Rome Statute that established the ICC.
Still, the projected court has been the most prominent development to date to establish robust regional judicial oversight of human rights violations. Referring to three other existing regional human rights systems as models—the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and Peoples’ Rights—it has the potential to foster greater pan-Arab integration and provide an important formal commitment to international and regional human rights law. To do so, it will need to overcome the claim that it is merely an “empty gesture,” and address the criticism that many of the provisions in the Arab Charter on Human Rights, on which the court’s statute is based, fall short of international standards. Among the incompatibilities with international principles, a few of the key concerns include: the jurisdiction of the court; the admissibility of cases; the lack of an enforcement mechanism; and government interference in the selection process of judges.
The immediate challenge is to construct the legal basis on which the court will establish its jurisdiction. Similar to its European, Inter-American, and African regional counterparts, the court faces the sheer challenge of developing a supranational jurisprudence over a vast geographical area of diverse legal systems, though here they are also based on various codes combining the major legal traditions of both civil and Islamic bodies of law. At present, the decisions and judgments of the court will be solely informed by the Arab Charter on Human Rights. Though that document was drafted against the background of the United Nations’ Universal Declaration of Human Rights and two Covenants on civil, political, economic, social, and cultural rights—as well as the Cairo Declaration of Human Rights in Islam—its main provisions are far removed from international human rights standards due to their conservative interpretation of Islamic law and limitations on the rights of women, children, and freedom of speech, among others.
The lack of an individual complaints mechanism within the new court poses further problems. Where the other regional human rights courts mentioned are permitted to monitor, investigate, analyze, and decide on reports from individuals, groups of people, or NGOs that allege human rights violations by a state party, the Arab court would lack this capacity. Individuals would not be able to file petitions for violations committed by the state and the court would only handle state-to-state human rights disputes. It would not provide private litigant access nor allow NGOs and non-state actors to have legal standing before it, unless approved by a member state.
Under the current statute, the court would also lack an enforcement mechanism to compel compliance with its decisions, a void that has prompted skepticism from legal critics such as Mahmoud Cherif Bassiouni, one of the drafters of the original 1986 Arab Charter on Human Rights, who recently dismissed the proposed model as nothing more than a “Potemkin tribunal” and also decried the lack of individual access to the court.
Finally, the independence of the court could be imperiled by the selection process for judges, due to the possibility of government influence in the nomination of candidates to sit on the bench, thereby limiting their ability to fairly interpret and apply laws. The judges would risk a lack of impartiality and an inability to serve in individual capacities rather than as representatives of their nominating states, on which they would rely for the renewal of their five-year terms of tenure.
Louise Arbour, former UN High Commissioner for Human Rights, has in the past reminded critics that, while human rights are universal, “regional systems of promotion and protection can further help strengthen the enjoyment of human rights.” In this spirit, the Arab League would do well to amend the statute or adopt optional protocols to grant the jurisdiction needed to promote, protect, enforce, and monitor human rights regionally. Room remains for addressing the weaknesses in the statute, with a process for revision provided in the document’s Article 34. First and foremost, this could be achieved by seeking greater compatibility with international standards, taking the following examples from the evolution of regional human rights courts into account:
- As some legal scholars have argued, despite differences in scope and applications, the court could harmonize “the differences between international human rights law and Islamic law through the adoption of the ‘margin of appreciation’ doctrine,” or retaining room for maneuver in the interpretation and application of both bodies of law. This includes providing guarantees that such areas of legal complementarity will be clearly identified and provided for. For example, the jurisprudence of the European Court of Human Rights permits recourse to a margin of appreciation by national authorities.
- Allowing a mechanism for individual petitions, as was done by the European court, or adopting a “binary system” of maintaining a human rights commission alongside the court, and allowing this body to consider and refer individual cases, as was done with the Inter-American and African examples.
- Strengthening provisions related to the independence of the court and its judges, to ensure the recruitment of judges with high qualifications, as well as a transparent selection process and appropriate immunity from direct or indirect interference, using international standards such as the “UN Basic Principles on the Independence of the Judiciary” as a guide.
- Enabling the court to render decisions that are legally binding. Even though it would appear to have extensive formal power, the court’s binding and enforceable law would be minimal at present. Here the Arab League could learn from the African example and grant power to pass binding decisions on member states in situations of war crimes, genocide, and crimes against humanity.
As many human rights scholars have observed, the court’s foundation on the Arab Charter on Human Rights, though contentious, provides the “best opportunity in a generation” to advance human rights in the region, building upon the steady base of religion. Realizing this vision will require revisiting the proposed court’s statute and reforming the existing Arab human rights system to better comply with international standards. This may allow the victims of human rights violations in the region to finally have their day in court.