The parochialism and pretence emanating from some South African human rights organisations – with their self-styled globalist mandates thinly veiled by the geopolitical mask of US state department financiers – draws the attention and ire of Ronald Suresh Roberts. Such is the bias and intellectual negligence among the liberal legal fraternity, he argues, that even the celebrity Angelina Jolie might have something to teach them.
What are the true stakes in the controversy over South Africa’s recent failure to arrest Sudanese strongman Omar al-Bashir? To understand these stakes clearly, one needs to grasp how completely the West has abandoned even the pretence and the aspiration of holding itself accountable, in some distant future, to the system of rules it already imposes upon credulous others.
The ANC’s recent resolution to withdraw from the International Criminal Court (ICC) becomes entirely justified, even inevitable, because the worm has turned for international human rights law and the West itself has done the turning. The old hope was that constant critique of Western double standards might trigger a change of heart and of practice – and also that, while awaiting this Western epiphany, the wretched of the earth would offer themselves, one-sidedly, as fodder for practices of accountability that do not apply to the West, with its vastly larger history of, and current resources for, violence.
This implausible hope was at least kept alive by such Western voices as that of Samantha Power, the Harvard human rights careerist, whose A Problem from Hell: America and the Age of Genocide was the gold standard in making the case for humanitarian intervention. It was published a year before the Iraq War, the launching of which you might think a Harvard human rights specialist emphatically opposed. Except she didn’t. At best, she equivocated, even making the head-scratching claim that one can only determine whether or not a conflict is a just war after the fact, never before.
The naive idealists of the rule of law have developed, over many decades, the touching habit of contrasting the rule of law with the rule of the jungle. Now Power has told us, with admirable bluntness, that the planet is merely Darwinian after all. “It’s a Darwinian universe here. If a particular body [the UN Security Council] reveals itself to be dysfunctional, then people are going to go elsewhere,” Power told the Guardian. “And if that happened for more than Syria and Ukraine and you started to see across the board paralysis… it would certainly jeopardise the Security Council’s status and credibility and its function as a go-to international security arbiter. It would definitely jeopardise that over time.”
When lawyers speak of “forum” shopping, they typically mean the cynical search for a forum that would be predisposed to agree with them. It is perceived to be sharp, rather than idealistic, practice. But not for Power, who mobilised it as a threat. As reported by the Guardian, Power “said that the US and other countries had increasingly been going elsewhere to have atrocities investigated, and that a ‘forum-shopping’ trend was likely to continue.”
What is South Africa doing, if not forum shopping, when it says it wants to close down African accountability to an ICC that has obsessed over African misdeeds and ignored the far more powerful and fateful Western atrocities of our era, most conspicuously the Iraq invasion?
Chase Madar, writing in Counterpunch several years ago, pointed out that “[as] a human rights entrepreneur who is also a tireless advocate of war, Samantha Power is not aberrant. Elite factions of the human-rights industry were long ago normalized within the tightly corseted spectrum of American foreign policy.” Which of course brings us to the local human rights entrepreneurs, not least the Southern African Litigation Centre (SALC) which initiated the case for the arrest of al-Bashir.
The SALC’s supposedly universalist and even-handed human rights pretensions took a vivid beating over the previously little-noticed fact that the centre has actually accepted US State Department funding. As Frances Stonor Saunders points out in Who Paid the Piper: the CIA and the Cultural Cold War (1999), a major problem with the old secret CIA propaganda projects that caused scandals in the 1960s was precisely their secrecy. The smartest US geopoliticians have long since understood that to announce the funding openly achieves the upside of influence without ever risking the downside of “secrecy” scandals.
Hence the brazen “transparency” of US meddling in the case of the NGO Freedom Now, headed by a former staffer of the SALC, Maran Turner. The US has actively lobbied and even tussled with countries, including South Africa, to get Freedom Now special consultative status at the United Nations! Why? Because Freedom Now has a “credible track record”, apparently. Meanwhile, Freedom Now’s self-styled “prisoners of conscience” agenda selectively skirts Guantanamo Bay and Abu Ghraib detainees. Guantanamo Bay cases “just do not fit within our very narrow mandate, while I note they are indeed matters deserving international human rights protections,” Turner said. The mandate is avowedly narrow, yet somehow credible.
The obvious problem for such organisations is that “credibility” with the US State Department is not the same as universal credibility. Hence, the human rights rubric of “universal” jurisdiction now looks ever more blatantly provincial.The question is not why South Africa might now pull back from the ICC, but why it has taken so long to see that it must?
This raises the underlying question: what exactly is this US-sponsored human rights gig, with its globalist veneer, really all about? The founder of the SALC, Nicole Fritz, has pushed back against allegations that the organisation was a shill for Western interests, but she has wholly failed to explain away the US State Department money. It creates an unambiguous appearance of bias, regardless of the subjective reality. There need be no ominous conspiracy.
The US, as Henry Kissinger and other foreign policy “realists” gamely admit, has long used human rights as a “tool” of self-interest in diplomacy. The former US president Franklin D. Roosevelt, who looms large among the founding spirits of United Nations, explicitly conceived that body as an instrument for US hegemony, within which “human rights” would be kept in their proper – meaning properly selective – place. The Nicaraguan dictator Anastacio Somoza may have been a “bastard”, Roosevelt himself famously reminded his own secretary of state, “but he’s our bastard”.
Local types like the SALC are useful idiots to the extent that they take too seriously the tantalising rhetoric of even-handedness, whereas in fact the design of the game, and even the funding of their work, is avowedly aslant. The point that global NGO idealism is too often servile to the Western military was long ago well made by Susan Sontag’s son, David Rieff, in A Bed for the Night: Humanitarianism in Crisis (2002). Groups like the SALC and Freedom Now have not yet read the memo.
The true logic of international human rights enforcement was set out with great clarity by Jessica T. Matthews, writing recently in the New York Review of Books: “Closely related to that debate is the argument over American exceptionalism. American contributions to international security, global economic growth, freedom, and human well-being have been so self-evidently unique and have been so clearly directed to others’ benefit that Americans have long believed that the US amounts to a different kind of country. Where others push their national interests, the US tries to advance universal principles. At its extreme, this reasoning holds that the US should not be bound by international rules, even those it has itself developed, but should occupy a position above the rest. In this view, it is in the world’s interest, not merely the American interest, for the US to do so.”
One only wonders why Matthews describes as “extreme” reasoning what is the actual and demonstrable and explicit bias, in fact, of international legal institutions and of Western functionaries such as Power. The South African lawfare lobby (George Bizos plus the SALC) freely admits that evenhanded prosecutions of Western and other rogues “ought” to occur, but then immediately insists that one-sided prosecutions of African rogues somehow remain legitimate in the interim (a seemingly endless interim, incidentally). This not only makes them de facto apologists for endless Western one-sidedness, but also estranges them from reasoned debate as from realism itself. They are at least a-rational, if not irrational, in this stance.
In this, the lawfare lobby evinces a 19th-century complacency, redolent of the time of imperial expansion and captured nicely when George Eliot wrote in her novel Middlemarch of a self-satisfied British gentleman: “Sir James Chettam paused. He did not usually find it easy to give his reasons: it seemed to him strange that people should not know them without being told, since he only felt what was reasonable…”
For those of us who trifle with actual reasons, as opposed to the unflappable faith in our own reasonableness, and so are not prepared to assume in advance that prosecutions are only and always reasonable, the core question remains: can criminal trials ever (let alone always) supply justice in its substantive, historic and economic forms?
The celebrity Angelina Jolie indeed answers, “yes”: she indeed insists that only justice-as-trials will ever meet the test of justice at large, but should this be enabled by serious or thinking people, let alone lawyers? Fritz, the founder of the SALC, actually has the following twitter handle: “Highbrow and low. Human rights and haute couture. The guardian and goop.” Goop being, for those not in the know, a website run by celebrity Gwyneth Paltrow that is criticised for “peddling an unrealistic luxury-filled lifestyle” such that, according to Rosamund Urwin in an otherwise sympathetic piece in the London Evening Standard, “Paltrow attracts the kind of online opprobrium usually reserved for dictators and child-murderers”.
While justice-as-retribution is fashionable among the well-heeled lawyer lot, the ANC has always pursued a substantive justice agenda, crisply articulated by former South African president Thabo Mbeki as “The Historical Injustice” (1978) and reiterated by Mbeki himself at the 2002 World Summit on Sustainable Development and afterwards, as a fight against “global apartheid” of rich and poor countries, white and black. The dismantling of global apartheid across a broad socio-economic front is hardly served by the revival or continuation of global apartheid inside the international justice systems, including the ICC.
In an Al Jazeera interview almost two years ago, Mbeki, who remains deeply and specifically engaged in the Sudanese dispute resolution processes, explained the obvious linkages between the South African and Sudanese experiences: he made the obvious point, recently repeated in the latest debates, that had people demanded the transportation of F.W. de Klerk to the Hague in 1994, “we would have said no, because [we knew] what you need to do is to end apartheid, and we need President de Klerk here to lead the white population into the democratic settlement. We would never have agreed that justice must trump this – even though we agreed that apartheid was a crime against humanity. Sure it was a crime against humanity, but we can deal with this matter of justice differently. This is the principal challenge that faces us.”
These realities cut against the grain of the self-righteous South African liberals, of whom Constitutional Court Justice Edwin Cameron is always a good example. Cameron used the platform of his recent Bram Fischer Memorial Lecture to characterise Fischer as one who “showed a moral pliability in the best tradition of Cecil Rhodes himself”. To the expressed chagrin of those who knew Fischer, Cameron opined, offensively, that “it was in his grander moral choices – of ideological system and affiliation – that questions arise about his moral resolution”.
All of this was motivated by Cameron’s desire to defend the idea that the rule of law under apartheid was not merely a fiction. Cameron’s complacency about the supposed role of principled legalism within apartheid atrocity aligns exactly with the new apologists for international law today. Legal liberalism was wrong under apartheid and is wrong in the international sphere, now.
George Eliot’s Middlemarch, was subtitled “A Study of Provincial Life”. And what we have is an increasingly parochial, even though globally dispersed and trivially fashionable, human rights orthodoxy. It is not a conspiracy, merely a kind of adolescent or cultural “cool” – a geeky version of something previously called “radical chic”, but less edgy.
To say, for instance, that Angelina Jolie glamourises military intervention and Western leadership seems unlikely, and yet there it is, as when she says of Joseph Kony in Uganda and al-Bashir in Sudan, “don’t let those who destroyed their countries decide the future of their countries”, adding that “there is no enduring peace without justice”, and then speaking of the necessity of Western “logistical support” for security in such countries. This is very far from the building of democracy, the hard slog of local initiative – or the negotiations among disputants that brought democracy to South Africa itself.
Let us turn, finally, from tragedy to farce. It is easy enough to urge invasions and trials when the consequences of failure fall upon dusky and faraway neighbourhoods and not in the fashionable backyards of the West itself. Watch, by contrast, what happens to this brand of celebrity activism when the refugees come pouring into Europe, as they are now doing, from the bombed and destabilised places that have seen Jolie-style humanitarian interventions over the past decade.
In the London Times Jolie writes as special envoy of the United Nations High Commission on Refugees with a co-author, Amrena Helic of the House of Lords, herself a former refugee from the 1990s war in Bosnia-Herzegovina. Jolie has suddenly learned a thing or two from the logic of dispute resolution, acknowledges “a wider crisis in global governance”, and suddenly has nothing to say of prosecution and invasion:
“However much we welcome refugees to our shores, the problem will grow so long as the conflict in Syria continues. We cannot donate our way out of the crisis, we cannot solve it simply by taking in refugees, we have to find a diplomatic route to end the conflict. It is staggering that since the beginning of the war in Syria, the United Nations Security Council has yet to visit the region, which many of us would see as an essential starting point for diplomacy…”
What is the root cause of the influx into Europe? Jolie concedes, suddenly sounding like Thabo Mbeki, “It is driven by a systemic failure to resolve conflicts.” Nothing focuses the fashionable mind, apparently, as do a few chickens coming home to roost within touching distance of the espresso bars. Now if only this could stream via Goop, to echo forth among the fashionable lawfaring folks of suburban and provincial South Africa.
This story features in the Chronic (April 2016), an edition in which we explore the tensions between reform and revolution, and decolonisation and the neoliberal order in the academy, through the lens of history and via the alternate education paradigms based in indigenous knowledge systems, and also arising from South Africa’s radical anti-apartheid struggle.
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