SA’s different universe of human rights

Has Zuma switched off the light of human rights that used to guide SA foreign policy?

Has the South African government’s controversial decision to withdraw from the International Criminal Court (ICC) taken the country’s foreign policy irrevocably into a new ‘post-human rights’ era, under President Jacob Zuma? Or is Pretoria’s commitment to human rights just as strong as ever – except that all along it’s been rather different ‘human rights’ from how most people understand the term?

This week, the Centre for Conflict Resolution (CCR) held a seminar on the ever-thorny question of ‘Human Rights Challenges in South Africa’s Foreign Policy,’ following Pretoria’s announcement that it would withdraw from the ICC next year.

Dr Chris Landsberg, professor of African diplomacy and foreign policy at the University of Johannesburg, addressed the broader dilemmas of South African’s foreign policy.

He said for 20 years, the African National Congress government had been trying ‘to square the circle,’ to reconcile Mandela’s promise in 1993 that human rights would be the guiding light of South Africa’s foreign policy; with the country’s national interest.

That had grown steadily more difficult as the gap between its rhetorical commitment to human rights and the competing demands of realpolitik grew ever wider.

Finally, on 15 June last year, the tension snapped when the North Gauteng High Court judged that Pretoria had broken the law by not arresting ICC fugitive, Sudanese President Omar al-Bashir, when he was in South Africa. Pretoria discovered on that day ‘that declaring good intentions is not good enough.

Human rights have become just another terrain of the geo-political and ideological struggle

‘People might take you up on it… and catch you out, as the courts did,’ said Landsberg. And with his decision to pull out of the court, Landsberg said President Jacob Zuma had finally taken South Africa into a ‘post-human rights era.’

Landsberg seemed to suggest this had always been inevitable, and that for South Africa to continue proclaiming the priority of human rights in foreign policy would simply have been to set itself up for more failure.

Henceforth, South Africa should rather focus its foreign policy on applying its experience and expertise in the political settlement of disputes and its contribution – already considerable – as a norms and values ‘entrepreneur’, for instance through the African Peer Review Mechanism – rather than the pursuit of human rights.

Rather oddly, while Landsberg was chronicling this seemingly inevitable decline of South Africa’s human rights policy, his neighbour on the podium, Ebrahim Saley – the deputy director-general for global governance and the continental agenda in the Department of International Relations and Cooperation, was ‘reaffirming the centrality of human rights in our foreign policy,’ quoting his minister Maite Nkoana-Mashabane, speaking in Parliament on 3 May this year.

Of Mandela’s SA, we surely expected more, a fulsome defence of all human rights

Was Saley simply out of date? Had he missed the important memo, announcing the end of the human rights era? Or was he just being a hypocrite?

Neither of the above, you realised, when you heard the rest of his speech. It was just that he was talking about a rather different universe of ‘human rights’ from the one Landsberg was describing.

He was talking almost exclusively about economic, social and cultural rights, rather than civil and political rights. He was advocating, in essence, the right to development rather than the rights to free expression, free press, free assembly and more generally, the rights to life and freedom from oppression. In other words – the rights that most people think of when one talks of ‘human rights.’

Saley recalled how South Africa had led the campaign at the United Nations (UN) Human Rights Commission – now Council – in Geneva to adopt its landmark resolution on the Right to Development.

He also described, at length, how South Africa had ratified the International Covenant on Economic, Social and Cultural Rights in January 2015, had deployed an expert to the Committee on Economic, Social and Cultural Rights (CESCR); and was continuing its advocacy for the elaboration of a Convention on the Right to Development.

Why the dichotomy between ‘human rights’ and ‘the national interest’?

He also emphasised South Africa’s participation in campaigns against racism and colonialism.

When Saley sailed close to professing support for something like the classic human rights, it was the violation of these rights by Western governments and corporations that he referred to.

He noted that South Africa was currently involved in efforts at the UN Human Rights Council to hold transnational corporations and other business enterprises, private military and security companies and extractive industries accountable for abuses of human rights and humanitarian law.

Saley said that the council’s credibility had been harmed by its ‘unbalanced’ handling of issues arising from the ‘so-called open ended war on terror’ including ‘secret’ detention centres such as Guantanamo Bay and extra-judicial, summary and arbitrary executions, torture and enforced disappearances.

He accused ‘some countries’ (read, The West) of practising double standards in the UN Human Rights Council for focusing solely on human rights abuses in Africa and the Middle East and neglecting such abuses, and the right to self-determination in other places like Western Sahara and Palestine.

South Africa squanders this part of its post-1994 identity at its own peril

Human Right Watch has, conversely, accused South Africa itself of double standards at the Human Rights Council, noting how for the past few years it has abstained from every resolution condemning human rights abuses in other places – including Syria, Belarus, North Korea, Iran and Sri Lanka. Yet it has consistently voted for every one of the many resolutions condemning Israel.

This year too, South Africa abstained from two other important human rights resolutions at the Human Rights Council; one to protect people from violence on the basis of their sexual orientation; and another to extend the universally accepted rights to free expression, into the Internet.

Champions of the ICC and of South Africa’s obligation to advance classic human rights in its foreign policy more generally, point out this obligation is firmly grounded in our exemplary constitution.

Saley, in a sense, had an answer to them too, when he noted that South Africa’s promotion of economic, social and cultural rights at the UN was likewise founded on the Constitutional Court’s decisions to uphold those rights in cases like Soobramoney (health), Grootboom (housing) and the Treatment Action Campaign (access to affordable drugs) vs the South African Government.

In the end, it is clear that for South Africa – as for most others, it seems – in the UN and elsewhere, human rights have become just another terrain of the geo-political and ideological struggle.

Of many others, we might have expected this. But of Mandela’s South Africa, we surely expected more, a fulsome defence of all the human rights – political, civil, economic, social and cultural – wherever they are threatened. Why choose among them?

And why the dichotomy between ‘human rights’ and ‘the national interest’ anyway? For South Africa, especially, advancing all those rights everywhere is surely in ‘the national interest.’ It’s an essential part of the country’s post-1994 identity and we squander it at our peril.

Peter Fabricius, ISS Consultant

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