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Repression in Bahrain: The End of Any Hope for an Effective Arab Court of Human Rights?

Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law; Visiting Scholar at iCourts, University of Copenhagen

While the world’s eyes were on Nice and Turkey last weekend, Sunday 17 July brought more bad news from farther south: in Bahrain the ruling Al Khalifa monarchical regime had dissolved the country’s largest opposition group, Al Wefaq. A final rending of the increasingly threadbare pretence at reform, initiated after the regime’s brutal response to the ‘Pearl uprising’ of 2011, the move is the coup de grâce of a month-long crackdown that has removed any remaining outlet for channelling the grievances of the many citizens and grassroots activists seeking real reform in this small kingdom. As Brian Dooley puts it:

Meaningful avenues for people to air grievances are now essentially closed. Can you organize a political group to raise concerns with the regime? No. Tweet peaceful criticism of the government? No. Make a speech calling for reform? No. Visit the United Nations in Geneva to ask for international help? Go to U.S. universities like Stanford or Columbia to promote free speech and religious tolerance? Tear a picture of the king? Give medical help to injured protestors? No, no, no, no.[1]

Beyond the central plight of ordinary people struggling under the stifling control of a tiny élite, this turn toward starker repression also matters because Bahrain is the planned seat of the Arab Court of Human Rights, which is reportedly close to establishment.[2]

Achieving agreement to have the Court of Human Rights stationed in Manama, the Bahraini capital, was already viewed by many observers as just one element in the Bahraini regime’s aims to improve its international image and present a veneer of political reform while generally carrying on with business as usual–in a state ‘where the ruling family commands seriously abusive security forces and dominates a highly politicized justice system’.[3] The Court was itself viewed as seriously flawed: condemned by the Egyptian international lawyer Mahmoud Cherif Bassiouni as a ‘Potemkin Tribunal’,[4] it is envisaged to operate largely on an inter-state basis, with no access for individuals or NGOs. There is potential for government interference with judicial appointments, insufficient protections for applicants and witnesses, and an absence of enforcement mechanisms. The International Commission of Jurists had already opined that the Court’s Statute does not establish a ‘genuine human rights court’[5] and in its Tunis Declaration of 2015 set out significant revisions required for an effective institution.[6] The Arab Charter–the regional bill of rights to be interpreted by the Court–is also viewed as deficient; not least its ‘clawback clauses’ permitting restriction of freedom of thought, conscience and religion, so long as they are ‘provided for by law’ (Art. 30).[7]

And yet, there was hope. Earlier this year, Salem Alshehri had spoken of the Court as a ‘dream come true’ for citizens of Arab states, which ‘will go a long way towards ensuring that the rights of the Arab people are respected’.[8] This may have been overstating it, but amongst the eternal optimists there was some lingering sense that maybe–just maybe–the Court might overcome some of its significant impediments and at least provide symbolic succour to those seeking reform across the Arab League’s 21 member states.[9] After all, the African Court on Human and Peoples’ Rights has issued a string of assertive decisions in recent years, diminishing the ‘clawback clauses’ in the African Charter of Human and Peoples’ Rights and showing clear willingness to declare Charter violations–including key judgments against its host state, Tanzania.[10] Despite having no express jurisdiction to hear human rights cases, the East African Court of Justice (EACJ) (also based in Tanzania until its permanent seat is decided) has found a workaround by using the principles of the ‘rule of law’ and ‘good governance’ in order to address rights violations.[11] The European Court of Human Rights developed for two decades in a France that resisted acceding to its authority–only finally submitting to the Court’s jurisdiction in 1974 and permitting individual petitions in 1981.[12]

However, the challenges facing the Arab Court are of a far greater magnitude. Tanzania may be far from a model democracy, and France and Costa Rica (the seat of the Inter-American Court of Human Rights) have their own human rights problems, but Bahrain is now in a club of some of the most repressive regimes on earth. The result is that the new Court will come into being in a city where individuals are actively silenced, where protesters as young as 13 are routinely tortured,[13] and where the finer words of the Arab Charter ring resoundingly hollow. Even if it takes an assertive stance, how long before such a court steps on the toes of its hosts (or a regional heavy hitter such as Egypt) and, like other international courts before it (particularly the South African Development Community (SADC) Tribunal), is suspended or dismantled? It is hard to see how we can hold out any continued hope for this Court. It would be better that it is not established.

Suggested Citation: Tom Gerald Daly, Repression in Bahrain: The End of Any Hope for an Effective Arab Court of Human Rights?, Int’l J. Const. L. Blog, July 22, 2016, at: http://www.iconnectblog.com/2016/07/repression-in-bahrain-the-end-of-any-hope-for-an-effective-arab-court-of-human-rights


[1] B Dooley, ‘What Today’s Abolition of Bahraini Opposition Group Means for the Kingdom and the United States’, Human Rights First 17 July 2016 <http://www.humanrightsfirst.org/blog/what-today-s-abolition-bahraini-opposition-party-al-wefaq-means-kingdom-and-united-states>.

[2] ‘Plan to establish Arab Court of Human Rights in final stage’ Arab News 23 February 2016 <http://www.arabnews.com/saudi-arabia/news/884921>.

[3] J Stork, ‘New Arab Human Rights Court is Doomed from the Start’ International Business Times 26 November 2014 <http://www.ibtimes.co.uk/new-arab-human-rights-court-protects-rulers-doomed-fail-1476728>.

[4] R Lowe, ‘Bassiouni: New Arab Court for Human Rights is fake ‘Potemkin tribunal’’ International Bar Association 1 October 2014 <http://www.ibanet.org/Article/Detail.aspx?ArticleUid=c64f 9646-15a5-4624-8c07-bae9d9ac42df>.

[5] Lowe ibid.

[6] See <http://icj2.wpengine.com/wp-content/uploads/2015/05/MENA-Arab-Court-Tunis-Declaration-Advocacy-2015-ENG.pdf>. See also ICJ, The Arab Court of Human Rights: A Flawed Statute for an Ineffective Court (8 April 2015) <http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2015/04/MENA-Arab-Court-of-Human-Rights-Publications-Report-2015-ENG.pdf>.

[7] M Rishmawi, ‘The Arab Charter on Human Rights and the League of Arab States: An Update’ (2010) 10 Human Rights Law Review 169, 171.

[8] S Alshehri, ‘An Arab Court of Human Rights: The Dream Desired’ (2016) 30 Arab Law Quarterly 34, 34, 50

[9] Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Tunisia, United Arab Emirates (UAE) and Yemen. Syria’s membership of the League was suspended in 2011 in response to its brutal response to pro-democracy protests.

[10] See Tanganyika Law Society v Tanzania App. 009/2011 and 011/2011 (14 June 2013); Thomas v Tanzania App. 005/2013 (20 November 2015); and Abubakari v Tanzania, App. 007/2013 (3 June 2016).

[11] See, in particular, Katabazi v Secretary General of the East African Community, Ref. No. 1 of 2007 (1 November 2007); and Sebalu v Secretary General of the East African Community, Ref. No. 1 of 2010 (30 June 2011).

[12] M Rask Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’. iCourts Working Paper Series, No. 20, 2015 12.

[13] See <https://www.amnesty.org.uk/press-releases/bahrain-children-young-13-being-detained-and-tortured-routine-basis-new-briefing>.

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Published on July 22, 2016
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