New Arab Human Rights Court is Doomed from the Start

In September 2014 a ministerial meeting of the Arab League approved the statute of a future Arab Court for Human Rights. It will be several years before the court is ready to formally open its doors but it's not too early to evaluate whether the court is likely to be part of the human rights solution in the Arab world - or part of the problem.

The idea of a regional human rights court in the Arab Middle East is of course attractive. In a region where officials enjoy impunity galore despite serious abuses, such a court could provide a chance to press for some degree of accountability. It's been a decade since the Arab Charter set out the important rights people of the Middle East should expect to have, including freedom from torture, equality before the law, and the right to liberty and security.

But unlike its equivalent in Africa, Europe and the Americas, the Arab Charter on Human Rights has no court to interpret and enforce it and therefore remains, largely, a paper document.

A robust regional court could finally bring the Arab Charter to life and start enforcing rights, rather than just defining them. So it's a terrible shame that the court will be hobbled from the get-go by its statute, which is deeply flawed. Because it lacks the fundamental attributes of independence and professionalism, it will likely prove impossible to deliver justice. Rather than building an institution that would help hold abusive governments in check, it looks instead like Arab states have created just one more screen with which to shield one another from any accountability.

Consider how successive drafts of the statute got worse over time, not better. A draft statute that Human Rights Watch reviewed early in 2014 allowed individuals to file complaints with the court – a pretty basic requirement for a system that is supposed to deal with violations of individual rights. But at a meeting about the court in late May, Arab League officials presented a "final" draft that had been changed so that only member states themselves – not individuals or non-governmental organisations - can file complaints.

This glaring omission led to Cherif Bassiouni, the prominent Arab lawyer and war crimes expert, to dismiss the court as little more than a "Potemkin tribunal".

The absurd provision that only states can bring complaints undercuts the very reason for setting up a human rights court in the first place, and simply perpetuates impunity. It is clear from decades of experience that states rarely, if ever, make use of interstate complaints procedures.

Other regional courts – the European Court of Human Rights and the African Commission and Court of Human and People's Rights, for instance – sensibly provide for individual and independent NGO complaints. Indeed, several Arab North African states are also members of the African Union and thus the African Commission, and an Egyptian rights organisation has gotten favorable decisions from the African Commission in response to complaints it filed.

Then consider the League's decision to base the court in Bahrain – a country where the ruling family commands seriously abusive security forces and dominates a highly politicised justice system.

This was agreed without, it seems, securing any assurances that Bahrain will respect the rights guaranteed in the Arab Charter. When Bahrain's King Hamad proposed setting up the court back in 2011, it was part of a wider public relations campaign to persuade the international community that Bahrain, in the wake of its high-profile crackdown on pro-democracy protesters, was serious about political reform.

Even the brief history of the proposed court, much like the defective statute, confirms suspicions that the agenda of many Arab states is to drape themselves in a cloak of human rights respectability without impinging on their capacity for abuse in any way.

When Arab League member states appointed a committee of experts to prepare a first draft of the statute, the identities of these experts and the committee's procedures were never made public. There was also almost no consultation with civil society – in direct contrast to the kind of transparency that should have been built into the process.

More than two dozen Arab and international human rights organisations nevertheless tried to engage with the Arab League and member states to promote a court that would instill better protections and redress for victims of abuse, and encourage accountability too. But their very credible efforts were simply brushed aside.

On 4 November the Arab League website announced that the statute is now open for signature and will come into force a year after at least seven states have ratified the treaty. It will be interesting to see which states ratify the statute with alacrity, and why.

When the court eventually does open, it is certain to frustrate efforts to protect human rights. An independent, credible court could have been an opportunity to start holding governments accountable to the human rights standards they sign up to, and help forge a common understanding of what protecting these rights should look like on the ground. But for now, at least, that opportunity has been squandered.

Joe Stork is deputy director of Human Rights Watch's Middle East and North Africa division. To find out more about HRW's work, please visit the group's website or Twitter feed.