Lawfare in South Africa: The "Obama Docket"

By John Bellinger
Friday, July 5, 2013, 1:59 PM

Although President Obama's visit to South Africa went off uneventfully, it is worth reporting belatedly that the Muslim Lawyers Association in South Africa had filed an application with a South African court to have Obama arrested and prosecuted for war crimes.   The MLA set forth its allegations in a 600-page "Obama Docket,"  including charges of indiscriminate killing of civilians by drones, continued detention without trial of persons at Guantanamo Bay and other detention facilities, and unlawful renditions.

According to press reports, the North Gauteng High Court declined to hear the application before Obama's visit because the matter was not sufficiently "urgent."   In a press release, the MLA stated that it "remains undeterred in its resolve to pursue all legal avenues to expose the past and ongoing War Crimes, Crimes Against Humanity and Genocide committed by Obama and his administration and is committed to have him brought before a South African court of law or the International Criminal Court to answer the allegations contained in the 'Obama Docket.'"

So, should Administration lawyers worry about the "Obama Docket"?    Will war crimes charges against President Obama be an anomaly, or will the Administration see more of them in its second term?

Such charges against U.S. officials -- even if considered sensational or frivolous -- may explain why Obama Administration lawyers have remained cautious about encouraging human rights litigation against foreign government officials in the United States.  Many human rights litigators and academics had expected the Administration to be more supportive of human rights lawsuits, and to oppose immunity for foreign government officials, in the United States.   Their position is perfectly understandable, if not laudable, from their own policy perspective of promoting accountability for international human rights violations, but they have not explained how State, Justice, and Defense Department lawyers -- who are, of course, lawyers for their own clients -- can both encourage "good" human rights lawsuits inside the United States while discouraging "bad" lawsuits against President Obama or other executive branch officials outside the United States.