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I. AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS, AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS V GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, ORDER FOR PROVISIONAL MEASURES 25 MARCH 2011

Published online by Cambridge University Press:  17 August 2012

Eleni Polymenopoulou
Eleni Polymenopoulou
Affiliation:
Eleni.Polymenopoulou@brunel.ac.uk.
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Extract

Africa has been struggling for years to establish a mechanism of human rights protection comparable to other international and regional mechanisms. Illiteracy and the low standards of economic development and social welfare, especially in rural areas, as well as the absence of financial resources were certainly not the best grounds to build on. Moreover, as Nmehielle notes, the creation of a human rights mechanism in Africa was equally hinged on other questions, more controversial ones, such as the existence of the concept of ‘law’ and ‘rights’ in pre-colonial Africa.1 In this respect, a Western-style mechanism of human rights protection would be naturally perceived with suspicion, as a form of foreign intervention.

Type
Current Developments: International Courts And Tribunals
Information
International & Comparative Law Quarterly , Volume 61 , Issue 3 , July 2012 , pp. 767 - 775
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 Orlu Nmehielle, VO, The African Human Rights System: Its Laws, Practice, and Institutions (Martinus Nijhoff, The Hague, 2001) 1–17Google Scholar.

2 See analytically Bekker, G, ‘The African Court on Human and Peoples' Rights: Safeguarding the Interests of African States’ (2007) 51 JAfrL 1, 151–72Google Scholar.

3 Signed 9 June 1998 during the Assembly of Heads of States of the Organisation of African Unity (Summit of Ouagadougou) and entered into force upon signature by the required (art 30 of the Protocol) 15 Member States of the African Union, with the fifteenth being State of the Comoros 25 January 2004, see OAU Doc. (1998) OAU/LEG/EXP/AFCHPR/PROT (III).

4 Signed 27 June 1981, OAU doc (1982) CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 and entered into force 21 October 1986.

5 Stemmet, A, ‘A Future African Court for Human and Peoples' Rights and Domestic Human Rights Norms’ (1998) 23 SAfrYIL 233Google Scholar. Magliveras, K and Naldi, G, ‘Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights’ (1998) 16 NQHR 4, 431–56Google Scholar. See also Naldi, G and Magliveras, K, ‘The Proposed African Court on Human and Peoples' Rights: Evaluation and Comparison’, (1995) 9 AfrJIntl&CompL 944Google Scholar.

6 See VO Orlu Nmehielle (n 1) 165ff; Bekker, G, ‘Recent Developments in the African Human Rights System 2008–09’ (2009) 9 HRLRev 668Google Scholar.

7 See van der Mei, AP, ‘Τhe New African Court on Human and Peoples' Rights: Towards an Effective Human Rights Protection Mechanism for Africa?’ (2005) 18 LJIL 113–29CrossRefGoogle Scholar; also Wachira, GM, African Court on Human and Peoples' Rights: Ten years on and still no justice (UNHCR, London, 2008)Google Scholar available on the website of the UN High Commissioner for Refugees <www.unhcr.org/refworld/pdfid/48e4763c2.pdf> accessed 5 October 2011.

8 See Ouguergouz, F, The African Charter of Human and Peoples' Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (Martinus Nijhoff, The Hague, 1993) 715ffGoogle Scholar. At present, unfortunately, only Mali, Burkina Faso, Malawi, Tanzania and Ghana allow petitions by individuals and NGOs before the Court under art 5(3) of the Protocol that provides that ‘[t]he Court may entitle relevant NGOs with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol’ and this is one of the dark spots in the Court's functioning. Further, in the meeting of 18 April 2008, the Ministers of Justice of the States of the African Union clarified that individuals would be allowed to lodge applications before the Court only in the case that the State party had previously an explicit statement that it allows applications. Complaints about violations of applications in the rest of the States are thus transferred to the Court by the African Commission, whilst art 5(1) of the Protocol, which allows, nevertheless intergovernmental organizations to lodge applications, as well as Inter-State petitions, has until now, not been applied.

9 Protocol to the summit of representatives of the African Union, Sharm El-Sheikh, Egypt, 1 July 2008. For these new developments, see mainly the article of the Judge and former President of the Court Niyungeko, G, ‘La Cour africaine des droits de l'homme et des peuples: défis et perspectives’, (2009) 79 Revue Trimestrielle des Droits de l'Homme 171Google Scholar (in French).

10 African Commission of Human and Peoples' Rights v Great Socialist Libyan Arab Jamahiriya, Order for Provisional Measures, 25 March 2011, App no 004/2011, para 1.

11 S Nakhoul, ‘Analysis: Gaddafi collapse will embolden Arab rebels’, Reuters, 22 August 2011 at <http://www.reuters.com/article/2011/08/22/us-libya-gaddafi-arab-idUSTRE77L1TX20110822> accessed 25 September 2011.

12 The complaint was based on arts 55 and 56 of the African Charter and art 102 of the Code of Justice. The full version is available at <http://www.interights.org/news/4/index.html> accessed 25 September 2011. In the same session, which took place in Banjul, Gambia, on the 1 March 2011, the Commission condemned among others ‘the divisionist speeches of the Head of State, Mouammar El Gaddafi, and the bloody reprisal by the Government … against its own population’ and called upon the African Union and the international community to assume its responsibility. See ACHPR/RES.181(EXT.OS/IX)2011: Resolution on the human rights situation in The Great Socialist Peoples' Libyan Arab Jamahiriya, CADHP/RES.181(EXT.OS/IX)2011, available at <http://www.achpr.org/sessions/9th-eo/resolutions/181/> accessed 25 September 2011.

13 ibid 7–8.

14 African Commission v Libya, Provisional Measures, para 1.

15 Demonstrations took place also in other cities of Libya: Al-Baida, Ajdabiya, Zayiwa and Derna in the eastern part of Libya.

16 ibid para 3.

17 The judges sitting at the Court at that time were: Dr. Gérard Niyungeko (Burundi, President of the Court), Sophia AB Akuffo (Vice President, Ghana), Jean Mutsinzi (Rwanda), Bernard Makgabo Ngoepe (South Africa), Modibo Tounty Guindo (Mali), Fatsah Ouguergouz (Algeria), Joseph Mulenga, Augustino Ramadhani (Tanzania), Duncan Tambala (Malawi), Elsie Thompson (Nigeria) and Sylvain Oré (Ivory Coast).

18 African Commission v Libya, Provisional Measures para 2.

19 ibid para 3; see also n 13.

20 ibid paras 4–7.

21 ibid paras 8–12. Art 27(2) provides that ‘in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.’

22 ibid para 13.

23 ibid paras 15–19.

24 ibid paras 20, 22.

25 ibid para 21. See the press release of February 23, available in English and French on the African Union website at <http://www.au.int/fr/content/communiqu%C3%A9-du-cps-sur-la-situation-en-libye> accessed 25 September 2011.

26 ibid. ‘La Ligue arabe appelle l'ONU à autoriser une zone d'exclusion aérienne en Libye’, Le Monde, 12 March 2011 <http://www.lemonde.fr/proche-orient/article/2011/03/12/libye-le-regime-maintient-la-pression-la-ligue-arabe-reunie-au-caire_1492097_3218.html> accessed 5 October 2011. It should be also noted that Libya is a member of both the Arab League and the Organization of the Islamic Cooperation.

27 ibid. UN SC Res 1973 (26 February 2011).

28 ibid.

29 ibid para 25.

30 This case had enormous participation of NGOs and the mechanism of protection of rights was initiated in large part thanks to them via lobbying strategies and the order against the Libyan Jamahirya was understandably seen by NGOs as great success. For example, Clive Baldwin, counsel of the organization Human Rights Watch said this was a ‘key decision’ for the protection of Human Rights; Rebecca Wright, from the Egyptian Association for the Protection of Human Rights stressed that this was an extremely important development for the African system of the protection of rights, while Joanne Sawyer from Interights, also described the decision as a ‘very positive step’. See the website of the NGO Interights: <http://www.interights.org/news/4/index.html> accessed 25 September 2011.

31 See art 5(3) of the Banjul charter (n 8); art 6(1) of the Nouakchott draft protocol which states that the Court may entitle NGOs with an Observer Status before the African Commission. See also F Ouguergouz, (n 8) 513–14 for the number of NGOs who are granted observer status (the author submits that in May 2001, this number was as high as 258) and the subsequent problems, idem, 514 note 1775.

32 Paris Principles of 1992, Resolution 1992/54 of the Commission on Human Rights and Resolution A/RES/48/134 of 20 December 1993 UN General Assembly. See also recent academic initiatives to highlight the role of organizations in human rights protection, for instance the Colloquium Actors, Collective Strategies and the European Field of Human Rights (Council of Europe, Strasbourg, 21–22 June 2010).

33 See F Ouguergouz, (n 8) 20–5.

34 Habré was qualified as the ‘Pinochet africain’ and the only hope to give justice to his victims today remains with the NGOs who advocate his extradition to Belgium; see <http://www.rnw.nl/international-justice/article/african-union-press-senegal-extradite-habr%C3%A9> accessed 5 October 2011. See Ondo, T, ‘Réflexions sur la responsabilité pénale internationale du Chef d'Etat africain’ (2007) 1 Revue Trimestrielle des droits de l'Homme, 153–209Google Scholar and (n 43).

35 As it has been the case in the past with many trials, detentions, tortures etc. In the field of freedom of expression for instance, see International Pen and Others v Nigeria, African Commission on Human and Peoples' Rights, Comm nos 137/94, 139/94, 154/96 and 161/97 (1998).

36 See F Ouguergouz, (n 8) 513ff.

37 ie, the ‘Coalition for an Effective African Court’ network.

38 African Commission v Libya, provisional measures, para 2. Article 37 of the Interim Rules of the Court provides that ‘[t]he State Party against which an application has been filed shall respond thereto within sixty (60) days provided that the Court may, if the need arises, grant an extension of time.’

39 ibid para 2: ‘immediately refrain from any action that would result in loss of life or violation of physical integrity of persons’.

40 Protocol of the Banjul Charter, art 3.

41 A good illustration of these obstacles is the procedure of the establishment of the Court itself. Indeed, the idea of establishing the Court goes back to 1961: promoted initially with enthusiasm by the Geneva-based International Jurists Commission during an international meeting (held in Lagos, Nigeria), no further actions were undertaken. See International Jurists Commission, ‘African Conference on the Rule of Law’, Lagos, 3–7 January 1961, Proceedings of the Meeting (1961). See also generally M'Baye, Kéba, Droits de l'Homme et des peuples en Afrique et la Charte africaine, (Éditions de la Commission Internationale des Juristes, Geneva, 1986); F Ouguergouz (n 8) 19–48Google Scholar.

42 From the Assembly of the African Union held in Khartoum in January 2006.

43 Yogogombaye c. République du Sénégal, n°001/2008, 15 December 2009 and (n 34).

44 See for instance McInerney-Lankford, S, ‘Human Rights and Development: a Comment on Challenges and Opportunities from a Legal Perspective’ (2009) 1 Journal of Human Rights Practice 1, 51–82CrossRefGoogle Scholar.

45 See the status on submission of State initial/periodic reports to the African Commission in May 2010, available at <http://www.achpr.org/states/reports-and-concluding-observations/> accessed 10 October 2011.

46 See the final statement of the 49th cycle of meetings of the Commission in Banjul 28 April – 12 May 2011.

47 See ie the events organized in the Republic of Mozambique in August 2011; the lectures in Kampala, Uganda, in July 2011; the lecture of the Court's President Mr. Niyungeko in Pretoria in July 2011; the Conference on promotion of the Court in collaboration with the Government of the Republic of Malawi in March 2011, etc. See for additional information and details on the Commission's website <http://www.nanhri.org/index.php?option=com_content&task=view&id=7&Itemid=2> accessed 5 October 2011.

48 UN Doc A/RES/65/265 (3 March 2011) (n 27).

49 See n 25.

50 See n 26.

51 See also the Press Release of the Organisation of Islamic States available on <http://www.oic-oci.org/topic_detail.asp?t_id=5090&x_key=> accessed 5 Οctober 2011: … «tout en préservant les potentialités et les acquis du peuple libyen» (in French).

52 See on the case and three warrants of 27 June 2011, the ICC's internet site <http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/> (accessed 5 Οctober 2011.

53 See Murray, R, ‘The African Court on Human and Peoples' Rights’ Order for Provisional Measures against Libya: Greater Promise for Implementation of Human Rights in Africa?’ (2011) 4 EHRLR 464Google Scholar.

54 African Commission of Human and Peoples' Rights v Great Socialist Libyan Arab Jamahiriya, order, App No 004/2011, judgment 16 June 2011, 4, para 10.

55 It is required under art 32 of the Protocol that ‘expenses of the Court, emoluments and allowances for judges and the budget of its registry, shall be determined and borne by the OAU, in accordance with criteria laid down by the OAU in consultation with the Court’. Equally, art 33 of the Banjul Charter establishes that the Commissioners ‘are elected by the Assembly of Heads of State and Government of the Organisation of African Unity’.