The African Court Issues Historic Decision Demanding An End To Libyan Aggression

Protesters urge European, UN support for the Libyan rebel movement. Courtesy of William Murphy.

On March 25, 2010, the African Court on Human and Peoples’ Rights ordered the Great Socialist People’s Libyan Arab Jamahiriya (Libya) to comply with provisional measures in response to reports of serious and widespread abuses of human rights enshrined in the African Charter on Human and Peoples’ Rights (Banjul Charter). The allegations relate to maneuvers by Muammar Gaddafi’s regime to violently suppress anti-government demonstrations by Libyan citizens. These demonstrations soon escalated into violent confrontation, and Libya is now enmeshed in an ongoing armed conflict between forces loyal to Gaddafi and the opposing rebel movement. In the provisional measures — similar to an interim injunction — the Court ordered the Gaddafi regime to “immediately refrain” from conduct in further breach of the Banjul Charter or any international human rights instruments to which Libya is also party. The Court additionally ordered that Libya report to the Court within fifteen days on the measures taken to implement the order. It is now a near certainty that Libya has received and opted to defy the Court’s order. The regime continues to ignore its obligations under the Banjul Charter in its efforts to suppress the conflict and regain its iron grip on power. Nonetheless, the order represents a historic step for the African Court, signaling that the African human rights system has embraced a proactive role in ending this conflict and holding the Gaddafi regime accountable for human rights violations committed against its own people. The order responded to an application brought by the African Commission on Human and Peoples’ Rights, alleging “serious and massive violations of human rights guaranteed under the [Banjul Charter].” Specifically, the application — itself based on successive complaints the Commission received about events in Libya — alleged breaches of Articles 1, 2, 4, 5, 9, 11, 12, 13, and 23 of the Charter, among them the rights to life and integrity, freedom of expression, assembly, participation in government, and national peace and security. The African Court is governed by its constitutive document, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Protocol), as well as its interim Rules of Court. Both Article 27(2) of the Protocol and Rule 51(1) of the Rules provide that in cases of “extreme gravity and urgency” involving imminent risk to human life, the Court may issue provisional measures propio motu (of its own accord) without first giving the State Party an opportunity to provide written pleadings or attend oral hearings. Here, the Court first made a prima facie determination of its jurisdiction, as required under Article 3(1) of the Protocol, based on Libya’s ratification of both the Charter and the Protocol and the Commission’s standing under Article 5(1)(a) of the Protocol to submit cases to the Court. Then, as permitted under Rule 51(2) for such urgent applications, the Court used what “reliable means” were available for its factual basis — in this instance, NGO communications contained in the application and the denunciations of other regional and universal human rights bodies. Despite the fact that Libya is unlikely to comply with the provisional measures, the Court’s order bodes well for the future, particularly as it demonstrates a collaborative relationship between the Commission and the Court. Since the Court’s formation, there has been some uncertainty regarding how the complementary relationship between the two organs, outlined in Article 2 of the Protocol, would function. In the Libyan circumstances, the Commission received complaints of a State Party’s serious and widespread breaches and filed a timely application amid the first signs of civil unrest; the Court in turn responded decisively and was early to recognize the potential escalation toward conflict in Libya. International responses have praised the Court’s order. The British Foreign and Commonwealth Office, for one, hailed it as a “strong and welcome statement” from the African human rights system, which signals that the continent is invested in bringing stability and justice to citizens of a State Party. Such praise is, however, set against condemnation of the African Union (AU), despite its efforts to broker a peace deal in Libya, for failing to insist on compliance with the Court’s binding order. Human Rights Watch urged the AU to apply pressure in accordance with Article 29(2) of the Protocol, which makes the AU’s Executive Council primarily responsible for monitoring implementation of the Court’s rulings. Although the Protocol does not specify what measures may be taken, Article 23(2) of the AU’s Constitutive Act authorizes it to subject noncompliant States Parties to sanctions or “other measures of a political or economic nature.” Since this is the Court’s first decision issued against a State Party, it is an early indication of the Court’s potential. Yet, to fully realize the Court’s potential, the AU must strike a proper balance between its dual roles as mediator and enforcer,lest it risk undermining the African Court’s still fledgling credibility as a mechanism for the promotion and protection of human rights in Africa.

Comments

  1. Kuddos to the African Court.

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