ICDL – Defence Counsel at the International Criminal Tribunals

See below for the programme of the ICDL’s Annual Meeting – “Defence Counsel at the International Criminal Tribunals”. The event will take place on 21 January 2012 at the Hotel InterContinental, Berlin.

ICDL_Programme.pdf

Youssef Abadou v Kingdom of Morocco

A guest blog by Marie O'Leary

The Application

On 18 May 2011, the African Court on Human and People’s Rights (“ACHPR”) received an application from Mr. Youssef Abadou brought against the Kingdom of Morocco: (Application No. 007/2011). According to the case summary, Mr. Abadou is a Moroccan who has filed on the basis that the Kingdom of Morocco has failed to issue him with a National Identity Card and passport despite his repeated application to the Moroccan Consulate in Algeria. The summary indicates that Mr. Abadou asserts that he has proof of having exhausted all other remedies; however, it additionally notes that he “did not indicate any specific relief” in his application.

While the case summary provides that Mr. Abadou is married with four children, the other relevant details are sparing; namely, it is not known from the summary or decision whether he or his family have ever resided in Morocco or if he has ever possessed proof of citizenship of the country prior to his application. Additionally, as it states he is a resident of Algeria, it is unclear as to what, if any, other citizenship status he may possess which could factor into any considered application.

The Judgement

The decision in Youssef Abadou v. Kingdom of Morocco, taken on 2 September 2011, outlines the steps of the Registry of the Court to acquire further details from Mr. Abadou, specifically noting that the application:

-       Was not signed;

-       Did not specify the alleged violation;

-       Did not specify how local remedies were exhausted; and,

-       Did not give a specific remedy sought from the Court.

While Mr. Abadou returned a signed copy of his application on 20 June 2011, there is no indication that he further responded to the other queries raised by the Court. Furthermore, the decision notes that on 19 July 2011, upon inquiry of the ACHPR Registry, the Legal Counsel of the African Union Commission informed the Court that the Kingdom of Morocco is not a member of the African Union and has neither signed nor ratified the Protocol establishing the Court.

Given these circumstances, the ACHPR summarily dismissed Mr. Abadou’s application based on a lack of jurisdiction under Article 3, which provides that:

The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.

The Court concluded that: “As this is an application brought against a State which is not a member of the African Union, which has neither signed nor ratified the Protocol establishing the Court, the Court concludes that manifestly, it does not have the jurisdiction to hear the application.”

Observations

Unlike other ACHPR cases dismissed for lack of jurisdiction, this application fails the most primary jurisdictional query of whether the State Party was a member of the African Union. While the Court cites Article 3 as providing the jurisdictional constraint, by a sole reading of the Protocol language cited, the Court could hold Morocco (or any State) accountable for any human rights instrument the State had ratified. However, when taken in conjunction with Article 1, which establishes the Court ‘within’ the AU, it is clear that only AU State Parties are the intended subject of any claims before the Court. This basic element of AU membership is further understood when considering the Court’s premise of complementing the African Commission. The holding in Abadou jurisprudentially reinforces that there can be no standing for or against a party that is not a present member of the AU.

This presents an interesting ramification of Morocco’s non-membership in the AU. Morocco, which is currently the only all-African state not in the AU, was formerly a member of the the AU’s predecessor, the Organisation of African Unity (OAU). However, in 1984, following a dispute over the formal recognition of the Sahrawi Arab Democratic Republic, Morocco withdrew its membership. While the intervening years have included discussion of the readmission of Morocco to the AU, without formal readmission, the ACHPR lacks primary jurisdiction over disputes against Morocco as a non-contracting State Party.

Even were Morocco to regain admission to the AU, the Court’s decision alludes to the other terms that must be met for claims to be made against it by individuals – namely, the State must ratify the Protocol establishing the Court and additionally make the declaration found in Article 34(6). While Article 3(2) grants the Court wide discretion to resolve disputes of jurisdiction, to date, the Protocol’s constraints have considerably limited the Court’s jurisdiction with regard to claims by individuals – only five (5) member States have made the Article 34(6) declaration. The rigid adherence to these requirements was emphasized at paragraph 31 of the Court’s first decision of Yogogombaye v. Senegal (see also the ARC summary of the case). Therefore, until other State Parties fulfil these requirements, individuals will continue to have very limited standing before this Court. This reality demonstrates the larger picture of the competing carrot and stick presented by the Court – the desire of a State to provide its citizens with an avenue for human rights claims but a potential reluctance to expose itself to potential liability before the Court.

What is not known from the Abadou summary or decision – and seemingly not even from the application – is what provision of the Charter or relevant human rights instrument Mr. Abadou is claiming has been violated. Given this omission, and the lack of public detail on the background of this case, it is impossible to know whether Mr. Abadou may have remedy elsewhere, or indeed at the ACHPR in the future. What is known is that the underlying subject of this claim – rooted in citizenship and nationality – while not considered here, is certainly a complex and current issue that is likely to arise again in claims presented to this Court.

http://arcproject.co.uk/?p=200

Tanganyika Law Society et al & Reverend Christopher Mtikila v The United Republic of Tanzania

The Applications

On 2 June 2011, the Tanganyika Law Society (“Tanganyika”) and the Legal and Human Rights Centre (the “LHRC”) submitted an application to the African Court on Human and Peoples’ Rights (“ACtHPR”). Tanganyika is the Bar association of the Tanzanian mainland, and has observer status before the African Commission on Human and Peoples’ Rights (the “Commission”). The LHRC, which also has observer status, is an independent non-governmental organisation based in Tanzania. The ACtHPR has provided a summary of the application (the “Tanganyika et al summary”). The original version is not publicly available.

On 10 June 2011, Reverend Christopher Mtikila, a political activist and leader of the Tanzanian Democratic Party, lodged an application with the Registry of the ACtHPR. The original version is publicly available here.

The thrust of both applications is that the Tanzanian government has violated the rights of Tanzanian citizens by prohibiting independent candidates from taking part in presidential, parliamentary and local elections.

On 22 September 2011, the ACtHPR decided, under Rule 54 of the Rules of the Court to join the two applications by reason of the common subject matter and Respondent, namely Tanzania. The now-joined application is currently under consideration by the ACtHPR.

Background

Since the introduction of multi-party politics in the early 1990s, Reverend Mtikila has been an outspoken and prominent opposition politician in Tanzania.

The sequence of events that has given rise to both applications can be characterised as follows:

-        1992: The Tanzanian National Assembly passes the Eighth Amendment to the Constitution, introducing a requirement for membership to and sponsorship by a political party for all persons running in presidential, parliamentary and local government elections.

-        1992: Reverend Mtikila’s application to register his own political party is denied by the Registrar of Political Parties.

-        1993: Reverend Mtikila challenges the Eighth Amendment in the High Court, submitting that it unfairly limits his rights to free association and political participation.

-        1994: On 24 October, a High Court Judge rules that the Eighth Amendment is null and void as it conflicts with existing provisions of the Constitution.[1]

-        1994: On 2 December, Parliament adopts the Eleventh Constitutional Amendment Act, which reinstates the prohibition on independent candidates.[2]

-        2002: Reverend Mtikila registers the Democratic Party.

-        2005: Reverend Mtikila brings a challenge in the High Court against the Eleventh Amendment.

-        2006: The High Court grants Reverend Mtikila’s application, confirming the judgment of 1994.

-        2010: The Court of Appeal rescinds both the 1994 and 2006 High Court judgments.[3]

Rev Mtikila’s Application

In his application to the ACtHPR, Reverend Mtikila relies on a number of regional and international legal instruments.

In support of his submission that the Tanzanian Republic has unfairly curtailed his right to participate in public affairs, Rev Mtikila cites, inter alia, Article 13(1) of the African Charter on Human and Peoples’ Rights (the “AChHPR”);[4] Article 21(1) of the Universal Declaration of Human Rights (the “UDHR”);[5] Article 25 of the International Covenant on Civil and Political Rights (the “ICCPR”);[6] General Comments of the Human Rights Committee mandated with the interpretation of the ICCPR;[7] and a number of cases before the Commission dealing with the right to participate in public affairs.[8]

In terms of an individual’s right to freedom of association, the application cites Article 20 of the UDHR;[9] Article 22 of the ICCPR;[10] and Article 10 of the AChHPR.[11] Rev Mtikila also submits that the requirement of affiliation with a political party contradicts Article 20 of the Constitution of Tanzania.[12]Rev Mtikila also states that the Eleventh Constitutional Amendment offends the right to non-discrimination[13] and the rule of law generally.[14]

The Tanganyika et al Summary

The Tanganyika et al summary references the aforementioned chain of events that took place in the Tanzanian courts between 1994 and 2010, arguing that Tanzania “is in violation of Article 2 and 13(1) of the African Charter on Human and Peoples’ Rights, and Articles 3 and 25 of the ICCPR, a violation that was institutionalized in 1992, at the onset of multiparty politics in the country.”

In terms of the extent of the State’s alleged breach, the application submits that “the effect of the violation is that a great majority of Tanzanians who do not belong to political parties have been discriminated against and denied the opportunity to take part in public affairs or from being elected”.

The Tanganyika summary states that “all domestic remedies have been exhausted and the violation is continuing”.

Observations

The case summary provided by the Court states that Rev Mtikila is seeking relief in the form of a “declaration that current Tanzanian law barring independent candidates from seeking public/elective office is in violation of the African Charter and the ICCPR”. However, Rev Mtikila’s full application goes further than the summary suggests, as it also contains a request for compensation for the “continuous violation of his rights that forced him to endure long and costly judicial proceedings”. Under Article 27(1) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, if the Court considers there has been a violation of a right guaranteed by the AChHPR or any other relevant human rights instrument then it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation. The author submits that any such discrepancies, between the summary provided by the Registry of the ACtHPR and the complete application submitted by the aggrieved party, could be avoided in future if the Court published applications in full on its website, with the consent of the Applicant.

In relation to the application made by Tanganyika et al., the case summary does not detail the remedy, if any, sought by the Applicant. The summary simply contains a brief synopsis of the facts and an explanation of the procedural background of the application. Without access to the original document, it is not possible to ascertain whether the Registry has failed to include relevant information in the case summary, or whether the application simply contained no request for relief. Once again, these issues could be resolved by publication of the original applications.  Such action would provide other potential applicants, lawyers and observers with greater access to the detail of the arguments put before the Court and would facilitate thereafter a greater understanding of the basis of the Court’s reasoning in consequent decisions.

Given that Tanzania is one of only five African states that has made an Article 34(6) declaration (which permits individuals and NGOs with observer status before the African Commission to petition the court directly), the Court’s assessment of this case is eagerly anticipated. It will be interesting to assess how the Court deals with a situation in which it is forced to engage with a direct challenge to Tanzanian sovereignty.

http://arcproject.co.uk/?p=200

[1] In the High Court of Tanzania at Dodoma, Civil Case No. 5 of 1993, Rev. Christopher Mtikila (Plaintiff) versus The Attorney General (Defendant), Ruling, 27 October 1994, 26 pages.

[2] In the High Court of Tanzania (Dar es Salaam Main Registry) at Dar es Salaam, Misc. Civil Cause No. 10 of 2005, Christopher Mtikila (Petitioner) versus The Attoreny (sic) General (Respondent), Judgment, 5 May 2006, 48 pages.

[3] The Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 45 of 2009 between The Honourable Attorney General (Appellant) and Reverend Christopher Mtikila (Respondent)(Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam dated the 5th day of May, 2006 in Misc. Civil Cause No. 10 of 2005), Judgment of the Court, 17 June 2010.

[4] Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

[5] Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

[6] Every citizen has the right and opportunity:

a) To take part in the conduct of public affairs, directly or through freely chosen representatives; b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

c) To have access, on general terms of quality, to public service in his country.

[7] 3. ... No distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [...]

12. Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected. [...]

15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office. [Emphasis are added.]

[8] See for instance Case No. 147/95-149/96 Sir Dawda K. Jawara / Gambia (The), paras. 67-69;Case No. 211/98 Legal Resources Foundation / Zambia, paras. 70-72; Case No 251/02 Lawyers of Human Rights / Swaziland, paras. 62-63.

[9] 1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

[10] 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.”

[11] 1. Every individual shall have the right to free association provided that he abides by the law.

2. Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association.

[12] 1. Every person has a freedom to freely and peaceably assemble, associate and corporate with other persons, and for that purpose, express views publicly and to form and join with associations or organisations formed for the purpose of preserving or furthering his beliefs or interests or any other interests. [...]

4. It shall be unlawful for any person to be compelled to join any association or organization or for any association or any political party to be refused registration on grounds solely the ideology or philosophy of that political party.

[13] Inter alia, Article 2 of the AChHPR; African Commission Case No 211/98 Legal Resources Foundation v Zambia; Article 2 of the UDHR; Article 26 of the ICCPR; and Article 9 of the Constitution of Tanzania.

[14] In particular, see paragraph 54 of the application which states ”[t]he Applicant submits to this Court that such practice shall definitively be condemned as an abuse of the distinctive process of Constitutional Amendment set down by the Tanzanian Constitution and that the Government of the United Republic of Tanzania should be sanctioned appropriately”.

French Parliament Passes WWI Bill

A guest blog by Richard Cashman

The French parliament has passed a bill to criminalise denial of the mass killing of Armenians by Ottoman Turks during the First World War.
Turkey is extremely sensitive about the issue, which was last in the headlines in 2010 when US Speaker of the House, Nancy Pelosi, said the US should recognise the killings as genocide.

Armenians claim that up to 1.5 million died in massacres and deportations during the dying days of the Ottoman Empire, mostly in 1915-16. The killings remain a crucial pillar of Armenian identity today and the Armenian diaspora has been singularly successful in its pursuit of recognition for Turkish guilt.
For their part, Turks point out that large numbers of Turks also died in the upheaval, that Turkish government archives on the events are open for inspection while Armenians ones are not, as well as the general unwisdom of rummaging through history to find instances of atrocities to which we can apply our post-Second World War legal constructs.

In substance, Turks also argue that the deportations to Aleppo in Syria (not the desert) were intended to save Armenians from being massacred by Kurds (a Sunni Persian people living in the area bordering Armenia), that the 1.5 million figure is impossible given the entire Armenian population in the region at the time was only 1.5 million, and that there were 100,000 Armenians living in Istanbul then who were not harmed.

Maybe the evidence would still bear out the allegations of genocide. However, there cannot and should not be a tribunal for something that happened almost a century ago, and it is perhaps understandable that Turks are averse to such denial laws that presuppose a guilty verdict in what sometimes seems like a silent trial being carried on in the lobbies of legislatures around the world.

http://www.bbc.co.uk/news/world-europe-16297414

Meet the ARC Team

Arc’s project director, Gillian Higgins, is being assisted by Barrie Sander, Ben Joyes, Marie O’Leary and Andrew Smith. To find out more about the assistants, please see the link below:

http://arcproject.co.uk/?p=200

Gbagbo’s Case Dismissed for Lack of Jurisdiction

By Gillian Higgins

Last week, Laurent Gbagbo made history. He became the first former president to appear before the International Criminal Court (ICC), following the issuance of a sealed indictment on 23 November 2011.

Following the presidential election in 2010, Mr. Gbagbo challenged the vote count, alleged fraud, and refused to stand down. He called for the annulment of results from nine of the country's regions. Alassane Ouattara was declared the winner and was recognized as such by election observers, the international community, the African Union (AU), and the Economic Community of West African States. However, the Constitutional Council, which according to Article 94 of the Ivorian Constitution both determines disputes in and proclaims the results of Presidential elections, declared that Mr. Gbagbo had won. After a short period of civil conflict, he was arrested by the Republican Army of Ivory Coast.

In last week’s hearing before the ICC, Laurent Gbagbo’s lawyer, Mr. Emmanuel Altit, complained that his client’s rights had been constantly violated by the Ivorian authorities. His complaint received the attention of the world’s media, having been delivered on the public stage of international justice, at the ICC. A similar complaint had been lodged earlier this year, but received no publicity, having been dismissed by the African Court on Human and Peoples’ Rights (ACHPR), a little-known institution, sitting on the fringe of the leafy town of Arusha in Tanzania.

The application to the ACHPR was lodged on 5 May 2011 by an NGO based in Douala, Cameroon, namely the “Association Juristes D’Afrique Pour la Bonne Gouvernance”. The NGO alleged “serious and massive violation by the Ivorian authorities of the fundamental and basic human rights of the legal and legitimate President of Cote d’Ivoire, His Excellency Laurent Gbagbo, since his abduction on 11 April 2011 at his official resident in Abidjan, as well as the rights of his wife, Mrs Simone Ehivet Gbagbo and some of his close aides.” The summary explains that Mr Gbagbo had been incarcerated alone and that no judicial action had been formally brought against him by a competent judicial authority. It was alleged that the actions of Mr Ouattara, the incoming President, and his regime, had violated the provisions of Articles 2, 4, 5 and 6 of the African Charter on Human and Peoples’ Rights.

The ACHPR issued a decision on the application during the 21st ordinary session earlier this year. A panel of ten judges determined that the NGO did not have the requisite observer status before the African Commission to enable it to petition the court directly pursuant to Article 5(3) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. The Court determined therefore that it did not have jurisdiction to address the application. Notwithstanding its determination, the bench decided that it would refer the case to the African Commission on Human and Peoples Rights under Article 6(3) of the Protocol. To date, the Commission has not pronounced upon the application.

Comment

At the time of writing, it is not possible to determine whether the application submitted by the NGO was accompanied by any substantive documentation, NGO reports or even witness statements in support of the alleged breach of Mr Gbagbo’s human rights. Neither is the application publically available on the ACHPR’s website. Reliance instead must be placed on a summary of the document prepared at the seat of the court.

Notwithstanding the fact that the current focus of international attention remains firmly upon the alleged crimes committed by Mr Gbagbo, in respect of which he finds himself before the ICC, serious attention must be given to any legitimate claims he may have in respect of his alleged mistreatment and breach of African Charter human rights. The writer suggests that in order for this matter to be determined by a court of law, either Mr Gbagbo, lawyers on his behalf, or indeed “Les Juristes d’Afrique pour la Bonne Gouvernance” should formally request the African Commission to remit the case back to the ACHPR for determination. Once the African Commission is seized of such an application, it may decide to submit the same to the ACHPR. Such a submission by the Commission would endow the court with the jurisdiction it initially lacked to determine the application made on behalf of Mr Gbagbo by the Cameroonian NGO.

While the bright lights shine on the ICC in The Hague, the ACHPR lingers in the heart of darkness, in danger of being forgotten. In order to avoid the fossilization of this important institution, it is imperative that NGOs and individuals who do not possess the right of direct petition, consider lodging their applications with the African Commission, and requesting this body to petition the ACHPR on their behalf.

The Geopolitics of International Criminal Justice

A guest blog by Richard Cashman

‘The International Criminal Court is being used as an instrument to carry out regime change with a smoke screen of human rights protection’. This is an extract from the Russia Today article above about Western policy in Syria possibly igniting WWIII.

While on the face of it representing only the opinion of one (very fringe) political commentator, this is highly representative of the executive view of Russia’s flagship international TV channel, which rolls all day inside Russian universities and other public buildings, and is anyway much milder in rhetoric than its counterparts in China and the Middle East.

Thus, in a climate of polarised views on the utility and purpose of international criminal justice, it pays to look at its impact from a geopolitical perspective.

Resolution 1970 that imposed sanctions on the former Gaddafi regime in Libya was accompanied by an announcement that the Security Council was formerly referring Gaddafi himself to the International Criminal Court in The Hague with a view to a possible indictment for crimes against humanity. This was only the second time the Council had agreed such a referral since that of Darfur in resolution 1593 of 2005.

Gaddafi’s ICC referral was no rubber stamp affair. Britain, France and Germany strongly advocated for it, China remained uncommitted to the last and the remainder equivocated for much of the time in between. This spread of support is indicative of the way in which the European Union states have embraced the development of international criminal justice represented by the ICC and the ad hoc tribunals before it.

This can be contrasted with Russia, India and China’s traditional suspicion of such courts and the United States’ support for ad hocary but concern about the more supranational ICC. So despite the example of Gaddafi’s referral, international sentiment towards international criminal courts can at best be described as luke-warm.

The objection of many states is readily understandable in terms of the putative threat the propagation of these courts and cases presents to their governing regimes. The US position stems more from a fear that the ICC could be hijacked by a majority grouping of unfriendly voices that would scrutinise its global military activity rather than domestic governance.

The development path of international criminal justice has therefore been beset by the reluctance of significant states across the liberal-autocratic divide. As a result, only under very specific conditions has it been able slowly to evolve, meaning that its development has, in many ways, run parallel to that of humanitarian intervention, as partially expressed by the Responsibility to Protect (R2P) concept.

Indeed, it can be argued that international criminal justice is a form of liberal intervention in that it typically substitutes foreign powers for national ones in the limited administration of the normal legal function of sovereign states. And there is also no escaping the fact that its precepts fly directly in the face of the Westphalian model of sovereignty, which purposely denies rights and obligations to transgress borders for the purposes of protection or punishment.

It is the question of obligations which is the pivotal issue over which international criminal justice consistently stumbles. The great jurist H.A.L. Hart drew the distinction between having an obligation and being obliged to do something. The strongest states might be persuaded to undertake many obligations, but without the coercive power to sanction their breach they will not be obliged to honour them. In other words, the highest law remains the decision of arms which, because of nuclear realities and the globalised nature of the world economy, essentially leaves some states above the law.

There is therefore an obvious inconsistency in international criminal justice in so far as its universalist principles cannot yet be applied universally. Nevertheless, international criminal justice clearly has the potential to be a key component in propagating liberal order.

Fostering a more liberal world, which presumes the absence of the type of leaders and actions that international criminal justice is concerned with, is a normative project boosted incrementally with every leader who is forced to seek political compromise where he or she might have wished to call in the tanks. It is incidental and not fundamental that not all states can be brought to account in the same way.

Increasing normative momentum around the strong states that continue to transgress those norms will make their positions increasingly untenable in a world of ever more pervasive communications. Assuredly, the prosecutions under international criminal law to date have informed the behaviour of many petty autocrats, with even the species of more serious ones being increasingly sensitive to the status of pariahdom, if not the courts themselves.

And it is for precisely this reason that major powers pouring scorn on the process is a very unwelcome development.

http://rt.com/news/syria-iran-russia-china-921/

New ARC Project Website Goes Live

The new ARC Project website can be found at:

http://arcproject.co.uk/

What is ARC?

ARC: Advice, Representation and Cases

State Parties, African Intergovernmental Organisations, NGOs with Observer Status before the African Commission, and most importantly, individuals who have suffered violations of their rights under the African Charter can now instruct ARC (Advice, Representation and Cases) to take cases on their behalf.

ARC also aims to provide practical training to lawyers to enable them to take cases before the ACHPR.

ARC hopes to assist in developing a vibrant and meaningful practice before the Court for the benefit of all concerned.

“Africa’s Pinochet”, Hissène Habré and the first judgment of the African Court on Human and Peoples’

A guest blog by Barrie Sander

In a week where the UN Committee against Torture has called on Senegal to comply with its obligation to prosecute or extradite Chad’s exiled dictator, Hissène Habré (see here), in this post I take a look back at the first judgment of the African Court on Human and Peoples’ Rights (“ACHPR”), Yogogombaye v. Senegal, which concerned a petition filed by Michelot Yogogombaye calling for the dismissal of the charges pending in Senegal against Mr. Habré (the full judgment may be accessed here and the Separate Opinion of Judge Fatsah Ouguergouz may be accessed here).

Background – Hissène Habré’s 21 years of impunity

On 1 December 1990, when Hissène Habré was removed from power in Chad and fled to Senegal, victims of his regime began their long quest for justice.

Dubbed “Africa’s Pinochet” by Human Rights Watch, the crimes alleged to have been committed by Hissène Habré’s regime in Chad between 1982 and 1990 are well documented. Following Mr. Habré’s fall from power in 1990, a report of the Commission of Inquiry tasked with investigating “the crimes and misappropriations committed by Mr. Habré, his accomplices and/or accessories” was damning:

“The record of Habré’s 8-year reign is terrifying. The Commission still wonders how a citizen, a child of the country, could have committed so much evil, so much cruelty, against his own people. The stereotype of the hard-core revolutionary idealist quickly gave way to that of a shabby and sanguinary tyrant”.

The Commission found that Mr. Habré’s regime had led to more than 40,000 deaths, more than 80,000 orphans, more than 30,000 widows, and more than 200,000 people left with no moral or material support as a result of his repression.

Despite the findings of the Commission of Inquiry, it was not until 2000 that any formal legal action was initiated. In January 2000, seven Chadian victims filed a criminal complaint against Mr. Habré in Dakar, Senegal and in February 2000, a senior Senegalese judge indicted Mr. Habré on charges of crimes against humanity and torture. However, following interference from the Senegalese government (which was denounced by two UN rapporteurs), the Dakar Appeals Court ruled that Mr. Habré could not be tried since Senegal had not enacted legislation to implement its obligations under the UN Convention against Torture.

The victims next turned to Belgium where in September 2005, after a four year probe, a Belgian judge issued an international arrest warrant against Mr. Habré and requested his extradition. In response, and after the Dakar Appeals Court ruled that it had no jurisdiction to rule on the extradition request, Senegal approached the African Union to recommend a course of action.

On 2 July 2006, the African Union called on Senegal “to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for a fair trial” (see here). President Abdoulaye Wade declared that Senegal would follow the instructions of the African Union and shortly thereafter, in January 2007, the Senegalese National Assembly amended its constitution and laws to ensure that its courts had competence over international crimes regardless of whether they were committed inside or beyond Senegal’s borders.

However, Senegal is yet to re-open the case against Mr. Habré, which has been stifled by disputes over international funding and a general lack of political will in Senegal to ensure that the judicial process moves forward. Faced with Senegal’s inaction, in February 2008, Belgium brought a case before the International Court of Justice to order Senegal to prosecute or extradite Mr Habré (see here), and on 18 November 2010, the Court of Justice of the Economic Community of West African States requested that Senegal must try Mr. Habré through a “special or ad hoc procedure of an international character” (see here). Unfortunately, as we enter the 22nd year of impunity for Mr. Habré since his fall from power, the prospect that a trial will commence in the near future remains slim.

The ACHPR case of Yogogombaye v. Senegal

Amidst the multitude of actions that have been brought in various courts and tribunals in respect of the alleged crimes of Hissène Habré, one of the most striking is the action brought before the ACHPR in the case of Yogogombaye v. Senegal.

The Application

On 11 August 2008, Mr. Michelot Yogogombaye, a Chadian national, at the time residing in Switzerland, brought a case against Senegal before the ACHPR “with a view to obtaining suspension of the ongoing proceedings instituted by the Republic and State of Senegal with the objective to charge, try and sentence Hissène Habré, former Head of State of Chad, presently asylumed in Dakar, Senegal”.

Mr. Yogogombaye based his application on Article 5(3) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the “Protocol”), pursuant to which “[t]he Court may entitle relevant Non Governmental organisations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol”. In his application, Mr. Yogogombaye claimed that both Senegal and Chad were State Parties to the Protocol and had “made the declaration prescribed in Article 34(6) accepting the competence of the Court to receive applications submitted by individuals”.

In respect of the substance of his case, Mr. Yogogombaye referred to the constitutional amendments that had been made by Senegal in 2008, “authorizing retroactive application of its criminal laws, with a view to trying exclusively and solely Mr. Hissène Habré”. In so doing, Mr. Yogogombaye alleged that Senegal had violated the principle of non-retroactivity of criminal law and had portrayed its intention “to use in abusive manner, for political and pecuniary ends, the mandate conferred on it by the African Union in July 2006”. In addition, Mr. Yogogombaye explained that by opting for a judicial solution rather than an African solution inspired by African tradition, such as the use of the “Ubuntu” institution (which promotes reconciliation through dialogue and reparations), Senegal had sought to use its services as legal agent of the African Union for financial gain.

Beyond denying the merits of Mr. Yogogombaye’s case, Senegal’s defence centred on two preliminary objections. First, that for the ACHPR to be able to deal with applications brought by individuals, the respondent State must first have recognised the jurisdiction of the court to receive such applications in accordance with Article 34(6) of the Protocol; since Senegal had not made any such declaration, it submitted that the Court lacked jurisdiction to hear the case. Second, that Senegal could not identify any “justification for legitimate interest on the part of the Applicant to bring the case against the Republic of Senegal”.

The Judgment

On 15 December 2009, the ACHPR delivered its judgment in Yogogombaye v. Senegal, the first since its creation. The judgment broadly followed the pleadings of Senegal, finding that, pursuant to Article 34(6) of the Protocol, an individual is only entitled to lodge cases directly against States that have made special declarations authorizing such cases to be brought before the court.

Having requested the Chairperson of the African Union Commission, depository of the Protocol, to forward a copy of the list of the State Parties to the Protocol that have made such a declaration, the ACHPR found that Senegal was not on the list and therefore had not accepted the jurisdiction of the court to hear cases instituted against the country by individuals or NGOs. With this in mind, the Court held that it lacked jurisdiction to hear Mr. Yogogombaye’s application and deemed it unnecessary to consider the case on the merits.

Comment

The case of Yogogombaye v. Senegal is significant not only because it is the first judgment of the ACHPR, but also for providing an insight into the jurisdictional limits of the court in respect of applications submitted directly by individuals against State Parties to the Protocol. To hear a case initiated in such circumstances, the requirements of Articles 5(3) and 34(6) of the Protocol must be met. Taken together, these provisions confirm that direct access to the court by individuals is subject to two preconditions:

(i) First, the State Party must have deposited an Article 34(6) special declaration granting the ACHPR jurisdiction to hear such cases (Article 34(6) provides that the court “shall not receive any petition under Article 5(3) involving a State Party which has not made such a declaration); and

(ii) Second, the ACHPR must exercise its discretion under Article 5(3) to hear such cases (Article 5(3) provides that the court “may entitle [...] individuals to institute cases directly before it).

The case of Yogogombaye v. Senegal centred on the simple, but contentious, question as to whether Senegal had submitted a special declaration authorizing individuals to directly bring cases against it before the ACHPR. Failure to submit such a special declaration limits individuals to bring cases indirectly: through their home States or the African Commission. Unfortunately, as one commentator has noted “oth these mechanism have so far languished in desuetude because neither African states nor the Commission has proved willing to refer cases to the Court” (C.C. Jalloh, 104 Am. J. Int’ L. 620, (2010) at 624).

Although the outcome of Yogogombaye v. Senegal was somewhat unsurprising, nonetheless the ACHPR made several significant findings that have informed the court’s future approach to jurisdictional issues.

First, the ACHPR underscored its judicial primacy in resolving questions of jurisdiction by citing Article 3 of the Protocol, which provides that in the event of a dispute as to whether the court has jurisdiction, “the Court shall decide”.

Second, the ACHPR noted that the second sentence of Article 34(6) of the Protocol, which provides that “it shall not receive any petition under Article 5(3) involving a State Party which has not made such a declaration”, should not be understood in its literal (physical receiving) or technical (admissibility) sense. Rather it should be understood in light of the letter and spirit of Article 34(6) as a whole to denote “the conditions under which the Court could hear such cases” i.e. it refers to the jurisdiction of the ACHPR to examine the application and does not prevent the court from physically receiving such petitions. In this way, individuals and NGOs are free to attempt to initiate claims directly regardless of whether an Article 34(6) special declaration has been issued by the respondent State. While in most cases, it is likely that the respondent State will (successfully) challenge the court’s jurisdiction on the basis of not having issued an Article 34(6) special declaration, the ACHPR’s approach leaves open the possibility for States to accept the jurisdiction by issuing the special declaration after having received a particular individual’s petition before the court.

This point is further explained in the Separate Opinion of Judge Ouguergouz who explores the different means by which States may submit to the jurisdiction of the ACHPR in respect of claims brought directly by individuals. Judge Ouguergouz notes that Article 34(6) of the Protocol does not require that the filing of the special declaration be done “before” the filing of the individual’s application; rather, it provides that the declaration may be made “at the time of ratification or any time thereafter”. In this way, there is nothing to prevent a State Party from making a declaration “after” an application has been introduced against it. In addition, there is nothing to prevent a State accepting the jurisdiction of the ACHPR in a manner other than through a special declaration, for example informally or implicitly through forum prorogatum (which may be understood as the acceptance of the jurisdiction of the court by a State after the seizure of this court by another State or an individual, expressly or tacitly through decisive acts or an unequivocal behaviour). In this light, as one commentator has noted, Judge Ouguergouz interpreted Article 34(6) “in a manner that would encourage litigants to file applications to the Court with the hope that States Parties will make the required declarations after individuals have filed their applications” (J.D. Mujuzi, 10(2) Human Rights Law Review 372, (2010) at 378).

This clarification of the court’s approach to determining its own jurisdiction also goes some way to explaining the long delay in the finalisation of the judgment. As explained by Judge Ouguergouz, until 9 April 2009, the date on which the Registry received the written observations of Senegal, there was the possibility that Senegal might accept the jurisdiction of the ACHPR. It was only on this date that it became unequivocally clear that Senegal had no intention of accepting the Court’s jurisdiction to deal with the application.

Conclusion

The case of Yogogombaye v. Senegal has been criticised for the lack of transparency of the proceedings, the length of the court’s deliberations, and the calibre of its reasoning (see here). However, it should also be remembered that the judgment and the Separate Opinion of Judge Ouguergouz in particular provide some useful clarifications on the limits of the ACHPR’s jurisdiction in respect of petitions filed by individuals directly against State Parties to the Protocol.

Nonetheless, the judgment is most likely to be remembered as an anomaly in the judicial history of actions brought in respect of the alleged crimes committed by Hissène Habré, a politically motivated attempt to block efforts to bring Mr. Habré to an ever-elusive trial. 

End of the argument? Some may beg to differ…

A guest blog by Richard Cashman

Writing in Foreign Policy Magazine last week, Gareth Evans, former Australian foreign minister and currently president emeritus of the International Crisis Group, declared the ‘end of the argument’ in the debate about stopping genocide and other state-committed atrocities.

Specifically, he traced what he sees as the path to acceptance of the Responsibility to Protect (R2P) concept first proposed in 2001 and adopted by the United Nations in 2005. His message is that in 2011 we mark the culmination of a decade of linear progress towards a consensus whereby a state’s use of lethal force against its people will not be tolerated.

This may well, however, prove to be a misreading of the situation. Indeed, far from being over, a new chapter of the argument may be about to begin.

The history of the R2P argument Mr. Evans characterises as a divide between the global north and global south, with the developed northerners pushing a concept that impinged so severely on the southerners’ attachment to untrammelled sovereignty that it took a decade to bring them on board.

Yet the meaningful divide lies not between north and south: Antipodeans are southerners and are some of R2P’s strongest advocates, while Russia and China are northerners and because of their two Security Council vetoes constitute a much more serious opposition than the less influential governments of the global south.

That those vetoes were not used to block Security Council Resolution 1973 on Libya in March, Mr. Evans explains as the end point of the argument and the start of a new era. And although he mentions Russia and China’s veto of October’s Security Council resolution threatening sanctions against Syria, he appears to view this as a touch of temporary recalcitrance, rather than principled opposition.

This may all be wishful thinking.

2012 is set to be a significant year in world politics. The United States has much work to do to restore not just domestic but global confidence in its political and financial institutions. The Eurozone must finally make the choice between fiscal union and fracture and this will impact significantly on the weight the EU gives to projecting its values abroad.

On the other side of the liberal-autocratic divide, the Russian presidency will almost certainly be occupied once more by Vladimir Putin. It is highly likely that a key plank of his tenure will be opposition to supposed Western perfidy, of which Libya is seen as the outstanding recent iteration.

2012 will also see the fifth generation of Chinese leaders ushered in, and it is also likely that they will join the Russians in rhetorically opposing any resolutions that further dilute the legitimacy of a state to control its population while encouraging Russia to actually veto them.

Taken together these things do not augur well for R2P’s development in the near future and may yet prove the argument to be far from over.

See Gareth Evans’ article here: http://www.foreignpolicy.com/articles/2011/11/28/gareth_evans_end_of_the_argument?page=0,0