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A landmark provisional ruling of the African Court on Human and People’s Rights on Libya

[It is a pleasure to introduce to our readers this guest post from Abebe A. Mulugeta, Doctoral Researcher at the University of Bern, Switzerland; a welcome addition to our extensive coverage of the situation in Libya. His post concerns the late March decision on provisional measures issued by the African Court on Human and People’s Rights with regard to the situation in Libya.]

Many have been criticizing, sometimes unfairly, the response of the African Union to the human rights situation in Libya. But several organs of the organization including its Peace and Security Council (AUPSC), the African Commission on Human and Peoples Rights (ACmHPR) and now the African Court on Human and Peoples Rights (ACtHPR) have swiftly reacted by condemning the violations of human rights and international humanitarian law in that country. The decision on provisional measures taken by the African Court on Human and Peoples Rights on 25 March 2011 is particularly significant as its represents the first “judicial” response to the human rights situation in Libya. It is also important as it is only the second ruling of this new court and the first one based on an application by the Commission.

Following the crisis, the African Commission on Human and Peoples rights, based on various complaints it received mainly from NGOs, examined the situation and adopted a resolution. In this resolution which the Commission issued during its 9th extraordinary session held between 23 February to 3 March 2011(ACHPR 181 EXTR.OS(IX) 2001), the Commission expressed its concern about “serious and massive human rights violations resulting from the blind and indiscriminate use of force, in particular through aerial bombings, the recourse to mercenaries to suppress peaceful demonstrations and the legitimate protests of the citizens.” It strongly condemned the “divisionist speech including by the head of state of Libya and expressed alarm at what it considered to be a “ huge loss of life,” and a massive displacement of populations. It thus “invited” the Libyan authorities to immediately stop the violations and called upon the international community and the African Union to take all the necessary “political and legal” measures. The Commission, though not clearly authorized under the Charter, has been issuing similar resolutions which are intended to reflect its positions on unfolding human rights events among member states.

A formal complaint was also brought before the Commission regarding the Libyan situation by a group of NGOs including Human Rights Watch, Interights and the Egyptian Initiative on Personal Rights which sought the Commission to make provisional measures as provided for under the African Charter on Human and Peoples Rights. The complainants claim that the Libyan government has killed civilians, indiscriminately attacked demonstrators , illegally detained opposition members and has excessively used weapons and machine guns including aerial bombardment against civilian population. They argue that these violations amount to serious violations of the right to life, integrity of person, freedom of expression and demonstration and assembly. The Commission, determining the existence of serious and massive violations of human rights in Libya sent the matter to the Court.

The African Court, in its 20th ordinary session held between 14 and 25 March 2011, considered the application and adopted a ruling on provision measures proprio motu considering the situation to amount to a grave and urgent matter with a risk of resulting in irreparable harm. Provisional measures are allowed under Article 27 of its Protocol and 51 of its Rules of Procedure. Libya is a state party to the Protocol and thus has accepted the Court’s jurisdiction.  The ruling requests the Libyan authorities to “immediately refrain from any action that would result in loss of life or violation of physical integrity of persons, which could be a breach of the provisions of the African Charter on Human and Peoples’ Rights or of other international human rights instruments to which it is a party.”

Though binding, the decision of the Court can only be implemented through diplomatic pressure. Already the AUPSC adopted a decision deploring the human rights situation in Libya. Now that this decision by the Court has been issued, eyes will be on the African Union policy organs including the Peace and Security Council to take extra measures.  Neither the resolution of the Commission nor the provisional ruling of the Court clearly states that grave crimes such as war crimes or crimes against humanity are on the making. However, the ruling of the Court makes reference to the UN Security Council Resolution 1970 and mentions the resolution’s paragraph stating that “the systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity:” Does this suggest that the African Court shares the view of the UN Security Council on the crimes of humanity? The implication of the answer to this question will be significant. Article 4 of the Constitutive Act authorizes the African Union to intervene in member states to prevent genocide, war crimes and crimes against humanity. As the Court moves to consider the substance of the case, its findings will develop the regional jurisprudence on numerous areas of the law and will also have far reaching implications including to the works of the Human Rights Council’s Inquiry Commission and the proceedings of the International Criminal Court concerning the situation in Libya. For those who have been following the regional human rights system in Africa, the Libyan case also represents practical example of how the Commission and the Court may cooperate in responding to human rights crises situations in the region.