The Business Day

AMIDST a stagnant political and institutional response to the Libyan crisis from Africa, it’s great to see some good news emerge in the form of the unanimous order for provisional measures by the new African Court on Human and Peoples’ Rights in respect of Libya.

The order, issued on March 25, demands that Libya "immediately refrain from any action that would result in loss of life or violation of physical integrity of persons" and report back to the court within 15 days on "measures taken to implement this order".

It was made proprio motu (of its own accord) by the court in the course of its consideration of an application brought urgently against Libya by the African Commission on Human and Peoples’ Rights on March 16 alleging "serious and massive violations of human rights guaranteed under the African Charter on Human and Peoples’ Rights" (the Banjul Charter).

Further, the court is now "seized" with the matter, having made a prima facie determination that it has jurisdiction to hear the case, and has asked Libya to respond to the application within 60 days.

These welcome developments at the regional level are not only significant for the crisis in Libya but, perhaps more so, for the African human rights system generally.

To understand the ruling’s full importance, some background is necessary.

The African Court on Human and Peoples’ Rights came into operation on January 25 2004. It was established to address the shortcomings of the African Commission and in recognition of the trend in other regional systems towards more robust regional enforcement mechanisms.

Up until this point, the African Commission was the sole institutional guarantor of the 1986 Banjul Charter, designed to "promote and protect human and peoples’ rights in Africa".

However, the court’s death was guaranteed almost immediately after its birth. In July 2004, African states decided that "the African Court on Human and Peoples’ Rights and the African Union Court of Justice should be integrated into one court", named the African Court of Justice and Human Rights.

As the African human rights court had already entered into force when the decision was taken to merge the two courts, their rationalisation required a new statute.

That instrument — the Draft Protocol on the Statute of the African Court of Justice and Human Rights — was adopted in July 2008, but has not yet been ratified by the requisite 15 states in order to enter into force.

Ironically, Libya was the first to do so and, to date, Libya and Malawi are the only states that have ratified it.

Crucially, under the Merged Court Protocol, the African human rights court remains in operation until one year after the merged protocol comes into force (a future event at this time).

Undeterred by its moribund status, the court’s provisional measure on Libya is remarkable in a number of respects.

Following "successive complaints against Libya" received by the commission earlier this year, the commission concluded that there was evidence of massive violations of the Banjul Charter.

On this basis, the commission brought an application to the court, against Libya, alleging "serious and widespread" violations, inter alia, the detention of an opposition lawyer in Benghazi; random shooting of demonstrators in Benghazi, al-Baida, Ajdabiya, Zayiwa and Dema by security forces; and "excessive use of heavy weapons and machine guns against the population, including targeted aerial bombardment".

Not to be outdone, the African human rights court responded to the commission’s application timeously and boldly.

On March 21, the court’s registry demanded a response from Libya.

In terms of the court’s rules, Libya has "30 days of receipt of the application (to indicate) the names and addresses of its representatives"; and "has 60 days to respond" to the application, but the court may grant an extension "if the need arises".

In addition, and remarkably on its own initiative, the court decided to issue an "order for provisional measures" that states: "The Great Socialist People’s Libyan Arab Jamahiriya must 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 charter or of any other international human rights instruments to which it is party. The Great Socialist People’s Libyan Arab Jamahiriya must report to the court within a period of 15 days from the date of receipt of the order, on the measures taken to implement this order."

The court did so without eliciting the views of the parties to the matter, on the basis of the imminent risk to human life and the difficulty in scheduling an appropriate hearing involving Libya.

In establishing the factual basis for the need for a provisional measure, the court relied on the information contained in the commission’s application.

In particular, the court cited the statements of the African Union (condemning the use of excessive force), the Arab League (suspending Libya) and United Nations Security Council resolution 1970 (condemning gross and systematic violations of human rights and referring Libya to the International Criminal Court for possible crimes against humanity) in support of its finding that the situation was of extreme gravity and urgency and that such measures were necessary to avoid irreparable harm to people.

The significance of the court’s order for provisional measures, and the proceedings against Libya more broadly, cannot be overstated.

The African Union’s response to the crisis in Libya has been paralytic, even by its own standards. The intervention of the commission, first, and then the court, could not have been more timely and may yet save the African multilateral human rights regime from desuetude.

More broadly, the court’s bold assertion of its own role as the guarantor of human rights in Africa augurs well for its future as well as that of its successor (should the merged protocol ever come into force) and goes some way in dispelling the fear held by many that this court might become a shrinking violet in light of its seemingly imminent demise.

Most importantly, the court’s decision on Libya — both in form and substance — represents a bold advance into a situation whose political implications have rendered the African Union’s other institutions ineffectual.

One might hope that the court’s decision will elicit a response from Libya.

But even if there is nothing but the sound of guns and cannon fire, then the court’s decision will at least have assisted in this way: by confirming that Muammar Gaddafi’s terrorisation of his people continues in the face of both western and African opposition.

• Du Plessis and Gevers are with the University of KwaZulu-Natal and are, respectively, senior research associate and consultant with the Institute for Security Studies.

http://www.businessday.co.za/articles/Content.aspx?id=140340

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