O heart! O heart! if she’d but turn her head,
You’d know the folly of being comforted
– WB Yeats, The Folly of Being Comforted
To whom does the above quote apply? Not just Victoire Ingabire, the Rwandan applicant who’s case was due to be heard on Friday, but perhaps the Court too. Indeed, no sooner was Ingabire’s case beginning than we learned from the Presiding Judge that the Court was suspending the matter. The reason? Rwanda has reportedly withdrawn its Article 34(6) Special Declaration that allows individuals and NGOs direct access to the Court.
Rwanda’s withdrawal is unprecedented. Until Friday, Rwanda was a member of a select group of eight AU member states that had not only ratified the Court’s Protocol but also signed the declaration allowing its citizens and NGOs direct access to the Court.
The timing is very interesting. Given the relatively high profile Victoire Ingabire enjoys, is this an attempt by Rwanda to simply prevent the Ingabire case being heard? If so, the timing could be seen as either clumsy in that it raised the profile of the matter beyond that which it may ordinarily enjoy, provocative given the Court itself is unlikely to be impressed, or deliberate as a way of sending a message to the Court, and possibly the African Union, on its attitude the Court. This last possibility would it in itself be interesting given that the Court’s case summary of the matter shows that rather than, say, simply ignore the matter or dismiss it out of hand, Rwanda had responded to the applicant’s case, carefully setting out its arguments in particular with regard to failure to exhaust local remedies; why go to the lengths of setting out legal arguments against the application, if Rwanda was simply going to withdraw its Special Declaration?
As to how the Court can proceed with Rwanda’s withdrawal, the Court’s Protocol is silent, setting out only how a member state can sign the Special Declaration and not how or even if it can be withdrawn. No doubt Rwanda will argue that it is free to withdraw the Special Declaration whenever it wishes, just as it is free to sign the Special Declaration whenever it chooses. This is probably true to a certain extent- the wording of Article 34(6) certainly allows for member states to sign up when they want. As Nani Jansen states in her excellent piece on Rwanda’s withdrawal, the European and Inter-American Court have “cooling off” periods to account for occasions where member states wish to withdraw, which the Court’s Protocol does not.With no specific terms in the Protocol, and without much in the way of material to imply such terms, in seems that Rwanda may be able to withdraw its Special Declaration for future cases with immediate effect.
The other, possibly more controversial, question is whether this withdrawal applies retrospectively to all matters currently before the Court , i.e. Victoire Ingabire’s case as well as the other pending cases involving Rwanda. Nani Jansen’s piece again suggests any withdrawal cannot be retrospective, and this will be a key issue for the Court to decide. Certainly at the time the pending cases were filed, the Court enjoyed jurisdiction. Before we can get a firm idea of how the retrospective issue will play out we will need to see the exact terms of Rwanda’s withdrawal; it could for example refer only to future cases, thus leaving pending cases within the jurisdiction of the Court, but this would seem unlikely.
As to how the Court will tackle the matter as a whole, it is interesting that the Court decided to hold the public hearing albeit without Rwanda in attendance. This feels like a gutsy move from the Court. Given that reports suggest the notification of the withdrawal came a few days before Friday’s hearing, the Court could have simply cancelled the hearing and put out a press release/statement. Instead, it went to the lengths of congregating and then formally suspending the matter. Perhaps I am reading too much into this, but it seems that this move sends a message that the Court will not simply sweep this matter under the carpet.
Of course the other issue will be how Rwanda’s actions will effect the remaining seven member states who are still signed up under Article 34(6), or for others signing the Special Declaration in the future? Do Rwanda’s actions give carte blanche to member states to sign and withdraw on an ad-hoc basis depending on the cases it faces before the Court? Naturally, we want to say no, but this is difficult to predict without more information. I would however suggest the biggest influence on other members states will now come from how the Court itself handles the matter. In many ways the Court cannot “do” anything. If Rwanda wants to withdraw its Special Declaration and no longer participate in cases involving individuals and NGOs the Court cannot force representatives to come to the Court or make representations. However, if the Court considers Rwanda’s withdrawal to be contrary to the Protocol, either in spirit or as a contravention of the Vienna Convention on the Law of Treaties, the Court could continue with cases pending before it, including that of Victoire Ingabire. This would be a brave move by the Court and likely lead to not only significant legal issues but huge political ramifications as well.
Just to quickly zoom focus out from the Court itself for a moment though, it seems fair to say Rwanda has suffered a number of disappointing judgements recently, with both English and Dutch courts rejecting applications for extradition of alleged genocidaires in recent months on fair trial concerns (although I understand these are subject to appeal). Member states’ decisions on this Court can rarely take place in a vacuum, and whilst its always dangerous to squeeze too many disparate matters together to try and form a whole, is it possible Rwanda could not face going 0-for-3 on important decisions outside of Rwanda?
Of course, Rwanda’s ratification of the Court’s Protocol remains in place, meaning that it can still face cases transferred from the African Commission on Human and Peoples’ Rights, other AU member states or cases it refers itself. But, rightly or wrongly, the gang of eight (now seven) who have allowed its citizens and NGOs direct access to the Court are lauded by many as progressive AU member states. To lose one is therefore a blow not only to the Court but to human rights in Africa. These Special Declaration member states can serve as an example to other member states on how to embrace the Court and all its stands for. It is therefore the nature of Rwanda’s withdrawal which might be of greatest concern; an 11th hour move just before a high profile case was to be heard. Perhaps this reflects worse on Rwanda than the Court, but such a withdrawal no doubt feels doubly disappointing for many involved with the Court. In many ways Rwanda’s actions also potentially demonstrate a larger problem the Court faces; member states wanting a human rights court, but not wanting to be brought before it themselves (the Ingabire case was to be the Court’s first involving Rwanda). We still need to know a lot more before we can make any definitive conclusions on what occurred on Friday. But whatever Rwanda’s potential concerns were over the Ingabire case or the Court itself, the Court has demonstrated that it considers cases transparently and, for the most part, with sound legal reasoning. Surely the way for Rwanda to deal with any potential issues concerning Article 34(6) would have been with the declaration still in force rather than to simply withdraw, if this indeed proves to be the case.
Reminder: As always, the views expressed herein are those of the author alone and do not necessarily reflect the views of any organisation affiliated to the author.