Author: Oliver Windridge

Reports coming out of Libya tell us that on 28 July 2015 Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, was sentenced to death for his role in his father’s regime. For example, see here and here.

As many readers will know, over the past few years Gaddafi has been subject to a game of legal tug-of-war between the International Criminal Court and Libya over who should try Gaddafi. You can read more about this here and here, but in essence in 2013 and 2014 the ICC decided that Gaddafi should be transferred to The Hague to be tried on charges of murder and persecution as crimes against humanity relating in particular to the Libyan uprising in 2011.

This ICC/Libya tug-of-war takes most of the headlines, especially so with this recent news that Libya appears to have proceeded in defiance of the ICC’s decision and tried Gaddafi and sentenced him to death. But in addition the Court has been activaly involved in this case for a number of years too, and in comparison to the ICC/Libya situation the Court’s involvement is often overlooked.

To recap on the Court’s activity so far, on 15 March 2013 the Court ordered provisional measures in response to an application by the Commission instituting proceedings against Libya alleging violations of the rights of Gaddafi under Articles 6 (right to liberty and protection from arbitrary arrest) and 7 (right to fair trial) of the Charter. The Court exercised it powers to order provisional measures in an attempt to force Libya to refrain from judicial proceedings the would impinge on Gadaffi’s Charter rights, allow him access to a lawyer and visits from family. The Court gave Libya 15 days to report back to it. Libya ignored the order.

Last month the Court issued a further order in response to the reports that Gaddafi had been on trial and sentenced to death. In this latest order the Court sets out in detail its attempts to get Libya to comply with its 2013 order and states clearly that Libya’s refusal to comply with the provisional measures and proceed with Gaddafi’s trial was in contravention of its obligations under the Charter, the Protocol  and other international instruments.Until now Libya has failed to respond to this renewed order as well.

Since Libya has not only refused to comply with the Court’s provisional measures order, but appears to have completely ignored the order, it is hard to imagine Libya will suddenly decide to comply with the Court’s latest order. But this does not mean that the renewed order should not be welcomed. Libya’s refusal to adhere by the Court’s orders is also not surprising given its stance with the ICC, but the Court is very much its own organization and its African Union backing gives Libya’s non-compliance a slightly different edge. Whatever happens as this matter proceeds it would be advisable to see Gadaffi’s case not as a tug-of-war between two parties, but instead to remember the role being played by the Court from the continental perspective too, even if so far it has met with little success.

1. Introduction

This case summary and analysis concerns the case of Zongo and others v Burkina Faso. This case is only the third to be decided on its merits, and the third in which the Court found in favour of the applicants, meaning that at present applicants enjoy a 100% success rate before the Court. In addition to the Judgement on the Merits, rendered on 28 March 2014, which contains important developments on Article 7 of the African Charter and a new approach to assessing preliminary matters, the case also resulted in a subsequent Reparations Judgement (in French), on 5 June 2015, where for the first time reparations were awarded to the Applicants.

The case concerns the murder of Norbert Zongo, an investigative journalist and director of the weekly magazine L’Indpéndenant, and three work companions on 13 December1998. The case was brought before the Court by the families of Norbert Zongo and his colleagues (“Individual Applicants”) and the NGO Burkinabé Human and Peoples’ Rights Movement (“NGO Applicant”, together “the Applicants”). The Applicants alleged that the murders of Zongo and his colleagues were related to their investigations into various political, economic and social scandals in Burkina Faso. In essence, the Court found that Burkina Faso had failed in its duty to properly investigate the deaths and identify and bring to justice those who had committed the murders.

2. Judgement on the Merits

The Applicants alleged that Burkina Faso’s failure to properly investigate the death of Norbert Zongo and his companions and bring those responsible to justice amounted to violations of African Charter Article 1, (the obligation to take appropriate measures to give effect to the Charter rights), Article 3 (equality before the law and protection under the law), Article 4 (right to life), Article 7 (right to have ones cause heard before a competent national court) and Article 9 (freedom of expression). The Applicants also alleged violations of the International Covenant on Civil and Political Rights (ICCPR), specifically Article 2(3) (right to be heard in cases of violation of rights), Article 6(1) (right to life), Article 14 (right to have ones cause heard by a competent, impartial and independent tribunal) and Article 19(2) (freedom of expression). The Applicants further alleged violations of the ECOWAS Treaty, in particular Article 66.2(c) (the obligation to ensure respect for the rights of journalists) and Article 8 (right to effective remedy) of the Universal Declaration of Human Rights.

(i) Jurisdiction and Admissibility

Interestingly, and for the first time, the Court dealt with a number of preliminary matters concerning admissibility and jurisdiction in a separate hearing and decision prior to considering the merits of the application. This new process included holding a preliminary public hearing in March 2013 after which in a decision on 21 June 2013 (“Preliminary Decision”) the Court upheld the Applicants claims, apart from alleged violations of Article 4 African Charter (right to life) on the basis that the Court lacked ratione temporis (passage of time) jurisdiction. In the Preliminary Decision the Court also found that Burkina Faso’s arguments regarding the Applicant’s failure to exhaust local remedies was not an exclusively preliminary matter and therefore it would consider these arguments at the merits stage.

(ii) Exhaustion of Local Remedies

Having made its finding that the issue of exhaustion of local remedies would be considered at the merits stage, the Court considered Burkina Faso’s arguments the Applicants had failed to exhaust local remedies. In particular, Burkina Faso argued that the application was inadmissible since the Applicants had failed to bring the matter before the highest court in Burkina Faso, the Court de Cessation, and because the procedure before the domestic courts had not been unduly protracted.

The Court noted that there was no dispute that the Individual Applicants had not exhausted all local remedies available to them, since they acknowledged they had made a decision to leave the domestic system and instead petition the Court. The Court therefore examined: (i) the effectiveness of any appeal to the Court de Cessation; and (ii) whether the entire process had been unduly prolonged which, as mentioned in Article 56 (5) of the Charter and Article 6(2) of the Protocol, is capable of providing an exception to the need for exhaustion of local remedies.

Regarding the effectiveness of an appeal to the Court de Cessation, the Individual Applicants explained that whilst an appeal was possible, they had deliberately decided not to peruse the case further domestically and instead petitioned the Court because the judicial remedies it had sought for nine years in Burkina Faso had proved inefficient and an appeal would have been a “waste of time”.

The Court recalled that the effectiveness of an appeal is measured in terms of its ability to solve the problem raised by an applicant. As such, the Court found that no doubt had been cast on the ability of the Court de Cessation to solve the Individual Applicant’s problems and therefore it was not a waste of time as suggested. Accordingly, the Court found that the domestic appeal route was an effective remedy which the Individual Applicants could have accessed.

As to whether the process was unduly prolonged, which would create an exception to the need to exhaust local remedies, the Court made clear that the “unduly prolonged” nature of a procedure applies to local remedies in their entirety as utilised or likely to be utilised by those concerned and therefore it is not appropriate just to consider remedies not yet utilized as argued by Burkina Faso. As to the duration itself, the Court stated this must be carried out on a case-by-case basis.

The Court therefore examined the processes at the national level in detail and concluded that the process had taken seven years, eight months and ten days (from 13 December 1998 to 21 August 2006). The Court found that this time period was unduly prolonged. As a consequence, the Court found that an exception to the local remedies requirement existed.

As to the NGO Applicant requirement to exhaust local remedies, the Court examined Burkina Faso law, and concluded that Article 56(5) of the African Charter requires the exhaustion of local remedies only where those remedies exist. Given that under the Burkina Faso system NGOs are not entitled to bring such actions before the court, Burkina Faso could not object to the admissibility of the NGO application since they could not exhaust local remedies.

(iii) Alleged Violations

Having found that the Applicants had straddled the exhaustion of local remedies hurdle, the Court went on to consider the specific alleged violations of the African Charter and other international human rights instruments.

(a) The Right to Have One’s Cause Heard Before a Competent National Court (Article 7(1) African Charter, Article 14 ICCPR and Article 8 of the UDHR)

The Court found that the right to have one’s cause heard before a competent national court contained several aspects including: (i) duration of proceedings in the local courts; (ii) the role of the Prosecutor; (iii) involvement of parties in a civil suit; and (iv) the dispatch with which Burkina Faso guaranteed this right.

With regards the duration of proceedings, the Court stated that Article 7(1) of the African Charter is fulfilled where the proceedings take place within a reasonable time. Given that the Court had already found that the process was unduly prolonged in terms of exhaustion of local remedies, the Court was obliged for the same reasons to find that the case was not addressed within a reasonable amount of time pursuant to Article 7(1) of the African Charter.

As to the role of the Prosecutor, the Applicants had argued that the Prosecutor’s position as serving under the Minister of Justice and their interference in the case at the national level violated their Article 7(1) rights. However, the Court found that Article 7(1) of the African Charter relates to the right to have one’s cause heard by a competent national court, and therefore what is important is the judge who is seized of the matter. Given that the judiciary are independent of the Prosecutor, it could not be said there was a violation of Article 7(1) of the African Charter as long as the Prosecutor’s conduct cannot be specifically demonstrated to interfere with the judiciary.

Concerning the involvement of parties in a civil suit, the Court considered the issue was whether the family members now bringing the case on behalf of the deceased had been involved in a civil case for damages against Burkina Faso in the domestic courts. The Court noted that it appeared that the family were heard by an investigating Magistrate, and that the investigating Magistrate’s decision not to pursue adversarial procedure did not amount to a violation of Article 7 (1) of the African Charter.

Finally, as to the dispatch with which Burkina Faso guaranteed this right, the Court stated that under Article 7 of the African Charter, Burkina Faso was compelled to make all necessary efforts to search, prosecute and bring to trial the perpetrators of crimes such as murder. It once again noted the unreasonable length of time taken to investigate the matter and also Burkina Faso’s failure to explore other possible explanations for the deaths. The Court was also concerned by the late hearing of the civil damages case, which was only heard close to eight years after the deaths, whereas the Individual Applicants had initiated their case in January 1999. It further found that after an order was issued in August 2006 to terminate the case against the main accused, Burkina Faso failed to pursue any further investigation “as if the matter had come to an end”. Accordingly, the Court considered that Burkina Faso had not acted with due diligence in seeking out the killers of Norbert Zongo and his associates. The Court therefore found that Burkina Faso had violated the rights of the Applicants to have their case heard by competent national courts as guaranteed under Article 7 of the African Charter.

Since the Court found a violation of Article 7 of the African Charter, it deemed it unnecessary to consider the allegations of a similar nature under Articles 2(3) and 14(10) of the ICCPR and Article 8 IDHR.

(b) The Right to Equal Protection of the Law and Equality before the Law (Article 3 African Charter)

The Court dismissed claims by the Individual Applicants that their case should have been dealt with as quickly as other similar cases, finding that equality before the law does not necessarily mean all cases should be disposed of in the same amount of time.

(c) The Protection of Journalists (Article 9 African Charter, Article 66(2)(c) ECOWAS Treaty, Article 19(2) ICCPR)

The Court found that Article 9 of the African Charter and Article 66(2)(c) ECOWAS Treaty should be read jointly; albeit Article 66(2)(c) ECOWAS Treaty specifically protects journalists whereas Article 9 of the African Charter covers more generally freedom of expression. The Court noted that the Applicants argued that the rights of journalists which should be guaranteed are the right to life and the right to freedom of expression. Since the Court had determined in its Preliminary Decision that it did not have jurisdiction to deal with right to life, the Court did not examine this aspect further. As to the right to freedom of expression, the Court considered this related to the general right to freedom of expression and not that of Zongo in particular, and that it did not involve the specific rights of the individual applicants who are not journalists. The Court found that whilst the allegation may be of interest to the NGO Applicant, they had failed to show proof that the Burkinabe media had not been able to exercise freedom of expression. It opined that Burkina Faso could not be accused of violating these provisions simply because it had not acted with due diligence and efficiency in identifying and bringing to trial the assassins of Zongo and his colleagues.

(d) Respect for Human Rights (Article 1 African Charter)

The Court split consideration of the general Article 1 African Charter right into two: (i) legislative measures; and (ii) other measures. As to legislative measures, the Court found that Burkina Faso had adopted a number of legal measures to guarantee the right to have one’s cause heard by an independent and impartial judge and it was therefore clear that it could not be blamed for not having taken general legislative measures. As to other non-legislative measures, the Court considered whether by failing to properly seek out the killers of Zongo and his colleagues, Burkina Faso had failed to take measures to ensure respect for the rights of the Applicants cause to be heard by competent national courts. Since the Court had already found that Burkina Faso had violated Article 7 of the African Charter it found that Burkina Faso had also simultaneously violated Article 1 of the African Charter.

3. Reparations Judgement

The Reparations Judgement, rendered on 5 June 2015, addressed the Court’s deferred ruling on the issue of damages to be awarded to the Applicants following their successful application.

Importantly, despite the reparations Judgement stating that the Court had found violations of not only Article 7 of the African Charter (right to have one’s cause heard) it also stated that the Court had found a violation of Article 9(2) of the African Charter, to be read jointly with Article 66 (2) (c) of the ECOWAS Treaty. However, the Court found that since no arguments were put forward regarding reparations for violation of Article 9(2) of the African Charter and Art 66(c) of ECOWAS Treaty, the Court would only consider reparations concerning the violation of Article 7 of the African Charter defined as Burkina Faso “did not act with due diligence in seeking out, prosecuting and putting on trial those responsible for the murder of Norbert Zongo and his three companions.”

(i) Reparations Framework

The Court began by setting out in detail the framework to be used by the Court when considering reparations and damages. Relying on the 1927 Permanent Court of International Justice The Factory at Chorzów case the Court recalled the basic premise that any country in violation of international human rights provisions is required to make full reparation for the damage caused.

As to the Court’s powers in particular, it noted that if it finds a violation, Article 27(1) of the Protocol empowers the Court to “make appropriate order to remedy the violation, including the payment of fair compensation or reparation”.

The Court recognized two types of damages; material and moral. The Court took its definition of material damages from the Dictionnaire de Droit International Public as “one that affects economic or material interest, that is, interest which can immediately be assessed in monetary terms”. It took its definition of moral damages from the IACHR case Cantoral Benavides v. Peru which defines moral damages as “one that affects the reputation, sentiments or affection of a natural person”.

(ii) Moral Prejudice

(a) Individual Applicants

The Individual Applicants claimed reparations on account of the pain, physical and emotional suffering and trauma endured throughout the duration of the lengthy legal procedure, which they argued was entirely ascribable to the Bukinabè authorities. The Individual Applicants requested lump sum payments to each of the families including payments to spouses, parents, children and step-brothers and step-sisters.

Burkina Faso argued that the Individual Applicants had failed to adduce sufficient evidence either under Bukinabè or international law to justify their status as beneficiaries. In particular, it submitted that the Individual Applicants had failed to provide sufficient documentation to prove their relationship to the deceased, or were too remote to qualify for reparations. Burkina Faso also pointed to international human rights jurisprudence which it argued demonstrated that only members of a family that have close filial relations with the direct victim are considered as indirect victims with a right to reparation, and that the Individual Applicants had failed to prove such a relationship.

The Court broke the matter into four “issues”: (i) the notion of victim; (ii) the type of evidence required to establish victim status; (iii) proof of causal link between the wrongful act and the moral prejudice suffered; and (iv) the amount of reparation.

With regards the notion of victim, the Court found that Burkina Faso incorrectly placed victims entitled to reparations on the same footing as heirs under Bukinabè law. It was of the opinion that according to international human rights law, the notion of victims must not necessarily be limited to that of heirs, and that it may include other close relatives who can reasonably be considered as having suffered moral prejudice as a result of the violation of the human rights in question. The Court found that there is no doubt that many people suffered morally to varying degrees from Burkina Faso’s lack of due diligence in seeking out, prosecuting and putting to trial the perpetrators of the killing of Nortbert Zongo and his colleagues, but that in this case those at the “very front line” suffered the most; the spouses, children, fathers and mothers. Accordingly, the Court found that these persons may claim status as victims and therefore were eligible for reparation.

As to the type of evidence required to establish victim status, the Court considered that in order to establish status as a victim, prospective victims need not produce a certificate of hereditary as required under Bukinabè law, since the relevant issue is not to know whether the person is an heir but rather to know whether such a person is recognized victim under international human rights law. Therefore the Court required spouses to produce marriage certificates and life certificates, for children to produce their birth certificate and life certificates, whilst fathers and mothers must produce proof of paternity. Regards proof of causal link between the wrongful act and the moral prejudice suffered, the Court considered that such a link may result from the violation without any need to prove otherwise.

Finally, as to the amount of reparations, the Court stated that the applicable principle is that of full reparation, commensurate with the prejudice suffered. The Court noted that the lump sum amounts submitted by the Individual Applicants were not contested by Burkina Faso who had instead sought to argue that their status as victims had not been established. The Court found that in these circumstances on the grounds of equity and considering the suffering of the victims occurred over many years it saw no reason not to award the amounts as requested by the victims. The lump sums requested and awarded being 25 million CFA F per spouse (approximately $41,500), 15 million per child (approximately $25,000), and 10 million CFA F per mother or father (approximately $16,500). The Court dismissed the claims for reparation for moral prejudice for step-mothers, uterine sisters and brothers and step-sisters and step-brothers.

(b) NGO Applicant

The Court also considered reparations for moral prejudice for the NGO Applicant, the NGO Applicant having made a submission for the token payment of 1 CFA F for the “damages caused to it for its involvement in the search for truth”. Burkina Faso indicated it found no inconvenience in paying the token damages.

The Court accepted that a legal entity can suffer moral prejudice. In this case, the Court considered that the prejudice may have resulted from the frustrations experience for years by the MBDHP trying to gain justice for the families of the deceased. The Court found that it’s Judgement on the Merits already constituted a form of reparation for the moral prejudice caused to the MBDHP. But in the “special circumstances of this case” where Burkina Faso had not raised any objection to the token payment granted the sum of 1 CFA F to be paid to the MBDHP.

(iii) Material Prejudice

The Court considered the NGO Applicant’s claim for reimbursement of expenses for organizing demonstrations use to try to force Burkina Faso to track down the killers of Zongo and his colleagues. Burkina Faso argued that claim for reimbursement of MBDHP’s expenses was groundless since the MBDHP had been in existence before the killing of Zongo and his companions, Burkina Faso already contributes to the running of MBDHP (a claim MBDHP flatly denied), that demonstrations were organized with other NGOs and were not solely based on the Zongo case but against impunity for generally, and that it had failed to provide documentation of the costs.

The Court found that the organization of demonstrations as detailed by the NGO Applicant fell within its general mandate and the ambit of its normal activities, and as such the Court found that there was no basis to grant the claim for reimbursements for organizing demonstrations.

(iv) Expenditure and Costs by Beneficiaries

The Applicants requested Burkina Faso reimburse lawyers fees and also the expenses incurred for transport to Arusha, where the Court is based.

With regards lawyer’s fees, the Court found that the reparations paid to the victims of human rights violations may also include the reimbursement of lawyers fees, a position stated in the Mtikila v Tanzania case. The lawyers representing the Applicants submitted claims for fees totaling 100 million CFA F (approximately $166,000). The Court calculated the amount to be awarded should take into account the “difficulties the lawyers must have faced” in the domestic proceedings especially considering the length of time taken, the highly politically sensitive nature of the case and the work required to bring the case before an international court.

The Court determined the lawyer’s fees on the basis of equity, going by what it considers reasonable in each case. Taking into account t amounts stipulated in Burkina Faso Indicative Scale of Costs and Fees, the amounts stipulated in fee agreements and the amount proposed by Burkina Faso itself (some 200 million CFA F) a lump sum comprising expenses and lawyers fees in the amount of 40 million CFA (approximately $66,500) was considered equitable and reasonable.

With regards transport and sojourn expenses in Arusha, the Applicants claimed the costs for their lawyers and a member of the MBDHP to attend the public hearings. The Court considered that reparations could include reimbursement of transport fares and sojourn expenses. It found however that only expenses supported by proof of payment such as receipts can be considered. The Court therefore granted claims backed up by receipts to the spouse of Zongo, lawyers and NGO representatives for hotel and flight costs.

(v) Measures of Satisfaction and Guarantees of Non-Repetition

The Applicants requested the Court to order the publication of its judgments in various newspapers in order to disseminate it as widely as possible. Burkina Faso did not object to such publications but argued that measures of satisfaction should not lead to the humiliation of the member state concerned. Recalling its order in Mtikila v Tanzania to publish the judgment as a measure of satisfaction, the Court found that such publication does not amount to public humiliation. Accordingly, it ordered within six months of the date of the Reparations Judgement that the judgement be published in a national newspaper and a summary be posted on an official government website for one year.

As to guarantees of non-repetition, the Applicants requested that the Court order the re-opening of the investigations in the killings so that the perpetrators can be brought to trial. Burkina Faso argued that such an order would be “contemptuous” of Burkina Faso law and procedure and that it continues to make the commitment that as soon as new facts emerge the investigation will be reopened.

The Court considered an order to re-open the investigation was not really a measure of non-repetition but rather the cessation of a violation already established, i.e. Burkina Faso’s failure to properly investigate and bring to justice those responsible for the killings. The Court was therefore of the view that such an order was a legitimate measure likely to forestall the continued violation of Article 7 of the African Charter. In doing so, it found that an order to re-open the investigation is unlikely to be considered contempt for Burkinabè legislation since the order is to offer the possibility of the investigation being re-opened. The Court made clear that in making the order it did not deem it necessary to indicate how it should comply with the order, leaving this to the discretion of Burkina Faso.

4. Conclusion

With regards the Judgement on the Merits, this case contained the new procedure of a hearing on the merits of the case only after a preliminary matters hearing. It is interesting to note that this preliminary hearing included issues of jurisdiction but stopped short of assessing exhaustion of local remedies. This new procedure in some ways may assist the Court in its work as cases which fail on jurisdiction can be dealt with quickly without the need to hear arguments on the merits. Of course the concern is that with a preliminary hearing, a case can now contain three parts: preliminary, merits, and reparations which may necessitate three separate court hearings and additional travel for applicants and their lawyers as well as lengthening the overall time frame of a successful application.

As to the exhaustion of local remedies, the interesting development here is in the “unduly prolonged” exception. The Court made clear that the period of time being considered is the whole of the time from the start of the litigation and not just any possible future litigation at the national level as argued by Burkina Faso. This standard is likely to produce more cases where undue delay exceptions are granted. In addition, the Court’s statement that the assessment of the duration of litigation should be done on a case-by-case basis is a sensible and welcome development and seeks to allow flexibility in future assessments.

With regards the central finding on violation of Article 7 of the African Charter I am not convinced why if the “unduly prolonged” test is met for exhaustion of local remedies this automatically obliges the Court to find duration also violated Article 7 of the Charter. It might, but I don’t see why one automatically leads to the other. It is also worth noting that once again having found a violation of the African Charter, the Court elected not to make a finding on the possible violation of other international human rights instruments. As I have mentioned previously, whilst this may be an issue of brevity in the judgement, it is disappointing that the Court does not also make a finding on the violation of international human rights treaties. Theses treaties do not represent an either/or option to the African Charter and should be instead considered to be important in setting a record of violations of these treaties for future cases and for consideration by other international human rights organizations who monitor such violations.

Despite these developments the Zongo case really establishes itself for the reparations awarded to the applicants. Certainly the Mtikila case first considered the issue of reparations, and in many ways opened the door for the awarding of reparations by stating that reparations were very much part of the Court’s remit, but undoubtedly as the first judgement in which the Court has awarded reparations Zongo should be considered another landmark judgement.

A few issues on the reparations are worth teasing out. First, is the symbolic awarding of 1 CFA F to MBDHP for moral reparations which seems somewhat to miss the point. Burkina Faso agreed that it would have no problem paying the amount. But symbolic amounts are always small. The point is whether it should be paid at all not whether the amount is manageable. To this end, possibly wary as to whether future NGO applicants can claim moral reparations, the Reparations Judgement seems clear that the main reparation is the finding in the Judgement on the Merits and only because Burkina Faso did not object to the payment of the token amount is it granted. This I believe will make it more difficult for the Court to pay it moral reparations to NGOs in the future where the state member objects.

Second, the payment of lawyers fees and travel and accommodation costs should be roundly welcomed. Whilst the Court is now operating a legal aid scheme which may alleviate the need for the Court to award lawyers fees directly, its willingness to award fees and costs association with litigating a case should be seen as a positive step in ensuring that applicants are represented by high quality legal representatives, and that the applicants have some hope of regaining the sometimes enormous costs of traveling to the Court in Arusha to have their case heard.

Third and finally, as to the order to reopen the investigation, leaving it to the discretion of Burkina Faso as to how they will comply with the order to reopen the investigation may, I am afraid to say, lead to disappointment for the families of the deceased. Since there appears to be no new evidence or information at this stage, in order to comply with this order Burkina Faso may have to simply reopen the investigation but this may result in no real progress being made- lets hope I am wrong.

In conclusion, the Zongo case marks a welcome development on the jurisprudence of Article 7 of the African Charter as well as indicating a new possible procedural regime. Where the case gains most attention is in the awarding of reparations for the first time. Where Mtikila hinted at the possibility of reparations being paid, the Zongo case represents an unmistakable clarion call that, where appropriate, the Court will not shirk from awarding significant levels of reparations to those whose rights have been violated.

Following an eventful two days, the specially constituted Chambres Africaines Extraordinaires (CAE) in Dakar, Senegal has suspended proceedings in the Hissène Habré trial until 7 September 2015. This post, the third and last this week concerning the Habré case, focuses on the potential ramifications of Habré’s behavior in court and  the CAE’s decision to appoint new lawyers to represent Habré.

Just to recap, on day one Habré along with his supporters disrupted proceedings, claiming not to recognize the legitimacy of the CAE and eventually being bundled out of court. You can see the footage here. The proceedings continued in Habré’s absence with the Prosecution making its opening speech. At the end of day one Presiding Judge Kam requested Habré to attend day two of the trial, and stated that this attendance would be secured by force if necessary.

On day two Habré was indeed present in court, with some reports stating this was by force. In any event, however Habré arrived he appeared less defiant, the reason possibly becoming apparent when the trial was due to commence; his defence team was no where to be seen. This left the court with an accused but no lawyers. The court therefore quickly appointed three new defence lawyers to Habré’s case. This appointment necessitated a postponement to allow the new defence team time to acquaint themselves with the case. The court gave them 45 days to do so and the trial will resume on 7 September.

First, with regards Habré’s behavior, especially on day one, as I wrote previously there is no legal requirement within the CAE Statute requiring Habré to be present during the trial. Clearly there are circumstances in which a trial can proceed in the absence of an accused who has voluntarily waived his right to be present. In this case Habré’s behavior was entirely of his own making and of such a disruptive nature so as to allow the trial chamber to remove Habré in order that the trial could proceed. Habré can safely be said to have voluntarily waived his right to be present through his disruptive behavior. My only suggestion would be that for the portions of the trial Habré is absent, to ensure there can be no issue over him not being informed of the proceedings concerning him, recordings of the proceedings should be provided to him; whether he chooses to review them is a matter for him. To this end, Article 36 CAE Statute states that proceedings will be recorded, so there would not seem to be any practical obstacles to providing Habré with such recordings.

Second, as to the appointment of new lawyers to represent Habré, Article 21 CAE Statute sets out the rights of the accused. In particular Article 21(4) (b) and (d) of the CAE Statute sets out the right of the accused to representation. These sections consistently refer to counsel of the accused’s choosing. Therefore, on a reading of the CAE Statute alone Habré has the right to be represented by lawyers he chooses.

This does not to appear to be what has happened here. The court itself appointed these new lawyers. This was done with the court stating “You have the duty to defend Hissene Habre even against his will so a fair trial can take place”. Whilst we do not yet have a decision explaining the decision to appoint counsel , something that I argue below should be issued, it would appear likely that this appointment was made pursuant to Article 2 (10) of the Additional Agreement to the CAE Statute. This provision allows the Principle Defender or others appointed by them to represent an accused where it is in the interests of justice.

In making this appointment it appears that the court refused to ask Habré if he agreed to the new counsel, possibly concerned with what to do if he said no. It is my understanding that the victims representatives specifically asked the court to confirm Habré was happy with the new counsel, possibly in an attempt to forestall any further delays down the road, but the court refused to ask the question. However, Article 2 (10) of the Additional Agreement does not contain a requirement that an accused consents to the appointment of counsel on their behalf. It is therefore potentially moot whether Habré accepts the new counsel or not.

Of course whilst legally Habré’s acceptance may not be required, practically if Habré does not accept these new lawyers the defence team will be severely limited in the work it can do to prepare for the restart of the trial and best represent Habré in court. Again, this is a matter for Habré himself and it can be argued that by appointing a team of lawyers at the very least to oversee the trial and ensure fair trial rights are protected the CAE has gone as far as it can.  Having said that, it also seems entirely possible all parties coming back to court on 7 September only to be told that Habré does not want these counsel and/or refuses to give them instructions, raising the possibility of further delays.

However, Habré is not the first deposed leader to grapple with a court tasked with trying him, and running into issues over legal representation. The ICTY has experienced similar issues, and consistently ensured the rights and interests of accused are protected through  court-appointed counsel, for example in the Karadžić and Slobodan Milošević cases, although the added wrinkle in both these cases was that the accused wished to represent themselves, something Habré has not asked to do.

My last point on the appointment of the new defence team is the time given to prepare. Yes, it can be argued that Habré has brought this on himself through his disruptive behavior, and that the absence of his defence team is just an extension of this behavior. But equally the appointment of defence counsel can also be seen as a separate issue. We  do not know exactly why the defence team was not present; whether this was part of a plan, or whether Habré sacked them or they felt they could not continue for any reason. In any event this still must not effect the right to fair trial. As eloquently put by the Habré victims coalition themselves in a statement put out by Human Rights Watch’s Reed Brody, “although Hissène Habré’s government sent thousands of people to prison without a trial or even a lawyer, it is only proper for a trial held in the name of justice that Habré himself receive the best defence possible”.

The new defence team is faced with preparing a defence in a case made up of many charges based on hundreds of witnesses and exhibits. Therefore there is an obvious concern that 45 days will only allow the new defence team to scratch the surface of the case.

Finally, I hope that the decision to appoint new counsel, and even the requirment of Habré’s presence will be the subject of a public decision from the CAE. This may not be required- the court can make oral decisions if it thinks best- but a clear decision setting out the reasoning for the appointment of new counsel and also explaining the requirement of Habré’s attendance (or not) in court would be welcome development to ensure the continued transparent operation of the CAE. We wait to see if this will occur; what we can safely say is that the we have not heard the last of the Habré trial.

So we are now on day two of the Hissène Habré trial at the specially constituted Chambres Africaines Extraordinaires (CAE) in Dakar, Senegal. This short post discusses Habré’s behaviour on day one, and the news that Habré may be brought by force to court today.

As many will have seen, day one of the Habré trial was marked by Habré’s disruptive behavior that lead to his removal from court. You can see the extraordinary footage of his removal here. Following this I understand Habré was not let back in, but that Presiding Judge Kam has stated that he would be brought in by force if necessary for day two of proceedings. News is now beginning to trickle through that Habré is indeed in court for the second day of his trial  with several sources reporting his appearance was indeed by force.

The question is therefore why the need to secure Habré’s attendance with force if necessary?

Article 21(4)(d) of the CAE Statute makes it clear that Habré is entitled to be in court during his trial in line with all recognized domestic and international human rights law on fair trials, but he is not required to be in court. Therefore there seems no legal requirement for Habré’s attendance and the trial can continue.

Of course this situation may give rise to discussion of a trial in absentia. Such trials often make us ( lawyers, jurists and legal academics in particular) uncomfortable; the idea that you can be tried without your knowledge, or without the opportunity to put your side of the story forward flies in the face of almost all recognized fair trial rights, and its for these reasons trials in absentia are often best avoided. But the situation here is different. Habré has been informed of the charges against him and has been given every opportunity to attend. This is not a case where a trial is taking place unbeknown to the accused, far from it. It is very much Habré’s choice to disrupt proceedings rendering his attendance impossible. Therefore, Habré is effectively forfeiting his right to be in court and fair trial rights cannot reasonably said to be in jeopardy.

So, given that the CAE Statute does not require Habré’s attendance, and fair trial standards are being upheld as long as Habré is continued to be given the opportunity to attend (as long as he does not disrupt) why are we reading of even the possibility of force being used to bring Habré to court?

Two possible reasons come to mind. First, the court is attempting to demonstrate from the very beginning of the case that it will be the one in charge of administration of the trial and that it will not be beholden to Habré’s wishes and commands. If this is the case, I would argue that the same message is just as effectively given simply by proceeding with the trial in Habré’s absence. By proceeding the court sends out just as strong a message that it will not bend to Habré’s will without the need to use force.

The second possible reason is for the sake of the victims. As I wrote yesterday on Justice in Conflict (cross posted here at The ACtHPR Monitor today) the victims coalition deserve huge praise for bringing this matter to court. The hard work and dedication  of the victim coalition should be lauded and can serve as an example of the dedication and tenacity required for victims to achieve the seemingly impossible task of bringing a former leader to trial. But this achievement of obtaining a trial must be separated from the trial itself. Beyond the possible satisfaction of seeing Habré forcibly brought to trial everyday what more will be gained? Carrying on with the case with or without Habré would not in any way diminish the work of the victims. I would argue that Habré’s behavior yesterday in court pays the victims the ultimate compliment- it is the victims who have endured.

UPDATE: It appears Senegalese criminal law allows the President of the Court to use force to bring an accused to court. So the use of force would not be an unfamiliar power in Senegal. See Article 276 of 3 November 2014 the law no 2014-28 available here.  Many thanks to Marion Chahuneau for the tip.

The views expressed herein are those of the author alone and do not necessarily reflect the views of the ICTY or the United Nations in general.

 

The post below appeared on Justice in Conflict yesterday on the first day of Hissène Habré’s historic trial in Senegal. Apologies if you have already seen this on JiC but I know a number of readers may not have.  I am grateful to JiC’s Mark Kersten for his review and edits to this piece.

The trial of the former Chadian leader Hissène Habré begins today at the specially constituted Chambres Africaines Extraordinaires (CAE) in Dakar, Senegal. Habré faces charges of crimes against humanity, war crimes and torture, crimes that allegedly took place in Chad during his tenure as the country’s president (June 1982 – December 1990).

Let us be clear: this trial would not be taking place without the vital work of the victims of Habré’s reign. From the outset, they have constituted a highly organized campaign group and doggedly pursued accountability. The Habré trial therefore serves as a fascinating and important example of a victim-lead campaign for justice at state, continental and international levels and provides a positive example of a successful campaign by victims group seeking accountability against its leaders. This post seeks to explore the approach taken by the Habré victim group, which is made up by the The International Committee for the Fair Trial of Hissène Habré, a coalition of the victims, along with the leading human rights groups in Chad and Senegal, Human Rights Watch, and the Fédération Internationale des Ligues des Droits de l’Homme. How will this victim-led approach affect the Habré trial and how can the unstinting efforts of the Habré victim coalition be used to encourage future cases in Africa and beyond?

As recounted by Reed Brody of Human Rights Watch, the paths taken by the Habré victim coalition to arrive at today’s trial includes domestic prosecutions in Senegal and Belgium, as well as cases before international tribunals and committees including the UN Committee Against Torture, the International Court of Justice, the African Union’s Committee of Eminent Jurists and the ECOWAS Community Court of Justice. While it should be acknowledged that this trial also owes a great debt to the hard work of Chadian and international NGOs within the victim coalition, it is no exaggeration to say that, without the tireless persistence of the victims themselves, the trial of Hissène Habré would not be taking place. That the Habré victims, with support from international NGOs, did so much of the heavy-lifting and, crucially, did so with a real sense of ownership of the case demonstrates how alleged victims of serious international crimes such as genocide, crimes against humanity, war crimes and torture, all of which are contained in the CAE Statute, can bring those accused of perpetrating mass atrocities to trial despite political and legal barriers as well as successive setbacks.

Faced with these obstacles, flexibility through a sense of ownership of the case has been key to the ultimate success of victim coalition. Although I am sure the victims would have preferred immediately achieving a trial of Habré, where they were faced with defeat or a dead-end, the victim coalition was able to pivot between domestic and international, tribunals and committees, in order to keep alive their pursuit of accountability. Setting the victim coalition at the fulcrum upon which the campaign for justice pivots meant failure to achieve the aim of accountability in one court or tribunal did not affect the ability of the groups to make further decisions on litigation strategy, the collection of evidence or to petition another court or tribunal. This stands in stark contrast to the institutional processes of handing over materials and painstakingly gathering evidence for investigation by a permanent institution such as the ICC, where the victims have a much reduced role at the investigation stage and possibly lack the same sense of ownership. Here, flexibility looks attractive but it is worth bearing in mind that the reason why the Habré victim coalition needed flexibility to toggle between courts and tribunals was a lack of success. Compare this with handing over the case to an investigation at an international criminal tribunal. Yes you lose a degree of ownership over the matter, but at least you know the institution is capable of prosecuting the matter – something the Habré victim group was never able to rely on.

Put another way, the victim groups approach used with such effect by the Habré victims allowed the victims to handle the wheel and steer the ship in the direction they considered best. With a tribunal or court as captain of the ship, the victim groups would have to be content with a second-class berth and to allow the ship to be steered in the direction the permanent tribunal or court – and not necessarily the victims – consider best.

Until now, the Habré victim coalition has controlled the ship. This leads us on to my second point: what happens to that control and ownership when you succeed in reaching your destination of accountability? As mentioned above, the Habré victim coalition can quite rightly claim ownership of the campaign and the resulting victory of seeing the CAE established. But what now?
The astounding success of the Habré victims in navigating the sometimes seemingly impossible waters of international law have lead to this ultimate destination: the independent trial of Habré in Senegal, starting today. Importantly, though, the desired destination for the victim coalition should not be confused with the starting point for the trial process itself. It remains to be seen how the Habré victims respond to the opening of the trial today when the matter is truly out of their hands and will be beholden,quite rightly, to the independent CAE headed by former ICTR judge Gustave Kam of Burkina Faso alongside senior Senegalese judges.

There is nothing to indicate that the Habré victims will not feel a sense of great accomplishment and look forward to seeing a fair trial take place. But, having come this far and battled to take the matter to its final destination, the victims must nevertheless accept a more limited role and allow due process and the fair trial of Habré to take place. This due process does include the victims participating as civil parties, but they will now correctly be one party amongst several. That the trial must be independent, and uphold all fair trial rights recognized at international and domestic levels should not be in question. The trial may result in convictions, but it may not. Accountability has been achieved, but this does not necessarily lead to a finding of culpability. However, irrespective of whether Habré is convicted or acquitted, ultimately the victim coalition’s greatest success is getting to the point where they can hand over the reigns to an independent judicial institution mandated to try Habré.

The interplay between a tribunal’s creation and its alleged victims has never been as close as it is with the Habré trial. It is arguable that Habré would have thought the least of his worries after leaving office were the victims he so casually discarded during this reign. But he was wrong. It is the victims who have endured. What is clear from the  creation of the victim coalition is that, to endure, victims of mass atrocity need resilience and huge tenacity to pursue accountability. Ultimately, it is the creation of the tribunal itself and the imminent trial of Habré that should be seen as the success, whatever the eventual verdict of the court will be.

The views expressed herein are those of the author alone and do not necessarily reflect the views of the ICTY or the United Nations in general.

On Monday 20 July 2015, the trial of former Chadian leader Hissène Habré will begin.

The ACtHPR Monitor has been busy tweeting in anticipation of the beginning of this historic trial and I wanted to quickly set out all these links here in one place. This list is by no means exhaustive but it should help you get fully briefed on the the Habré trial.

• The website of the Extraordinary African Chambers where Hissène Habré’s trial will take place here (in French).
• Extensive resources including links to the excellent documentary Parler De Rose from Human Rights Watch here.
• BBC 2012 profile of Hissène Habré still worth a read here.
• Excellent (and long) piece by Michael Bronner in Foreign Policy Magazine here.
• Short report and documentary by Euro News on Hissène Habré’s victims here.

Hopefully these links will help get readers up to speed on the upcoming trial. If you would like to recommend other materials please get in touch.

Following a fallow period, we have some exciting posts coming up at The ACtHPR Monitor. In the meantime, it was a pleasure to attend the recent Justice and Human Rights Conference at The Hague Institute for Global Justice .

My paper on access to the African Court was part of an access to justice panel that included excellent presentations on India, Mexico and Canada. I am hoping my paper will emerge soon, but for now here are two slides I created from the presentation.

The first indicates the steps that must be taken by a member state to allow individuals and NGOs with observer status the right to directly petition the Court (Charter, Protocol and Special Declaration)

The second shows the current ratification of the Charter, the Protocol and Special Declaration signatories.

I found that the slides, and particularly the maps, helped convey the access issues currently facing prospective applicants before the Court far better than words could.

Many readers will be aware of the Angolan journalist Rafael Marques de Morais who faces criminal defamation charges in Angola for publishing the book Blood Diamonds: Corruption and Torture in Angola in which he alleges high levels of corruption in the diamond mining business.  Rafael Marques de Morais plight has prompted me to write this  post examining how the recent Konaté judgement may help those facing trial for criminal defamation in Africa.

At the outset it should be noted that I have no involvement in Rafael Marques de Morais’s case, so I base my knowledge on the information publicly available through the usual channels. I cannot comment on Angolan legal procedure or the strength of evidence. This post limits itself to the question of how a judgement of the African Court on Human and Peoples Rights that finds one state parties’ legislation, in this criminal defamation, contrary to the African Charter can be used within the African human rights system by a citizen from a different state party who faces similar charges.

To recap, in Konaté v Burkina Faso the Court considered the case of Issa Lohé Konaté, the editor of the Burkina Faso based weekly L’Ouragan, who was arrested, tried and convicted of defaming a local state prosecutor. Finding unanimously in favour of Konaté, the Court ruled that Burkina Faso had violated Article 9 of the Charter, Article 19 of the International Covenant on Civil and Political Rights and Article 66(2)(c) of the ECOWAS Treaty, all relating to freedom of expression. The Court did not find violation of the Charter, ICCPR or ECOWAS Treaty for the imposition of custodial sentences for criminal defamation per se but was  critical of the use of custodial sentences out of proportion to an offence and suggested such sentences could violate Charter rights. The Court ordered Burkina Faso to amend its legislation in order to comply with the above articles and to report back to the Court within two years.

Given that, as I understand it, Rafael Marques de Morais faces similar criminal defamation charges what use is the Konaté case?

Firstly, does the Konaté judgement bind Angola? If it does then Angola would be required to remove or at least substantially alter its criminal defamation legislation to comply with the judgement and therefore lessen or possibly remove Rafael Marques de Morais’s charges of criminal defamation. Article 30 of the Court’s Protocol which deals with execution of judgements states:

The States Parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.

Rule 61 (5) of the Rules of the Court states:

The Judgment of the Court shall be binding on the parties

Angola has not signed the Court Protocol, therefore it does not pass the first test of being a “state party to the present protocol” as required under Article 30 of the Protocol. Even in the event that it was, on a plain reading of Article 30 and Rule 61(5) only parties in the case shall be bound by the judgement of the Court. Therefore, Burkina Faso is bound by the Konaté judgement but no other state parties are bound.

However, even though Angola is not bound by the Konaté judgement it still remains a powerful tool. First, domestically I would suggest the precedent set by Konaté provides a strong foundation for a challenge to the existence of criminal defamation laws on the statute books, given Angola is a party to the African Charter. As I note above, I have no knowledge of the Angolan legal system so cannot comment further on how this challenge would best proceed, apart from the obvious that since Konaté makes it clear that criminal defamation laws violate freedom of expression rights, any domestic court would need to get creative in distancing itself from its obvious application domestically.

The Konaté judgment may be even more powerful at the continental level. As mentioned above, since Angola has not signed the Court Protocol the Court does not enjoy jurisdiction to hear cases relating to Angola. Angola is however a signatory to the African Charter on Human and Peoples’ Rights. Anyone may bring a complaint to the attention of the African Commission on Human and Peoples’ Rights alleging that a signatory to the African Charter has violated one or more of the rights contained therein, therefore opening the way for an application by any Angolan citizen to the Commission.

The question then is what weight or influence does a Court judgement have on the Commission? The Rules of the Commission and the Court make it plain that the two bodies are to complement each other, for example Rule 114 of the Commission Rules. Certainly the Court uses Commission decisions as jurisprudence in assessing its cases, for example the Mtikila judgement was littered with references to Commission decisions. I would therefore suggest that in the reverse the Commission would take the Konaté judgement as a strong precedent to potentially find Angola in violation of Charter rights for the use of criminal defamation charges to quash freedom of expression. Taking this a step further, the Commission has the power under Rule 118(4) of the Commission Rules to seize the Court at any stage of a case. Such a referral may well cause a jurisdictional headache since Angola has not signed the Court Protocol, but if the Commission could be persuaded to refer the case to the Court, the Court would then be seized of a matter which it had already made findings in a similar case.

In conclusion, obviously the best result for Rafael Marques de Morais is that the charges are dropped or he is acquitted at trial before the need to take matters further. If the case does progress though, does the Konaté judgment come to the rescue? As is often the case the answer is yes and no. On my reading of the relevant instruments the judgement is not binding on Angola. Domestically, it may well provide a strong foundation for a challenge. On the continental level, Angolans are barred from bringing cases to the Court but are able to bring complaints to the Commission. At the Commission level I suggest the Konaté judgment would be a strong precedent and would be considered favorably.

You can follow Rafael Marques de Morais on twitter here. For more on the story see the Guardian piece here.

The following is cross-posted on the excellent piracy law blog Communis Hostis Omnium founded by my good friend Roger Phillips and now co-edited by Milena Sterio and Michael Scharf. My thanks in particular go to Professor Sterio for her review and edits.

Following on from my recent post on The ACtHPR Monitor on the future African Court on Justice and Human Rights (ACtJHR), this post explores at further length one of the other 14 crimes which will fall under the jurisdiction of the ACtJHR – piracy.

As a brief introduction and recap, the African Court on Justice and Human Rights is a proposed African Union backed court. The ACttJHR has yet to become operational, requiring ratification from at least 15 African Union member states. Once operational, the ACtJHR will consist of three sections; a general affairs section dealing with commercial and civil matters, a human rights section that will replace the current African Court on Human and Peoples’ Rights, and an international criminal section which will have an ambitious jurisdiction over 14 international crimes including piracy as well as genocide, crimes against humanity and war crimes.

That piracy is one of the ACtJHR’s 14 crimes is worth noting in and of itself. Since the court will have the backing of at least 15 AU member states it can be said to be a truly international, albeit continental, court and therefore can safely be referred to as the first international court with the jurisdiction to try piracy cases (the International Criminal Court (ICC) does not have jurisdiction over piracy). Until now the international element of piracy cases has been often seen as international cooperation in manning the seas, but it has been national jurisdictions- most notably in the Seychelles, Kenya and Mauritius- which have born the burden of prosecuting the cases, albeit with financial and professional help from other countries. The inclusion of piracy in the ACtJHR Statutes moves the cases themselves into the international arena and has the potential to bring piracy into a truly international setting, thus alleviating the burden from individual countries to prosecute these cases.

As to the law itself, Article 28F of the ACtJHR’s draft Statute defines piracy as follows:

a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private boat, ship or a private aircraft, and directed:

i. on the high seas, against another boat, ship or aircraft, or against persons or   property on board such boat, ship or aircraft;

ii. against a boat, ship, aircraft, persons or property in a place outside the jurisdiction of any State.

b) any act of voluntary participation in the operation of a boat, ship or of an aircraft with knowledge of facts making it a pirate boat, ship or aircraft;

c) any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b).

This definition is an exact replication of Article 101 of the United Nations Convention on the Law of the Sea with the addition of “boat” alongside ship or aircraft throughout. This is unsurprising given the Convention’s almost universal position as reflecting customary international law on piracy.

Article 28N of the ACtJHR Statute also sets out the modes of liability through which accused can be commit piracy, as follows:

 

An offence is committed by any person who, in relation to any of the crimes or offences provided for in this Statute:

 

1. Aids or abets the commission of any of the offences set forth in the present Statute;
2. Incites, instigates, organizes, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute;
3. Is an accessory before or after the fact or in any other manner participates in a collaboration or conspiracy to commit any of the offences set forth in the present Statute;
4. Attempts to commit any of the offences set forth in the present Statute.

 

These modes of liability apply to all 14 crimes under the Court’s jurisdiction. It is interesting to note how some of these modes of liability mesh with the piracy definition: for example, Article 28F(c) refers to inciting piracy as a crime whereas Article 28N(i) refers to inciting as a mode of liability.

Despite these small issues regarding the relationship between the definition of piracy and modes of liability, the ACtJHR Statute raises many more practical questions, not least of which is whether this court can really work?

Regarding jurisdiction, under Article 46F of the ACtJHR Statute, the ACtJHR will be able to exercise its jurisdiction over piracy cases where:

 

1. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party;
2. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Assembly of Heads of State and Government of the African Union or the Peace and Security Council of the African Union.
3. The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 46G.

Therefore, even if countries with prevalent piracy issues such as Somalia are not a state party to the ACtHJR the Court will be able to exercise jurisdiction to hear the case if it is referred to by another state party, which raises the possibility of countries directly affected by piracy, for example Kenya or Tanzania, referring piracy matters to the Court.

An interesting issue will be the capture of alleged pirates irrespective of who referred a piracy matter to the Court. Whilst there is general agreement that universal jurisdiction allows third party states to capture pirates who may be nationals of non-ACtJHR member states, it will be interesting to see how the interplay works between their capture and the handing over to the ACtHJR, since this process may result in several countries being involved. For example, piracy off the coast of Tanzania referred to the ACtJHR by Kenya could lead to the capture of Somali alleged pirates by the British Navy who could then be transferred to the ACtJHR for trial.

Presumably, a memorandum of agreement or understanding will need to be drafted between those authorities patrolling the seas around Africa who are not member states of the ACtJHR, for example the British Navy, and the ACtJHR. Such a memorandum would need to specify that patrolling authorities which are not member states of the ACtJHR will hand over into the custody of the ACtJHR persons captured allegedly committing piracy once a matter is referred to the Court. The transfer of individuals would be the same as suspects for genocide, crimes against humanity or other crimes. That the suspects would be detained by third party states also would not be dissimilar to an accused being detained by a third party (for example a Rwandan being detained in Kenya)

The power of these patrols to carry out arrests would be unlikely to attract debate since it is long recognized that piracy enjoys universal jurisdiction. However, capture raises the issue of indictments. Under the ICTR, ICTY, ECCC, SCSL and ICC, indictments are issued against named persons, almost always not in the custody of the court. With piracy cases, however, it is far less likely that such named person indictments can be issued unless for particularly notorious leaders or land-based backers. Instead, the bulk of piracy arrests and transfers to the ACtJHR are likely to be those picked up on the high seas by patrols who find them. These alleged pirates will not be previously known to the authorities and will therefore not have named indictments issued against them unless a blanket indictment was somehow issued which would be fraught with additional legal issues.

The lack of indictment is not necessarily a problem- people are arrested and detained for criminal offences at the national level everyday without outstanding indictments- but it is likely to be an administrative headache to process new indictments and still uphold the suspect’s rights to a first appearance without delay. This is to say nothing of the fact that the process of handling suspects without outstanding indictments is fundamentally different to that of suspects wanted for crimes such as genocide and crimes against humanity where a prosecutor often spends considerable time crafting indictments based on research and investigations. The difference between these indictments means that piracy prosecutions even within a international court such as the ACtJHR are likely to have more in common with a domestic robbery case than that of a genocide case. On the positive side, this could well mean a more efficient process since indictments would be relatively short, containing small numbers of charges and therefore lead to shorter trials, with smaller amounts of evidence and fewer witnesses required. On the negative side, these cases could be slowed down by a prosecutor having to put together a case only once an alleged pirate has been captured. This process of only starting investigations once a suspect is detained has the potential to massively slow down the whole judicial process and may well run counter to the prosecution office’s processes for trying crimes such as genocide and crimes against humanity.

In reality, this could mean the ACtJHR international criminal law section will effectively contain two strands- a fast track/small cases chamber to deal with matters such as piracy and a second strand which would deal with larger cases of genocide, crimes against humanity, war crimes etc.

In addition, some of the long held problems of prosecuting piracy at an international level may well come to the fore once the ACtJHR is up and running, namely the unwillingness of some countries to financially back prosecutions that have a large commercial element. Without wishing in any way to diminish the undoubtedly harrowing ordeals hostages are subjected to, there remains the fact that the victims of piracy include wealthy shipping and cargo companies- not the type of victims which usually illicit much sympathy from the international community. The issue of victims also leads to the issue of prosecuting piracy cases at the international level at all. As is often stated, the prosecution of crimes such as genocide and crime against humanity is more than just the prosecution of individuals but also the international community’s rejection of policies or ideals which lead to the crimes committed, as well as the international community’s condemnation of crimes it considers unacceptable and abhorrent. When it comes to piracy, there are no such policies or ideals- piracy occurs for financial reasons. Although it is recognised that the money may be financing an ideal or policy equally as abhorrent as those prosecuted through genocide or crimes against humanity, the fact remains that piracy is at its core a financial crime. This difference has the practical effect that different levels of perpetrators are likely to be tried for piracy matters compared to other international criminal law prosecutions. For example, where the International Criminal Tribunal for Rwanda set out to prosecute those at the very top of the Rwandan government and army, the likelihood is that those piracy suspects captured at sea are not the very top of the piracy trade, but rather the “tools” used to carry it out- the very people international tribunals have not sought to prosecute.

Above are just some of the issues which will likely emerge once the ACtJHR is operational and begins to consider piracy cases. What is not in dispute is that piracy in the modern age has been a significant problem for Africa. It therefore seems logical that the ACtJHR will be the first international court to have jurisdiction over piracy cases. What remains to be seen is whether the Court will succeed in providing an African solution to this African problem.

 

The recent decision by the Extraordinary African Chambers (ExAC) to authorise the trial of the former President of Chad Hissène Habré on charges of crimes against humanity, war crimes and torture is a fascinating and potentially momentous moment for African criminal justice and human rights.

From the perspective of the African Court on Human and Peoples’ Rights, it brings into sharp relief the pending establishment of the African Court of Justice and Human Rights (ACtJHR) and especially its proposed international criminal law chamber.

As to whether this is a dress rehearsal for the ACtJHR, there are certainly similarities between the ExAC and the ACtJHR. From a practical standpoint, the ExAC is funded and administered in large part by the African Union who will also run the ACtJHR (ExAC Agreement, Article 4). ExAC judges and staff will enjoy privileges and  immunities similar to those which UN and AU staff are entitled and which ACtJHR staff will also  enjoy, giving the ExAC the feel of an international tribunal (ExAC Agreement, Article 6 & ACtJHR Statute, Article 15). With regards the law,  the ExAC has jurisdiction to try cases of genocide, war crimes, crimes against humanity and torture (ExAC Statute, Articles 4, 5, 6, 7, 8). These crimes will also fall within the jurisdiction of the international criminal law chamber of the ACtJHR, although an important distinction should be noted that whilst torture is a crime against humanity and war crime under the ACtJHR Statute, it does not enjoy status as a separate crime as found under the ExAC Statute (Amended ACtJHR Statute, Article 28A & ExAC Statute, Article 8.) .

The two tribunals have a number of other differences too. For example, the ExAC bench will consist of a majority of Senegalese judges. The ExAC will have an international flavour since the President of the Trial and Appeals Chamber will be judges from another AU member state (ExAC Statute, Article 3 (3) & (4)), but its roots are squarely within the Senegalese judiciary. The ACtHJR however will likely have three judges from three different AU countries (Article 10(4) of the ACtJHR Draft Statute does not explicitly state the Judges should be from different countries but consistency with the current African Court on Human and Peoples Rights and other international tribunals would strongly suggest this is a case of vague drafting rather than anything else).

In addition, the ACtJHR will be a permanent court whereas the ExAC has a limited remit. The ACtJHR also has an ambitious roster of 14 crimes within its jurisdiction, whereas the ExAC has just the four mentioned above. The structures of the tribunals also appear slightly different with the international criminal law chamber of the ACtJHR consisting of a pre-trial, trial and appeals chambers (Amended ACtHJR Statute, Article 16(2)) whereas the ExAC consists of pre-trial, indictment, trial and appeals chambers (ExAC Statute, Article 2).

Both the ExAC Statue and Amended ACtJHR Statute contain definitions of the crimes they have in common- genocide, crimes against humanity, war crimes and torture. With regards the definition of genocide, both tribunals have almost identical definitions save for the interesting absence of “acts of rape or any other form of sexual violence” from the ExAC Statute (Amended ACtJHR Statute, Article 28B & ExAC Statute Article 5). Although it should be noted that Habré will not face genocide charges at the ExAC.

As to the definition of crimes against humanity, the ACtJHR Statute is more expansive, including”enterprise” alongside “widespread or systematic attack” to read “widespread systematic attack or enterprise” and adding the requirement of knowledge of the attack or enterprise (Amended ACtJHR Statute, Article 28C). Both include murder, extermination, rape or sexual violence, apartheid, and enslavement as crimes against humanity. The ACtJHR Statute is however more extensive including forcible transfer, enforced disappearance, imprisonment in violation of “fundamental rules of international law”, and other inhumane acts (Amended ACtJHR Statute, Article 28C.1), whilst also providing detailed explanations of most terms found in the Crimes Against Humanity section (Amended ACtJHR Statute, Article 28C.2). The ExAC Statute does however contain elements not found in the ACtJHR Statute including summary executions, kidnapping and enforced disappearance (ExAC Statute, Article 6(f)).

As to war crimes, the ExAC’s jurisdiction is a relatively scaled back list including murder, torture, destruction of property, compelling prisoners of war to serve in armed forces, deprivation of fair trial, unlawful deportation or transfer and taking of hostages and Article 3 violations including violence to life, collective punishments, taking of hostages, terrorism, and pillage. Whilst the ACtJHR Statute contains the above crimes but expands its area of jurisdiction to something similar to that found under Article 8 of the ICC Rome Statute (Amended ACtJHR Statute, Article 28D). As mentioned above, interestingly the ExAC Statute makes torture a separate crime whose definition follows closely that found in Article 1 of the Convention Against Torture (ExAC Statute, Article 8).

(Just as a side note on differences, the vexed question of immunities is not particularly relevant here since Habré is a former head of state and the immunities provision found in Article 46A of the Amended ACtJHR Statute pertains only to serving heads of state or other senior state officials.)

So on balance these two tribunals have some similarities but also significant differences. However the reality is that with the ExAC we have an African Union backed international criminal law chamber containing an international bench trying an accused of crimes against humanity, war crimes and torture in Africa. Given the similarities to what the AU hopes to achieve with the ACtJHR it is difficult to imagine that the Habré trial will not create some sort of precedent, good or bad, for the ACtJHR and will be seen by many as a test case on whether the ACtJHR can succeed.

Of course the ACtJHR is still some ways off, still requiring 15 ratifications to be created and then some time to actually get set up. No doubt there will be difficulties with the ExAC but if ultimately its Habré trial is seen as transparent, compliant with international human rights standards (particularly for the accused) and completed within a reasonable time frame it will serve as a strong and encouraging example to the international community- including perhaps the ICC from whom the AU hope to wrestle some measure of control- that the international criminal law chamber of the ACtJHR is a viable answer to prosecuting international crimes that occur in Africa. As to whether this happens- we have to wait and see.

For more on this issue also have a look at Vera Padberg’s piece at iLawyer. See also the report on the BBC and The Economist.

You can find the ExAC agreement and statute referred to in this post within the Agreement between Senegal and the African Union for the establishment of the ExAC here and the proposed ACtJHR Statute here and June 2014 amended statute here.