Abstract
This chapter discusses the legal characteristics of provisional measures under the African Human Rights System, partly with the aim to fill the gaps found in the works of the Rapporteur on provisional measures of the Institute of International Law. After a brief overview of the provisional measures issued by the African Commission, it examines the precautionary power of the African Court, reaching the conclusion that the Court is inconsistent in the use of such power. This conclusion derives from an analysis of three main and interrelated critical issues, namely: (i) the binding or recommendatory nature of the provisional measures of the African Court; (ii) their domestic implementation; and (iii) the potential responsibility of States that fail to implement them. These critical issues are introduced and observed through the lens of the paradigmatic Saïf al-Islam Kadhafi case, where the African Court first stated that the provisional measures were binding on the State concerned but then, after ascertaining the lack of compliance with such measures, abstained from declaring any resulting international responsibility of that State.
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Notes
- 1.
Hereinafter I will mostly use the expression “provisional measures”, despite the fact that in international practice the adjective “provisional” is sometimes replaced with “interim”, “precautionary”, “emergency”, “urgent” or “conservatory”. These are all synonyms.
- 2.
The task of studying the topic of provisional measures issued by international courts and tribunals had been conferred upon the Third Commission of the Institute of International Law during the 2009 plenary session in Naples. A Resolution, entitled “Provisional Measures”, was later adopted on 8 September 2017 and is now available at www.idi-iil.org and in Yearbook of the Institute of International Law, vol. 78, Session of Hyderabad, 2017, pp. 127–130. The Final Report of Lord Collins, previously published on 23 December 2016 at www.idi-iil.org is now available in Yearbook of the Institute of International Law, supra, pp. 259 et seq. The Final Report is mostly an update of the course that the Rapporteur delivered at the Hague Academy of International Law: see Collins 1992, pp. 9–238. For a comment on the outcomes of the Institute of International Law concerning provisional measures, see Ruozzi 2018, pp. 1182–1210.
- 3.
It is not possible to take into account here the entire legal literature dealing with provisional measures in international law. Apart from this volume and by way of illustration only, see Bernhardt 1994; Gaeta 2000; Rosenne 2005; Oellers-Frahm 2012a, pp. 389–410; Miles 2017. With regard to provisional measures issued by international courts and tribunals operating in the field of human rights, see Cohen-Jonathan and Flauss 2005; Pasqualucci 2005, pp. 1–49; Saccucci 2006; Rieter 2010.
- 4.
See the relevant remarks by Lord Collins in the Final Report, supra note 2, mainly p. 265.
- 5.
Another member of the Institute of International Law, Santiago Torres Bernárdez, openly expressed his disagreement as to the focus of the research on provisional measures in both public international law and private international law: see the memorandum submitted on 14 January 2016 and then attached to the Final Report, supra note 2, pp. 367 et seq.
- 6.
The International Court of Justice may issue provisional measures pursuant to Article 41 of its Statute and Rule 75 of its Rules of Procedure (for details, see Chap. 6 by Wittich in this volume). The International Tribunal for the Law of the Sea may order provisional measures pursuant to Article 290 of the United Nations Convention on the Law of the Sea and Article 25 of its Statute, both defining such measures as binding (for details, apart from Chap. 7 by Marotti in this volume, see Rosenne 2005, passim; Virzo 2005, pp. 383–412; Virzo 2012, pp. 1352–1354).
- 7.
The Inter-American Court of Human Rights may adopt provisional measures pursuant to Article 63(2) of the American Convention on Human Rights and Rule 25 of its Rules of Procedure, while the Inter-American Commission of Human Rights may recommend provisional measures pursuant to Rule 25 of its Rules of Procedure. Even if the European Convention on Human Rights does not include any provision concerning the precautionary power of the European Court of Human Rights, this Court (and previously the European Commission of Human Rights) has often issued provisional measures. The precautionary power of the European Court is currently enshrined in Rule 39 of its Rules of Procedure. For details on the provisional measures of the European Court, see Chap. 11 by Saccucci in this volume.
- 8.
The African Human Rights System has its roots in the African Charter on Human and Peoples’ Rights, adopted in 1981 and entered into force in 1986. At present, all the African States are parties to the African Charter, the only exception being Morocco. The first part of the African Charter sets out civil and political rights, a catalogue of economic, social and cultural rights, a list of collective rights and some human duties. The second part of the African Charter focuses on the African Commission on Human and Peoples’ Rights. The Commission can receive communications from States, individuals and NGOs and has a general power to issue non-binding acts only. The African Human Rights System was renewed by the Protocol instituting the African Court on Human and Peoples’ Rights, signed in Ouagadougou in 1998, and come into force in 2004. Currently, it has been ratified by 30 African States. The African Court can pass binding judgements. The African Commission, States Parties to the Ouagadougou Protocol, African intergovernmental organisations, individuals and NGOs are entitled to submit cases before the African Court. For details on these points as well as other aspects concerning the African Human Rights System that will be mentioned hereinafter, see Pascale 2017.
- 9.
The same happens in the European Human Rights System. As recalled supra, note 7, the European Court of Human Rights has the power to issue provisional measures pursuant to Rule 39 of its Rules of Procedure. However, the European Court has relied on the European Convention, especially Article 34, to assert the binding nature of provisional measures: see infra, note 52. As yet, nothing similar has occurred in the case-law of the African Commission.
- 10.
The African Commission cannot issue provisional measures in cases stemming from inter-state communications since its role in the relevant procedure is to “diplomatically facilitate” rather than settle any possible inter-state dispute.
- 11.
Rule 98(2–5) further provides as follows: “2. If the Commission is not in session at the time that a request for provisional measures is received, the Chairperson, or in his or her absence, the Vice-Chairperson, shall take the decision on the Commission’s behalf and shall so inform members of the Commission. 3. After the request for provisional measures has been transmitted to the State party, the Commission shall send a copy of the letter requesting provisional measures to the victim, the Assembly, the Peace and Security Council, and the African Union Commission. 4. The Commission shall request the State party concerned to report back on the implementation of the provisional measures requested. Such information shall be submitted within fifteen (15) days of the receipt of the request for provisional measures. 5. The granting of such measures and their adoption by the State party concerned shall not constitute a prejudgment on the merits of a communication”.
- 12.
ACoHPR, Communications Nos. 137/94, 139/94, 154/96, 161/97, International Pen, Constitutional Rights Project, Civil Liberties Organizations and Interights (on behalf of Ken Saro-Wiwa) v. Nigeria, Report of 31 October 1998, paras 7–9, 30–37, 48, 103–116.
- 13.
The position of the African Commission is very similar to that of several United Nations Committees, whose provisional measures cannot bind the States concerned, notwithstanding the statements of some Committees trying to suggest the binding nature of their provisional measures. Indeed, these Committees are quasi-judicial bodies that can issue non-binding acts only. For further analysis, see Oellers-Frahm 2012a, pp. 398–399, 403–404.
- 14.
According to Article 5(1)(a) of the African Court Protocol, the African Commission is an applicant before the African Court as far as the cases already submitted to the African Commission itself are concerned. In addition, Rule 118(2) of the Rules of Procedure of the African Commission states that, when the Commission finds that a State has not complied with the provisional measures previously recommended, it may refer the relevant case to the African Court, after informing the complainant and the concerned State.
- 15.
ACoHPR, Communication No. 123/09, Centre for Minority Rights Development (CEMIRIDE) v. Kenya, Order of 9 November 2009. As regards the subsequent proceedings before the African Court, see infra, Sect. 12.4 of this chapter.
- 16.
ACoHPR, Communication No. 411/12, Mishana Hosseinioun v. Libya, Order of 18 April 2012. A human rights activist, not acting under mandate from the victim, brought this communication before the African Commission. The Commission admits such a procedure and, unlike the European Court of Human Rights, does not require that the victim of the alleged violation and the individual filing the claim be the same person. With regard to the subsequent proceedings concerning the Saïf al-Islam Kadhafi case before the African Court, see infra, Sect. 12.4 of this chapter.
- 17.
Neither Article 27(2) of the African Court Protocol nor Rule 51 of the Rules of Procedure of the African Court specify the kind of act to be adopted for the purposes of provisional measures. In any case, as practice shows, the Court usually issues an “order” in these cases.
- 18.
International courts and tribunals typically verify the existence of a situation of extreme gravity and urgency before of issuing provisional measures. See in particular: ICJ, Passage through the Great Belt (Finland v. Denmark), Order of 29 July 1991, paras 23 et seq. For updates concerning the International Court of Justice, see Virzo 2019, pp. 2140 et seq. As a matter of principle, the extreme gravity and urgency of a situation depend on the imminence of an impending event, mostly irreparable, to be avoided. So, with regard to the international protection of human rights, the European Court of Human Rights usually admits that a situation of extreme gravity and urgency arises when the life of the alleged victim is (even indirectly) at risk because of: the imminence of his/her expulsion or extradition; the impending execution of a death penalty previously decided by a domestic judge; the lack of basic medical treatment while the victim is in prison. The practice of the Inter-American Court of Human Rights is very similar, given that even this Court issues provisional measures when human life is at stake. In addition, the Inter-American Court often orders provisional measures in cases concerning indigenous peoples. See Wolfrum 2006, paras 32 et seq.; Rieter 2010, pp. 971 et seq., et passim. For a general assessment of conditions for the issuance of provisional measures, see Chap. 3 by Le Floch in this volume.
- 19.
The scrutiny of prima facie jurisdiction of an international court or tribunal when intending to issue provisional measures represents a sort of “compromise” between the urgency of the judicial action and respect for the sovereignty of States (since the consent of the State is the ultimate basis of international dispute settlement). Of course, the prima facie assessment does not prevent any international court or tribunal from carrying out a subsequent in-depth assessment of its jurisdiction on the merits of the case. On this point, see Oellers-Frahm 2012a, pp. 393 et seq. With regard to the International Court of Justice, also see Rosenne 2005, pp. 85 et seq.
- 20.
As regards this point, the practice of the African Court is in principle in line with that of the European Court but partially inconsistent with that of the Inter-American Court. Indeed, when intending to issue provisional measures, the latter usually gives to both parties the faculty to quickly produce their written statements. The International Court of Justice seemingly applies this same procedure, although there are some important exceptions, especially arising when human life is at stake, as in the LaGrand case (about this case, see infra, notes 53 and 71). In general, also see Pasqualucci 2005, pp. 39–40.
- 21.
With regard to the criteria concerning the admissibility of cases, Article 6(2) of the African Court Protocol refers to Article 56 of the African Charter relating to the admissibility of individual communications before the African Commission. The criteria enshrined in Article 56 of the African Charter are thus duplicated in Rule 40 of the Rules of Procedure of the Court.
- 22.
Problems relating to the scrutiny of plausibility of the rights at stake when an international court or tribunal intends to issue provisional measures are currently of great interest. See Chap. 5 by Sparks and Somos in this volume. Among the many other relevant essays, see Marotti 2014, pp. 761–786; Lando 2018, pp. 641–668. In a broader frame, see also the interesting pages by Papa 2006, pp. 24–25, and Virzo 2019, pp. 2138–2139.
- 23.
On the aims of provisional measures in international law, see for instance: ICJ, Fisheries Jurisdiction (Germany v. Iceland; United Kingdom v. Iceland), Orders of 17 August 1972, respectively at para 22 and para 23. For updates concerning the International Court of Justice, see Virzo 2019, pp. 2137 et seq. With specific reference to provisional measures concerning the protection of human rights, see recently: IACtHR, Comunidad de Paz de San José de Apartadó c. Colombia, Resolution of 5 February 2018, para 3, pp. 2–3 (“resolution” is the name of the acts containing provisional measures in the practice of the Inter-American Court). See also the very broad analysis by Rieter 2010, pp. 589 et seq., et passim.
- 24.
The Inter-American Court of Human Rights, the European Court of Human Rights and the International Court of Justice can issue provisional measures both at their own initiative and following a request of one of the parties to the case under scrutiny. Only the European Court can issue provisional measures also at a request “of any other person concerned” (see Rule 39 of its Rules of Procedure). Furthermore, all the just mentioned international courts as well as the African Court have a faculty—and for sure not an obligation—to issue provisional measures. For details on the latter point, see also Saccucci 2006, pp. 124 et seq. For a specific reference to the African Court, see Rieter 2010, p. 168.
- 25.
See supra, Sect. 12.2 of this chapter, mainly note 16 and the corresponding text.
- 26.
Thus, the African Commission acted pursuant to Rule 118(2) of its Rules of Procedure, and to Article 5(1)(a) of the African Court Protocol, as already described supra, Sect. 12.2 of this chapter, in particular note 14.
- 27.
ACtHPR, Application No. 002/13, African Commission on Human and Peoples’ Rights v. Libya, Order of 15 March 2013.
- 28.
ACtHPR, Application No. 002/13, African Commission on Human and Peoples’ Rights v. Libya, Order of 12 April 2013, para 5.
- 29.
Whereas Rule 51(4) of the Rules of Procedure states that in similar situations the African Court must address the Assembly of Heads of State and Government of the African Union, the Court sent its interim report to the Executive Council of the African Union. Indeed, according to practice, the Assembly adopts its decisions relying on recommendations by the Executive Council. The latter is made up of Ministers of Foreign Affairs or High Representatives for Foreign Policy of African Union Member States.
- 30.
ACtHPR, Interim Report of the African Court on Human and Peoples’ Rights Notifying the Executive Council of Non-Compliance by a State, 4 June 2013, mainly at paras 8–10.
- 31.
See for instance Executive Council of the African Union, Decision No. 806, Decision on the 2013 Activity Report of the African Court on Human and Peoples’ Rights, 28 January 2014, para 1, and Decision No. 842, Decision on the Mid-Term Activity Report of the African Court on Human and Peoples’ Rights, 24 June 2014, paras 3–4.
- 32.
The Assize (Criminal) Court of Tripoli sentenced Saïf al-Islam Kadhafi to death on 28 July 2015, in absentia. Meanwhile, the defendant had been transferred to a jail in Zintan, a town in an area under the control of another insurgent group.
- 33.
ACtHPR, Application No. 002/13, African Commission on Human and Peoples’ Rights v. Libya, Order of 10 August 2015.
- 34.
See infra, Sect. 12.2 of this chapter.
- 35.
Dissenting Opinions appended by Judge Cançado Trindade (para 71) and Judge Greenwood (para 6) to the Order passed by the ICJ on 3 March 2014 in the case concerning Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). About the possibility of ascertaining an autonomous responsibility of States not implementing provisional measures, see Marotti 2014, pp. 776 et seq., elaborating on this point in light of the two mentioned dissenting opinions. Similarly, see Miles 2017, pp. 319 et seq. Some years before these two dissenting opinions, see the insightful remarks by Mendelson 2004, pp. 35 et seq. In any case, as underlined by Oellers-Frahm 2012a, p. 407, “[t]here can be no doubt that non-compliance with the orders contained in provisional measures may result in a violation of international law leading to the application of the rules on State responsibility”. Instead, at least with regard to the European Human Rights System, where there are no proper treaty provisions conferring a precautionary competence upon the European Court (see: supra, notes 7 and 9; infra, note 52), Saccucci 2006, pp. 599 et seq.; Saccucci 2009, pp. 148–150, argues that a State non-complying with provisional measures risks being considered as “gravely” responsible (thus an “autonomous” responsibility would not arise) in the subsequent judgment on the merits because of a functional link between provisional measures and treaty obligations of a substantial nature requesting a stronger and preventive protection, even by means of provisional measures. Such argumentation seems to have its roots in the case-law developed by the European Court of Human Rights before the case Mamatkulov and Askarov v. Turkey (about which, see infra, note 52). By contrast, the documents on provisional measures of the Institute of International Law do not refer at all to the responsibility potentially arising from the lack of compliance by a State with provisional measures issued by international courts and tribunals: for some remarks on this point, see Ruozzi 2018, pp. 1200–1202.
- 36.
ACtHPR, Application No. 002/13, African Commission on Human and Peoples’ Rights v. Libya, Judgment of 3 June 2016. Eventually the death penalty was not applied and Saïf al-Islam Kadhafi was released from prison in June 2017. Among the many journalistic sources, see: Libia, il figlio di Gheddafi è stato liberato. La Stampa, 11 June 2017; Saïf al-Islam Kadhafi Freed from Prison in Zintan. Al Jazeera, 11 June 2017; Un groupe armé libyen a annoncé avoir libéré le fils de Kadhafi. Libération, 11 June 2017. The release of Saïf al-Islam Kadhafi happened in light of an agreement reached by some insurgent groups acting in the North of Libya. It is very likely that the provisional measures of the African Court did not play a role in the context of such agreement.
- 37.
The African Court Protocol does not state in any other provision whether or not provisional measures issued by the Court have a binding or recommendatory nature.
- 38.
On the other hand, the African Commission is a quasi-judicial body and is able to deliver non-binding acts only: see Sect. 12.2 of this chapter.
- 39.
When the African Court Protocol had not yet entered into force, Quillère-Majzoub 2000, p. 774, wrote about the potential effects of provisional measures issued by the African Court and relied on the lack of reference to the binding nature of such measures in the Protocol to suggest that “il s’agit en quelque sorte d’une pression morale supplémentaire qui s’exerce à l’encontre de l’État visé”. About the binding or recommendatory effects of provisional measures issued by the African Court in light of the recent practice, see also Pascale 2019, pp. 1959–1984. In any case, the question concerning the effects of provisional measures issued by international courts and tribunals has always been controversial: see Oellers-Frahm 2012b, p. 1062.
- 40.
The English version of Article 30 of the Protocol states that “[t]he 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”.
- 41.
The French version of Article 30 of the Protocol states that “[l]es États parties au présent Protocole s’engagent à se conformer aux décisions rendues par la Cour dans tout litige où ils sont en cause et à en assurer l’exécution dans le délai fixé par la Cour”.
- 42.
Even Article 94(1) of the Charter of the United Nations uses the word “decision” (“[e]ach Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party”). Some scholars argue that this term refers not only to judgments, but also to other acts passed by the International Court of Justice, such as orders for provisional measures: see for instance Oellers-Frahm 2012b, pp. 1063–1064, and further bibliographical references here quoted.
- 43.
See Article 33(1) of the 1969 Vienna Convention on the Law of Treaties.
- 44.
Article 25 of the Constitutive Act of the African Union states that the official languages of the African Union are all African languages (without any further specification) as well as Arabic, French, English and Portuguese, without pointing out one authoritative language in particular. Said Article applies to any instrument stipulated under the aegis of the African Union, if not otherwise provided, thus including the African Court Protocol. However, as a matter of fact, only the French and English versions of this Protocol are available on the official website of the African Union.
- 45.
In case of conflict between treaty provisions available in different official languages, pursuant to Article 33(4) of the 1969 Vienna Convention on the Law of Treaties, the general rule of interpretation as codified in Article 31 applies first and foremost. If the conflict persists, an attempt must be made to apply the supplementary means of interpretation listed in Article 32, as for instance the travaux préparatoires. Since in this specific case the general rule of interpretation would not be helpful to find a solution, and given that the American Convention on Human Rights was the main basis for the travaux préparatoires concerning the African Court Protocol, Article 68 of the former has been taken into consideration in order to correctly interpret Article 30 of the latter. As a result, it is not necessary to apply the extrema ratio suggested by Article 33(4) of the Vienna Convention, that is to say, to search for a meaning that bridges the gap between the different official linguistic versions of the same provision.
- 46.
For further details on the inspirational role of the American Convention on Human Rights for the instruments at the basis of the African Human Rights System, see Viljoen 1999, pp. 659–670.
- 47.
For details about the interpretative problems concerning Article 68(1) of the American Convention on Human Rights, see Buergenthal 1994, pp. 84–88.
- 48.
Similarly, see Bostedt 2015, p. 335, and p. 376.
- 49.
See supra, Sect. 12.4 of this chapter. In particular, see again ACtHPR, Interim Report, supra note 30, para 8.
- 50.
- 51.
In order to explain the binding nature of its resolutions on provisional measures, the Inter-American Court of Human Rights has relied on the principle of bona fide; the teleological interpretation of Article 1 (obligation of States to ensure the enjoyment of the proclaimed rights) read in conjunction with Article 68(1) (obligation of States to comply with any decision adopted by the Inter-American Court) of the American Convention on Human Rights; and the necessity to safeguard its proper judicial functioning. Among the most telling resolutions, see: IACtHR, Corte costitucionale c. Perú, Resolution of 14 August 2000. In literature, see Pasqualucci 2003, pp. 316 et seq.; Tigroudja and Panoussis 2003, pp. 125–126; Burbano-Herrera 2010, pp. 213 et seq.
- 52.
The European Court of Human Rights emphasised for the first time that its provisional measures produce binding effects in the Judgment of 4 February 2005 in the case Mamatkulov and Askarov v. Turkey [GC], Applications Nos. 46827/99 and 46951/99. Here, it mainly relied on the obligations of States to cooperate in good faith with the Court, to avoid hindering the correct functioning of the Court and not to create obstacles to the individual right to bring an application before the Court pursuant to Article 34 of the European Convention on Human Rights (see mainly paras 128–129 of the Judgment). In addition, dealing with a comparative examination of the international case-law in the field of precautionary action, the European Court found a broad consensus concerning the binding nature of provisional measures issued by international courts and tribunals. About the Mamatkulov case, see Cohen-Jonathan 2005, pp. 421–434. For developments, mainly see Saccucci 2009, pp. 145–150; Harby 2010, pp. 73–84.
- 53.
In its Judgment of 27 June 2001 in LaGrand (Germany v. United States of America), paras 99–109, the International Court of Justice declared that its provisional measures are binding on the State concerned, thus providing a solution to the problems stemming from the difference between the French and the English versions of Article 41(1) of its Statute (in the French version it states that provisional measures “doivent être prises”, while in the English version it uses the expression “ought to be taken”) in light of the main aim of its precautionary power (namely to safeguard the legal positions of both parties while the case is still pending) and of the object and purpose of its Statute. Many comments have been published on the LaGrand case: see for instance Forlati 2001, pp. 711–722; Frowein 2002, pp. 55–60; Kammerhofer 2003, pp. 67–83. Also see Papa 2006, pp. 25 et seq., who in principle agrees with the idea of the binding effects of provisional measures issued by the International Court of Justice (pp. 30–31) but highlights that in para 110 of the LaGrand judgment the Court did not clearly state that all provisional measures must be considered binding under any circumstance: the Court is said to have alluded to the fact that in some cases provisional measures may have a recommendatory nature (p. 28). For a mention of this perspective, see Forlati 2001, p. 717; Mendelson 2004, p. 38.
- 54.
At least since the beginning of the 1980s, and sometimes even in the 1990s, the majority of scholars believed (though on different bases) that provisional measures issued by international courts and tribunals (mainly by the International Court of Justice) were not binding. See inter alios, Goldsworthy 1974, pp. 273–274; Villani 1974, pp. 670–681; Tesauro 1975, p. 894; Thirlway 1994, pp. 28–33. For a more detailed overview of this opinions, see Kolb 2005, pp. 127–128.
- 55.
See, ex multis, Pescatore 1987, pp. 349–351; Daniele 1993, pp. 149–153; Henkin 1998, pp. 679–683; Gaeta 2000, pp. 135 et seq. (even if under certain conditions); Kammerhofer 2003, p. 83; Udombana 2003, pp. 516–520; Mendelson 2004, pp. 35–38; Kolb 2005, p. 129; Rosenne 2005, pp. 34 et seq.; Papa 2006, pp. 25–31; Oellers-Frahm 2012a, pp. 396–401; Oellers-Frahm 2012b, pp. 1062–1069; Miles 2017, pp. 295–298.
- 56.
- 57.
See the Final Report, supra note 2, pp. 284 et seq., paras 67 et seq.
- 58.
The lack of compliance with provisional measures is probably not a feature of the African Human Rights System only, concerning as it does other human rights systems as well. On this point, see Pasqualucci 2005, pp. 45–48; Rieter 2010, pp. 943 et seq.; Rieter 2012, pp. 165 et seq. The Final Report of the Rapporteur on provisional measures of the Institute of International Law deals with this problem but just focuses on provisional measures issued in the Inter-American Human Rights System, in addition to those delivered by the International Court of Justice and affecting the United States (p. 291 et seq., paras 88 et seq.). Furthermore, as better observed in the next section of this chapter, the Final Report states nothing about the potential responsibility of the State not implementing provisional measures: on this point, see Ruozzi 2018, pp. 1200–1202.
- 59.
States very rarely produce the reports on the implementation of provisional measures that the African Court usually requests pursuant to Rule 51(5) of its Rules of Procedure, which generally stipulates that the Court can search for information about the implementation of provisional measures previously ordered. Initially the African Court requested that States submit their reports in fifteen days, even if this deadline was often extended motu proprio by the Court. Later on, the Court accepted that States produce their reports in thirty or forty-five days. Recently, in the context of the Dexter Eddie Johnson case, the Court ordered Ghana not to execute the death sentence to the detriment of the applicant as a provisional measure and established a sixty-day period for that State to submit a report on the implementation of such measure: see ACtHPR, Application No. 016/17, Dexter Eddie Johnson v. Ghana, Order of 28 September 2017, para 21. Some judges did not agree with this deadline which, in the light of the imminent risk posed to the applicant, was considered too long: see Separate Joint Opinion of Judges Bensaoula Chafika and Marie-Thérèse Mukamulisa, and Partially Dissenting Opinion of Judges Gérard Niyungeko and Rafâa Ben Achour. In any case, a deadline of sixty days was later granted in a new, very similar case: see ACtHPR, Application No. 001/2018, Tembo Hussein v. Tanzania, Order of 11 February 2019, para 20.
- 60.
ACtHPR, Application No. 004/11, African Commission on Human and Peoples’ Rights v. Great Socialist People’s Libyan Arab Jamahiriya, Order of 25 March 2011. As already highlighted in Sect. 12.2 of this chapter, this case was initially at the centre of an individual communication brought before the African Commission, to which the applicant also requested that provisional measures should be issued. The Commission did not implement such request, underlining in a following resolution that “the chances of such request eliciting a response from the Government are very slim taking into consideration the situation in Libya” (see resolution No. 181, Human Rights Situation in Libyan Arab Jamahiriya, of 3 March 2011). Later, when human rights violations perpetrated in Libya dramatically peaked, the Commission lodged an application before the African Court, which issued provisional measures. For comments, see Murray 2011, pp. 464–473; Oder 2011, pp. 495–510; Vezzani 2011, pp. 1–10; Juma 2012, pp. 344–373; Polymenopoulou 2012, pp. 767–775.
- 61.
See Dolidze 2011. In other words, the approach adopted by the African Court was less strict than that following the lack of implementation of provisional measures issued in the Saïf al-Islam Kadhafi case.
- 62.
See ACtHPR, Application No. 004/11, African Commission on Human and Peoples’ Rights v. Great Socialist People’s Libyan Arab Jamahiriya, Order of 15 March 2013.
- 63.
ACtHPR, Application No. 006/12, African Commission on Human and Peoples’ Rights v. Kenya, Order of 15 March 2013. The African Commission filed an application before the African Court because Kenya was alleged not to have complied with the provisional measures that the former had recommended, as already explained in Sect. 12.2 of this chapter.
- 64.
ACtHPR, Application No. 004/13, Lohé Issa Konaté v. Burkina Faso, Order of 4 October 2013.
- 65.
ACtHPR, Application No. 004/13, Lohé Issa Konaté v. Burkina Faso, Judgment of 5 December 2014.
- 66.
ACtHPR, Application No. 012/17, Léon Mugesera v. Rwanda, Order of 28 September 2017.
- 67.
In 2016, mostly at its own initiative, the African Court issued seventeen orders for provisional measures to stop Tanzania from executing the death sentences imposed on the applicants of seventeen different cases where the right to a fair trial—as enshrined in Article 7 of the African Charter and Article 14 of the International Covenant on Civil and Political Rights—was at stake. See ACtHPR, Application No. 001/15, Armand Guehi v. Tanzania, Order of 18 March 2016; Application No. 007/15, Ally Rajabu and Others v. Tanzania, Order of 18 March 2016; Application No. 003/16, John Lazaro v. Tanzania, Order of 18 March 2016; Application No. 004/16, Evodius Rutechura and Theobard Nestory v. Tanzania, Order of 18 March 2016; Application No. 015/16, Habiyalimana Augustino and Mburo Abdulkarim v. Tanzania, Order of 3 June 2016; Application No. 017/16, Deogratius Nicolaus Jeshi v. Tanzania, Order of 3 June 2016; Application No. 018/16, Cosma Faustine v. Tanzania, Order of 3 June 2016; Application No. 021/16, Joseph Mukwano v. Tanzania, Order of 3 June 2016; Application No. 024/16, Amini Juma v. Tanzania, Order of 3 June 2016; Application No. 048/16, Dominick Damian v. Tanzania, Order of 18 November 2016; Application No. 049/16, Chrizant John v. Tanzania, Order of 18 November 2016; Application No. 050/16, Crospery Gabriel and Ernest Mutakyawa v. Tanzania, Order of 18 November 2016; Application No. 051/16, Nzigiyimana Zabron v. Tanzania, Order of 18 November 2016; Application No. 052/16, Marthine C. Msuguri v. Tanzania, Order of 18 November 2016; Application No. 053/16, Oscar Josiah v. Tanzania, Order of 18 November 2016; Application No. 056/16, Gozbert Henerico v. Tanzania, Order of 18 November 2016; Application No. 057/16, Mulokozi Anatori v. Tanzania, Order of 18 November 2016. In 2019, the African Court issued another order for provisional measures in an identical context, but this time at the request of the applicant: see ACtHPR, Tembo Hussein v. Tanzania, supra note 59. A very similar situation occurred again with regard to a case involving Ghana: see ACtHPR, Dexter Eddie Johnson v. Ghana, supra note 59. In another case, the Court ordered Ghana not to seize the properties of the applicant as instead requested by a domestic judgment: see ACtHPR, Application No. 001/17, Alfred Woyome v. Ghana, Order of 24 September 2017. Lastly, in a case concerning Benin, the Court indicated, as a provisional measure, that the execution of a domestic judgment issued by a special criminal court be stayed: see ACtHPR, Application No. 013/2017, Sébastien Germain Ajavon v. Benin, Order of 7 December 2018.
- 68.
See supra, Sect. 12.4 of this chapter.
- 69.
As explained above, Sect. 12.4 of this chapter, in the context of the Saïf al-Islam Kadhafi case, the African Court stated that provisional measures must have the same legal effects as judgments and that the lack of implementation of provisional measures entails a responsibility that is autonomous from that stemming from the human rights violations allegedly committed by that State.
- 70.
See again Sect. 12.4 of this chapter, in particular the final part.
- 71.
The inconsistency of the African Court is even more evident if one makes a comparison with the relevant case-law of the International Court of Justice. In the LaGrand judgment, the International Court of Justice highlighted the binding nature of provisional measures precisely in order to ascertain the responsibility of the United States for failing to implement those measures: see ICJ, LaGrand, supra note 53, paras 99–109 (as regards the declaration of the binding effects of provisional measures) and para 128, point 5 (as for the declaration of the responsibility of the United States for the lack of compliance with provisional measures). About the LaGrand case, also see supra note 53.
- 72.
ACtHPR, Application No. 004/13, Lohé Issa Konaté v. Burkina Faso, Judgment of 5 December 2014.
- 73.
ACtHPR, Application No. 006/12, African Commission on Human and Peoples’ Rights v. Kenya, Judgment of 26 May 2017, para 17, where one reads that the Court received the report concerning the domestic implementation of provisional measures by Kenya on 30 April 2013. This report is not available on the official website of the African Court. At any rate, it is quoted and commented upon in the judgment delivered by the Court. For a brief overview of this judgment, see Pascale 2018a, pp. 366–367.
- 74.
ACtHPR, African Commission on Human and Peoples’ Rights v. Kenya, supra note 73, para 21, paras 28 et seq., et passim.
- 75.
With regard to the persistent human rights violations suffered by the Ogiek notwithstanding the judgments and orders issued by the African Court, see the reportage entitled “Battle for the Mau: Despite Court Ruling, Ogiek Face New Eviction Threats”, published online by “The East African” in June 2018. Furthermore, see Magut 2016; Siegel 2018.
- 76.
ACtHPR, Léon Mugesera v. Rwanda, supra note 66, paras 13–15, which includes information about the note submitted by Rwanda.
- 77.
Rwanda clearly acted for political reasons. On 29 February 2016 the Rwandan Government had notified the President of the Commission of the African Union of its intention to withdraw from its declaration of acceptance of the Court’s jurisdiction concerning applications submitted by individuals and non-governmental organisations. Rwanda aimed at escaping the Court’s jurisdiction in the Ingabire Victoire Umuhoza case, concerning the human rights violations allegedly inflicted on the main opposing leader to the Rwandan President (see African Court, Application No. 003/2014, Ingabire Victoire Umuhoza v. Rwanda; the Judgment on the merits was then issued on 24 November 2017). With a decision rendered on 3 June 2016, the African Court admitted the legal validity of the Rwandan notification of withdrawal, whereas it denied any retroactive effect to said notification and confirmed its jurisdiction with regard to all pending cases against Rwanda, including the Léon Mugesera case, stemming from an application lodged before the Court the day before the submission of the Rwandan notification of withdrawal (see ACtHPR, Léon Mugesera v. Rwanda, supra note 66, para 20). It seems that the Court correctly implemented the general principle of law of perpetuatio iurisdictionis, stating that a procedure starting before a court or tribunal pursuant to the law in force at the time of the application shall continue until its conclusion (on the perpetuatio iurisdictionis in international law, in the context of a broader analysis, see Marongiu Buonaiuti 2012, p. 338). The decision of the African Court led Rwanda to stop cooperating with the Court with regard to all pending cases. On the relationship between the African Court and Rwanda in the light of the Ingabire Victoire Umuhoza case, see Pascale 2018b, pp. 610–612.
- 78.
On the relationship between the binding effects of provisional measures issued by international courts and tribunals and the potential responsibility of States non-complying with such measures, see again supra, Sect. 12.4 of this chapter, in particular the text corresponding to notes 34 and 35.
- 79.
On the general tendency of African States not to comply with decisions issued by the African Court, see Pascale 2017, pp. 268 et seq.
- 80.
According to a de iure condendo perspective, Zyberi 2010, pp. 581–582, suggests that international courts and tribunals (above all the International Court of Justice) apply a rule based on the domestic principle of “contempt of court”, typical of common law domestic orders, with the aim to adopt penalties, even pecuniary penalties, when a State does not implement provisional measures previously ordered. It would also be interesting to verify the applicability to the African Court of the ideas elaborated with regard to the International Court of Justice by Palchetti 2017, pp. 5–22, arguing that there are differences between the “institutional dimension” and the “inter-state dimension” whenever the problem of lack of compliance with provisional measures arises.
- 81.
References
Bernhardt R (ed) (1994) Interim Measures Indicated by International Courts. Springer, Berlin/Heidelberg/New York
Bostedt F (2015) The African Court on Human and Peoples’ Rights and the Use of Provisional Measures for the Protection of the Civilian Population in Armed Conflict Situations. In: Ambach P, Bostedt F, Dawson G, Kostas S (eds) The Protection of Non-Combatants During Armed Conflicts and Safeguarding the Rights of Victims in Post-Conflict Society. Essays in Honour of the Life and Work of Joakim Dungel. Martinus Nijhoff, Leiden/Boston, pp. 331–382
Buergenthal T (1994) Interim Measures in the Inter-American Court of Human Rights. In: Bernhardt R (ed) Interim Measures Indicated by International Courts. Springer, Berlin/Heidelberg/New York, pp. 69–94
Burbano-Herrera C (2010) Provisional Measures in the Case Law of the Inter-American Court of Human Rights. Intersentia, Antwerp
Cohen-Jonathan G (2005) Sur la force obligatoire des mesures provisoires: l’arrêt de la grande chambre de la Cour européenne du 4 février 2005, Mamatkulov et Askarov contre Turquie. Revue générale de droit international public 109:421–434
Cohen-Jonathan G, Flauss JF (eds) (2005) Mesures conservatoires et droits fondamentaux. Bruylant, Brussels
Collins L (1992) Provisional and Protective Measures in International Litigation. Collected Courses of the Hague Academy of International Law 234:9–238
Daniele L (1993) Le misure cautelari nel processo dinanzi alla Corte internazionale di giustizia. Giuffrè, Milan
Dolidze A (2011) African Court on Human and Peoples’ Rights – Response to the Situation in Libya. American Society of International Law – Insights, available at: www.asil.org
Forlati S (2001) Il contenuto degli obblighi imposti dalle misure cautelari indicate nel caso LaGrand. Rivista di diritto internazionale 84:711–722
Frowein JA (2002) Provisional Measures by the International Court of Justice. The LaGrand Case. Zeitschrift für ausländisches öffentliches Recht und Völkerrechts 62:55–60
Gaeta P (2000) La giustizia cautelare nel diritto internazionale. CEDAM, Padua
Goldsworthy PJ (1974) Interim Measures of Protection. American Journal of International Law 68:258–277
Harby C (2010) The Changing Nature of Interim Measures before the European Court of Human Rights. European Human Rights Law Review 1:73–84
Henkin L (1998) Provisional Measures, U.S. Treaty Obligations, and the States. American Journal of International Law 92:679–683
Juma D (2012) Provisional Measures under the African Human Rights System: The African Court’s Order against Libya. Wisconsin International Law Journal 30:344–373
Kammerhofer J (2003) The Binding Nature of Provisional Measures of the International Court of Justice: The “Settlement” of the Issue in the LaGrand Case. Leiden Journal of International Law 16:67–83
Kolb R (2005) Note on New International Case-Law Concerning the Binding Character of Provisional Measures. Nordic Journal of International Law 74:117–129
Kolb R (2012) General Principles of Procedural Law. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams CJ (eds) The Statute of the International Court of Justice: A Commentary. OUP, Oxford, pp. 871–908
Lando M (2018) Plausibility in the Provisional Measures Jurisprudence of the International Court of Justice. Leiden Journal of International Law 31(3):641–668
MacDonald RSJ (1992) Interim Measures in International Law, with Specific Reference to the European System for the Protection of Human Rights. Zeitschrift für ausländisches öffentliches Recht und Völkerrechts 52:703–740
Magut S (2016) Kenya: New Plan Allows Ogiek Back to Public Forests. All Africa, available at: allafrica.com
Marongiu Buonaiuti F (2012) La sentenza della Corte internazionale di giustizia relativa al caso Germania c. Italia: profili di diritto intertemporale. Diritti umani e diritto internazionale 6:335–349
Marotti L (2014) “Plausibilità” dei diritti e autonomia del regime di responsabilità nella recente giurisprudenza della Corte internazionale di giustizia in tema di misure provvisorie. Rivista di diritto internazionale 97(3):761–786
Mendelson M (2004) State Responsibility for Breach of Interim Protection Orders of the International Court of Justice. In: Fitzmaurice M, Sarooshi D (eds) Issues of State Responsibility before International Judicial Institutions. Hart, Oxford/Portland, pp. 34–53
Miles C (2017) Provisional Measures before International Courts and Tribunals. CUP, Cambridge
Murray R (2011) The African Court on Human and Peoples’ Rights’ Order for Provisional Measures against Libya: Greater Promise for Implementation of Human Rights in Africa? European Human Rights Law Review 16:464–473
Oder J (2011) The African Court on Human and Peoples’ Rights’ Order in Respect of the Situation in Libya: A Watershed in the Regional Protection of Human Rights? African Human Rights Law Journal 11:495–510
Oellers-Frahm K (2012a) Expanding the Competence to Issue Provisional Measures – Strengthening the International Judicial Function. In: von Bogdandy A, Venzke I (eds) International Judicial Lawmaking. Springer, Heidelberg/New York/Dordrecht/London, pp. 389–410.
Oellers-Frahm K (2012b) Article 41. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams CJ (eds) The Statute of the International Court of Justice: A Commentary. OUP, Oxford, pp. 1026–1077
Palchetti P (2017) Responsibility for Breach of Provisional Measures of the ICJ: Between Protection of the Rights of the Parties and Respect for the Judicial Function. Rivista di diritto internazionale 100(1):5–22
Papa MI (2006) I rapporti tra la Corte internazionale di giustizia e il Consiglio di Sicurezza. CEDAM, Padua
Pascale G (2017) La tutela internazionale dei diritti dell’uomo nel continente africano. Jovene Editore, Naples
Pascale G (2018a) Unione africana. L’attività dell’UA nel biennio 2016–2017. La Comunità internazionale 73:343–369
Pascale G (2018b) I “confini” temporali del sistema africano di tutela dei diritti umani. Diritti umani e diritto internazionale 12:595–614
Pascale G (2019) Gli effetti delle misure provvisorie disposte dalla Corte africana dei diritti dell’uomo e dei popoli. In: Contaldi G, Marongiu Buonaiuti F, Papa MI, Zanobetti A (eds) Liber amicorum Angelo Davì. La vita giuridica internazionale nell’età della globalizzazione. Editoriale Scientifica, Naples, III, pp. 1959–1984
Pasqualucci JM (2003) The Practice and Procedure of the Inter–American Court of Human Rights. CUP, Cambridge
Pasqualucci JM (2005) Interim Measures in International Human Rights: Evolution and Harmonization. Vanderbilt Journal of Transnational Law 38:1–49
Pescatore P (1987) Les mesures conservatoires et les référés. In: Société française de droit international (ed) La juridiction internationale permanente. Colloque SFDI Lyon. Pedone, Paris, pp. 315–362
Polymenopoulou E (2012) African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Great Socialist People’s Libyan Arab Jamahiriya, Order for Provisional Measures 25 March 2011. International and Comparative Law Quarterly 61:767–775
Quillère-Majzoub F (2000) L’option juridictionnelle de la protection des droits de l’homme en Afrique. Étude comparée autour de la création de la Cour africaine des droits de l’homme et des peuples. Revue trimestrielle des droits de l’homme 11:729–785
Rieter ER (2010) Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication. Intersentia, Antwerp
Rieter ER (2012) Provisional Measures: Binding and Persuasive? Enabling Human Rights Adjudicators to Follow up on State Disrespect. Netherlands International Law Review 59:165–198
Rosenne S (2005) Provisional Measures in International Law. The International Court of Justice and the International Tribunal for the Law of the Sea. OUP, Oxford
Ruozzi E (2018) La codificazione della funzione cautelare internazionale ad opera dell’Institut de droit International. Rivista di diritto internazionale 101:1182–1210
Saccucci A (2006) Le misure provvisorie nella protezione internazionale dei diritti umani. Giappichelli, Turin
Saccucci A (2009) Le misure provvisorie della Corte europea dei diritti umani nell’ambito della procedura di ricorso interstatale Georgia c. Russia. Diritti umani e diritto internazionale 3:129–150
Siegel N (2018) Kenya: Indigenous Ogiek Face Eviction from their Ancestral Forest… Again. Mongabay Series: Indigenous Peoples and Conservation, available at: www.news.mongabay.com
Tanzi AM (2019) Il principio ne ultra petita nel processo internazionale. In: Contaldi G, Marongiu Buonaiuti F, Papa MI, Zanobetti A (eds) Liber amicorum Angelo Davì. La vita giuridica internazionale nell’età della globalizzazione. Editoriale Scientifica, Naples, III, pp. 2095–2127
Tesauro G (1975) Le misure cautelari della Corte internazionale di giustizia. In: Il processo internazionale: Studi in onore di Gaetano Morelli. Comunicazioni e studi, XIV, pp. 873–901
Thirlway H (1994) The Indication of Provisional Measures by the International Court of Justice. In: Bernhardt R (ed) Interim Measures Indicated by International Courts. Springer, Berlin/Heidelberg/New York, pp. 1–35
Tigroudja H, Panoussis IK (2003) La Cour interaméricaine des droits de l’homme. Analyse de la jurisprudence consultative et contentieuse. Némésis, Brussels
Udombana NJ (2003) Interim Measures: A Comparative Study of Selected International Judicial Institutions. Indian Journal of International Law 43: 479–532
Vezzani S (2011) L’ordinanza sulle misure cautelari della Corte africana dei diritti dell’uomo e dei popoli nell’affare libico. Federalismi.it, available at: www.federalismi.it
Viljoen F (1999) The Relevance of the Inter-American Human Rights System for Africa. African Journal of International and Comparative Law 11:659–670
Villani U (1974) In tema di indicazione di misure provvisorie da parte della Corte internazionale di giustizia. Rivista di diritto internazionale 57:657–681
Virzo R (2005) In tema di misure cautelari comportanti obblighi di cooperazione per la protezione dell’ambiente marino. Rivista di diritto internazionale 88(2):383–412
Virzo R (2012) Tribunale internazionale del diritto del mare. Enciclopedia del diritto – Annali. V, pp. 1346–1366
Virzo R (2019) La Corte internazionale di giustizia e l’incompatibilità con fini umanitari di talune sanzioni economiche unilaterali. In: Contaldi G, Marongiu Buonaiuti F, Papa MI, Zanobetti A (eds) Liber amicorum Angelo Davì. La vita giuridica internazionale nell’età della globalizzazione. Editoriale Scientifica, Naples, III, pp. 2127–2147
Wolfrum R (2006) Interim (Provisional) Measures of Protection. Max Planck Encyclopaedia of Public International Law, available at: www.opil.ouplaw.com/home/EPIL
Zyberi G (2010) Provisional Measures of the International Court of Justice in Armed Conflict Situations. Leiden Journal of International Law 23:571–584
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Pascale, G. (2021). Provisional Measures Under the African Human Rights System. In: Palombino, F.M., Virzo, R., Zarra, G. (eds) Provisional Measures Issued by International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-411-2_12
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