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Published online by Cambridge University Press: 29 November 2017
On June 3, 2016, the African Court on Human and People's Rights (the Court) rendered its first default judgment, in a case brought by the African Commission on Human and Peoples’ Rights (the Commission) against Libya for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter). The Commission had alleged that the Libyan government had violated its obligations under the Charter to protect one of its citizens, Saif al-Islam Kadhafi, from incommunicado detention and to provide him access to counsel. When Libya failed to respond to the Commission's complaint and to the Court's order of provisional measures, the Court proceeded to the merits and found Libya in violation of several articles of the Charter. Its decision reflected both a measured approach to the issuance of default judgments and an emphasis on the need for states to comply with their human rights obligations even in situations of exceptional political and security instability.
1 African Commission on Human and Peoples’ Rights v. Libya, App. No. 002/2013, Judgment (June 3, 2016), available at http://en.african-court.org/index.php/49-41st-ordinary-session/767-appl-no-002-2013-the-african-commission-on-human-and-peoples-rights-v-libya-2 [hereinafter Judgment].
2 The African Charter on Human and Peoples’ Rights (also known as the Banjul Charter), June 27, 1981, 1520 UNTS 217, 21 ILM 58 (1982) (entered into force October 21, 1998), available at http://www.achpr.org/instruments/achpr. The Commission was established by Part II (Arts. 30–61) of the Charter. The Court was established under the Protocol to the Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol), adopted by member states of what was then the Organization of African Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998. That Protocol came into force on January 25, 2004. Under Article 5(1) of the Protocol and Rule 33 of the Rules of the Court, the Commission is entitled to submit cases to the Court. Libya ratified the Charter in 1986 and acceded to the Protocol in 2003.
3 Under Rule 51(1) of the Rules of the Court, the Court “may, at the request of a party, the Commission or on its own accord, prescribe to the parties, any interim measure which it deems necessary to adopt in the interests of the parties, or of justice.”
4 Article 6 of the Charter provides that “[e]very individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.” Article 7 provides: “1. Every individual shall have the right to have his cause heard. This comprises: a) [t]he right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; b) [t]he right to be presumed innocent until proved guilty by a competent court or tribunal; c) [t]he right to defense, including the right to be defended by counsel of his choice; d) [t]he right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.”
5 Judgment, supra note 1, para. 18.
6 Report of the Secretary-General on the United Nations Support Mission in Libya to the Security Council, para. 59, UN Doc. S/2015/144 (Feb. 26, 2015).
7 Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Libya, Including on the Effectiveness of Technical Assistance and Capacity-Building Measures Received by the Government of Libya, paras. 75–76, UN Doc. A/HRC/34/42 (Jan. 13, 2017).
8 Rule 55 requires the Court to satisfy itself that “the defaulting party has been duly served with the application and all other documents pertinent to the proceedings,” that it has jurisdiction in the case, and that the application is admissible.
9 Rule 40(5) (reflecting article 56(5) of the UN Charter) provides that applications to the Court may properly be “after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged.”
10 Citing, as an example, Article 4(1) of the International Covenant on Civil and Political Rights, which authorizes certain derogations “[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed … .” The Charter itself, of course, does not specifically address the issue of derogation or suspension of rights.
11 Citing to the International Court of Justice's decision in Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 ICJ Rep. 14 (June 27).
12 Libya acceded to the Covenant on May 15, 1970.
13 GA Res. 43/173 (Dec. 9, 1988).
14 See, e.g., Matter of Brusco v. France, App. No. 1466/07 (Eur. Ct. H.R. Oct. 14, 2010).
15 General Comment No. 29 on Article 4, UN Doc. CCPR/C/21/Rev/Add.11 (adopted July 24, 2001).
16 Id., para. 13.
17 See General Comment No. 35, Article 9 (Liberty and Security of the Person), paras. 65–66, UN Doc. CCPR/C/GC/35 (Dec. 16, 2014).