Case Watch: African Court Takes Bold Stand on Libya

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

The African Court on Human and Peoples’ Rights has finally taken on a case—and it’s a big one. The newly operational court, which opened its doors in 2008 and is located in Arusha, Tanzania, recently stepped into the intersection between human rights and armed conflicts when it issued an order for provisional measures against Libya.

In its March 25 ruling, the court instructed Libyan authorities to “immediately refrain from any action that would result in the loss of life or violation of physical integrity” which could constitute a breach of the country’s international human rights obligations.

Although Libya has not yet responded, the violations committed by Muammar Gaddafi’s government are now before the court, and the international community will be closely watching how the court proceeds.

The case against Libya did not come to the court directly. Instead, on February 24 a group of NGOs—including Human Rights Watch, Interights, and the Egyptian Initiative for Personal Rights—lodged a complaint with the African Commission on Human and Peoples’ Rights. This complaint alleged that Gaddafi’s forces had killed civilians, indiscriminately attacked protesters, and illegally detained opposition members—which amounted to serious violations of the right to life, integrity of the person, assembly, freedom of expression, and other fundamental human rights guaranteed under the African Charter.

Instead of considering the matter itself, the African Commission for the first time decided to submit the case to the African court, expressing concern over the “serious and widespread” violations involved. Responding swiftly to this referral, the court issued its order for provisional measures, pursuant to an article that allows the court to adopt such measures “in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm.”

The African Court has not yet considered the substance of the pending case, and Libya still has until May 25 to respond to the allegations. (Libya failed to meet the April 10 deadline for responding to the provisional measures). Nevertheless, this decision marks Africa’s first judicial response to the ongoing human rights crisis in Libya. And the ruling, while only for provisional measures, is an important statement of principle and a step towards addressing the country’s flagrant and continuing violation of civilians’ human rights.

It remains to be seen whether the African Court has the legal power, practical resources, and political influence necessary to enforce the order, and how the court will be able to obtain reliable evidence given the current situation on the ground in Libya. At the same time, the International Criminal Court in the Hague has also launched an investigation into allegations of Libya’s violations of the Rome Statute. It is unclear whether the two concurrent investigations will complement each other, or compete against each other.

On a broader level, the African Court’s ruling does demonstrate an increasing willingness of human rights bodies to hold states accountable during conflict situations. A recent example of this trend comes from the African Commission itself; in November 2009, the Commission found that Sudan failed to protect civilians in Darfur from large-scale human rights violations by both official armed forces and rebels, including widespread killings, forced displacement, and the destruction of property caused by aerial bombings. Similarly, the European Court of Human Rights recently held Russia responsible for violating civilians’ fundamental right to life and access to an effective remedy during military operations in Chechnya in 1999.

These cases send a clear message to governments around the world: Human rights must be protected in all situations, and at all times.