African Commission challenge to CIA rendition

(Many thanks to IntLawGrrls for inviting me to contribute this guest post)

On the night of December 26, 2003, Mohamed al-Asad (right) was apprehended at his home in Dar es Salaam, Tanzania, blindfolded and driven away. (photo credit) Early the next morning, he was placed into a small plane and expelled to Djibouti—a country entirely unfamiliar to him. There, he was held in a secret detention facility, subjected to torture and inhuman treatment and interrogated by an American agent. Two weeks later, he was taken to an airport, where he experienced what are now easily recognized as the standard operating procedures of a U.S. rendition team—a group of individuals dressed in black stripped him naked, then photographed, assaulted, diapered and chained him. Forced onto waiting plane, he was dispatched into a network of secret CIA prisons in Afghanistan and Eastern Europe and later jailed in his native Yemen. He was finally released in 2006, without ever being charged with a terrorism-related offence.
As a student advocate in the Global Justice Clinic at the New York University School of Law, I have worked to represent Mr. al-Asad with a team of other students and the human rights organization, Interights. Seeking redress for the human rights violations perpetrated against our client, we filed a complaint against Djibouti before the African Commission on Human and Peoples’ Rights. It is the first case ever to come before the African Commission regarding the involvement of an African state in the U.S. extraordinary rendition and secret detention program.
The African Commission was seized of the matter, and requested arguments on admissibility, which we submitted on February 28, 2011. The Commission will ask the government of Djibouti to lodge a formal response, to which Mr. al-Asad may reply. The Commission will then determine whether the case fulfills the requirements for admissibility under article 56 of the African Charter on Human and Peoples’ Rights. If found admissible, the Commission will hear arguments on the merits.
In his declaration to the African Commission, Mr. al-Asad stated,

The continued denial of my abuse frustrates my ability to regain my life, my community stature, and my sense of justice.

We hope that his case will contribute to exposing the global complicity in rights violations linked to U.S. counterterrorism initiatives.
Like other regional and international human rights bodies, the African Commission requires a complainant to exhaust domestic remedies. Given that Mr. al-Asad could not access Djiboutian courts while detained and dares not return, domestic remedies have been unavailable, impractical and insufficient. Our arguments rely on the growing jurisprudence of the African Commission, which—like the European Court—has shown flexibility when circumstances demonstrate that it would be futile, overly burdensome or simply impossible for a complainant to exhaust all imaginable avenues for recourse within a national jurisdiction.
In Recontre Africaine pour la Defence des Droits de l’Homme v. Zambia (1997), for example, the Commission found that the possible recourse presented by the respondent state “was as a practical matter not available” for the 517 West Africans illegally expelled after being detained without access to attorneys. In Dawda K. Jawara v. The Gambia (2000), the Commission deemed local remedies unavailable for the complainant who, like our client, could not return to the respondent state to pursue them “because of a generalized fear for his life.”
In 2009, through a letter to the Attorney General submitted on behalf of Mr. al-Asad, we informed Djibouti of the facts of his case; however, to our knowledge no investigations were ever initiated. It is our position that the African Commission should follow the spirit of its previous decisions and require no more action of Mr. al-Asad to demonstrate exhaustion.
The substantive allegations contained in the initial complaint (which we will further elaborate in arguments on the merits) are that Djibouti, a state party to the African Charter since 1991, violated articles 5, 6, 7 and 12, among others:
► Mr. al-Asad’s secret and incommunicado detention and expulsion contravened the prohibition on torture and cruel, inhuman or degrading treatment or punishment under article 5. Additionally, Djibouti violated the principle of non-refoulement by transferring Mr. al-Asad to Afghanistan, despite the clear risks that further article 5 violations would be perpetrated there.
► Article 6 sets out that “no one may be arbitrarily arrested or detained,” yet Mr. al-Asad was held without being informed of any charges against him.
► Although article 7 assures the right to a fair trial, Mr. al-Asad never had access to legal counsel and was never brought before a judge.
► The requirement of article 12 that foreigners like M. al-Asad “may only be expelled…by virtue of a decision taken in accordance with the law” was equally illusory.
These human rights implications of the CIA secret detention and rendition program have been well established and documented by a wide variety of international organizations, including the International Committee of the Red Cross, the Council of Europe, and the United Nations.
► The complaint also alleges that Djibouti violated its duty to protect the family under article 18 of the Charter. In a supporting declaration submitted to the Commission, Zahra Mohamed tells of her husband’s arrest and of her tireless search for him, including the filing of an unsuccessful habeas petition in Tanzanian courts and a tracing request with the ICRC. She said:

I had to know whether he was dead or alive. ... It was terrible to live with the uncertainty.

She was pregnant when he was apprehended at their home in Tanzania, gave birth during his absence,and struggled to support herself and their four other children. Her ordeal illustrates vividly one aspect of the gendered impact of counterterrorism programs, highlighted in the 2009 report of the Special Rapporteur on the Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism.
Although Mr. al-Asad only spent two weeks in Djibouti, as his entryway into the U.S. secret detention program, the nation played a critical role in facilitating his subsequent abuse. Home to the U.S. Africa Command (AFRICOM) and approximately 2,300 American troops, Djibouti is an important U.S. ally and a cornerstone of counter-terror activities on the continent. Its human rights record is dismal—most recently illustrated by the arrest and detention of hundreds of demonstrators, including Noël Abdi, the president of the foremost domestic human rights organization (see more here).
Al-Asad v. Djibouti presents an important opportunity for an African institution to expose the complicity of an African state in the U.S. counter-terrorism program, to enforce the obligations of a state party to the African Charter, and to provide redress for the human rights violations that occurred on African soil.

African human rights court ruling on Habré among topics at ASIL session this week

To little fanfare, the new African Court of Human and People's Rights issued its first ruling at the end of last year declaring itself without jurisdiction to hear a challenge to the universal jurisdiction prosecution of former Chadian President Hissène Habré.
By way of background, the Court was established by a Protocol to the African Charter on Human and Peoples' Rights, which was adopted by Member States of what was then called the Organisation of African Unity (OAU) in Ouagadougou, Burkina Faso in June 1998. (The OAU became the African Union in 2002). The Protocol entered into force in January 2004, and, as we've posted, the 1st judges chosen in 2006. Although this relationship remains to be sorted out, it is envisioned that the Court will complement the work of the existing African Commission on Human and Peoples' Rights along the lines of the relationship between the Inter-American Commission on Human Rights and the Inter-American Court.
At the moment, the Court features two female judges, Vice President Sophia A.B. Akuffo of Ghana (right) and Justice Kelello Justina Mafoso-Guni from the Kingdom of Lesotho (left). Prior to her election for a two-year term on the Court, Justice Akuffo was a judge at the Supreme Court of Ghana and served on the Advisory Committee of the Commonwealth Judicial Education Institute. Justice Mafoso-Guni studied law at the Universities of Lesotho and Edinburgh before becoming Crown Counsel in her home country. She was a member of the U.K. civil service and magistrate in Zimbabwe -- the first woman to be appointed to the bench. Returning to Lesotho, Justice Mafoso-Guni took up a position at the High Court Bench, another post to which she was the first female appointee. She will serve for four years on the Court.
Pursuant to Article 5(3) of the Protocol to the African Charter On Human And Peoples' Rights On The Establishment of An African Court On Human And Peoples' Rights, the Court is accessible to individuals and non-governmental organizations:

The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.

Article 34(6) states that the respondent state must submit a declaration to the Court allowing for such NGO and individual petitions:

At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.

Absent such a declaration, the Court is accessible only to the Commission, states, and African intergovernmental organizations.

Michelot Yogogombaye (left), the former Secrétaire Général Adjoint of Chad currently "in exile" in Switzerland, is the source of the first judgment of the Court. His petition (see also here for a statement) sought to compel Senegal to suspend the criminal proceedings against Hissène Habré, the former Chadian dictator who has been accused of committing crimes against humanity in Chad during his reign from 1982-1990. As grounds, he argued that Senegal's prosecution under a law amended in 2007 to enable Habré's prosecution violated the ex post facto prohibition contained in Article 7(2) of the African Charter of Human and People's Rights, which states:

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.

He also claimed that Senegal was using "its services as a legal agent of the African Union for financial gain" by opting for a "judicial solution" rather than an "African solution" in accordance with the principle of ubuntu (reconciliation through dialog, truth and reparations). He also sought declaratory relief to the effect that the prosecution was an abuse of the principle of universal jurisdiction and could negatively impact the political, economic, social, and cultural development of Africa and African foreign relations.

The Court (judges at right) unanimously ruled that because Senegal had not lodged a declaration pursuant to Article 34(6) allowing for individual petitions, it was without jurisdiction to hear the case.

Apropos of this ruling, the increased use of international law by African courts is the subject of a panel at the upcoming Annual Meeting of the American Society of International Law, about which we've already posted here, here, and here. The panel will begin at 10:45 on Friday, March 26th, and will be chaired by Angela Banks (left) of William and Mary Law School.

Cruelty cognizant

Tucked in the recent ASIL Insight by our colleague, Vanderbilt’s Ingrid Wuerth, is an intriguing observation:
There’s a circuit split on whether victims of cruel, inhuman and degrading treatment may recover under the Alien Tort Statute.
Such mistreatment has long been forbidden in international instruments:
► The longstanding ban in international humanitarian law is evident in Common Article 3 of the Geneva Conventions of 1949, which "prohibit[s] at any time and in any place whatsoever ... "outrages upon personal dignity, in particular humiliating and degrading treatment;" those treaties further provide that such mistreatment of protected persons during armed conflict may constitute a grave breach punishable as a war crime.
► In international human rights law, an express ban appeared as early as the spring of 1948, when the American Declaration of the Rights and Duties of Man affirmed in Article XXVI:

Every person accused of an offense has the right ... not to receive cruel, infamous or unusual punishment.

At year’s end, the Universal Declaration of Human Rights posited an even broader proscription in Article 5:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

That proscription of what’s come to be called CIDT became binding international law when, as Article 7 of the International Covenant on Civil and Political Rights, it entered into force in 1976.
Similar formulations appear in other binding treaties, among them Article 5 of the African Charter on Human and Peoples’ Rights, Article 5 of the American Convention on Human Rights, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And yet it’s an open question whether CIDT is cognizable under the Alien Tort Statute. That 18th century statute, about which we've posted frequently, states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The U.S. Court of Appeals for the 2d Circuit recently ruled that CIDT is cognizable in the Wiwa v. Shell Petroleum Dev. Co. of Nigeria litigation that’s the focus of Wuerth’s excellent Insight (not to mention these prior IntLawGrrls posts). But the 11th Circuit had held to the contrary in Aldana v. Del Monte Fresh Produce (2005).
At issue, Wuerth (above right) explains, is the Supreme Court’s statement in Sosa v. Alvarez-Machain (2004) that only claims possessing "‘definite content and acceptance among civilized nations’" are actionable. A court’s view of whether CIDT meets that standard seems to hinge on whether treaty provisions deemed non-self-executing – like that in the ICCPR, a treaty to which the United States is party – are nonetheless evidence of customary international law; to use the statute’s term, "the law of nations." The 2d Circuit says yes, the 11th Circuit says no.
This is no minor circuit split.

Alien Tort suits arising out of post-9/11 detention already have been filed, and more are certain to follow. Allegations of torture surely would meet the Sosa standard; however, given the United States’ recent efforts to ascribe a very narrow definition to "torture," plaintiffs may have an uphill battle proving that their treatment fits meets the standard set by a court. A lesser-included finding of "cruel inhuman or degrading treatment" would seem the logical default. If that finding is unavailable – for the reason that CIDT is not cognizable – plaintiffs will have alleged violation of a right that lacks a federal remedy.

Go On! Women in Africa & Reproductive Rights

(Go On! is an occasional item on symposia of interest) On Friday, 3 April 2009, the Washington and Lee School of Law Journal of Civil Rights and Social Justice is sponsoring a symposium on "Reproductive and Sexual Health and the African Women's Protocol."
The conference focuses on the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa ("Maputo Protocol") and its implications for the health of women and girls.
Panels address such issues as declining access to health services for women, the HIV/AIDS pandemic, violence against women, the health impact of harmful traditional and modern practices, abortion, and overall sexual health.
Check out the full program and the stellar line-up of panelists from Africa and the Americas here.

On February 18

On this day in ...

... 1965, Gambia gained independence from Britain. Today this sliver of a West African republic (left), less than half the size of the state Maryland, has 1.7 million people. Its capital, Banjjul, was the site where the African Charter on Human and Peoples' Rights was adopted in 1981.

... 1972, in People v. Anderson, California's Supreme Court held 6-1 that the state's death penalty violated the ban on "cruel or unusual punishment" contained in California's Constitution, and commuted the sentences of all death row inmates to life imprisonment. Later in the same year the state's voters approved a constitutional amendment reinstating capital punishment. Since this time the state has executed 13 persons; another 667 are on death row (right). (photo credit)

(Prior February 18 posts are here and here.)

On this day

On February 17, ...
... 1821, Eliza Rosanna Gilbert was born in Grange, County Sligo, Ireland. She and her family moved to India, where her father died 2 years later; eventually she was sent to schools in Scotland and England. Her marriage by elopement at 19 with a British lieutenant faltered within years, and the 22-year-old Irishwoman launched a career under the stage name “Lola Montez, the Spanish dancer” noted for her tarantula dance. Her adventures in Europe included a tumultuous stint as mistress to Bavaria's King Ludwig I, also called "Louis":

Under Montez's influence (the cabinet became known as the “Lolaministerium”), Louis inaugurated liberal and anti-Jesuit governmental policies, but his infatuation with her helped to bring about the collapse of his regime in the revolution of 1848.

Thereafter she journeyed to Gold Rush California and then on to New York, where she died, at age 40, a philanthropist. (credit for circa 1855 photo)

... 1965, Gambia readied to become independent from Britain at midnight. The 1st "African nation conquered by the British," Gambia, an Atlantic Coast state surrounded on 3 sides by Senegal would become "the 21st member of the Commonwealth, as well as the 116th member of the United Nations." In 1981 its capital, Banjul, hosted the conference that adopted the African Charter on Human and Peoples' Rights. (map credit)