What Role for the African Human Rights System in the Current Transformation of North Africa?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

TUNIS - In Tunis last week, human rights defenders from across North Africa gathered to discuss the role that the regional African human rights system can play in the current transformation of North Africa. They were attending a workshop organized by the North African Litigation Initiative, a programme established by the Cairo-based Egyptian Initiative for Personal Rights.
Pictured above at far right, I work as the Legal Advisor for NALI, and it was our pleasure to host participants from Mauritania, Algeria, Tunisia, Libya, Egypt and Sudan.
We were also honored to have Justice Fatsah Ouguergouz (left), the Algerian Justice from the African Court on Human and Peoples’ Rights, join us for the three-day proceedings.
It was particularly exciting to hear from Justice Ouguergouz given the pioneering ruling issued by the African Court on March 25. In issuing this Order for provisional measures against Libya, the Court instructed Libya to

'immediately refrain from any action that would result in loss of life or violation of physical integrity of persons.'

The Court’s judgment is its first binding ruling issued against a State. It is an important intervention by the African human rights system in recent North African events.
Overall, however, the view of the workshop participants is that the response of the African system to developments in North Africa has, to date, been slow and lacking in conviction.
Indeed, the fact that African institutions mandated with protecting and promoting human rights have, on the whole, reacted in a limited manner to events in North Africa led a couple of human rights workers to criticize our decision to hold the Tunis workshop. One human rights lawyer from the United Kingdom wrote to me a couple of weeks ago and said that he felt that the workshop was “mistimed.” The African human rights bodies, he said, could only offer recourses that are “time consuming and typically remote from real effects in actual situations.” At this point, he said, it was necessary both in Tunisia and across North Africa to deal with immediate human rights abuses and the rebuilding of domestic institutions. “So why,” he asked, “was this topic chosen at this time and place?”
This question played through my mind on the first day when I arrived in Tunis and went downtown to have tea with a Tunisian activist. Tanks and barbed wire lined the streets (left and below). But the atmosphere was initially peaceful: a couple of women were even taking photographs of each other with the soldiers and tanks.
Suddenly, however, the mood changed. Police with batons and riot shields began chasing a group of young men and all of us sitting at the street-tables ran inside for cover. My Tunisian friend explained:

'The tensions are rising. There is frustration that reform is not occurring quickly enough. We have so much work to do and so many human rights abuses that must be remedied.'

This experience in downtown Tunis emphasized the continuing volatility in Tunisia – a volatility also evident in Egypt, where I live and work. It highlighted the fact that many immediate, domestic steps must be undertaken to ensure the creation of democratic societies fully removed from the past oppressive regimes.
Yet the fact that much work needs to be completed at the domestic level should not exclude engagement with the regional human rights system. On the contrary, it is especially important at this particular moment to consider how the new governments in Tunisia and Egypt (and also, let us hope, in Libya) can develop strong relationships with the African human rights system so that the new regimes actively promote, protect and fulfill the rights they pledged to uphold when they ratified the African Charter on Human and Peoples’ Rights.
The belief that the African human rights system has the potential to reinforce and strengthen domestic reform certainly influences the work of the EPIR, my organization in Cairo. Over the last few months, EIPR staff members have been working around the clock to document and address the continuing domestic human rights abuses in Egypt (see also here).
However, EIPR has also been looking beyond the domestic judicial realm and has been attempting to engage with the African human rights system. In partnership with Human Rights Watch and INTERIGHTS, we requested the African Commission to issue provisional measures to stop human rights abuses in both Egypt and Libya. In the case of Libya, such requests undoubtedly helped to motivate the African Commission to refer the situation to the African Court.
It is critical that North African human rights defenders take this type of proactive approach so that the African human rights system is encouraged to play a positive role in the transformation of North African societies. In his introductory remarks to our Tunis workshop, Justice Ouguergouz reminded us:

'The African Court cannot act, but can only react. Civil society therefore has a crucial role to play in creating an environment where it is possible for both the African Court and Commission to take steps to protect human rights.'

Following these remarks by Justice Ouguergouz, one Tunisian lawyer took me aside and showed me some of the scars that riddle his body following 8 years of imprisonment under the Ben Ali regime. The lawyer told me:

'I will fight for justice for these scars, and for the scars of thousands of other Tunisians. After this workshop I know that I needn’t stop at the domestic level. I will continue the fight for justice within the African system so my country can become a place of tolerance and dignity.'

It remains to be seen how exactly the African human rights system can play a role in the incredible societal transformations occurring across North Africa. One thing, however, is clear: North African human rights defenders are determined to seize this historical moment to ensure that human rights principles are respected. It is NALI’s mission to ensure they are given assistance to utilize every means available to achieve this goal, including recourse to the African regional system.

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.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

... The Court essentially concludes that international custom requires that international(ized) tribunals try international crimes, whereas national courts can have jurisdiction only if such crimes had already been incorporated into national law when they were committed.
The assertion of such a custom is difficult to harmonize with a whole range of cases in which national courts have retroactively asserted jurisdiction over international crimes. ...

-- Jan Arno Hessbruegge, who works as a legal advisor for the Office of the U.N. High Commissioner for Human Rights, in a personal-capacity ASIL Insight on the November 2010 judgment of the Community Court of Justice of the Economic Union of West African States in Hissein Habré c. République du Sénégal. We've posted here, here, and here about the court of ECOWAS, a regional organization whose members include not only Senegal, but also Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Sierra Leone, and Togo. Hessbruegge's Insight is skeptical about the reasoning of the ECOWAS Court in this case. And he rightly points out that it raises the potential for conflicting judgments in cases involving former Chadian dictator Habré -- not necessarily the 2009 decision of the African Court of Human and People's Rights about which we've posted, but rather the eventual judgment in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), pending before the International Court of Justice. (credit for © 2005 Madjiasra Nako/IRIN photo of "[w]idows protest[ing] in the Chadian capital, N'Djamena, demanding the extradition of Hissène Habré to Belgium to face charges of crimes against humanity")

Still pursuing "Africa's Pinochet"

A new casenote on the 1st-ever judgment of Africa's human rights court caught my eye:

It's one small step for the African Court of Human and People's Rights, but a giant leap for the African system of human rights protection.

Thus were the moonwalk words of Neil Armstrong paraphrased (in French) -- to indicate mixed sentiments about that 1st judgment -- by author Guy-Fleury Ntwari, a doctoral student at the Centre de Droit International at France's Université Lyon 3 Jean Moulin as well as a law school instructor in Burundi.
In his Note sur le premier arrêt de la Cour africaine des droits de l'homme et des peuples, published last month in the African Journal of International & Comparative Law, Ntwari analyzed the decision in a case in which a man from Chad, Michelot Yogogombaye, complained of a statute by which Senegal withdrew criminal proceedings against former Chadian dictator Hissène Habré, who for many years has lived in exile in Senegal's capital, Dakar. Yogogombaye asserted that the law violated rules, in national and international law, against nonretroactivity.
In a decision issued on December 15, 2009 (as Beth Van Schaack then posted), the court rejected the application, ruling that Senegal had not acceptance the court's jurisdiction over individual petitions.
Ntwari's note acknowledged that the decision interposed a legal bar to individual actions. Yet Ntwari found it significant that the court had ruled on personal jurisdiction grounds. This left open a "liberal approach" with respect to similar complaints brought through other paths, such as a state v. state application.
Moreover, Ntwari viewed the decision as part of an accumulation of matters against Habré, sometimes called "Africa's Pinochet" on account of the brutality of his reign in Chad. Other cases are pending before:
► Senegalese national courts;
► The International Court of Justice, in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), now in the pleadings stage; and
► The Court of Justice of the Economic Community of West African States (which heard argument in the case this past summer), a court about which we've previously posted here and here.
Ntwari looked forward as well to the potential of a fused court -- that is, one that would, if sufficient states parties ratify a treaty now open for signature -- join the work of the African human rights court with that of the African Court of Justice. Uncertainty in that regard affects the work of the current court.

On June 8

On this day in ...
... 1947, Georgina Theodora Wood (right) was born. Since June 2007 she's been the Chief Justice of Ghana, the 1st woman to hold that position, and thus also the "highest ranked female in Ghana's political history." Trained in police work as well as the law, Wood became a magistrate in 1974 and served in various judicial capacities thereafter. Other women serving among the 10 members of Ghana's highest court are Justice Sophia A.B. Akuffo, also a judge on the African Court on Human and People's Rights (prior posts here and here), and Justice Sophia O. Adinyira, also a Judge on the U.N. Appeals Tribunal.

(Prior June 8 posts are here, here, and here.)

Women judges & judicial legitimacy

(Thank you to IntLawGrrls for inviting me to write a guest post on the most recent nomination to the Supreme Court)

Assuming the Senate confirms Solicitor General Elena Kagan (right) following hearings set to begin June 28, 33% of U.S. Supreme Court Justices will be women.
We have never had so many women on the Court before. (Prior IntLawGrrls post.)
But does the sex of the Justices matter? Would Kagan make the Highest Court somehow more legitimate? What exactly is the relationship between sex representativeness and the legitimacy of the Court? How might the presence of groups traditionally underrepresented on the Court affect perceptions of the Court’s authority and the soundness of its rulings?
The presence of women judges may affect legitimacy, if women decide cases differently from men.
In a 2009 New York Times interview, Justice Ruth Bader Ginsburg proposed that the presence of women judges

made it possible for the courts to appreciate earlier than they might otherwise that sexual harassment belongs under Title VII [as a violation of civil rights law].

Ginsburg (left) also has admitted that her womanly perspective affected her legal analysis of the strip search of 13-year old Savana Redding in Safford Unified School District v. Redding (2009).
Empirical studies seem to back up Justice Ginsburg’s claim:
► According to then-student Jennifer L. Perisie, author of the 2005 Yale Law Journal Note entitled “Female Judges Matter: Gender and Collegial Decision-Making in the Federal Appellate Courts,” plaintiffs in sex discrimination or sex harassment cases were twice as likely to prevail if at least one woman judge sat on the federal appellate panel reviewing their cases.

► A 2007 Stanford Law Review study, of which IntLawGrrl Jaya Ramji-Nogales was a co-author, found that in asylum cases, the gender of the judge appeared to be an important factor. Men granted asylum at a rate of 37.3%, women at a rate of 53.8%; that is, 44% more frequently than their male counterparts. (Prior IntLawGrrls posts here and here.)

► Similarly, a 2009 Washington University Law Review study showed that African American and White judges decide racial harassment cases differently. (“Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases,” by Pittsburgh Law Professor Pat K. Chew and Carnegie Mellon Business Professor Robert E. Kelley.)
Although judicial decision-making might vary by sex and race, the inclusion of traditionally underrepresented groups does not necessarily increase legitimacy. The presence of the underrepresented group must improve the Court’s decision-making. In other words, we have to believe the Court’s decisions are substantively better because “a wise Latina”, to quote Justice Sonia Sotomayor (right), sits on the bench. Inclusion affects legitimacy if we believe many different kinds of Justices around one conference table are more likely to produce a Just result.
The link between legitimacy and inclusion may also be tied to aspirations of the general population (or maybe just the empowered parts of the population) for representativeness on institutions important to our democracy. We simply want to see women -- or not only men -- sitting on the bench, and we question the legitimacy of a body that renders important decisions without them. Maybe we’ve reached a point in our development as a nation where, as Justice Ginsburg put it when she became the sole woman on the Court, “[i]t just doesn’t look right” to have only one woman on the Court.
But what about international courts?
Consider the 65-year-old International Court of Justice. Rosalyn Higgins (left), who retired in 2009, is the only woman ever to have served as a permanent ICJ judge. It remains to be seen if women will be considered to fill any upcoming vacancy.
Similarly, the International Tribunal for the Law of the Sea has never had women judges. Only four women serve on the twenty-six member bench of the European Court of Justice, while they make up a mere 14% of the four-year-old African Court on Human and Peoples' Rights. (Among them is Judge Sophia A.B. Akuffo of Ghana (below right), Vice President of that court.) Only 6% of arbitrators in cases at the International Centre for the Settlement of Investment Disputes were women. Women participate at higher rates on most international criminal courts and regional human rights courts, but only one court – the International Criminal Court – has reached 50% participation. (Although not international courts, the International Law Commission and the Inter-American Juridical Committee also are bodies in which notoriously few women participate.)
To borrow from Justice Ginsburg, does this “look right”?
Perhaps the debate in the United States can reignite our efforts to better understand what is happening at the international level. Why are women being left behind on most of the world’s most important international courts? What does it tell us about the legitimacy of these increasingly important institutions? I am tackling these questions in my own scholarship, and invite you to join me in considering them.

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.

On December 8, ...

... 2007 (today), is CARICOM-Cuba Day, as named in the 2002 Havana Declaration on the 30th Anniversary of the Establishment of Diplomatic Relations between Member States of the Caribbean Community and the Republic of Cuba.
... 1987 (20 years ago today), after 3 days of meetings in Washington, U.S. President Ronald Reagan and Soviet leader Mikhail Gorbachev signed an Intermediate-Range Nuclear Forces Treaty (right), in what the BBC called "a first attempt to reverse the nuclear arms race" by "reduc[ing] the size of their ground-based nuclear arsenals."
... 1945, Kellelo Justina Masafo-Guni, 1 of the 1st 11 judges of the still-new African Court on Human and Peoples’ Rights, and before that the 1st woman ever to serve as a Justice on the High Court of Lesotho, was born in Lenibe, Lesotho.

On July 2, ...

... 2006, the 1st 11 judges to serve on the African Court on Human and Peoples’ Rights were sworn in at an African summit meeting in Banjul, Gambia. They included 2 women, Sophia A.B. Akuffo, formerly a Justice on the Supreme Court of Ghana, and Kellelo Justina Masafo-Guni, formerly a Justice on the High Court of Lesotho.
... 1966, France conducted its 1st atmospheric nuclear weapon test (left), code-named Aldebaran, at its Centre d'Expérimentation du Pacifique near Mururoa in French Polynesia; earlier testing had been conducted in Algeria. According to Atomic Forum:

Apparently the local populations were not notified about the radiological situation.
Documents recently made public state that four days after the test, drinking water was measured to contain six times normal levels of radioactivity on Mangareva. Unwashed lettuce contained 666 times the normal level. Six days after the test, levels in drinking water were 50 times above normal background levels.