Abstract
This article examines the two cases brought before the African Court on Human and Peoples' Rights following the Libyan uprising in 2011: African Commission on Human and Peoples' Rights (Benghazi) v Libya and African Commission (Saif al-Islam Gaddafi) v Libya. These two cases mark three 'firsts': the first time for the African Commission to transfer a case to the African Court; the first order for provisional measures by the Court; and the first time the Court rendered a judgment by default. This study reveals that although the Court has taken significant steps in terms of its consolidation and legitimation, substantive and procedural challenges in its functioning remain. Moreover, the authors argue that the political divisions within the African Union diminished the Court's potential impact on the Libyan crisis.
Highlights
In 1981 the African regional human rights system was established under the auspices of the predecessor to the African Union (AU), the Organisation of African Unity (OAU), through the adoption of the African Charter on Human and Peoples’ Rights (African Charter)
These two cases mark three ‘firsts’: the first time for the African Commission to transfer a case to the African Court; the first order for provisional measures by the Court; and the first time the Court rendered a judgment by default
The Court issued a new order for provisional measures noting that Libya should ‘take all necessary measures to preserve the life of Mr Gaddafi, ensure that he is given a fair trial in accordance with internationally recognised standards, arrest and prosecute those illegally holding Mr Gaddafi’, as well as to submit a report to the Court on the measures taken by Libya within 15 days.[45]
Summary
In 1981 the African regional human rights system was established under the auspices of the predecessor to the African Union (AU), the Organisation of African Unity (OAU), through the adoption of the African Charter on Human and Peoples’ Rights (African Charter). After having adopted only a few decisions, and even prior to issuing a judgment on the merits of a case, the African Court had to deal with the dramatic situation that emerged in Libya after a mass civilian uprising This uprising – against the dictator Muammar Gaddafi – started in Tunisia, later on emerged in Egypt, and in February 2011 spread to Libya. The first is the case of African Commission on Human and Peoples’ Rights (Benghazi) v Libya, which has to be contextualised at the very beginning of the Libyan uprising when the Gaddafi regime used disproportionate and lethal force against protesters.[1] The second case, African Commission (Saif al-Islam Gaddafi) v Libya, is imbedded in the chaotic situation that followed the 2011 Libyan civil war, during which a rebel militia captured and detained the second son of Gaddafi, Saif al-Islam Gaddafi.[2] These two cases represent a turning point in the consolidation and legitimation of the African Court. See M Loth ‘Courts in a quest for legitimacy: A comparative approach’ in N Huls, J Bomhoff & M Adams (eds) The legitimacy of highest courts’ rulings: Judicial deliberations and beyond (2009) 268-269
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