African Charter on Human and Peoples' Rights - arbitrary arrest and detention - right to a fair trial - provisional measures - exhaustion of local remedies - derogation - default judgment.

Author:Ayissi, Marie Joseph

African Charter on Human and Peoples' Rights--arbitrary arrest and detention--right to a fair trial--provisional measures--exhaustion of local remedies--derogation--default judgment

AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS V. LIBYA. Appl. No. 002/2013. At African Court of Human and Peoples' Rights, June 3, 2016.

On June 3, 2016, the African Court on Human and People's Rights (the Court) rendered its first default judgment, (1) 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). (2) 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.

Saif al-Islam Kadhafi, the second son of the former Libyan President Muammar Kadhafi (the Court also uses "Gadhafi") was detained in November 2011 by a rebel faction based in the southwestern Libyan city of Zintan in the aftermath of the revolution that overthrew his father's regime. In April 2012, a petition was submitted on his behalf to the Commission claiming that he was being held incommunicado in a secret location and without charge, denied access to his family, friends, and legal representation, and had not been brought before a court. That petition alleged that such detention put his life in danger and his physical integrity and health at risk of irreparable harm (para. 7).

In January 2013, the Commission referred the matter to the Court with a request for the indication of provisional measures of protection as authorized by Rule 51(1) of the Rules of the Court. (3) That request was granted in March 2013, when the Court ordered Libya, inter alia, to "[r]efrain from all judicial proceedings, investigations or detention that could cause irreparable damage to the Detainee..." (para. 15). Libya failed to respond to that order. Over a year later, in May 2014, it finally acknowledged receipt of that order but informed the Court that it intended to institute its own prosecution of Saif al-Islam in Tripoli and invited outside observers (para. 27).

The following May, the Commission asked the Court to deliver a judgment in default against Libya. Specifically, it sought a ruling that Libya had violated and was continuing to violate Saif al-Islam's rights as guaranteed under Articles 6 and 7 of the African Charter (4) and that it had failed to comply with the Court's Order for Provisional Measures (para. 11). It called on the Court to notify the Executive Council of the African Union and to "take such other measures as it may deem appropriate and necessary to secure the rights of [Saif al-Islam] to a fair trial" (id.). Despite reminders and extension of deadlines, Libya failed to respond. Accordingly, the Court brought Libya's non-compliance to the attention of the Assembly of Heads of States of the African Union, through its Executive Council. The Assembly urged Libya to comply with the Court's Order. (5)

In the same Note Verbale of May 2014 to the Court, Libya advised that, on the determination of its Office of Public Prosecutor, it would ensure that the trial of Saif al-Islam and the other defendants would be fair and just in accordance with relevant legal norms, and showed some readiness to cooperate with any legal institution through a field visit to the location where Saif al-Islam was detained and enable such an institution to verify and confirm the information provided. It would also allow attendance by any legally accredited organizations at the trial sessions of the competent Criminal Chamber of the Tripoli Court of Appeals (para. 27).

Saif al-Islam's captors, however, refused to release him to the government's custody, citing "security issues." The trial in Tripoli nonetheless proceeded before the Tripoli Court of Azzize. In that proceeding, Saif al-Islam and thirty-six other...

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