Judge Harhoff is Disqualified

Yesterday, 28 August 2013, the ICTY disqualified judge Harhoff from sitting in the Seselj case based on a letter he wrote that has become widely available on the internet. The decision does not address what will happen to the trial now that there will be fewer than three judges (only two judicial votes are required for conviction) especially considering that the judgment is scheduled to be devlivered in October 2013. The press release can be found here and the decision here.

The Appeals Judgment in Prosecutor v. Taylor

The Special Court for Sierra Leone announced today that the appeals judgment in the case against former Liberian President Charles Taylor will be issued on 26 September 2013 at 11:00 am local time in The Hague.

Mr. Taylor was convicted by the Special Court for crimes committed during the long civil war in Sierra Leone and sentenced him to 50 years. The press-release is available at here.

The African Court’s First Judgment

On 14 June 2013, the African Court on Human and Peoples’ Rights (AFCtHPR or Court) issued its first judgment on the merits of a case in consolidated applications 009/2011 & 011/2011, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania wherein the Court found a violation of the applicants right to participate in public life, right of association and equality before the law. The applicants brought their case based on Tanzania’s requirement that all candidates for public office belong to a political party. Three judges issued separate opinions wherein they adopted the findings of the Court and further defined issues they felt to be important to the future operations of the AFCtHPR. In particular, the Judges focused on the propriety of deciding the issue of jurisdiction before that of admissibility (or vice versa).[1]

What makes this judgment so interesting is not that the Court found a violation of the applicants rights, that it was the first judgment on the merits or that the judges argued in their separate opinions about the order in which jurisdiction and admissibility should be addressed, but rather what the judgment says at paragraph 110 about the nature of the action: that it “cannot and must not be dealt with as though it were a personal action, and it would inappropriate for [the AFCtHPR] to do so.” This single statement, one that went unobserved in the long debate between the judges in their separate opinions about how the court should proceed in the future, could have resounding consequences for the Court.

Jurisdiction and Standing Before the Court

The AFCtHPR has jurisdiction to hear “all cases and disputes submitted to it concerning the interpretation and application of the Charter” submitted by individuals or non-governmental organizations (NGO’s) if the State against which the case is brought has authorized such actions.[2] The Court has not yet addressed what is meant by “case,” however, it should in its ordinary meaning be understood to mean litigation brought by a party with an actual interest in the outcome.[3] Such a distinction is necessary as the Court also has jurisdiction to issue advisory opinions when asked to do so by a State the African Union or recognized African Organizations.[4] Otherwise an individual or NGO could request an advisory opinion in the guise of filing a “case” before the court. It is exactly the need for this distinction that makes the Court’s judgment so interesting.

It is first necessary to point out that none of the applicants in Tanganyika Law Society et. al. v. The Republic of Tanzania were States, the African Union or recognized African organizations. The Court described the first two applicants as NGO’s with observer status before the African Commission.[5] The third applicant, obviously, was a natural person.[6] Neither of these parties therefore has standing to request an advisory opinion. The question then becomes what the Court meant in paragraph 110?

Representative Standing Before the Court

The problem of standing arises because the Rev. Christopher R. Mtikila has founded/joined a political party and so has had the ability to stand in local and national elections. In other words, the violation of the African Charter on Human and Peoples’ Rights (Banjul Charter) that he brought before the court was in many ways hypothetical, he was not prevented from standing for election and had done so in the past. It was in response to this fact that the Court opined that his case “cannot and must not be dealt with as though it were a personal action” so as to overcome the potential bar to hearing the case based on his not complaining about the violation of his personal right to stand for election. He could and had, after all, stood in elections.

The problem is that individual standing to bring “cases” before the court is just that, individual. Otherwise there would be no need to treat it differently from the way organizations and States are treated, including their ability to ask for advisory opinions. If the individual who files a case before the Court is not prejudiced by the alleged violation there is no “case” and the application should be found inadmissible. Obviously though, this is not exactly how the bench viewed the case or the individual standing to bring a State before the Court. Pursuant to the language used by the Court in paragraph 110 an individual can bring a case before the AFCtHPR even where he or she is not directed prejudiced by the alleged violation when that violation regards the whole society, as this would be “inappropriate.”

This possibility, that an individual may bring a “case” for the violation of rights protected by the Banjul Charter when that individual has not been harmed in the specific by that violation is revolutionary in human rights jurisprudence and all international jurisdictional settings.[7] It also has the possibility of opening up proceedings before the Court to a host of cases that do not see a concrete violation but hypothetical violations lacking concrete effect. On the other hand, it may provide an opportunity for individuals to bring cases alleging violations that they have not personally experienced but those whose victims are not in a position to bring a case.

Lastly, and this should at least be pointed out, there is the point that the Court may have been looking for a case to hear on the merits. Many cases have been filed before the AFCtHPR but none had yet been subject to a judgment on the merits due to admissibility problems. This case provided an opportunity for the Court to begin its work in earnest.

Conclusion

The Judgment of the African Court on Human and Peoples’ Rights in consolidated applications 009/2011 & 011/2011, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania is a fascinating document that potentially opens up a jurisdictional novelty in international law, the ability of a party to bring a case against a State where there is no concrete violation.

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[1] The judges who issued the seperate opinions were Judges Ngoepe, Ouguergouz and Niyungeko.

[2] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, arts. 3(1), 5(3), 34(6).

[3] For the US examples of this see, Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937) (need for a case and/or controversy); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (case must not be moot); U.S. v. SCRAP, 412 U.S. 669 (1973) (standing must be based on actual harm not just some interest in the case).

[4] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, art. 4(1).

[5] AFCtHPR, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania, applications 009/2011 & 011/2011, Judgment, ¶¶ 1, 4-5, 7 (14 June 2013).

[6] Ibid. at ¶ 2.

[7] In fact, only the WTO has a non-violation proceedings and it has never been invoked. Here the Rev. alleged a violation (so this would not strictly speaking be a no violation situation, but it is not far off).