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1. By an application dated 11th August 2008,
Mr. Michelot Yogogombaye (hereinafter referred to as “the Applicant”), a
Chadian national, born in 1959 and currently residing in Bienne,
Switzerland, brought before the Court a case against the Republic of Senegal
(hereinafter referred to as “Senegal”), “with a view to obtaining suspension
of the ongoing proceedings instituted by the Republic and State of Senegal
with the objective to charge, try and sentence Mr. Hissein Habré, former
Head of State of Chad, presently asylumed in Dakar, Senegal”.
2. In accordance with Article 22 of the Protocol to the African Charter on
Human and Peoples’ Rights on the Establishment of an African Court on Human
and Peoples’ Rights (hereinafter referred to as “the Protocol”), and Rule 8
(2) of the Interim Rules of Court (hereinafter referred to as “the Rules”),
Judge El Hadj Guissé, Member of the Court, and a national of Senegal,
recused himself.
3. The Applicant sent his application to the Chairperson of the African
Union Commission by electronic mail dated 19th August 2008. This application
was received in the Court Registry on 29th December 2008, with a covering
correspondence from the Legal Counsel of the African Union Commission dated
21st November 2008.
4. The Registry acknowledged receipt of the application, and notified the
Applicant by letter dated 2nd January 2009, that all communications meant
for the Court must be addressed directly to it, at its Seat in Arusha,
Tanzania.
5. In accordance with Rule 34 (6) of the Rules, the Registry served a copy
of the application on Senegal by registered post on 5th January 2009; also
in accordance with Rule 35 (4) (a) of the Rules, the Registry invited
Senegal to communicate to it, within 30 days, the names and addresses of its
representatives.
6. Pursuant to Rule 35 (3) of the Rules, the Registry also informed the
Chairperson of the African Union Commission about the application by letter
of that same date.
7. The Applicant informed the Registry, by letter dated 30th January 2009
received at the Registry on 5th February 2009, that he would represent
himself in the matter that he had brought before the Court.
8. Senegal acknowledged receipt of the application and transmitted to the
Court, the names of its representatives mandated to represent it before the
Court, by letter of 10th February 2009 received by the Registry on the same
day, by fax.
9. By another faxed letter dated 17th February 2009 received in the Registry
on the same day, Senegal requested the Court to extend the time limit “to
enable it to better prepare a reply to the application”.
10. By an order dated 6th March 2009, the Court granted the request of
Senegal and extended, up to 14th April 2009, the period within which to
submit its reply to the application.
11. A copy of the order was served on the Applicant, and on Senegal, by
facsimile transmission dated 7th March 2009.
12. Senegal submitted its statement of defence within the time limit
indicated in the aforesaid order, in which it raised preliminary objections
regarding the jurisdiction of the Court and admissibility of the
application, and also addressed substantive issues.
13. The Registry served on the Applicant, under covering letter of 14th
April 2009, a copy of the statement of defence by Senegal.
14. The Applicant having failed to respond to the said statement, the
Registry by another letter dated 19th June 2009, notified the Applicant that
if he failed to respond within 30 days, the Court would assume that he did
not want to present any submission in reply to the statement of defence, in
accordance with Rule 52 (5) of the Rules.
15. On 29th July 2009, the Applicant acknowledged receipt of the statement
of defence and submitted that: “the afore-mentioned reply did not introduce
any new element likely to significantly modify the views I expressed in my
initial application. I therefore maintain the said views in their entirety,
and resubmit myself to the authority of the Court.”
16. In view of the facts, the Court did not deem it necessary to hold a
public hearing and, consequently, decided to close the case for
deliberation.
17. In his application, the Applicant averred, among other things, that “the
Republic and State of Senegal and the Republic and State of Chad, members of
the African Union, are parties to the Protocol [establishing the African
Court on Human and Peoples’ Rights] and have, respectively, made the
declaration prescribed in Article 34 (6) accepting the competence of the
Court to receive applications submitted by individuals”.
18. With regard to the facts, the Applicant submitted that Hissein Habré,
former President of Chad, is a political refugee in Senegal since December
1990, and that in 2000, he was suspected of complicity in crimes against
humanity, war crimes and acts of torture in the exercise of his duties as
Head of State, an allegation based on the complaints by the presumed victims
of Chadian origin.
19. The Applicant further averred that, by decision of July 2006, the
African Union had mandated Senegal to “consider all aspects and implications
of the Hissein Habré case and take all appropriate steps to find a solution;
or that failing, come up with an African option to the problem posed by the
criminal prosecution of the former Head of State of Chad, Mr. Hissein Habré…”
20. He also submitted that, on 23rd July 2008, the two chambers of the
Parliament of Senegal adopted a law amending the Constitution and
“authorizing retroactive application of its criminal laws, with a view to
trying exclusively and solely Mr. Hissein Habré”.
21. He alleged that by so doing, Senegal violated the “sacrosanct principle
of non-retroactivity of criminal law, a principle enshrined not only in the
Senegalese Constitution but also in Article 7 (2) of the African Charter on
Human and Peoples’ Rights” to which Senegal is a party.
22. According to the Applicant, the action of Senegal also portrayed that
country’s intention “to use in abusive manner, for political and pecuniary
ends, the mandate conferred on it by the African Union in July 2006”.
Further, according to the Applicant, in opting for a judicial solution
rather than an African solution inspired by African tradition, such as the
use of the “Ubuntu” institution (reconciliation through dialogue, truth and
reparations), Senegal sought to use its services as legal agent of the
African Union for financial gain.
23. In conclusion, the Applicant prayed the Court to:
1) Rule that the application is admissible;
2) Declare that the application has the effect of suspending the ongoing
execution of the July 2006 African Union’s mandate to the Republic and State
of Senegal, until such time that an African solution is found to the case of
the former Chadian Head of State, Hissein Habré, currently a statutory
political refugee in Dakar in the Republic and State of Senegal;
3) Rule that the Republic and State of Senegal has violated several clauses
of the Preamble and the Articles of the African Charter on Human and
Peoples’ Rights;
4) Rule that the Republic and State of Senegal has violated the African
Charter on Human and Peoples’ Rights and, in particular, the 10 September
1969 OAU[AU] Convention Governing the Specific Aspects of Refugee Problems
in Africa, which came into force on 26 June 1974;
5) Rule that the case is politically motivated and that the Republic and
State of Senegal violated the principle of universal jurisdiction in the
ongoing proceedings instituted with a view to indicting and trying Mr.
Hissein Habré;
6) Rule that, in the said procedure instituted with a view to indicting and
trying Mr. Hissein Habré, there is political motivation, pecuniary
motivation and the abuse of the said principle of universal jurisdiction,
application of which will become, de facto, lucrative for the respondent
(estimated to cost 40 billion CFA Francs). This cannot but create precedents
in other African countries in which former Heads of State would possibly
take refuge;
7) Rule that the charges brought against Mr. Hissein Habré have been abused
and abusively used by the Republic and State of Senegal, the French Republic
and State and the humanitarian organization, Human Rights Watch (HRW),
particularly in view of the media publicity given to, and the media hype
into which they turned, the said allegations;
8) Rule that the said abuse of the principle of universal jurisdiction has
destabilizing effect for Africa, that it could impact negatively on the
political, economic, social and cultural development of not only the State
of Chad but also all other African States, and on the capacity of these
States to maintain normal international relations;
9) Suspend the July 2006 African Union mandate to Senegal and hence the
current proceedings instituted by the Republic and State of Senegal with a
view to indicting and eventually trying Mr. Hissein Habré;
10) Order the Republic and State of Chad and the Republic and State of
Senegal to establish a national “Truth, Justice, Reparations and
Reconciliation” Commission for Chad, on the South African model derived from
the philosophical concept of “Ubuntu” for all the crimes committed in Chad
between 1962 and 2008; and in so doing, resolve in African manner the
problematic case of the former Chadian Head of State, Hissein Habré;
11) Recommend that other Member States of the African Union assist Chad and
Senegal in establishing and putting into operation the said “Truth, Justice,
Reparations and Reconciliation” Commission;
12) With regard to costs and expenses, grant the Applicant the benefit of
free proceedings.”
24. In its statement of defence, Senegal for its part submitted, inter alia,
that for the Court to be able to deal with applications brought by
individuals, “the respondent State must first have recognized the
jurisdiction of the Court to receive such applications in accordance with
Article 34 (6) of the Protocol establishing the Court”.
25. In this regard, Senegal “strongly asserted that it did not make any such
declaration accepting the jurisdiction of the African Court on Human and
Peoples’ Rights to deal with applications brought by individuals”.
26. Alternatively, Senegal averred that the Applicant “was wrong to meddle
in a matter that is the exclusive concern of Senegal, Hissein Habré and the
victims” as per the obligations arising from the Convention against Torture;
and that it does not see any “justification for legitimate interest on the
part of the Applicant to bring the case against the Republic of Senegal”.
27. In addition, Senegal denied the allegations made by the Applicant in
regard to the “purported violation [by it] of the principle of
non-retroactivity of criminal law”, and the “purported violation of African
Union mandate” of July 2006.
28. In conclusion, Senegal prayed the Court to: “On matters of procedure:
Rule that Senegal has not made a declaration accepting the jurisdiction of
the Court to hear applications submitted by individuals; Rule that the
Applicant has no interest to institute the application; Therefore, declare
that the application is inadmissible.
On the merits:
Declare and decide that the evidence adduced by Mr. Michelot Yogogombaye is
baseless and incompetent; Therefore, strike out the pleas submitted by the
Applicant as baseless; Rule that Mr. Michelot Yogogombaye should bear the
costs incurred by the State of Senegal in regard to the application”.
29. In accordance with Rules 39 (1) and 52 (7) of the Rules, the Court has
at this stage, to first consider the preliminary objections raised by
Senegal, starting with the objection to the Court’s jurisdiction.
30. Article 3 (2) of the Protocol and Rule 26 (2) of the Rules provide that
“in the event of a dispute as to whether the Court has jurisdiction, the
Court shall decide”.
31. To resolve this issue, it should be noted that, for the Court to hear a
case brought directly by an individual against a State Party, there must be
compliance with, inter alia, Article 5 (3) and Article 34 (6) of the
Protocol.
32. Article 5 (3) provides that: “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”.
33. For its part, Article 34 (6) of the Protocol provides that: “At the time
of 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”.
34. The effect of the foregoing two provisions, read together, is that
direct access to the Court by an individual is subject to the deposit by the
respondent State of a special declaration authorizing such a case to be
brought before the Court.
35. As mentioned earlier, the Applicant in his submission averred that “the
Republic and State of Senegal and the Republic and State of Chad, both
members of the African Union, are Parties to the Protocol and have,
respectively, made the declaration as per Article 34 (6) of the Protocol
accepting the competence of the Court to receive cases from individuals”.
For its part, Senegal in its statement of defence “strongly asserted that it
did not make any such declaration accepting the jurisdiction of the African
Court on Human and Peoples’ Rights to hear applications brought by
individuals”.
36. In order to resolve this issue, the Court requested the Chairperson of
the African Union Commission, depository of the Protocol, to forward to it a
copy of the list of the States Parties to the Protocol that have made the
declaration prescribed by the said Article 34 (6). Under covering letter
dated 29 June 2009, the Legal Counsel of the African Union Commission
transmitted the list in question, and the Court found that Senegal was not
on the list of the countries that have made the said declaration.
37. Consequently, the Court concludes that Senegal has not accepted the
jurisdiction of the Court to hear cases instituted directly against the
country by individuals or non-governmental organizations. In the
circumstances, the Court holds that, pursuant to Article 34 (6) of the
Protocol, it does not have jurisdiction to hear the application.
38. The Court notes, in this respect, that although presented by Senegal in
its written statement of defence as an objection on the ground of
“inadmissibility”, its first preliminary objection pertains, in reality, to
lack of jurisdiction by the Court.
39. The Court further notes that the second sentence of Article 34 (6) of
the Protocol provides that “it shall not receive any petition under Article
5 (3) involving a State Party which has not made such a declaration”
(emphasis added). The word “receive” should not however be understood in its
literal meaning as referring to “physically receiving” nor in its technical
sense as referring to “admissibility”. It should instead be interpreted in
light of the letter and spirit of Rule 34 (6) in its entirety and, in
particular, in relation to the expression “declaration accepting the
competence of the Court to receive applications [emanating from individuals
or NGOs]” contained in the first sentence of this provision. It is evident
from this reading that the objective of the aforementioned Rule 34 (6) is to
prescribe the conditions under which the Court could hear such cases; that
is to say, the requirement that a special declaration should be deposited by
the concerned State Party, and to set forth the consequences of the absence
of such a deposit by the State concerned.
40. Since the Court has concluded that it does not have jurisdiction to hear
the case, it does not deem it necessary to examine the question of
admissibility.
41. Each of the parties having made submissions regarding costs, the Court
will now pronounce on this issue.
42. In his pleadings, the Applicant prayed the Court, “with respect to the
costs and expenses of the case”, to grant him “the benefit of free
proceedings”.
43. In its statement of defence, Senegal, on the other hand, prayed the
Court to “order Mr. Michelot Yogogombaye to bear the cost incurred by the
State of Senegal in this case”.
44. The Court notes that Rule 30 of the Rules states that “Unless otherwise
decided by the Court, each party shall bear its own costs”.
45. Taking into account all the circumstances of this case, the Court is of
the view that there is no reason for it to depart from the provisions of
Rule 30 of its Rules.
46. In view of the foregoing,
THE COURT, unanimously:
1) Holds that, in terms of Article 34 (6) of the Protocol, it has no
jurisdiction to hear the case instituted by Mr. Yogogombaye against Senegal;
2) Orders that each party shall bear its own costs. Done at Arusha, this
fifteenth day of December in the year Two Thousand and Nine in French and
English, the French text being authentic.
Signed:
Jean MUTSINZI, President
Sophia A.B. AKUFFO, Vice-President
Justina K. MAFOSO-GUNI, Judge
Bernard M. NGOEPE, Judge
Hamdi Faraj FANNOUSH, Judge
Modibo Tounty GUINDO, Judge
Gérard NIYUNGEKO, Judge Fatsah OUGUERGOUZ, Judge Joseph N. MULENGA, Judge
and Aboubakar DIAKITE, Registrar
In accordance with Article 28 (7) of the Protocol and Rule 60 (5) of the
Rules of Court, the separate opinion of Judge Fatsah OUGUERGOUZ is appended
to this Judgment.
SEPARATE OPINION OF JUDGE FATSAH OUGUERGOUZ
1. I am in agreement with the views of my colleagues in regard to the
conclusions reached by the Court on the question of its jurisdiction and on
that of the costs and expenses of the case, and consequently I have voted in
favor of the said conclusions. However, I believe that these two issues
deserved to be developed in a more comprehensive manner.
2. The Applicant indeed has the right to know why it has taken nearly one
year between the date of receipt of his application at the Registry and the
date on which the Court took its decision thereon. Senegal, on the other
hand, has the right to know why the Court chose to make a solemn ruling on
the application by means of a Judgment, rather than reject it de plano with
a simple letter issued by the Registry. The two Parties also have the right
to know the reasons for which their prayers in respect of the costs and
expenses, respectively, of the case, have been rejected; the Applicant
should also know why his prayer in this regard was addressed on the basis of
Rule 30 of the Interim Rules of the Court (hereinafter referred to as the
“Rules”) on Legal Costs, whereas the Court could have equally, if not
exclusively, treated this prayer on the basis of Rule 31 on Legal
Assistance.
3. However, only the question of the jurisdiction of the Court seems to me
to be sufficiently vital, to lead me to append to the Judgment, an exposé of
my separate opinion in regard to the manner in which this question should
have been treated by the Court.
*
* *
4. In the present case, the question of the jurisdiction of the Court is
relatively simple. It is that of the Court’s “personal jurisdiction” or
“jurisdiction ratione personae” in respect of applications brought by
individuals. This is governed by 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 (hereinafter referred to as
“Protocol”) and Article 34 (6) of the said Protocol which set forth the
modalities by which a State shall accept the said jurisdiction.
5. However, paragraph 31 of the Judgment states, not without ambiguity, that
for the Court to hear a case brought directly by an individual against a
State Party, there must be compliance with, inter alia, Article 5 (3) and
Article 34 (6) of the Protocol.
6. If the only issue referred to here is that of the jurisdiction of the
Court, then the expression “inter alia” introduces confusion because it
lends itself to the understanding that the said jurisdiction is predicated
on one or several other conditions that have not been spelt out. However, in
my view, there are no other conditions to the jurisdiction of the Court in
the case than that which has been specified in Article 34 (6) of the
Protocol, reference to which was made in Article 5 (3).
7. Nevertheless, if the expression “inter alia” also refers to the
conditions for admissibility of the application, there would no longer be
any logical linkage between paragraph 31 and paragraph 29 of the Judgment in
which the Court indicated that it would start by considering the question of
its jurisdiction. It would be particularly difficult to understand the
meaning of paragraph 39 in which the Court gives its interpretation of the
word “receive” as used in Article 34 (6) of the Protocol. In paragraph 39,
the Court indeed points out that the word “receive” as applied to the
application should not be understood in its literal meaning as referring to
“physically receiving” nor in its technical sense as referring to
“admissibility”; rather it refers to the “jurisdiction” of the Court to
“examine” the application; that is to say, its jurisdiction to hear the
case, as it states very clearly in paragraph 37 in fine of the Judgment.
8. Read in light of paragraph 39 of the Judgment, paragraph 31 should
therefore be interpreted as referring exclusively to the question of the
Court’s jurisdiction. Since the meaning of the expression “inter alia” is
unclear, the Court had better do away with it.
9. Even if the expression is removed therefrom, paragraph 31 of the
Judgment, and also paragraph 34 thereof, pose the question of the Court’s
jurisdiction in terms that do not faithfully reflect the Court’s liberal
approach to the treatment of the application.
10. In the foregoing two paragraphs of the Judgment, the question of the
Court’s jurisdiction is indeed posed by the exclusive reference to Article 5
(3) and Article 34 (6) of the Protocol. However, Article 5 essentially deals
with the question of “Access to the Court” as the title clearly indicates.
Thus, the question of the personal jurisdiction of the Court in this case
cannot but receive the response set forth in paragraph 37 of the Judgment,
i.e., that since Senegal has not made the declaration provided for in
Article 34 (6) of the Protocol, the Court has no jurisdiction to hear cases
instituted directly against this State by individuals. This ruling could
have been made expeditiously in terms of the preliminary consideration of
the Court’s jurisdiction as provided for in Rule 39 of the Rules.
11. Though of fundamental importance to the question of the personal
jurisdiction of the Court, Article 5 (3) and Article 34 (6) of the Protocol
should be read in their context, i.e. in particular in light of Article 3 of
the Protocol entitled “Jurisdiction” of the Court.
12. Indeed, although the two are closely related, the issues of the Court’s
“jurisdiction” and of “access” to the Court are no less distinct, as
paragraph 39 of the Judgment in fact suggests; [FN1] it is precisely this
distinction that explains why the Court did not reject de plano the
application given the manifest lack of jurisdiction, by means of a simple
letter issued by the Registry, and why it took time to rule on the
application by means of a very solemn Judgment.
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[FN1] On this point, see for example, Rosper Weil who notes as follows:
"jurisdiction and seizure are not only distinct, conceptually; they are
separate in time. Normally, jurisdiction preceeds seizure [...]. In certain
cases, however, the sequence may be reversed", [Translation by the Registry]
"Competence et saisine: un nouvel aspect du principe de la jurisdiction
consensuelle", in Jenzy Makarczyk (Ed.), Theory of International Law at the
Threshold of the 21st Century – Essay in Honour of Krzysztof Skubiszewski,
Kluwer Law International, The Hague/London/Boston, 1996, p. 839.
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*
13. The application was received at the Court Registry on 29 December 2008
and it was placed on the general list as No. 001/2008. The application was
served on Senegal on 5 January 2009; and on the same day, the Chairperson of
the African Union Commission was informed about the filing of the
application and through him the Executive Council and the other Parties to
the Protocol.
14. Thus, upon submission, the application was subject to a number of
procedural acts including its registration on the general list of the Court
[FN2] and its service on Senegal.
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[FN2] The registration of an application on communication on the general
list of a judicial or quasi-judicial organ may be defined as an "act of
recognition which establishes that such a communication is indeed a seizure
and, as of the date of receipt, actualizes the introduction of the case",
[Translation by the Registry] Carlo Santulli, Droit du contentieux
international, LGDJ-Montchrestien, Paris, 2005, p. 400.
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15. For their part, applications or communications addressed to the African
Commission on Human and Peoples’ Rights,[FN3] the defunct European
Commission of Human Rights,[FN4] the Inter-American Commission of Human
Rights, [FN5] the United Nations Human Rights Committee [FN6] or the
International Court of Justice, for example, [FN7] undergo a process of
vetting prior to being registered or served on the States against which they
were instituted.
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[FN3] Rule 102 of the Rules of Procedure of the African Commission, as
adopted on 6 October 1995, is worded as follows: "Pursuant to these Rules of
Procedure, the Secretary shall transmit to the Commission the communications
submitted to him for consideration by the Commission in accordance with the
Charter. 2. No communications concerning a State which is not a party to the
Charter shall be received by the Commission or placed in a list under Rule
103 of the present Rules” (emphasis added); see
http://www.achpr.org/francais_/info/rules_fr.html (site consulted on 9
December 2009). When member States of the African Union had not all become
parties to the African Charter, and the Commission received a communication
against a State that was not a party to the Charter, the Commission limited
itself to writing to the Applicant informing him/her that it has no
jurisdiction to deal with the communication. It did not serve the
communication on the State concerned, Evelyn A. Ankumah, The African
Commission on Human and Peoples’ Rights – Practice and Procedures. Martinus
Nijhoff Publishers, The Hague/London/Boston, 1996, p. 57.
[FN4] "When an application is filed by simple letter, even where such
application is complete, the practice of the Commission is to address an
application form to the Applicant. The various points detailed in this form
facilitate effective consideration of the admissibility of the application.
The Applicant is requested to return this form duly completed and
accompanied with the requisite annexes. The answers to some of the points
could mention the elements already contained in the application. As a
general rule (except in case of emergency), it is only after the receipt of
the duty completed form that the application is entered on the Commission’s
list and given a serial number […]. It is said that the entry on the list
transforms a “petition” into an application in terms of Article 25 of the
Convention” (emphasis added). Michel Melchior, “La procedure devant la
Commission europeenne des droits de l’Homme” Michel Melchior (and others),
Introduire un recours a Strasbourg? Een Zaak Aanhangig Maken te
Straastsburg? Nemesis Editions, Brussels, 1986, p. 24.
[FN5] The jurisdiction of the Inter-American Commission in regard to
communications from individuals now lies as of right in regard to all member
States of the Organization of American Stales irrespective of whether or not
they are parties to the American Convention on Human Rights, see Rules 27,
49 and 50 of the Rules of Procedure of the Commission as amended in July
2008; Rule 26 of the Rules however provides for an initial procedural stage
that can be equated to the stage of consideration of prima facie
admissibility of the application. It is described by an author in the
following terms: "the Commission receives the petition and registers it. In
practice, it is the responsibility of the Executive Secretariat of the
Commission to ascertain whether the petition is admissible prima facie. If
so, it registers the petition and opens a file [...]. If the correct format
has not been followed, [it] may request the petitioner to correct any
deficiencies". Ludovic Hennebel. La Convention americaine des droits de
l’homme – Mecanismes de protection et etendue des droits et libertes,
Bruylant, Bruxelles 2007, p. 163.
[FN6] The UN Secretary General maintains on a permanent basis a register of
the communications that he submits to the Committee; however, under no
circumstance can he enter in the register a communication made against a
State that is not a party to the Optional Protocol to the International
Covenant on Civil and Political Rights, see Rules 84 and 85 of the Rules of
Procedure of the Human Rights Committee, United Nations Doc. CCPR/C/3/Rev.7,
4 August 2004, see
http://www.unhchr.ch/tbs/doc.nsf(Symbol)/CCPR.C.3.Rev.7.Fr?Opendocument When
he receives such communication, the Secretary General limits himself to
informing its author that the communication cannot be received owing to the
fact that the State against which it was instituted is not a party to the
Optional Protocol, Manfred NowaK, U.N. Covenant on Civil and Political
Rights – CCPR Commentary, 2nd Revised Edition, N.P. Engel Publisher, Kehl am
Rhein, 2005, pp. 824-825.
[FN7] It should be mentioned that the reference to the practice of the
European Court of Human Rights and the Inter-American Court of Human Rights
is of limited interest in this regard, given that the question of personal
jurisdiction is posed in different terms before these two Courts. In the
Inter-American Court, individuals having no direct access to the Court, the
question of personal jurisdiction indeed arises only in regard to State
Parties; in the European Court where individuals have direct access to the
Court, it has automatic jurisdiction solely on the ground of the
participation of the member States of the Council of Europe in the European
Convention on Human Rights.
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16. In this case, the application did not go through this initial procedural
phase of vetting. It was treated in the same way as the applications brought
before the International Court of Justice before 01 July 1978, date of entry
into force of its new Rules.[FN8] Prior to that date, all cases brought
before the Court, including those instituted against States that had not
previously accepted the Court’s jurisdiction by making the optional
declaration accepting the compulsory jurisdiction provided for in Article 36
(2) of the Statute, were indeed placed on the general list and served on the
States against which they were instituted, and on the United Nations
Secretary General and, through him, on all the other members of the
Organization.
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[FN8] Rule 38, paragraph 5, of the current Rules of Procedure of the
International Court of Justice states that: “When the Applicant State
proposes to found the jurisdiction of the Court upon a consent yet to be
given or manifested by the State against which such application is made, the
application shall be transmitted to that State. It shall not however be
entered in the General List, nor any action be taken in the proceedings,
unless and until the State against which such application is made consents
to the Court’s jurisdiction for the purpose of the case” (emphasis added).
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17. As indicated in the foregoing paragraph 13, procedural acts similar to
the aforesaid were undertaken in connection with Mr. Yogogombaye’s
application; this was, inter alia, served on Senegal under covering letter
dated 5 January 2009.
18. Senegal acknowledged receipt thereof by letter dated 10 February 2009 in
which it also transmitted the names of those to represent it before the
Court. At that stage, Senegal could have limited itself to indicating that
it had not made the declaration provided for in Article 34 (6) of the
Protocol and that, consequently, the Court had no jurisdiction to deal with
the application on the grounds of the provisions of Article 5 (3) of the
Protocol. However, by notifying the Court of the names of its
representatives, it gave room for the suggestion that it did not exclude
appearing before the Court and of participating in its proceedings, with
doubts as to the object of its participation: to contest the Court’s
jurisdiction, contest the admissibility of the application or to defend
itself on the merits of the case.
19. By second letter dated 17 February 2009, Senegal requested the Court to
extend the time limit for submission of its observations to “enable it to
better prepare a reply to the application”. By so doing, Senegal signaled
its intention to comply with the provisions of Rule 37 of the Rules
according to which “the State Party against which an application has been
filed shall respond thereto within sixty (60) days provided that the Court
may, if the need arises, grant an extension of time”. Even in this letter,
Senegal did not exclude the eventual acceptance of the Court’s jurisdiction.
Still at this stage, it could have put up the argument that it has not made
the declaration provided for in Article 34 (6) of the Protocol and, on that
ground, contested the jurisdiction of the Court.
20. Even though it would not have made the aforementioned declaration,
Senegal, by its attitude, left open the possibility, however slim, that it
might accept the jurisdiction of the Court to deal with the application.
*
21. The fundamental principle regarding the acceptance of the jurisdiction
of an international Court is indeed that of consent, a principle which
itself is derived from that of the sovereignty of the State. A State’s
consent is the condition sine qua non for the jurisdiction of any
international Court, [FN9] irrespective of the moment or the way the consent
is expressed. [FN10]
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[FN9] “It is a well established principle of International Law that no State
can be compelled to submit its disputes with other States to mediation,
arbitration or to any method of peaceful solution without its consent”,
Permanent Court of International Justice, Statute of Eastern Carelia,
Advisory Opinion of 23 July 1923, Series B, p. 27.
[FN10] “Such consent may be given once and for all in the form of a freely
accepted obligation: it may however be given in a specific case beyond any
pre-existing obligation”. Id.
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22. This principle of jurisdiction by consent is also upheld by the
Protocol. Thus, in contentious matters, the Court can exercise jurisdiction
only in respect of the States Parties to the Protocol. The scope of the
Court’s jurisdiction in such cases and the modalities of access thereto are
defined in Articles 3 and 5, respectively, of the Protocol.
23. By becoming Parties to the Protocol, member States of the African Union
ipso facto accept the jurisdiction of the Court to entertain applications
from other States Parties, the African Commission or African
Inter-governmental Organizations. The jurisdiction of the Court in respect
of applications from individuals or Non-Governmental Organizations against
States Parties is not, for its part, automatic; it depends on the optional
expression of consent by the States concerned.
24. This is provided for in Article 34(6) of the Protocol which states that:
“At the time of 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. As it is drafted, this provision raises two
questions:
25. The first is the meaning to give to the word “shall” used in the first
sentence which suggests that filing of the declaration by the State Party is
an “obligation” for the State Party and not simply “a matter of choice”.
26. Understood in this way, Article 34 (6) would make it obligatory for
State Parties to make such a declaration after depositing their instruments
of ratification (or accession). [FN11] This prescription does not however
have any real legal effect because it does not set any time limit. It also
does not make much sense when read in light of its context and particularly
of Article 5 (3) and the second sentence of 34 (6) which states that “The
Court shall not receive any petition under Article 5 (3) involving a State
Party which has not made such a declaration”. It can thus be said in
conclusion that the filing of the declaration is optional; this conclusion
is corroborated by an analysis of the “travaux préparatoires” of the
Protocol. [FN12]
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[FN11] Paragraph 6 of the English version, unlike the French, provides that
the declaration may be freely made on two different occasions: “at the time
of the ratification of this Protocol or any time thereafter” (emphasis
added); the Arab and Portuguese versions of the said Paragraph 6 are
identical to the English version.
[FN12] See Article 6(1) (Special jurisdiction) of the Cape Town draft
(September 1995), Draft Protocol to the African Charter on Human and
Peoples’ Rights on the establishment of an African Court on Human and
Peoples’ Rights, Government Legal Experts Meeting on the establishment of an
African Court on Human and Peoples’ Rights, 6-12 September 1995, Cape Town,
South Africa, Doc. OAU/LEG/EXP/AFC/HPR/PRO (1) Rev. 1, Article 6(1), of the
Nouakchott Draft (April 1997), Draft (Noukchott) Protocol to the African
Charter on Human and Peoples’ Rights, on the establishment of an African
Court on Human and Peoples’ Rights, Second Government Legal Experts Meeting
on the establishment of an African Court on Human and Peoples’ Rights, 11-14
April 1997, Nouakchott, Mauritania, Doc. OAU/LEG/EXP/AFCHPR/PROT (2),
paragraphs 21, 23, 24 and 25 of the Report of this Second Experts Meeting.
Report – Second Government Legal Experts Meeting on the establishment of an
African Court on Human and Peoples’ Rights, 11-14 April 1997, Nouakchott,
Mauritania, Doc. OAU/EXP/JUR/CAFDHP/RAP (2), Article 34(6) of the Addis
Ababa Draft (December 1997), Draft Protocol to the African Charter on Human
and Peoples’ rights on the establishment of an African Court of Human and
Peoples’ Rights, Third Government Experts Meeting (including Diplomats) on
the establishment of an African Court on Human and Peoples’ Rights, 8/13
December 1997, Addis Ababa, Ethiopia, Doc. OAU/LEG/EXP/AFCHPR/PRO (111) and
paragraph 35 of the report of this Third Meeting of Experts, Report – Third
Government Legal Experts Meeting including Diplomats on the establishment of
an African Court on Human and Peoples’ Rights, 8/11 December 1997, Addis
Ababa, Ethiopia, Doc. OAU/LEG/EXP/AFCHPR/RPT (111), Rev. 1.
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27. The second question raised in Article 34 (6) is that of whether the
filing of the optional declaration by States Parties is the only means of
expressing their recognition of the jurisdiction of the Court to deal with
applications brought against them by individuals.
28. In this regard, it should first be noted that Article 34 (6) does not
require that the filing of the optional declaration be done “before” the
filing of the application; it simply provides that the declaration may be
made “at the time of ratification or any time thereafter”. Nothing therefore
prevents a State Party from making the declaration “after” an application
has been introduced against it. In accordance with Article 34 (4) of the
Protocol, the declaration, just as ratification or accession, enters into
force from the time of submission and takes effect from this date. Senegal
was therefore free to make such a declaration after the application was
introduced.
29. If a State can accept the jurisdiction of the Court by filing an
optional declaration “at any time”, nothing in the Protocol prevents it from
granting its consent, after the introduction of the application, in a manner
other than through the optional declaration. [FN13]
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[FN13] Such a possibility is for instance codified under Article 62,
paragraph 3, of the American Convention on Human Rights as well as in
Article 48 of the European Convention on Human rights before the Convention
was amended by Protocol 11.
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30. Therefore, the second sentence of Article 34 (6) must not, as the first
sentence, be interpreted literally. It must be read in light of the purposes
and goals of the Protocol and, in particular, in light of Article 3 entitled
“Jurisdiction” of the Court. Indeed, Article 3 provides in general manner
that: “the jurisdiction of the Court shall extend to all cases and disputes
submitted to it”; it also provides that “in the event of dispute as to
whether the Court has jurisdiction, the Court shall decide”. It therefore
lies with the Court to determine in all sovereignty the conditions for the
validity of its seizure; and do so only in the light of the principle of
consent.
31. Consent by a State Party is the only condition for the Court to exercise
jurisdiction with regard to applications brought by individuals. This
consent may be expressed before the filing of an application against the
State Party, with the submission of the declaration mentioned in Article 34
(6) of the Protocol. It may also be expressed later, either formally through
the filing of such a declaration, or informally or implicitly through forum
prorogatum. [FN14]
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[FN14] "Normally jurisdiction precedes seizure. […] In some cases, however,
the sequence may be reversed. Such is the essence of the theory of forum
prorogatum according to which the Court may have been properly seized of an
application whereas its jurisdiction may not have existed at the time the
application was filed and may only have been assumed subsequently because of
the consent of the defendant”, Prosper Weil, op. cit., p. 839. [Translation
by the Registry]
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32. Forum prorogatum or “prorogation of competence” may be understood as the
acceptance of the jurisdiction of an international Court by a State after
the seizure of this Court by another State or an individual, expressly or
tacitly through decisive acts or an unequivocal [FN15] behavior. It was in
particular this possibility that the letters issued by Senegal dated 10 and
17 of February 2009b led the Court to foresee in this case.
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[FN15] ''Forum proragahim: Latin expression usually translated by the
expression "prorogated jurisdiction". Acceptance by a State of the
jurisdiction of an international judicial body, such as the International
Court of Justice, after a matter has been referred thereto, either by an
express declaration to that effect, or by a decisive act implying tacit
acceptance. The decisive acts may consist in effective participation in the
proceedings, either by pleading on the merits, or by making findings on the
merits or any other act implying lack of objection against any future
decision on the merits. In the opinion of the International Court of
Justice, such conduct can be tantamount to tacit acceptance of its
jurisdiction, which cannot subsequently be revoked, by virtue of the bona
fide or estoppel principle, Jean Salmon (Ed.). op. cit., p. 518. On this
doctrine, see Mohammed Bedjaoui & Fatsah Ouguergouz, “Le forum prorogatum
devant la Cour international de Justice: les resources d’une institution ou
la face cache du consensualism” in African Yearbook of International Law,
1998, Vol. V, pp. 91-114.
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33. Up to 9 April 2009, the date on which the Registry received the written
observations of Senegal, there was the possibility that Senegal might accept
the jurisdiction of the Court. It was only on this date that it became
unequivocally clear that Senegal had no intention of accepting the Court’s
jurisdiction to deal with the application.
34. It was therefore up to the Court to take into account Senegal’s refusal
to consent to the jurisdiction of the Court to deal with the application and
to draw the consequences thereof by putting an end to the matter and
removing the case from the general list.
35. Under the former Rules of the International Court of Justice (before 01
July 1978), when a case was brought against a State which has not previously
accepted the jurisdiction of the Court by filing the optional declaration
and such a State did not accept the Court’s jurisdiction in regard to the
case after having been invited to do so by the Applicant State, such a case
was closed by the issuance of a succinct order. [FN16] In the European Court
of Human Rights where the problem of jurisdiction occurs less frequently
than that of admissibility of applications, when there is no serious doubt
as to the inadmissibility of an application, the corresponding decision is
notified to the applicant through a simple letter. [FN17]
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[FN16] See for example, “Treatment in Hungary of Aircraft and Crew of the
United State of America”, Order of 12 July 1954, I.C.J. Report 1954, p. 100
or “Aerial Incident of 7 October 1952”, Order of 14 March 1956, I.C.J.
Report 1956, p. 10.
[FN17] Personal jurisdiction of the European Court in matters of individual
communications is indeed automatic; the Court must therefore first deal with
the issue of admissibility of applications and, in this respect, Article 53
of its Interim Rules, entitled “Proceedings before a Committee”, provides in
its paragraph 2 that “in accordance with Article 28 of the Convention, the
Committee may, unanimously, declare an application to be inadmissible or
strike it off the cause list, when such a decision can be made without any
further examination. The decision shall be final and shall be brought to the
attention of the applicant by letter”. (emphasis added).
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36. In the present case, Senegal having formally raised preliminary
objections in its “statement of defense” [FN18] dated 9 April 2009, the
Court deemed it necessary to comply with the provisions of Rule 52 (7) of
its Rules which stipulates that “The Court shall give reasons for its ruling
on the preliminary objection”. [FN19]
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[FN18] Expression used in the testimonium clause on page 17 of Senegal’s
written observations.
[FN19] The reference to Article 39 of the Rules in Paragraph 29 of the
Judgment is not timely as this provision concerns preliminary examination by
the Court of its jurisdiction, i.e. a stage of the proceedings during which
it must ensure that it has at least prima facie jurisdiction to entertain an
application. At the stage of examining a preliminary objection for lack of
jurisdiction, the Court must make a definitive ruling on its jurisdiction.
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37. However, consideration by the Court of Senegal’s preliminary objections
required that it addresses the question of it’s jurisdiction in a more
comprehensive manner by developing in particular the possibility of a forum
prorogatum. This possibility is all the more suggested in paragraph 37 of
the Judgment where the Court, on the grounds of its ruling that Senegal has
not made the optional declaration, concluded that the said State, on that
basis, “has not accepted the jurisdiction of the Court to hear cases
instituted directly against this State by individuals or non governmental
organizations”.
38. Nevertheless, it is this possibility of a forum prorogatum, however
slight, that explains why the application of Mr. Yogogombaye was not
rejected right after 10 February 2009; and it is the filing of preliminary
objections by Senegal which explains why the Court did not close the case in
a less solemn manner by issuing an order or by simple letter by the
Registry.
39. The submission of preliminary objections by Senegal may, in turn, be
explained by scrupulous compliance by this State with the provisions of Rule
37 and 52 (1) of the Rules.
*
* *
40. Today, the question is whether “all” applications filed with the
Registry should be placed on the Court’s general list, notified to the
States against which they are directed, and above all, as provided for under
Article 35 (3) of the Rules, notified to the Chairperson of the African
Union Commission and, through him, to the Executive Council of the Union, as
well as to all the other States Parties to the Protocol. As a judicial
organ, once the Court receives an application, it has the obligation to
ensure, at least in a prima facie manner, that it has jurisdiction in the
matter. [FN20] Certainly, here lies the object of preliminary consideration
by the Court of its jurisdiction as provided for in Rule 39 of its Rules. A
selection should then be made between individual applications in respect of
which, at a glance, the Court has jurisdiction and those in respect of which
it has not, which is the case when the State party concerned has not made
the optional declaration. In this latter hypothesis, the application should
be rejected de plano by simple letter by the Registry. It could eventually
be communicated to the State Party concerned, but it is only if such a State
accepts the jurisdiction of the Court that the application could be placed
on the Court’s general list [FN21] and notified to the other States Parties.
The idea is to avoid giving untimely or undue publicity to individual
applications in respect of which the Court clearly lacks jurisdiction.
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[FN20]h On this issue, see for example Gerard Niyungeko, La prevue devant
les jurisdictions internationals, Editions Bruylant, Editions de
l’Universite de Bruxelles, Brussels, 2005, p. 55. Thus, according to the
International Court of Justice: “In accordance with its Statute and
established jurisprudence, the Court must, nonetheless, examine proprio motu
the issue of its own jurisdiction in order to entertain the request of the
Government of Greece”, Aegean Continental Shelf, Judgment, ICJ Report 1978,
p. 7, para. 15. With regard to practice at the Inter-American Court, see
Ludovic Hennebel, La Convention americaine des droits de l’homme –
Mecanismes de protections et etendue des droits et libertes Bruylant,
Brussels, 2007, p. 238, para. 277, or the practice of quasi-judicial organs
such as the Human Rights Committee for example, see Ludovic Hennebel La
jurisprudence du Comite des droits de l’homme des Nations Unies – Le Pacte
international relative aux droits civils et politiques et son mecanisme de
protection individuelle, Bruylant, Brussels, 2007 p. 346.
[FN21] As has been rightly emphasized by an author, registration of an
application on the general list of a judicial organ “is in essence a means
of eliminating frivolous correspondence or other irrelevant communications
that cannot be considered as application”, Carlo Santulli. op. cit., p. 400.
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41. In this regard, it is important to point out that the potential authors
of individual applications can in the present circumstances experience
difficulties knowing the situation of an African State vis-à-vis the
optional declaration. Indeed, only the list of the States Parties to the
Protocol is being published on the African Union Commission website and this
list does not mention the States that have made the optional declaration. It
would therefore be desirable that the list of the States that have made the
said declaration be similarly published on the website for the purposes of
bringing the information to the knowledge of individuals and non
governmental organizations.
42. The Court, for its part, cannot be satisfied with such publication as it
does not have official value, and is not a “real time” reflection of the
status of participation in the Protocol and in the system of the optional
declaration. To date, the list of States Parties to the Protocol and that of
the States Parties that have made the optional declaration, while being of
primary interest to the Court, are not automatically notified to the Court
by the Chairperson of the African Union Commission, depository of the
Protocol. The Protocol does not oblige the depository to communicate
declarations to the Court Registry, its Article 34 (7) contenting itself
with providing that declarations should be deposited with the Chairperson of
the African Union Commission “who shall transmit copies thereof to the State
parties”. The Statute of the International Court of Justice [FN22] and the
American Convention of Human Rights, [FN23] for their part, provide that the
depositories of the optional declarations accepting the compulsory
jurisdiction of the International Court of Justice and the Inter-American
Court, respectively, should file copies thereof in the Registries of the
said courts. Although the relevant department of the African Union
Commission is not legally bound to do so, it would also be desirable that in
future the said department inform the Court of any update of the two
above-mentioned lists.
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[FN22] Article 36 paragraph 4.
[FN23] Article 62 paragraph 2.
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Fatsah Ouguergouz
Aboubakar Diakité Registrar
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