Tanzania Withdraws Jurisdiction from the African Court. What recourse remains for Tanzanians?

(photo credit)

On November 21, 2019, Tanzania withdrew from Article 34(6) of the African Charter’s Protocol: the provision by which States accept the competence of the African Court on Human and Peoples’ Rights to receive cases from individuals and NGOs. Tanzania is only the second State—after Rwanda—to withdraw from Article 34(6). When Rwanda made its Article 34(6) withdrawal in 2016, the African Court mandated a notice period of one year for withdrawals and declared that the withdrawal would have no legal effect on cases pending before the Court.

Applying the Rwandan precedent to Tanzania’s withdrawal suggests that Tanzanians can only continue to file before the Court until the one-year notice period expires, on November 20, 2020. This change is significant, as individuals comprise the overwhelming majority of applications to the African Court.

Despite the closure of this important avenue for Tanzanians seeking remedies for human rights violations, there are other avenues through which Tanzanians can bring their claims. The African Commission on Human and Peoples’ Rights and the UN Treaty Bodies provide two such avenues.

A. The African Commission on Human and Peoples’ Rights

The African Commission is a quasi-judicial body tasked with the interpretation of the African Charter. Distinct from the African Court, the Commission can hear complaints against States Parties to the African Charter, including Tanzania.

The Commission presents a viable alternative to filing with the Court in several ways. By turning to the Commission, Tanzanian applicants can continue to build jurisprudence in the African continent and pursue Tanzania’s compliance with its human rights obligations under the African Charter. Successful petitions enshrine human rights norms in Tanzania, as well as in all States Parties to the African Charter, and applicants can secure reparations for the harms they have suffered.

Additionally, the Commission has shown interest in ruling on human rights claims in Tanzania, despite Tanzania’s withdrawal. On November 22, 2019, just a day after Tanzania’s withdrawal, the Commission published a statement to Tanzania strongly urging its government to guarantee a range of public freedoms and to protect human rights activists. Tanzania’s withdrawal may only serve to heighten the Commission’s interest in the State’s human rights compliance.

Although the Commission can begin to fill the gap left by Tanzania’s withdrawal for individuals who have suffered human rights abuses, it is not a replacement for the Court. First, the Commission faces a severe backlog in cases: in June 2019, the Commission had 240 cases pending. If Tanzanians seek redress before the Commission in the same numbers as they did before the Court, they can expect to see prolonged delays in having their petitions heard.

Second, Tanzanian applicants may not always see favourable decisions from the Commission enforced at state level. Tanzania is required to submit biannual reports to the African Commission on its human rights compliance, but Tanzania has only submitted two such reports: one in 1992 and another in 2008. Because of this lack of data, as well as the minimal formal policy guiding these state-reporting measures, it is difficult for the Commission to monitor whether Tanzania is implementing its decisions and recommendations. Moreover, Tanzania does not appear to have enforced the one decision on the merits that the Commission decided against Tanzania.

Despite these complications, the African Commission can fill some of the gap that Tanzania’s withdrawal from the African Court will leave post-November.

B. UN Human Rights Bodies

The UN Treaty Bodies can also hear human rights claims against Tanzania.

Two of the UN Treaty Bodies have jurisdiction over Individual Complaints filed against Tanzania: the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) and the Committee on the Rights of Persons with Disabilities (CRPD Committee). Tanzania ratified the Optional Protocol to the CEDAW in 2006 and the Optional Protocol to the CRPD in 2009, thus recognising the competence of both bodies to consider communications against Tanzania.  

Where claims allege a violation of either the CEDAW or the CRPD, Tanzanians may consider bringing an Individual Complaint to CEDAW or CRPD Committees, respectively. Though the Treaty Bodies present a wholly different forum for complaints than the regional human rights tribunals of the African Court and Commission, they go a long way to filling the gap left by Tanzania’s withdrawal.

The longevity and strength of the UN Treaty Bodies lends their judgments gravity and impact. Jurisprudence from both the CEDAW and CRPD Committees shines a light on, and seeks to remedy, human rights violations the world over. Tanzanian lawyers and activists bringing complaints before these Committees can use the international respect and clout of these bodies to their advantage, to build awareness of human rights issues in Tanzania and to support their in-country efforts.

Importantly, Tanzania generally complies with its administrative obligations under both the CEDAW and CRPD by submitting its periodic reports. Neither Committee has heard many Individual Complaints against Tanzania, though, which makes analysing the likelihood of their enforcement difficult. The CEDAW Committee has heard one Individual Complaint against Tanzania, following which Tanzania implemented some—but not all—of the Committee’s recommendations. The CRPD Committee has heard two complaints against Tanzania, with similarly mixed results. Though Tanzania’s limited track record on enforcement may raise questions about the utility of bringing claims to the Treaty Bodies after November 2020, it does not diminish the utility of the UN as way forward for Tanzanians who have suffered human rights abuses.

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From November 20, 2020, Tanzanian individuals and NGOs will be deprived of an important avenue through which to bring human rights claims. It is clear, though, that Tanzania’s withdrawal does not doom all human rights claims against the state. Individuals and NGOs must turn to alternative forums to fill the gap left by Tanzania’s withdrawal.

Meanwhile, international groups should recognise the critical work being done by domestic advocates to raise awareness of these changes within Tanzania.

The Crime of Aggression: Still a live issue

Liechtenstein hosted a panel this morning at the Assembly of States Parties (ASP) titled “The ICC’s Jurisdiction Over the Crime of Aggression”. This panel sought to discuss the significance and broader context of the crime of aggression. Panelists included IntLawGrrl Jennifer Trahan, Professor at the Center for Global Affairs at New York University, David Donat Cattin, Secretary-General of Parliamentarians for Global Action, and Donald Ferencz, the Convenor of the Global Institute on the Prevention of Aggression. This panel complemented many of the comments that States made at the General Debate session held yesterday that continued after this panel on the activation of the crime of aggression.

Many States Parties made supportive statements on the activation of the crime of aggression during the General Debate on Day 1 that continued after Liechtenstein’s panel today on Day 2. Austria spoke on behalf of the European Union (EU) in support of the activation of the crime of aggression, and all EU member states commented that they supported Austria’s statement. Most notably, however, France was quite critical of the Kampala Amendments as promoting division amongst States Parties when the focus should be universality. China as well was critical of the Amendments, stating that the International Criminal Court (ICC) should not undermine the Security Council, as it is this body that is responsible for upholding international peace and security. Given that China is a permanent member of the Security Council and is not a party to the ICC, this comment is not surprising. Many states commented that they are in the process of ratifying the Amendments, which was a welcome announcement, including Paraguay and Greece.

During the panel, Jennifer Trahan began the discussion with an analysis of the text of Article 8bis of the Rome Statute which enumerates the crime of aggression. As discussed in my previous post, Trahan stated that the language in Article 8bis derives from the London Statute of the Nuremberg Tribunal and that the crime of aggression is not meant to encompass all violations of Article 2(4) of the UN Charter, but manifest violations. Manifest violations, she clarified, are those that are super clear and not in a grey zone. She also discussed the novel jurisdictional regime that exists within the crime of aggression with regard to state and proprio motu referrals compared to the other three international crimes:  non-States Parties to the Rome Statute are completely excluded from the Court’s jurisdiction over the crime of aggression; not all States Parties are automatically covered by 15bis jurisdiction; and there is an opt-out method for States to opt out of the Court’s jurisdiction over the crime.

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Photo credit: coalitionfortheicc.org

David Donat Cattin held a very positive view on the activation of the crime of aggression and discussed some of the progress being made for further ratifications. He referenced the Austrian delegate’s support for the activation of the crime of aggression on behalf of the EU and hoped that this statement would have an impact on other EU member states to encourage their ratification. He also mentioned that the Dominican Republic will be voting on whether to ratify the amendment in the next year. He added that the Central African Republic is likely to join because they are subjected to foreign interference on all sides. He also mentioned that South Africa highlighted the historic significance of the Kampala Amendments at the General Debate, so this may indicate its ratification in the next year.

Donald Ferencz completed the panel with some very engaging comments that started with this statement: “the rule of law is for the little people”. He commented that a state like Liechtenstein, who has ratified the Amendments, is likely not about to commit the crime of aggression, but two permanent members of the Security Council who are also States Parties to the Rome Statute (referencing the UK and France) have not ratified the Amendments. This sends the message that this law/crime is not for bigger states like the UK and France, but is for the smaller states, who are unlikely to be the ones committing the crime in the first place. This was quite an interesting comment in light of France’s statement regarding the Kampala Amendments promoting division at the General Debate yesterday.

One quite interesting debate that evolved out of the panel concerned how to hold state officials liable for the crime of aggression when the state is not a party to the Rome Statute, with specific reference to the Russian invasion of Ukraine. This question was first brought up by Sabine Nolke, Canadian Ambassador to the Netherlands. A few intervenors were of the view that, in the case of Russia, war crimes committed in Ukraine (because Ukraine is a party to the Rome Statute) can be prosecuted and the Court could consider the fact that Russia committed an act of aggression as an aggravating factor in the prosecution of war crimes and in sentencing. Nolke and members of the panel, however, cautioned against this view because it suggests that war crimes committed in non-aggressive wars are less grave or less prosecutable. She and the panelists stressed that war crimes are war crimes no matter the context, and they should not be treated differently based on whether or not there is an aggressive war.

States’ comments during the General Debate and the discussion during this panel indicate that, although there seems to be a large degree of support for the activation of the crime, ratification is still a live issue and questions of jurisdiction are far from settled.

This blogpost and the author’s attendance to the 17thAssembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

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