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Commission Nationale des Droits de l’Homme et des Libertés v Chad, Merits, Communication 74/92, 9th Annual Activity Report 1995-1996, (2000) AHRLR 66 (ACHPR 1995), (1997) 4 IHRR 94, IHRL 164 (ACHPR 1995), October 1995, African Commission on Human and Peoples' Rights [ACHPR]

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 26 February 2020

Parties:
Commission Nationale des Droits de l’Homme et des Libertés
Chad
Judges/Arbitrators:
Isaac Nguema; EVO Dankwa; Robert Kisanga; Mohamed Hatem Ben Salem; Vera Duarte Martins; U Oji Umozurike; Atsu Koffi Amega; Kamel Rezag-Bara; Julienne Ondziel-Gnelenga; Youssoupha Ndiaye
Procedural Stage:
Merits
Subject(s):
Freedom from torture and cruel, inhuman, or degrading treatment — Right to fair trial — Right to liberty and security of person — Right to life — Individuals and non-state actors
Core Issue(s):
Whether the government of Chad committed or failed to prevent gross and flagrant human rights violations during the civil war in violation of the African Charter on Human and Peoples’ Rights.

Oxford Reports on International Human Rights Law is edited by:
Professor Başak Çalı, Center for Global Public Law, Koç University, Istanbul
Dr Magnus Killander, University of Pretoria, Centre for Human Rights
Professor Claudia Martin, American University, Washington College of Law
Professor Lorna McGregor, University of Essex, Human Rights Centre
 

Facts

F1  The complainant NGO alleged that the government of Chad was involved in instigating, perpetrating, and failing to prevent massive and severe human rights violations against its citizens.

F2  It was alleged specifically that: i) journalists were continually harassed by government security forces; ii) four members of the opposition party and several other people were arbitrarily detained and never brought before a court; iii) during a civil war between security forces and other groups, 15 people were killed, 200 wounded and several others tortured; iv) despite warnings that the assassination of Bisso Mamadou was imminent, no protection was offered by the Minister responsible and no investigation was later conducted; v) Joseph Betudi, Vice-President of Ligue Tchadienne des Droits de l’Homme, was assassinated ; and vi) prisoners were subject to inhuman treatment while in detention.

F4  The government of Chad denied all responsibility for the above allegations, but provided no substantive evidence to support its claim.

Held

H1  No derogation was permitted from the African Charter in time of emergency, so the fact that there was a civil war taking place in Chad at the time of the human rights violations was not an excuse; Chad’s obligations to protect human rights remained in full. (paragraph 21)

H2  By virtue of Article 1 of the African Charter, a state was responsible not only for acts of its agents but for failure to protect individuals from human rights violations, whether by state agents or third parties. (paragraph 20)

H3  By not providing an environment of security and stability in Chad, thereby allowing serious and massive violations of human rights, and by not conducting investigations, Chad was responsible under the African Charter, either because of the acts of its national armed forces or for failure to ensure that human rights were not violated by others. (paragraph 22)

H4  In the absence of a substantive response by Chad, it was the practice of the African Commission on Human and Peoples’ Rights (‘Comission’) to decide questions of violation on the basis of the facts provided by the complainant. (paragraph 25)

H5  In keeping with this practice, the Commission found serious and massive violations of human rights in breach of Articles 4, 5, 6, and 7 of the African Charter.

Date of Report: 29 August 2008
Reporter(s):
Daniel Butler

Analysis

A1  As the Commission notes, the African Charter differs from other international human rights treaties that protect civil and political rights in not containing a derogation clause for public emergencies.

A2  The case is mostly significant in the Commission’s confirmation that the consequence of this is that no allowance is to be made for the fact that there is a public emergency. The Commission makes no mention of the interplay between human rights law and international humanitarian law, insofar as it applies to internal conflicts, and does not seek to temper a state’s obligations in the interpretation of limitation clauses in particular Articles of the African Charter.

A3  It will be of interest to see whether the Commission keeps to this unqualified human rights approach in later cases, or whether it will come to make some allowance for the imperatives of national security.

Date of Analysis: 01 September 2008
Analysis by: Human Rights Law Centre, School of Law, University of Nottingham

Instruments cited in the full text of this decision:

Cases cited in the full text of this decision:

To access full citation information for this document, see the Oxford Law Citator record

Decision - full text

The Facts

. The communication is brought by La Commission Nationale des Droits de l'Homme et des Libertés de la Fédération Nationale des Unions de Jeunes Avocats de France. The complaint alleges several massive and severe violations in Chad.

. The complaint alleges that journalists are harassed, both directly and indirectly. These attacks are often by unidentified individuals who the complainants claim to be security service agents of the Government. The Government denies responsibility.

. The complaint alleges the arbitrary arrest of several people, among those, four members of the opposition party, R.D.P., by the security services. These people were never brought before a court, although they were eventually set free. 15 more people were illegally detained, but have now been liberated.

. There are several accounts of killings, disappearance and torture. 15 people are reported killed, 200 wounded, and several persons tortured as a result of the civil war between the security services and other groups.

. The communication alleges the assassination of Bisso Mamadou, who was attacked by armed individuals. The Minister responsible was warned of the danger to Mr. Bisso, but he refused to issue protection. Subsequently, the Minister did not initiate investigation into the killing.

. The communication also alleges the assassination of Joseph Betudi, Vice-President of Ligue Tchadienne des Droits de l'Homme. It also contains allegations of inhuman treatment of prisoners.

Procedure Before the Commission

. The communication is dated 11 May 1992 and includes a report based on an observation mission to Chad made by the Association "Agir ensemble pour les droits de l'Homme" and the Fédération Nationale des Unions de Jeunes Avocats.

. The Commission was seized of the communication at its 12th Session and on 16 November 1992 the Government of Chad was notified of the communication.

. On 10 March 1993, the Ministry of Justice responded to the communication.

10 . On 12 April 1993, the Chairman of the Commission wrote to the Ministry of Foreign Affairs and requested its permission to conduct an on-the-spot investigation in Chad.

11 . The Government did not reply to that letter, nor to the following reminders.

12 . A letter was sent to the Government on 3 February 1995, and to the complainant on 17 February 1995, stating that communication would be considered at the 17th Session.

13 . At the 17th Session in March 1995, the communication was declared admissible. The Government and the complainant were informed of that decision.

14 . On 1 September 1995, a letter was sent to the Government stating that the communication would be heard on its merits at the 18th Session of the Commission and inviting the Government to send a representative.

15 . At the 18th Session, the Commission heard Ms. Febiene Trusses-Naprous, from the Federation Nationale des Unions de Jeunes Avocats, Commission Nationale des Droits de l'Homme et des Libertés de France. She reiterated the information in the original communication, both verbally and by way of memoire. This memoire, in addition to summarizing the information in the original communication, affirmed that the human rights situation in Chad has not seen improvement to the present day. The Commission decided the communication on the merits, resolving that there was evidence of serious and massive violations of human and peoples' rights. Article 58 was invoked to draw the attention of the Assembly of Heads of State and Government of the OAU to this fact.

16 . On 27 November 1995, a letter was received from the Ministry of External Affairs of Chad with regard to the Secretariat's letter of 1 September 1995. This letter stated that the National Human Rights Commission of Chad could find no record of the communication.

The Law

17 . Article 1 of the African Charter reads:

"The Member States of the Organizations of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adapt legislative or other measures to give effect to them".

18 . In this case, the complainant claims that not only did the Government agents commit violations of the African Charter, but that the State failed to protect the rights in the Charter from violation by other parties.

19 . The Government claims that no violations were committed by its agents, and that it had no control over violations committed by other parties, as Chad is in a state of civil war.

20 . The Charter specifies in Article 1 that the States Parties shall not only recognize the rights and duties and freedoms adopted by the Charter, but they should also "undertake … measures to give effect to them". In other words, if a State neglects to ensure the rights in the African Charter, this can constitute a violation, even if the State or its agents are not the immediate cause of the violation.

21 . The African Charter, unlike other human rights instruments,1 does not allow for States Parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter.

22 . In the present case, Chad has failed to provide security and stability in the country, thereby allowing serious and massive violations of human rights. The national armed forces are participants in the civil war and there have been several instances in which the Government has failed to intervene to prevent the assassination and killing of specific individuals. Even where it cannot be proved that violations were committed by Government agents, the Government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders. Chad therefore is responsible for the violations of the African Charter.

23 . The complainant claims that the events in Chad constitute violations of Articles 4 (right to life), 5 (prohibition of torture, inhuman and degrading treatment), 6 (right to life and security of persons), 7 (right to a fair trial), and 10 (right to freedom of expression).

24 . In the present case, there has been no substantive response from the Government of Chad, only a blanket denial of responsibility.

25 . The African Commission, in several previous decisions, has set out the principle that where allegations of human rights abuse go uncontested by the Government concerned, the Commission must decide on the facts provided by the complainant and treat those facts as given2. This principle conforms with the practice of other international human rights adjudicatory bodies and the Commission's duty to protect human rights. Since the Government of Chad does not wish to participate in a dialogue, the Commission must, regrettably, continue its consideration of the case on the basis of the facts and opinions submitted by the complaints alone.

26 . Thus, in the absence of a substantive response by the Government, in keeping with its practice, the Commission will take its decisions based on the events alleged by the complainants.

FOR THESE REASONS, THE COMMISSION

Finds that there have been serious and massive violations of human rights in Chad.

Finds that there have been violations of Articles 4, 5, 6, 7.

Taken at the 18th Ordinary Session, Praia, Cape Verde, October, 1995

 

Footnotes:

E.g the European Convention on Human Rights, Article 15, the Inter-American Convention on Human Rights and the International Covenant on Civil and Political Rights.

See, e.g the Commission's decisions in communications 59/91, 60/91, 87/93 and 101/93.