Developing quasi-criminal review in Africa: lessons from the Inter-American Court of Human Rights

1 INTRODUCTION

A growing body of scholarship has identified an ‘implementation crisis’ affecting human rights systems across the globe.1 Researchers provide detailed accounts on the different manifestations of this crisis in response to rulings delivered in Europe, America, and Africa.2 These courts are not blind to the ongoing challenge and, as a result, regional courts and commissions are increasingly focused on the post-judgment phase in which they scrutinise how effectively states implement their decisions and probe the reasons for non-implementation.

The persistent non-compliance by states raises fundamental concerns. First, the legitimacy of any court, whether domestic, regional, or international, hinges on the effectiveness of its orders. According to Helfer and Slaughter, effective adjudication involves not only a court’s authority to compel a response from defendants, but also its ability to enforce compliance with judgments.3 In short, a court is not effective if it fails to enforce its judgments.

Confronted with this ongoing challenge, regional courts have intensified efforts to fortify mechanisms aimed at redressing human rights violations promptly and effectively. Scholars have noted significant amendments to the Rules of Procedure by the African Commission, the adoption of monitoring and reporting processes by the African Court on Human and Peoples’ Rights (African Court), judicial monitoring initiatives at the Inter-American Court of Human Rights (Inter-American Court), and the establishment of a compliance follow-up unit within this Court.4

The adoption of these rather intensive, and, arguably invasive, measures can be explained through the framework developed by Roach and Budlender, which justifies escalating responses to non-compliance where governments exhibit inattentiveness, incompetence, or intransigence.5 While this typology was developed with reference to compliance with domestic judgments, this framework proves pertinent within the realm of regional human rights systems. Contrary to the managerial theory posited by Chayes and Chayes, which suggests that states have a general propensity to comply with international law,6 regional contexts underscore the relevance of Roach and Budlender’s typology. According to these authors, while declaratory orders may suffice for negligent governments, more robust remedies such as mandatory relief and mandated government reporting to courts become necessary when governments display incompetence or obstinacy in implementing judgments.7

This typology helps explain innovative remedies such as the practice of quasi-criminal review which was crafted by the Inter-American Court. Quasi-criminal review allows regional bodies to make orders instructing states to initiate investigations, undertake prosecutions, and impose penalties upon those responsible for gross human rights violations.8 Thereafter, the courts can monitor compliance through various follow-up mechanisms.9 A similar trend is observable in Africa, suggesting that quasi-criminal jurisdiction of supranational courts emerges as a remedial response to states’ non-compliance with court rulings.

This article provides an in-depth analysis of this innovative remedy, juxtaposing its application by the Inter-American Court and the African Court. The first section explores the concept of quasi-criminal review and how it facilitates compliance with regional court judgments. This is followed by an examination of the development of quasi-criminal jurisdiction by the Inter-American Court, with a focus on specific procedural elements. Subsequently, the article investigates whether recent practices within the African human rights system can be classified as quasi-criminal review, with reference to the African Court’s jurisprudence.

2 THE ROLE OF QUASI-CRIMINAL REVIEW IN ENSURING COMPLIANCE

The handing down of rulings by supranational bodies can significantly impact human rights practices by drawing attention to alleged human rights violations, honouring victims, and advancing human rights jurisprudence.10 However, the most tangible effect of these rulings is seen in states’ compliance. By adhering to court decisions, states offer remedies to individual victims and implement structural and systemic changes to prevent future violations. Full compliance with these rulings exemplifies international human rights law at its most effective.11

What constitutes compliance varies on a case-by-case basis. Although there is no universal definition for ‘compliance’, and most international law instruments do not provide a concise definition, the UN Charter makes reference to ‘non-compliance’ which is defined as a state party’s failure to perform the obligations assigned to it through the International Court of Justice’s (ICJ) orders.12 Leading voices in international law scholarship have offered more or less the same definition for the term ‘compliance’. Raustiala and Slaughter define compliance as ‘a state of conformity or identity between an actor’s behaviour and a specified rule’.13 Similarly, Huneeus views compliance as a relational concept referring to a correspondence between a ruling’s demands and the behaviour of the parties subject to the ruling.14 Andreas von Staden views compliance as the conformity of behaviour with what is required or prohibited based on an obligation rooted in a norm, a decision or another normative pronouncement.15

It is easy to confuse compliance with ‘implementation’ and sometimes, the terms are used synonymously. However, implementation refers to the process of taking individual or collective measures - such as legislation, judicial decisions, administrative actions, executive decrees, or other steps - to enforce an adverse decision or judgment.16 Thus, implementing the decisions of courts or tribunals typically involves a blend of actions.

Navarro argues that more focus should be placed on implementation rather than compliance as the latter simply indicates that the state’s laws and practices align with the requirements of a judgment, while implementation involves domestic actors recognising, incorporating, and taking ownership of the judgment.17 In Navarro’s view, compliance does not adequately capture all the aspects related to a judgment’s effectiveness, such as delayed or partial compliance as well as any innovative measures adopted by courts and their reasons for doing so.18

In my view, it would be prudent not to create a hierarchy between implementation and compliance for two reasons. On the one hand, as von Staden argues, implementation is not necessarily an absolute condition for compliance, as compliance may occur without the implementation of any new measures.19 On the other hand, implementation can be viewed as a process entailing a series of steps taken to achieve an outcome (compliance). Monitoring bodies examine whether the measures implemented constitute partial compliance, full compliance or non-compliance.20 The distinction ultimately lies on the degree of compliance by a state: partial compliance refers to a situation where a state complies with some but not all of a court’s orders, if a state complies with all of the orders then that qualifies as full compliance, while non-compliance refers to cases where a state does not comply with any of the court’s orders.

It is argued that a court’s authority to compel litigants to adhere to its judgments partly derives from its capacity to leverage the state’s coercive power.21 For international courts and tribunals, leveraging state power to directly enforce compliance is challenging because their jurisdiction is limited to determining whether a state is internationally responsible for certain violations.22 As a result, they can only implement their decisions through member states. In contrast, supranational bodies, such as regional human rights courts, have the authority to issue decisions that are directly binding on member states, as well as on public and private enterprises and individuals within those states.23

Since supranationalism recognises that states are composed of governments interacting with a wide array of non-state entities, corporations, individuals and organizations, there is a direct connection between supranational institutions and private parties which allows these tribunals to form direct or indirect relationships with various branches of domestic governments.24 Through these relationships, a supranational tribunal can leverage the power of domestic governments to enforce its rulings, similar to how domestic court orders are enforced. Hillebrecht argues that state compliance with international human rights tribunals’ rulings is fundamentally a domestic affair.25 Even human rights tribunals with extensive oversight and enforcement capacities rely entirely on state actors and domestic political forces for compliance.

In handing down a judgment, the government of the state in question, usually the executive, is addressed. Therefore, the executive is the branch that is ultimately responsible for compliance.26 Once a ruling has been issued, the executive typically delegates the tasks necessary for compliance to various state entities.27 Using Niger as an illustration, the Koraou judgment issued by the ECOWAS Community Court of Justice (ECCJ) provides a clear example of executive involvement in the implementation of a regional court decision. Despite the fact that Niger had criminalised slavery in its penal code before the Koraou case, an estimated 43,000 people were still believed to be enslaved in Niger as of 2010.28

In response to the ECCJ’s finding that the Government of Niger failed to prevent violations committed by third parties, the Ministry of Justice issued a circular instructing judges to handle cases - particularly those related to slavery - with greater diligence.29 It has been argued that this approach alone was insufficient. A more comprehensive strategy was required, involving policy measures to ensure coordinated efforts across various state institutions in the enforcement of anti-slavery provisions.30

In the absence of full compliance with its judgments, the effectiveness of a supranational tribunal is questionable. This is because the success of an institution of this nature is based on its ability to ensure compliance with its judgments by persuading domestic government institutions, both directly and through pressure from private litigants, to use their authority in its favour.31

Non-compliance fuels remedial innovation. Taylor explains that where positive action is required to implement court decisions, non-compliance erodes respect for the rule of law and constitutes a systemic threat to human rights.32 Furthermore, non-compliance weakens the legitimacy of the supranational body in question. To avoid this, court orders have become more precise and prescriptive, eventually leading to the implementation of novel remedial methods to achieve full compliance.33

Supranational bodies have started to realise the extent to which other government institutions can play a role in integrating international law, including rulings from international human rights tribunals, into domestic jurisprudence through investigations, litigation, and the establishment of legal precedents. For instance, an independent judiciary capable of administering reparations, conducting investigations, and issuing rulings is arguably the most valuable asset for ensuring compliance with international human rights law.

Bearing in mind that judiciaries can expedite the compliance process by offering the necessary legal channels and expertise to interpret and implement their rulings,34 human rights courts are increasingly relying on quasi-criminal review.35 This practice enables regional courts to address challenges in assessing state compliance. By retaining jurisdiction after issuing a judgment, the courts can identify the measures states have implemented regarding specific proclamations. This is facilitated by the courts’ ability to request follow-up information and reports from various actors, including civil society. Additionally, as the required scope and depth of compliance may change over time,36 quasi-criminal review allows the courts to maintain an ongoing dialogue with the involved parties, thereby ensuring continuous assessment and adaptation.

3 COMPLIANCE AT THE INTER-AMERICAN COURT

The Inter-American Court blazed a new trail with its innovative response to persistent non-compliance by states. To date, it has overseen domestic prosecutions in more than fifty instances. In 1979, the American Convention on Human Rights came into force,37 and through it, the Inter-American Court, which has the jurisdiction to hear all cases concerning the interpretation and application of the provisions of this Convention was created.38 The Court has advisory as well as contentious jurisdiction. However, individual petitions must first go via the Inter-American Commission before being submitted to the Court.39

In addition, the Inter-American Commission can refer cases to the Court if ‘the State has not complied with the recommendations of the report approved in accordance with article 50 of the American Convention.’40 The Commission regularly refers cases to the Court, even where it has given a state various opportunities to implement its recommendations.

At the time that the Court was established, the American region was plagued by a culture of impunity, which was described in the White Van case as a ‘the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights protected by the American Convention’.41 It is this culture of impunity, the dynamics of human rights violations in America, and the role of the state in the commission of such violations, that has shaped the remedial practices of the Inter-American Court.42

Tasked with overseeing a body of authoritarian states, the Inter-American Court has taken a more activist stand and forged closer relations with civil society groups and the victims. Around 1996, the Inter-American Court started issuing orders for states to prosecute individuals for specific human rights violations.43 Subsequently, it intensified its oversight of these prosecutions to ensure they met human rights standards. The Court also initiated ongoing dialogues involving the state, victims, and the Commission to address obstacles encountered in prosecuting particular cases.44

The Court has developed its quasi-criminal jurisdiction in such a way that it often retains supervisory jurisdiction over its orders. Since the American Convention does not contain explicit rules instructing the Inter-American Court on how to monitor implementation, the Court has taken advantage of this legal lacuna to set up various procedures such as ongoing communication with victims, states and the Commission.45 Jurisdiction over a case is retained until the Court is satisfied that all its various demands have been met. Sometimes the Court’s judgments highlight the steps that must be taken to comply with its orders. Other tools used by the Court include implementation hearings (both private and public), in-country visits and provisional measures.46

The application of the Inter-American Court’s quasi-criminal review first became evident in the landmark Velásquez-Rodríguez case.47 The facts concerned the arrest and unresolved disappearance of a Honduran student activist. The circumstances surrounding the disappearance of the individual in question were not definitively determined. Therefore, it was not clear whether the disappearance was caused directly by state officials or with their implicit consent. However, it was acknowledged that the act occurred within the context of the then-common state practice of enforced disappearances. In a complaint submitted by the Inter-American Commission to the Court, it was argued that the state had violated numerous rights including the right to life, the right to humane treatment (in relation to allegations of torture), and personal liberty.48 The Court confirmed these violations and asserted that Article 1 of the American Convention places a duty on states parties to

organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible, attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. [...] The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, impose the appropriate punishment and ensure the victim adequate compensation.49

In short, the Court translated article 1(1) of the American Convention as an obligation on states to prevent, investigate and punish any violation of the rights in the Convention.50 In the Velásquez-Rodríguez case, the Court required Honduras to punish the offenders to ensure that Manfredo Velásquez could exercise his human rights freely and fully. This approach was confirmed in the Bámaca Velásquez case, where the Court held that if a state party fails to punish those responsible for human rights abuses, it violates its obligation to respect the victim’s rights under the Convention.51

The Court regards punishment as a form of retrospective protection that is owed in each individual case. It is considered a means to secure the victim’s right to life and liberty, and it is not limited to prevention. In the Velásquez-Rodríguez case, the Court found a violation of Manfredo Velásquez’s rights, not because of the failure to prosecute prior cases and prevent his disappearance, but because of the failure to investigate and punish his abusers.52 Therefore, the Court considers punishment an essential measure for protecting the rights of individual victims of human rights abuses.

Following the precedent established in the Velasquez Rodriguez case, the Inter-American Court has solidified its quasi-criminal jurisdiction in subsequent cases, by expanding its remedial powers beyond monetary compensation and mandating states to initiate investigations and prosecutions for certain violations through a progressive interpretation of the American Convention.53 In Vargas Areco v Paraguay,54 the case involved the murder of 15-year-old Gerardo Vargas Areco following his arrest for failing to return to his military post. The Court ordered the state to conduct a thorough and effective investigation through civilian authorities, rather than military ones, in order to identify, prosecute, and punish all those responsible for Vargas Areco’s death, including perpetrators, instigators, and others involved, with the goal of combating impunity. In Garibaldi v Brazil, Resolution Monitoring Compliance, IACtHR (20 February 2012),55 the case concerned the state’s failure to investigate the murder of land rights activists during an extrajudicial eviction of landless workers in 1998. While the Court acknowledged that the state had complied with its 2009 order to provide compensation, it noted that Brazil had not fulfilled its obligation to conduct an investigation or initiate criminal proceedings against those responsible for the violations.

Consequently, the jurisprudence of the Inter-American Court has become the common foundation for promoting and safeguarding human rights in the region.56

However, this means the Court is entangled with a particular state for years while extensive investigations are conducted and the Inter-American Court has acknowledged the limited scope of its authority in reviewing domestic criminal proceedings. It recognises that it is the responsibility of national courts to ensure that criminal proceedings are conducted in a manner that is consistent with international human rights standards. In the case of Nogueira de Carvalho et al v Brazil,57 the Court emphasised that its role is not to dictate specific methods or procedures for investigating and adjudicating a particular case. Instead, the Court’s function is to evaluate whether the actions taken by the state to comply with its obligations under articles 8 and 25 of the American Convention. Therefore, the Court’s role is not to replace national jurisdictions, but to ensure that states comply with their international obligations.

To carry out this duty effectively, the Inter-American Court enables dialogue by holding hearings with involved parties.58 This is imperative for states to be successful in implementing court orders. Dialogue should be understood as a reviewing process employed by human rights bodies to monitor the implementation of their decisions. This process involves the use of mechanisms that encourage parties to search for ways of moving implementation forward, either between themselves or with the direct help of the monitoring body.

Ayeni and Von Staden highlight that human rights courts can achieve better compliance by engaging in dialogic monitoring, such as setting deadlines, holding public hearings with various actors, and issuing follow-up decisions based on what they learn on the ground.59 The idea is that these practices promote dialogue among public authorities and civil society actors, leading to positive outcomes like improving coordination among disconnected state agencies. The use of dialogic tools is encouraged in the monitoring phase because they allow the Court to learn more details of the prosecution through supervision, and thus become more specific and realistic about what the state must do to satisfy its orders and meet the needs of the victims.60

Both the Court and the Commission have the authority to call implementation hearings, however the Court more frequently relies on this mechanism in cases with long delays. Parties to a case may also ask for such a hearing and during these proceedings the Court will entertain submissions, ask relevant questions and make suggestions, often with compliance schedules.61 For instance, in the Awas Tingni case,62 the Court held a hearing where a work plan was drafted and carried out within six months. This is one of many instances where the Court’s creative dialogue resulted in successful implementation.

In cases of non-compliance, the Inter-American Court can either issue recommendations,63 or refer to the General Assembly of the OAS.64 The referral measure has thus far been employed where state parties were obstinate, such as in the cases of Venezuela and Trinidad and Tobago.65 Venezuela’s obstinance was brought up in the case of El Amparo v Venezuela,66 which concerned the 1988 killing of 14 fishermen by military and police forces during an operation. The Court emphasised that Venezuela was not fulfilling its duty to inform the Court about the actions taken to comply with the 1995 judgment, highlighting the state’s failure to provide sufficient updates on its efforts to address the violations. In these instances, the Court considered it necessary to ‘name and shame’ intractable states within a political context involving other states.67 Nevertheless, the OAS General Assembly has not taken additional steps beyond this, perhaps because, as a political body, it does not have the benefit of neutrality that technical bodies such as the European Department for the Execution of Judgments carry.68

4 THE AFRICAN HUMAN RIGHTS SYSTEM

The African region’s long struggle with human rights can be traced back to its history of oppression and exploitation at the hands of colonialists.69 Following the demise of the colonial system, there was an increased push to establish a regional human rights regime in Africa. For instance, the architects of the African Charter did so in response to the United Nations General Assembly’s call for the establishment of a regional human rights mechanism.70

As a relatively young court, the African Court faces implementation challenges similar to those of other supranational bodies. The reluctance of state leaders to abide by the Court’s orders can be traced to its establishment which took decades due to insufficient political will.71 There was insufficient support for a human rights court due to the claim that such a mechanism was ‘alien’ to African justice, which emphasises restorative over retributive forms of justice.72 At the time of the Charter’s adoption, adversarial and adjudicative procedures were perceived as ‘Western’ methods and precluded in favour of the diplomatic and bilateral settlement of disputes.73 As a result, the architects of the African Charter left out a provision for the creation of a human rights court because they were of the view that state leaders would be reluctant to ratify the Charter if it included a provision for compulsory judicial settlement.74

Scholars argue that African states were, in fact, not prepared to accept judicial scrutiny for human rights violations as this would likely interfere in their internal affairs at a time where state sovereignty was highly prioritised.75 The absence of a human rights court to hand down legally binding judgments made the African system diverge from the approach taken in other regional human rights conventions.

Unlike the European and American Conventions, the African Charter opted for a quasi-judicial instead of judicial enforcement system when it solely established an African Commission on Human and Peoples’ Rights (African Commission). The African Commission is tasked with advancing, safeguarding, and interpreting the provisions of the African Charter, albeit with structural and normative inefficiencies.76

The Commission is only empowered to make non-binding recommendations to the relevant parties.77 Hence, some academic commentators have described this body as ‘toothless’ as far as the protection and promotion of fundamental rights is concerned.78 Cognisant of this perception, the Commission goes the extra mile in monitoring the implementation of its decisions. Using an established state reporting process, it has been able to follow up with states on individual orders.79 Thus, other authors recognise that through the exercise of quasi-criminal review, the Commission has been able to establish when a state is responsible for Charter violations that amount to international crimes, and accordingly call for investigations and/or prosecutions by way of communications.80

After years of relying on the African Commission, state leaders finally came together in 1998 and adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights.81 However, the African Court only became operational in 2006 because states recognised that it would not be viable for the AU to operate two judicial organs, namely the African Court and the African Court of Justice (ACJ) as envisaged by article 5 and 8 of the AU Constitutive Act.82 According to these provisions, the ACJ was to be the principal judicial organ of the AU with the power to, amongst other things, interpret and apply all of the AU’s treaties and other subsidiary instruments, and all agreements entered into by state parties. Although there were suggestions to merge the two judicial institutions, it was decided that the African Court would be in operation until the merger.83

5 LESSONS FROM THE INTER-AMERICAN COURT

The preceding sections examining the African Court and Inter-American Court’s practices highlight the growing importance of human rights courts as oversight bodies. It is clear that regional human rights tribunals now prioritise implementation within their judicial processes. Two key factors explain this evolving judicial approach in the human rights arena. First, as mentioned in the introduction of this paper, the previously accepted managerial theory of compliance, which assumed that states generally adhere to court decisions, has been discredited.154 By acknowledging that state non-compliance can also be attributed to recalcitrance, courts have seen the need for stronger remedies.

Second, there is a growing recognition that courts are disconnected from reality if they rely solely on the executives of offending states to ensure compliance. National judiciaries have consistently shown their effectiveness in encouraging states to comply with regional court orders. Consequently, supranational bodies, particularly human rights tribunals, have recognised the value of leveraging this effectiveness to promote justice. Article 29(2) of the African Court Protocol and Rule 64(2) of the Interim Rules of the Court, which require the Executive Council to oversee the execution of judgments on behalf of the Assembly, reflect the drafters’ foresight in recognising the need for monitoring court decisions. However, these provisions alone are insufficient, as the Court depends on other entities to perform a role it should fulfil itself.

The Inter-American Court of Human Rights, without explicitly citing specific provisions of its statute or procedural rules, has adopted a flexible approach by instructing domestic courts to implement its orders and then monitoring these courts. While compliance with the Inter-American Court’s rulings could improve, the main lesson for the African Court is that flexible and innovative application of rules, particularly in human rights promotion and protection, achieves far better outcomes than a rigid approach. Therefore, one of the initial steps the African Court should consider is the adoption of its Draft Framework which will promote dialogue between the parties and the Court and allow the Court to actively monitor compliance with its decisions during the process rather than after implementation is complete.

6 CONCLUSION

This paper underscores how the Inter-American Court has significantly advanced its implementation mechanisms through the practice of quasi-criminal review. Notably, following the Court’s directives, states have initiated new criminal investigations, overturned amnesties, circumvented statutes of limitations, and established new institutions and procedures to facilitate the prosecution of such crimes. Given its historical context, the African Court would benefit from adopting similar approaches to strengthen its ability to enforce compliance. An examination of the Court’s jurisprudence highlighted that it is willing to expand its mandate such that it can order national prosecutions, investigations and other specific measures.

Although the second phase of quasi-criminal review needs to be developed at the African Court, the Draft Framework signals the Court’s readiness to enhance its monitoring mechanisms to support domestic investigations and prosecutions. Its design, which integrates flexibility in both judicial and political avenues to ensure state adherence to judgments, demonstrates that the African Court is actively learning from the practices of other regional human rights tribunals.