The African Commission on Human and Peoples’ Rights has rejected a complaint concerning Djibouti’s alleged involvement in the extraordinary rendition and mistreatment of a Yemeni national, in an inadmissibility decision released last month. See ACommHPR, Mohammed Abdullah Saleh Al-Asad v. Djibouti, Communication No. 383/2010, 55th Ordinary Session, 14 October 2014. The Commission held that evidence pointing to the wrongful detention of Mohammed Abdullah Saleh Al-Asad in a secret United States Central Intelligence Agency (CIA) prison in Djibouti was insufficient to find the communication admissible. The case against Djibouti was the first to challenge the cooperation of an African State in the CIA’s widely-condemned extraordinary rendition and secret detention program, components of the “war on terror.” [INTERIGHTS]
Among other controversial aspects of the decision was the Commission’s analysis of the evidence supporting its exercise of jurisdiction. Reflecting on the appropriate standards of proof to be applied at the admissibility stage, the African Commission held that territorial jurisdiction must be “conclusively substantiated” in order for the complaint to be admissible. The Commission found that the evidence provided – which included records of habeas corpus proceedings in Tanzania, descriptions of the people who interrogated and kept guard over Al-Asad, and his experience of an earthquake at around the same time that a 5.0-magnitude earthquake shook Djibouti – failed to “conclusively establish [his] presence in [Djibouti’s] territory or that he was otherwise under its effective control or authority.” Because it deemed that Al-Asad had failed to satisfy the territorial jurisdiction requirement, the Commission declared the communication inadmissible for being incompatible with the African Charter on Human and Peoples’ Rights (African Charter). See ACommHPR, Mohammed Abdullah Saleh Al-Asad v. Djibouti, 14 October 2014, paras. 146, 177, 183.
The Alleged Facts
At the time of the alleged facts, Mohammed Abdullah Saleh Al-Asad was a Yemeni citizen who had lived in Tanzania for over a decade with a forged Tanzanian birth certificate and passport. In December 2003, he was abducted from his home by two Tanzanian men and flown to an undisclosed location, allegedly in Djibouti. There, he was detained for two weeks and repeatedly interrogated about terrorist-related activities. He was then flown to a series of U.S.-operated detention facilities, two of which were located in Afghanistan, and held in secret, incommunicado detention. In May 2005, the U.S. transferred him to Yemen where he was tried for forging travel documents. After pleading guilty, a Yemeni court sentenced him to time served and he was released in March 2006. Id. at paras. 1-14.
In 2009, the Global Justice Clinic at New York University (NYU) School of Law and INTERIGHTS filed a communication with the African Commission alleging that Djibouti had violated Mr. Al-Asad’s rights under articles 1 (domestic legal effect), 2 (non-discrimination), 3 (equality and equal protection), 4 (life and personal integrity), 5 (prohibition on torture and inhuman treatment), 6 (liberty and security of person), 7(1) (right to a remedy), 12(4) (due process in expulsion from national territory), 14 (right to property), and 18 (rights of the family) of the African Charter on Human and Peoples’ Rights. The Commission held an oral hearing on November 2, 2013, during its 54th Ordinary Session in the Gambia.
In its decision, the Commission primarily focused on the “profoundly contested” issue of whether the communication was compatible with the African Charter as required by Article 56(2) of the Charter. See ACommHPR, Mohammed Abdullah Saleh Al-Asad v. Djibouti, 14 October 2014, para. 126. Compatibility requires that communications to the Commission meet four jurisdictional requirements. The Commission declined to analyze three of these requirements – temporal, subject matter, and personal jurisdiction – and instead directed its attention to the fourth requirement, territorial jurisdiction. Id. at para. 126.
Territorial jurisdiction requires alleged violations to have taken place within the territory of the respondent State in order to be admissible. Alternatively, a violation that takes place beyond the State’s territory but where the State “assume[d] effective control of part of a territory of another state [or] exercise[d] control or authority over an individual” also satisfies the territorial jurisdiction requirement. Id. at para. 134. Territorial jurisdiction, the Commission noted, was an issue to be determined at the admissibility stage of a communication, rather than at the merits stage. Id. at para. 137.
The appropriate standard of proof for the admissibility stage was another significant factor in the Commission’s decision, with Djibouti claiming that the standard should be “beyond a reasonable doubt” and Al-Asad asserting that it should be lower than the standard applied at the merits stage. Id. at para. 140. The Commission noted that “there cannot be adopted a single standard of proof that can be applied uniformly regardless of the admissibility condition and circumstance of the case at hand,” since some admissibility conditions, such as subject matter jurisdiction, would be “revisited with more rigour” at the merits stage. Id. at para. 143. Since territorial jurisdiction would “no longer be under consideration” after the admissibility stage, the Commission concluded that the appropriate standard of proof was for territorial jurisdiction to be “conclusively substantiated at the admissibility stage.” Id. at paras. 145-46.
The Commission determined that the circumstantial evidence presented was insufficient to reliably and conclusively indicate that Mr. Al-Asad had been deported to Djibouti. The Commission discounted the evidence presented – including an immigration official’s affidavit and an immigration document supporting the contention that Mr. Al-Asad had been deported from Tanzania to Djibouti – because it found the legitimacy of the immigration document to be in question and concluded that other evidence did not support this factual finding. Id. at para. 149 et seq. In particular, the Commission found that the type of plane allegedly used to transfer him from Tanzania to Djibouti was not capable of making that flight in one shot, and that some of the details of Mr. Al-Asad’s detention could also describe other African countries. Id. at paras. 156-65.
Although it acknowledge that “the barrage of evidence produced by the Complainant make a strong case of the existence of the U.S. government’s extraordinary rendition program and that the Republic of Djibouti participated in the program, there are multiple factual lacunae and inconsistenc[i]es which renders the evidence inconclusive on one critical issue: whether the Complainant was indeed in Djibouti.” Id. at para. 175. For these reasons, the Commission declared the communication incompatible with Article 56(2) of the African Charter. The Commission declined to consider the other jurisdictional requirements or their respective standards of proof for compatibility. Id. at 183.
Request for the Commission to Review Its Decision on Admissibility
On December 2, 2014, the NYU Global Justice Clinic filed a request for review of the Commission’s decision on admissibility, signaling the emergence of new evidence that was unknown and could not have been discovered at the time of the Commission’s decision. This new evidence included:
- declarations from Professor Martin Scheinin, a former United Nations (U.N.) Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism;
- news articles from Al Jazeera that established Djibouti’s role in the CIA’s extraordinary rendition and secret detention program;
- proof that the aircraft used to allegedly transport Al-Asad from Tanzania to Djibouti was capable of making the trip without stopping; and
- graphical representations of flight data that established Djibouti’s involvement in the U.S. extraordinary rendition program.
See NYU Global Justice Clinic, Request for Review of the Commission’s Decision on Admissibility, December 2014, para. 4. [Note: the Director of the Global Justice Clinic, Margaret L. Satterthwaite, sits on IJRC’s Advisory Board.]
Significantly, the Al Jazeera news articles became available after individuals with access to a classified U.S. Senate Select Committee on Intelligence (Senate Intelligence Committee) report on CIA torture disclosed certain information from the report, including that Djibouti participated as a secret detention site in the rendition program and that at least two people were wrongfully detained in the country. [CHRGJ; Al Jazeera]
While the Senate Intelligence Committee is preparing to release a redacted summary of the report, there are concerns that the identities of those who were abducted will not be revealed. [Just Security] Should the report itself fail to identify the abductees, it may provide little support for Al-Asad’s claim. Of additional potential relevance to the Commission’s evaluation of the Al Jazeera articles is Article 56(4) of the African Charter, which requires that communications not be based “exclusively on news disseminated through the mass media.” African Charter, art. 56(4).
Referring to his request for the Commission to review its decision, Al-Asad stated, “My life and that of my family has been unjustly ruined … I know that my claims are true and that we cannot give up. I continue to hope that the African Commission will give me some justice for what was taken from me.” [CHRGJ]
African Commission on Human and Peoples’ Rights
The African Commission on Human and Peoples’ Rights is a regional human rights body that promotes and protects human rights in the 54 Member States of the African Union. Tasked with interpreting and applying the African Charter on Human and Peoples’ Rights, the African Commission accepts communications from individuals, groups of individuals, nongovernmental organizations, and States concerning alleged violations of the African Charter committed by the 53 States that have ratified the Charter. When it finds that a violation has taken place, the Commission often issues recommendations to the respondent State to undertake reparative measures.