Provisional Measures under the African Human Rights System

This chapter discusses the legal characteristics of provisional measures under the African Human Rights System, partly with the aim to fill the gaps found in the works of the Rapporteur on provisional measures of the Institute of International Law. After a brief overview of the provisional measures issued by the African Commission, it examines the precautionary power of the African Court, reaching the conclusion that the Court is inconsistent in the use of such power. This conclusion derives from an analysis of three main and interrelated critical issues, namely: (i) the binding or recommendatory nature of the provisional measures of the African Court; (ii) their domestic implementation; and (iii) the potential responsibility of States that fail to implement them. These critical issues are introduced and observed through the lens of the paradigmatic Saïf al-Islam Kadhafi case, where the African Court first stated that the provisional measures were binding on the State concerned but then, after ascertaining the lack of compliance with such measures, abstained from declaring any resulting international responsibility of that State.