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.
