On Mali, the AU, together with the ECOWAS, and in accordance with the Security Council Resolution 2056 adopted on 5 July 2012 , must take concrete steps to put an immediate end to the war crimes perpetrated in the North and to restore state authority throughout the territory. The AU must also urge military coup leaders to refrain from interfering in political affairs and allow the transitional authorities to act peacefully to restore constitutional order. Otherwise, Mali could be plunged into horror, triggering violence throughout the entire sub-region.
Similarly, the AU must now consider sanctions if the talks between Sudan and South Sudan on issues including border demarcation, the status of Abyei and the taxes payable for the transit of oil, fail to reach consensus in the time it and the United Nations Security Council have specified.
The AU should also intensify its efforts to end human rights violations in the Sudanese regions of South Kordofan and Blue Nile. The armed conflict, which erupted in June 2011 between the Sudanese Armed Forces (SAF) and elements of the SPLM-N, continues to claim civilian lives. The humanitarian disaster suffered by nearly 300,000 refugees and displaced persons is worsening; the AU must be firm with the Sudanese authorities in ensuring that these civilians receive prompt and unconditional assistance.
The unstable political and security situation prevailing in Guinea-Bissau since the coup of 12 April 2012 must also receive attention. Ongoing human rights violations in the country are characterised by an increase in arbitrary arrests and detentions, restrictions on freedom of expression, demonstration and movement, and the permanent interference of the military junta in the country’s political affairs. This situation will lead to a stalemate scenario if no action is taken to address the violations.
In eastern Democratic Republic of Congo (DRC), fighting between regular armed forces (FARDC), the March 23 Movement (M23) mutineers and other armed rebel groups, proliferate, continuing to claim civilian victims through summary executions, forced recruitment and sexual violence. Some rebel groups are considered close to General Bosco Ntaganda, the subject of an International Criminal Court (ICC) arrest warrant since 2006 for recruitment of child soldiers in Ituri. The African Union must take resolute action to stabilise eastern DRC, and place emphasis on the need to fight impunity for those perpetrating the most serious crimes in the region.
Despite the ICC’s warning to Islamists operating in Mali, and its issuance of arrest warrants for those alleged to be responsible for the most serious crimes in Sudan and the DRC, impunity continues to prevail in these countries. This provides fertile ground for further conflict and violence. FIDH therefore calls on the Heads of State and Government of the African Union to reiterate their commitment to justice for the victims of crimes by making concrete commitments to providing political and technical support to relevant national criminal jurisdictions and to the strengthening of effective cooperation with the International Criminal Court.
FIDH also takes note of the willingness of African Heads of State to confer criminal jurisdiction to the African Court of Justice and Human Rights to enable it to pursue and prosecute perpetrators of the most serious crimes. Our organisation, is concerned about the legal, political and financial implications of such a project, and calls on African Heads of State and Governement to continue consultations on such an extension.
"The possible establishment of a Court dealing with complex and serious crimes can not be achieved overnight without greater consultation with relevant stakeholders and without coordination with the ICC. Pending the adoption, ratification, entry into force and operationalisation of an African Criminal Court, victims of international crimes committed right now in Mali, South Kordofan, Blue Nile, and the Kivus, continue to demand justice. Strengthened support for national courts and cooperation with the ICC must for now be the priority for our Heads of State "said Mabassa Fall, FIDH Representative to the African Union.
FIDH makes the following recommendations to the Heads of States and Governments regarding each of these situations:
Concerning the situation in Mali
- Support ECOWAS efforts to reach a prompt and lasting solution to the political crisis and armed conflict, in particular to:
- Restore civil order throughout the territory without any further delay;
- Secure and strengthen political institutions, notably through the safe return of Interim President Dioncounda Traore; by forming a national unity government through the appointment of consensus-seeking individuals to the country’s Ministries, in order to organise free and transparent presidential and legislative elections as soon as possible;
- Preserve the territorial integrity of the country;
- Reinforce the capacity of Malian defence and security forces;
- Ensure that criminal proceedings are instituted against the perpetrators of, and those responsible for, serious crimes. In particular, to echo ECOWAS call to the ICC to proceed with the investigations needed to identify the most senior individuals in charge for the war crimes and to initiate proceedings against them;
- Ensure that populations suffering from the conflict, particularly refugees and those displaced people, receive unconditional humanitarian assistance.
Further, the Heads of States and Governments of the African Union must:
- Ensure that an independent national commission of inquiry is set up to shed light on the circumstances of the assault on the Interim President, and investigate cases of extrajudicial and summary executions, arbitrary arrests and detentions, allegations of torture, forced disappearances and other violations of human rights perpetrated in the south, and to initiate proceedings against the perpetrators and those responsible;
- Ensure that national authorities immediately release those arrested and arbitrarily detained, in the absence of any charges against them;
- Ensure that the military junta end all interference in the political affairs of the country;
- Ensure that civil society organisations, including human rights organisations, are fully involved in the ongoing mediation process.
Concerning the situation in Sudan and South Sudan
Concerning relations between Sudan and South Sudan
- Continue efforts to mediate in favour of an effective resolution of disputes between Sudan and South Sudan, and consider the imposing of sanctions, including sanctions on individuals, for the failure to negotiate the demarcation of borders, the status of Abyei, or the fees for the transit of oil;
- Remind the Sudanese and South Sudanese governments of their international obligations as to the respect for human rights and international humanitarian law, stressing the possibility that criminal proceedings would be initiated against top officials for war crimes and crimes against humanity;
- Ensure that civil society organisations are fully involved in the negotiation process between the two States.
Concerning the situation in South Kordofan, Blue Nile and Darfur
- End the sectorial management of armed conflicts in Sudan and favour a comprehensive approach, including addressing, with all parties to the conflict, issues related to relations between Central and peripheral regions, good governance and respects democratic principles;
- Call on all parties to the conflict in South Kordofan, Blue Nile and Darfur to put an immediate end to hostilities, and to cease military attacks and air raids against civilians, as well as other violations of human rights and international humanitarian law;
- Call on the Government of Sudan to allow humanitarian organisations unconditional access to affected South Kordofan and Blue Nile populations;
- Mandate an investigation mission on violations committed during the armed conflict in South Kordofan and Blue Nile and make its findings public as soon as possible;
- Reaffirm its commitment to see those responsible for serious violations of human rights and international humanitarian law, and of international crimes brought to justice, and ensure that victims obtain justice and compensation. To achieve this objective, the African Union must: 1) urge the Government of Sudan to implement the recommendations of the Mbeki Panel on the reform of the judiciary and respect of the principle of complementarity, 2) Ensure that those African States who are parties to the Rome Statute make every effort to ensure the execution of four arrest warrants issued by the ICC, including not receiving Sudanese President and others under arrest warrant by the ICC.
Concerning the violent repression of peaceful demonstrations
- Condemn the violent repression by Sudanese defence and security forces on demonstrations organised by students and opposition leaders in Khartoum, Madani, Sinar, Shandi, Port Sudan or Alhasahisa to denounce the economic austerity measures proposed by authorities to address the budget deficit. FIDH brings attention to the fact that defence and security forces have used tear gas and batons to disperse demonstrators; have already carried out hundreds of arbitrary arrests and detentions, and that several witnesses have confirmed that acts of torture have been committed in detention centres. Our organisation also points out that, according to many economists, this budget deficit is directly related to expenses incurred in the conflict in Darfur, South Kordofan, Blue Nile, as well as the unresolved tensions with South Sudan;
- Call for the immediate release of those arrested and arbitrarily detained, including students and human rights defenders; guarantee the rights of the accused, in particular their right to a legal representative of their choice;
- Ensure that investigations are diligently pursued to shed light on allegations of torture against detainees, and that those responsible be brought to justice in accordance with international obligations of Sudan;
- Call for the Government of Sudan to end the many barriers to freedom of expression, in particular by allowing journalists and human rights defenders to conduct their activities without fear of harassment, imprisonment, or torture, and to cease all closures of, or confiscations of newspapers, in accordance with regional and international instruments in this matter;
- Call for Sudanese authorities to ratify the regional protection of human rights instruments, in particular the African Charter on Democracy, Elections and Governance, and to make the declaration under Article 34.6 of the Protocol to the African Charter on the African Court of Justice and Human Rights;
- Call for the Special Rapporteur of the African Commission on Human and Peoples’ Rights on freedom of expression and access to information in Africa, and the United Nations Special Rapporteur on freedom of expression and opinion, to undertake a mission to Sudan to investigate the state of free speech and to follow this issue closely.
Concerning the situation in South Sudan
- To echo the recommendations of the FIDH’s report “South Sudan. First anniversary of independence. A celebration marred by tensions with Sudan and serious violations of human rights.” In particular:
- Call for South Sudanese authorities to adopt an adequate legal and institutional framework for the protection of human rights, namely ratification of the main international and regional conventions for the protection of human rights as soon as possible;
- Call for South Sudanese authorities to adopt, after a fully inclusive process, a Constitution guaranteeing respect for fundamental rights; to enact laws (on press freedom and freedom of association, in particular) and reform its legislation (such as its criminal and criminal procedure codes); to build the ability of directorates and commissions in charge of human rights within the ministries and Parliament to influence; to strengthen the human and financial resources of the National Commission on Human Rights; to take all necessary measures to have an efficient judicial system that has the confidence of the population.
Concerning the situation in Guinea-Bissau
- Call to respect the roadmap negotiated with ECOWAS for a peaceful transition leading to free, fair and independent presidential and legislative elections which would allow a return to constitutional order;
- Call to respect fundamental freedoms, particularly the freedoms of expression, demonstration and circulation, in accordance with international and regional instruments concerning the protection of human rights which Guinea-Bissau has subscribed to;
- Ensure that national authorities fully guarantee the safety and physical and moral integrity of civilians, politicians, human rights defenders and journalists;
- Ensure that national authorities fight against impunity for the authors of violations of human rights by prosecuting and judging the perpetrators of political assassinations in recent years.
Concerning the situation in Democratic Republic of Congo (DRC)
- Remain on top of the developments in the Democratic Republic of Congo (DRC), in particular by publicly denouncing serious human rights violations and violations of international humanitarian law committed in the East as part of the clashes between the regular Armed Forces (FARDC), the rebels of the M23 Movement and other rebel groups; and urge the Congolese authorities to bring the perpetrators and those responsible for these crimes to justice;
- Call on Congolese authorities to strengthen and guarantee the protection of civilians, human rights defenders and journalists in accordance with international and regional human rights treaties ratified by the country;
- Support the creation of mixed Congolese and international criminal courts to prosecute and punish those responsible for international crimes and serious violations of human rights perpetrated in the DRC since 1993, as recommended by the UN High Commission for Human rights report;
- Call on Congolese authorities to cooperate fully with the ICC, including by arresting and handing Bosco Ntaganda over to the ICC, as a warrant for his arrest has already been issued;
- Call on Congolese authorities to ratify regional instruments for the protection of human rights and in particular the African Charter on Democracy, Elections and Governance and to make the declaration under Article 34.6 of the Protocol to the African Charter on the African Court of Justice and Human Rights.
Concerning international justice
On universal jurisdiction and the judgment of Hissene Habré
- Continue efforts to ensure respect for the right to justice for victims of the Hissene Habré regime, the former Chadian President accused of thousands of political murders and systematic torture perpetrated from 1982 to 1990;
- Enact laws of universal and extraterritorial jurisdiction (using the model law prepared by the AU Department of Legal Affairs), in accordance with the relevant conventions on the protection of human rights for this matter.
On the ICC and the proposed extension of the jurisdiction of the ACtHPR to individual criminal responsibility
- Take into account the fact that the ICC Statute has been ratified by 33 African states, that the seven on-going investigations are in Africa, and that of those seven, four are undertaken by the will of the States concerned;
- Take into account that the ICC only intervenes if there is no genuine willingness or ability of national courts to carry out investigations or prosecutions against perpetrators of international crimes; and, that action by the ICC is needed to obtain justice for victims of serious crimes, such as victims of African conflicts and political crises;
- Reaffirm, in accordance with the AU Constitutive Act, their commitment to fight against impunity for serious crimes, and accordingly revisit the AU decision to not cooperate with the ICC concerning the arrest warrant issued against Sudanese President Omar el-Beshir;
- Refrain from asking the UN Security Council to apply Article 16 of the Rome Statute, which allows the suspension for one year of proceedings before the Court;
- Call on those Member States not yet party to the ICC Statute to ratify or to adhere to it; enact a domestic adaptation of the Rome Statute that would define international crimes that would allow national courts to fight against impunity for serious crimes, and also introduce provisions that would allow the state to fully cooperate with the ICC;
- Demand that Member States take all necessary measures to end the threats and intimidation against those victims, witnesses, intermediaries and members of civil society who are cooperating with, or considered to be cooperating with, the ICC;
- Engage in dialogue with the ICC and facilitate the establishment and work of the ICC Liaison Office to the AU;
- Consider with the ICC how to better convey information, communicate and raise awareness about its activities;
- Take into account that any extension of the jurisdiction of the ACtHPR to individual criminal responsibility:
- will have no impact on the mandate and work of the ICC in Africa, and
- will not disrupt or interfere with the work of the ICC in its jurisdiction over state responsibility
- Continue consultations, in particular with human rights organisations, on the proposed extension of the jurisdiction of the ACtHPR to individual criminal responsibility;
- If the decision is taken to extend the jurisdiction of the ACtHPR to individual criminal responsibility, ensure that:
- this body remains independent;
- it has an adequate budget to effectively exercise its jurisdiction;
- the judges of the Court and the Court staff, particularly within the Office of the Prosecutor and the Registry, are specialised in handling international crimes, and especially those involving the trauma of sexual violence, if these crimes fall under the jurisdiction of the Court;
- the definitions of crimes within its jurisdiction complies with international human rights and humanitarian laws;
- the ACtHPR is accessible to individuals and human rights organisations, in particular the Human Rights Section;
- that victims can participate in all stages of the proceedings and that their rights, particularly their rights to legal representation and compensation, are fully guaranteed;
- that functional immunity cannot, in any circumstances, be invoked in the case of international crimes, which, by their gravity, cannot be justified by any legitimate action of the State;
- that support, including technical and financial, is given to national criminal jurisdictions to enable them to effectively fight against the impunity of perpetrators of serious crimes;
- that the statute and rules of procedure conform to international human rights and humanitarian laws.