“In this context of intensifying military operations, the civilian population is likely to pay the heaviest price. The desire to neutralise the terrorist threat as quickly as possible should not foreshadow the responsibility to protect civilians. The African Union has a real contribution to make in this regard” said Souhayr Belhassen, FIDH President.
Consultations on the details of AFISMA’s deployment are gaining momentum out with the Summit, with discussions on the composition, leadership and monitoring of the mission, and a donor conference due to take place on 29 January to address funding. FIDH calls upon the parties to these discussions to fully take into account the human rights protection mechanisms contained in resolution 2085. These include human rights training for Malian security and defense forces, the establishment of human rights protection monitoring procedures – ensuring that international support does not contribute to the perpetration of more violations –, the deployment of human rights observers and cooperation with the International Criminal Court (ICC) in the prosecution of perpetrators of human rights abuses. All these provisions are important in the current context. Indeed, the civilian population remains subject to serious acts of violence in the North and numerous allegations of violations by Malian forces have yet to be verified (see below).
“The Mali conflict will be at the heart of debates at this African Union Summit. The African Union will need to use all of its influence to ensure that the issue of implementing human rights protection mechanisms is incorporated into discussions. These necessary safeguards must be activated with the least possible delay” declared Mabassa Fall, FIDH Representative to the African Union.
An integrated task force on Mali (MITF) has just been established at the African Union’s headquarters. This group is responsible for providing strategic advice and guidance to AFISMA and is composed of experts from the African Union, ECOWAS, the United Nations and the European Union, among others. FIDH expects the MITF to ensure coordination of all stakeholders in the implementation of resolution 2085’s human rights protection mechanisms.
FIDH also re-emphasizes its recommendations to African Heads of States and Governments concerning political crises and conflicts in Sudan, Democratic Republic of Congo and Central African Republic at the African Union 20th Summit. The Kenyan elections, international justice and abolition of the death penalty in Africa must also be carefully considered.
FIDH addresses African Heads of States and Governments with the following recommendations regarding each of these situations. (in French)
Concerning the situation in Mali
The human rights and humanitarian situation in Mali remains seriously concerning. The country now has 229,000 displaced persons and 147,000 refugees in neighbouring countries. Various sources corroborate reports of serious violence being perpetrated against civilians in the Northern territory, mostly at the hands of terrorist armed groups. There are recent reports of women being raped, sometimes multiply, and then reduced to sexual slavery or killed when resistance is encountered. In particular, some rapes committed by MUJAO members have been registered in Timbuktu.Civilians also continue to be tortured and summarily executed by the Jihadists. The factual situation in Northern Mali discloses numerous crimes potentially falling within the jurisdiction of the International Criminal Court (ICC), which has just opened an investigation into crimes committed in the region.
The civilian population remains the primary target for armed groups and may be caught in fighting between belligerents. FIDH thus calls upon the African Union to ensure the effective implementation of the human rights protection mechanisms outlined in UN Security Council resolution 2085 on AFISMA’s deployment. These include the imperative of ensuring that:
- Ongoing discussions on AFISMA’s deployment modalities systematically incorporate a human rights and international humanitarian law component;
- AFISMA troops and Malian defence and security forces receive training on human rights and international humanitarian law in order to prevent serious violations against civilians;
- The physical integrity of those arrested and detained by Malian forces within the framework of the military intervention is ensured, in line with applicable law;
- Monitoring and control mechanisms, to prevent the international support mission contributing to the commission of further violations, are implemented. In particular, ensuring that perpetrators of human rights violations in the context of the international military intervention, are brought to justice by competent judicial authorities;
- AFISMA supports the ICC’s investigation into crimes committed in the North – also recommended by the African Commission on Human and Peoples’ Right (ACHPR). In particular, AFISMA should supply the Court’s investigative team with all necessary information,, facilitate access to witnesses and transfer persons subject to prosecution;
- AFISMA fully cooperates with the UN Human Rights Office in Mali, which is supposed to be running within the next few weeks; and that
- Civilians, in particular refugees and displaced persons, receive unconditional humanitarian assistance.
Alongside the ongoing military conflict, political stability and sustainable peace in Mali are at threat due to the weakening of Mali’s political institutions, the polarisation of defense and security forces and the escalation of ethnic tensions. In this context, FIDH calls upon the African Union to ensure that:
- An international commission of inquiry is established to shed light on human rights violations committed in Mali since January 2012, as recommended by the UN High Commissioner for Human Rights. This commission, which would complement the work of the ICC, must highlight cases of summary and extrajudicial executions, arbitrary arrests and detentions, allegations of torture, enforced disappearances and other human rights violations committed in the country. It must also aid identification of the perpetrators of those crimes in order to prosecute them before competent criminal courts; and
- The stability and securing of Malian political institutions and non-interference by the military in political affairs are ensured and strengthened. This will require guaranteeing the organisation of general elections once Mali has recovered its territorial integrity, and ensuring that civil society, especially human rights organisations, is fully involved in this process.
Concerning the situation in Sudan/ South Sudan
On 27 September 2012, after many months of political stagnation and armed clashes, Sudan and South Sudan – under the auspices of the African Union– reached a series of agreements on points of dispute persisting since South Sudanese independence on 9th July 2011. These agreements, described as “historic” cover security, border, oil, economic issues and the status of nationals from both countries. However, no agreement was reached on the status of the Abyei region, nor on the status of other disputed border areas. With discussions on-going between the two States on the margins of AU 20th Summit, FIDH calls upon the African Union to seek the conclusion and implementation of sustainable agreements. Given the volatile security context, this is the only means of preventing the resumption of intense violence between the parties.
Our organisations are pressing the African Union Peace and Security Council (AUPSR), meeting on this subject on 25 January, to ask the Sudanese authorities to resolve the unsettled conflicts in South Kordofan, Blue Nile and Darfur. In these areas, civilian population continues to be the collateral victim of fighting between the Sudanese Armed Forces (SAF) and rebels. In South Kordofan and Blue Nile, over 900,000 persons need urgent humanitarian aid due to fighting between the SAF and SPLM-N rebels. These persons are victims of indiscriminate aerial bombardment that has persisted despite the provisional measures requested by the ACHPR to secure the avoidance of irreparable harm to civilians. In Darfur, fighting between SAF, pro-government militias, and armed groups has also seen the persistence of indiscriminate shelling. In all these areas, civilians continue to be disproportionally affected by obstacles to humanitarian access. The African Union Peace and Security Council urgently needs to take a stand on this issue.
Concerning fundamental rights and freedoms in Sudan, there are still numerous severe and unjustified restrictions on the freedoms of expression, association and peaceful demonstration of dissenting voices. Human rights defenders, journalists, students and political opponents continue to face administrative decisions, arbitrary arrests and detentions or acts of torture and extrajudicial execution.
In this context, our organisations call upon the African Union to take into account the following recommendations:
Concerning the relationship between Sudan and South Sudan
- Reinforce mediation efforts aimed at securing the final resolution of disputes between the two countries, and consider imposing sanctions, including individual sanctions, for negotiation failure on the issues of border demarcation or Abyei’s status;
- Remind the Sudanese and South Sudanese authorities that they must respect their international human rights and humanitarian law obligations. In particularly, the African Union should insist on the prosecution of those most responsible for the commission of international criminal offenses; and
- Make sure that civil society organisations are fully involved in the negotiation process between the two States.
Concerning the situation in South Kordofan, Blue Nile State and Darfur
- Call upon all parties to the conflict in these areas to put an immediate end to hostilities, including military attacks, aerial bombardments against civilians, and any other violation of human rights and international humanitarian law ;
- Ask the Sudanese government to allow unconditional access to humanitarian organisations to victims in South Kordofan and Blue Nile; and
- Conduct an independent mission mandated to investigate the violations perpetrated during fighting in South Kordofan and Blue Nile. The African Union must make public the mission’s findings as soon as possible. The AU must also confirm its commitment to seeing the perpetrators of international crimes brought before justice and to ensure that victims get justice and compensation.
Concerning the protection of fundamental freedoms
- Ensure that an impartial and independent investigation is carried out into the events of 5 December 2012 at Al Jazeera University, where security forces are reported to have used excessive force to disperse protesters, killing four students;
- Call upon the Sudanese authorities, in accordance with regional and international legal instruments, to put an end to the many hindrances on freedom of speech and assembly. This should include allowing journalists, human rights defenders and writers to carry out their work free from harassment, imprisonment or torture, and ceasing all forms of newspaper confiscation or closure. This will mean enforcing the Sudanese authorities’ duty to respect their regional and international obligations regarding freedom of assembly. The Sudanese Studies Centre (SSC), Al Khatim Adlan Centre for Enlightenment and Human Development (KACE) and Cultural Forum for Literary Criticism must be immediately reopened after having been forced to stop their activities by the Sudanese government;
- Call upon the Sudanese authorities to ratify regional instruments for the protection of human rights, in particular the African Charter on Democracy, Elections and Governance, and to make a declaration under article 34.6 of the Protocol to the African Charter on Human and People’s Rights, accepting the jurisdiction of the African Court on Human and Peoples` Rights; and
- Call upon the African Commission for Human and People’s Rights’ and the United Nations’ special rapporteurs for freedom of speech, and human rights defenders, respectively, to undertake a mission to Sudan to investigate the state of freedom of speech and respect for the rights of human rights defenders in the country. The rapporteurs must follow the issues closely and ask to be invited by the Sudanese authorities.
Concerning the situation in the Democratic Republic of Congo
- Remain seized of developments in the Democratic Republic of Congo. There is a special need for public denunciation of the serious human rights and humanitarian law violations being perpetrated in the eastern provinces, in the context of fighting between the regular Congolese armed forces (FARDC), the M23 mutineers and other rebel groups. The Congolese authorities must be urged to prosecute those responsible for these crimes ;
- Integrate a human rights and humanitarian law component into all discussions concerning deployment of a neutral international armed force. Make sure that the troops deployed as part of such a force receive adequate training on these issues;
- Call upon the Congolese authorities to strengthen and ensure the protection of civilians, human rights defenders and journalists, in accordance with ratified international and regional instruments for the protection of human rights;
- Support the creation of mixed criminal courts (part Congolese and part international) charged with prosecuting and punishing international crimes and serious human rights violations committed in the DRC since 1993. The creation of these courts has also been recommended in the report of the UN High Commissioner for Human Rights;
- Support Congolese authorities for the completion of the electoral cycle by putting in place a credible and efficient technical body to organise provincial and local elections within a reasonable time, so as not to exacerbate the legitimacy deficit of political institutions;
- Urge Congolese authorities to continue and finalise the reform process of the army and the security sector in general, ensuring that alleged authors of and responsible for serious human rights violations and international crimes are dismissed;
- Ask the Congolese authorities to fully cooperate with the ICC, in particular by arresting and transferring Bosco Ntaganda, wanted by the ICC since 2006; and
- Call upon the Congolese authorities to ratify regional instruments for the protection of human rights, in particular the African Charter on Democracy, Elections and Governance, and to make a declaration under article 34.6 of the Protocol to the African Charter on Human and People’s Rights, accepting the jurisdiction of the African Court on Human and Peoples` Rights.
Concernaing the situation in the Central African Republic
- Support the process leading to the establishment of a government of national unity, tasked with managing the transition and the organisation of free and transparent elections;
- Ensure that the perpetrators of the most serious crimes committed during the December 2012 rebel offensive are prosecuted. This recommendation particularly addresses acts of rape and other kinds of sexual violence, and seeks to combat the justice deficiency that has repeatedly been the source of conflict in the Central African Republic (CAR) for over a decade;
- Ensure that a disarmament, demobilization and reintegration process of rebel armed forces is conducted as soon as possible to avoid resumption of fighting; and
- Call upon the CAR authorities to ratify regional instruments for the protection of Human rights, 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 Human and People’s Rights, accepting the jurisdiction of the African Court Human and Peoples` Rights.
Concerning the situation in Kenya
- Publicly remind Kenyan political and institutional officials, defence and security forces, the media and other actors, that in the run-up to the general elections, scheduled for 4 March 2013, these entities must comply with regional and international law concerning the organisation of free and transparent elections. Place a particular emphasis on the provisions of the African Charter on Human and Peoples’ Rights and the international Covenant on Civil and Political Rights. In this regard, call upon the Kenyan authorities to promptly ratify the African Charter on Democracy, Elections and Governance;
- Call upon the Kenyan authorities to take all necessary measures to ensure freedom of expression for civilians at the polls under conditions of effective security and without fear of harassment; Warn all stakeholders that any misbehaviour resulting in human rights violations outside of the elections, will be wholly condemned by the African Union and punished by competent judicial authorities;
- Ensure that the African Union’s long-term observation mission, which has just been launched in Kenya, can coordinate its actions with those of other national and international observers. Ensure that the mission is adequately organised to activate preventive measures in the event of the commission of violations during the election process;
- Call upon the Kenyan authorities to fully cooperate with the ICC in its two current procedures addressing William Samoei Ruto and Joshua Arap Sang, and Francis Kirimi Muthaura and Uhuru Muigai Kenyatta; and
- Call upon the Kenyan authorities to make a declaration under article 34.6 of the Protocol to the African Charter on Human and People’s Rights, accepting the jurisdiction of the African Court Human and Peoples` Rights.
Concerning international justice
During a hearing, on 12 December 2012, before the African Union Peace and Security Council (PSC), FIDH made an intervention on the needs of international justice. FIDH has shown its support for the importance of the authority in charge of conflict prevention and resolution in Africa to insist on human rights’ protection in the framework of its decisions and actions, particularly with regard to the fight against impunity of the perpetrators of the most serious crimes at national and international levels.
FIDH has also called upon the PSC to make the fight against impunity of the most serious crimes an action priority by supporting justice efforts within national jurisdictions, but also through the International Criminal Court (ICC) when there is absence of willingness or lack of capacity of national authorities in effectively prosecuting the authors of these crimes. FIDH urged the PSC to support an enhanced and universal action of the ICC in order to combat the perception of a “double standards” policy, because of the absence of prosecutions outside the African continent.
In its press release following the FIDH delegation hearing, the PSC reiterated “the AU’s commitment to fight impunity and emphasised the importance of international and transitional justice in the promotion of peace and security in Africa”, In the search for solutions to crises and conflicts, and taking into account the fragility of peace and reconciliation processes on the continent, it also raised the need to ensure that they are mutually reinforcing”
FIDH therefore calls upon the African Union to take the opportunity of its twentieth summit, in the midst of persistent armed conflict and political crises in the aforementioned States, to render this commitment to combating impunity fully effective. In securing this aim, the African Union should consider the following recommendations:
Concerning the International Criminal Court (ICC) and plans to extend the jurisdiction of the African Court on Human and Peoples’ Right to individual criminal responsibility
- Review the African Union decision not to cooperate with the ICC concerning the warrant against Sudanese President Omar al-Bashir;
- Refrain from requesting the UN Security Council to apply article 16 of the Rome Statute to defer proceedings before the Court for a renewable period of 12 months;
- Ask Member States not yet a party to the ICC to ratify or accede to the Rome Statute, and to bring national laws into line with that treaty by legislating international crimes in a manner that would allow national courts to fight impunity. Such legislation should also include provisions ensuring the full cooperation of Member States with the ICC;
- Call upon concerned Member States to take all necessary measures to put an end to threats and harassment against victims, witnesses and members of civil society cooperating or considered to be cooperating with the ICC;
- Strengthen its dialogue with the ICC, particularly in facilitating the establishment and work of the ICC liaison office at the African Union;
- Help the ICC find a better way to highlight, communicate and raise awareness on its activities ;
- Recognise that the extension of the jurisdiction of the African Court on Human and Peoples’ Rights to individual criminal responsibility would neither impact on the mandate and work of the ICC in Africa, nor interfere with or disturb the work of the Court with regard to its jurisdiction over matters of of State responsibility;
- If the jurisdiction of the African Court on Human and Peoples’ Rights is extended to encompass individual criminal responsibility, the African Union should ensure that :
- this court is independent;
- the budget of the Court is appropriate for the actual pursuit of its new jurisdiction;
- the Court’s judges and staff, in particular the offices of the prosecutor and the registrar, are specialised in dealing with international crimes, including management of trauma related to sexual violence, if these crimes fall under the jurisdiction of the Court;
- the definitions of the crimes under the its jurisdiction are compliant with human rights and international humanitarian law;
- Opportunities for individuals and human rights organisations to access the Court, in particular its human rights section, are strengthened;
- Victims can take part to all stages of the proceedings and that their rights are fully ensured, in particular regarding reparation and legal representation;
- Functional immunity can never be invoked for international crimes which, due to their gravity, cannot be justified by any legitimate act of the State;
- Technical and financial supportbe provided to national criminal courts, in order to effectively combat the impunity of perpetrators of the most serious crimes; and
- that any statute and rules of procedure of the Courtare drafted in compliance with international human rights and humanitarian law.
Concerning universal jurisdiction and Hissene Habré’s trial
On 22 August 2012, an agreement was concluded between Senegal and the African Union in order to establish a special tribunal charged with trying former dictator of Chad, Hissene Habré. Habré stands accused of being responsible for thousands of political assassinations and systematic torture between 1982 to 1990. This agreement is a major step in the longstanding campaign for his prosecution. It will be the first trial of a former Head of State on the basis of extraterritorial jurisdiction on the African continent. While investigations are due to commence at the beginning of February 2013, FIDH calls upon the African Union to:
- Continue strengthening its processes of political and financial support to ensure the successful conduct of this trial and respect of the right to justice for the victims of Habré’s regime;
- Contribute to information and public awareness campaigns which help good knowledge and understanding of ongoing procedures; and
- Adopt laws on extraterritorial and universal jurisdiction, in accordance with a model law drafted by the Legal Affairs Department of the African Union, and complying with human rights protection covenants.
Concerning the abolition of the death penalty in Africa
Despite the sensitivity of the death penalty issue, which generates much debate in Africa and beyond, it is clear that African Heads of State and government are now taking a stand on this issue. 16 States have already abolished the death penalty in law – 3 of them in the last 5 years. 19 other African countries have abolished death penalty in practice as capital sentences have not been carried out over the last ten years. Moreover, on 20 December 2012, 23 African States voted in favour of the fourth resolution of UN General Assembly, calling for a “Moratorium on the use of the death penalty”. This is proof of the regional and global trend towards the abolition of death sentencing.
However, this trend must be strengthened in Africa as this sentence remains in national legislations of several States and continues to be issued by courts. FIDH takes the opportunity of the twentieth summit of the African Union to call upon African Heads of State and Government to:
- Comply with UN General Assembly resolutions requiring the implementation of a moratorium on the use of the death penalty as a first step towards its final abolition;
- Commute all death sentences to sentences of imprisonment for a duration appropriate to the gravity of the offence;
- Refrain from resuming executions once a moratorium is in place;
- Support, including through public declarations, the efforts of the African Commission of Human and People’s rights, in particular the work of its working group on the death penalty in Africa. This crucial work aims at enabling the African Union to adopt a protocol to the African Charter of Human and People’s Rights on the abolition of the death penalty in Africa, as recommended by the working group in a study on the state of the death penalty in Africa; and
- Support the efforts for increased public awareness on issues surrounding the abolition of the death penalty.