Side Event on the Fight against impunity for international crimes in Africa

In the margins of the 54th ordinary session of the African Commission on Human and Peoples’ Rights (ACHPR), the International Federation for Human Rights (FIDH), the Groupe Lotus (DRC), the African Center for Justice and Peace Studies (ACJPS, Sudan), the Kenya Human Rights Commission (KHRC, Kenya), the International Commission of Jurists, Kenyan Chapter (ICJ-Kenya), the Foundation for Human Rights Initiative (FHRI, Uganda), the Organisation guinéeenne des droits de l’Homme (OGDH, Guinea-Conakry) and the East and Horn of Africa Human Rights Defenders Project (EHAHRDP) organised a side-event on “Fighting Against Impunity for International Crimes in Africa”, with the participation of Mr. Phakiso Mochochoko, Head of the Jurisdiction, Complementarity and Cooperation Division of the Office the Prosecutor of the International Criminal Court (ICC) and of Mr. Pacifique Manirakiza, Commissioner at the ACHPR.

The event took place in the aftermath of the 12 October 2013 Decision of the African Union on its relationship with the ICC which determined that Heads of State and government in office, or anyone acting in that capacity, should not be prosecuted by the ICC or any other court of law. While debating on the legal and political implications of this decision, participants reiterated the correlation between the fight against impunity and non-repetition of crimes. They reminded that States have primary obligation to investigate and prosecute those responsible for international crimes and that only if they fail to do so does the International Criminal Court have jurisdiction.

The challenges related to the role of the United Nations Security Council in referring and deferring situations to the ICC, which may be perceived as a politicized process; to the perception of double-standard considering that the Court is so far only conducting investigations in Africa; or to the prosecution against individuals who have been elected after their indictments, were addressed.

Participants reminded that the role of the Security Council is prescribed by the Rome Statute that was endorsed by all member states and that the Court is not responsible for the politicization of its decisions. It has also been reminded that regarding the situations currently under investigation before the ICC, this is States that have either voluntarily referred to the Court or failed to genuinely investigate and prosecute international crimes. Debating on the challenges of prosecutions against Heads of State and Government, participants stressed that the ICC proceedings target individuals and not States and their population.

Participants strongly reiterated that the rights and interests of victims should be at the very center of the fight against impunity. The non-derogable right of victims of international crimes to justice and reparation, primarily before national courts and ultimately before the International Criminal Court in the absence of capacity or willingness of States to do so, should be guaranteed.

The ACHPR reiterated its commitment to the fight against impunity on the continent and its willingness to take all necessary measures, within its promotion and protection mandate, to ensure that States Parties to the African Charter on Human and Peoples’ Rights abide by their obligations to provide justice and reparation to victims of international crimes. While commending the so far cooperation of African States with the ICC, the ICC representative called upon the African Union to re-engage into a constructive dialogue with its Prosecutor, Mrs. Fatou Bensouda, and her office.

It is to be acknowledge that, for the first time, the Office of the Prosecutor of the ICC, intervened during the ACHPR’s plenary session. Both institutions committed to strengthen their dialogue and institutional relations.

Statement of Phakiso Mochochoko, Head of JCCD, ICC Office of the Prosecutor - Banjul, 24 October 2013
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