TREC\004\11\2015: THEMATIC RECOMMENDATION ON AU MEMBER STATES FOR THE EFFECTIVE FIGHT AGAINST IMPUNITY FOR SERIOUS CRIMES IN AFRICA
TREC\004\11\2015: THEMATIC RECOMMENDATION ON AU MEMBER STATES FOR THE EFFECTIVE FIGHT AGAINST IMPUNITY FOR SERIOUS CRIMES IN AFRICA
We, the participants of the Forum on the Participation of NGOs in the 57thOrdinary Session of the African Commission on Human and Peoples’ Rights and the 31st African Human Rights Book fair held in Banjul, The Gambia from 31st October–2nd November 2015;
Recalling the provisions of the Constitutive Act of the African Union, mandating the organization to promote and protect human and peoples’ rights, peace, security and stability across the continent, democratic institutions and principles and good governance (articles 3.h and 4.m) and to condemn and reject impunity (article 4.o) ;
Deeply concerned by the grave human rights violations committed in different areas of the African continent, including sexual and gender – based violence, that may amount to genocide, crimes against humanity and war crimes, and other serious violations of international human rights law and international humanitarian law, and Deeply concerned by the endemic impunity that continues to benefit their authors ;
Mindful of the suffering of thousands of African victims of those atrocities who continue to seek for truth, justice and reparation;
Emphasizing that international law has developed over more than one century towards a consensus, that international crimes that shock the conscience of humankind and endanger the international public order, should be investigated and prosecuted ;
Considering that by attempting to punish those responsible for these crimes, the International Criminal Court (ICC) is a crucial court of last resort for victims in Africa, attempting to prevent the repetition of future crimes ;
Recalling the importance of developing national authorities’ capacities to address international crimes, and noting that in accordance with the principle of complementarity, the ICC has jurisdiction only when national authorities are unwilling or unable to genuinely investigate and prosecute those international crimes ;
Encouraged by the developments at the 13th Assembly of State Parties meeting where Hon. Sidiki Kaba, Minister of Justice, Senegal, was elected as President of the Assembly of State Parties;
Acknowledging the need for the African Continent, to relentlessly support President, Sidiki Kaba’s mandate as ASP President;
Considering that 34 African States are parties to the Rome Statute of the ICC and have voluntarily committed to supporting the investigation and prosecution of international crimes whether in their countries or in other Countries where the ICC might exercise jurisdiction;
Recalling further that four African States (Uganda, the Democratic Republic of Congo, the Central African Republic and the Ivory Coast) voluntarily referred situations in their territories to the ICC; that the UN Security Council referred the situation in Darfur and Libya to the ICC and that the ICC Prosecutor decided on its own initiative to open an investigation in Kenya; given the gravity of those crimes and the situation of total impunity;
Considering the Resolutions of the African Commission on Human and Peoples’ Rights calling on the African Union Member states to ratify the Rome Statute of the International Criminal Court (1998, 2002) and its Resolution on the end of impunity in Africa and the domestication and implementation of the Rome Statute of the International Criminal Court (2005);
Concerned by the amendments to the Rules of Procedure and Evidence of the ICC adopted during the 12th Assembly of States Parties providing for exceptional treatment in granting excusal from mandatory presence at trial for an “accused subject to a summons to appear who is mandated to fulfil extraordinary public duties”;
Deeply Concerned by the proposal presented by the Republic of Kenya to the UN Secretary General in March 2014 for an amendment to Article 27 of the Rome Statute of the International Criminal Court seeking to provide for immunity for incumbent Heads of State, their deputies and anybody acting or entitled to act as such;
Concerned by the proposals put forward for the upcoming 14th Assembly of State Parties to review the application and implementation of Rule 68 of procedure and evidence introduced at the 12th Assembly of State Parties ;
Concerned by the proposals put forward that the 14th Assembly of State Parties to discuss and develop, clear rules and procedures for the application and implementation of Article 97 and 98 of the Rome Statute. With the proposal relating to ongoing ICC proceedings conducted around the Omar al-Bashir visit to South Africa in June 2015 ;
Noting that the issues raised by the States proposing the discussions and the review of the rules and procedure are currently under judicial consideration. The Court must be allowed to deal with the issues before it without interference or pressure by States ;
Observing that while States are at liberty to make proposals for discussions that the Assembly of State Parties, the political body of the ICC, the issues considered by the Assembly should not interfere with the independence of the Court ;
Deeply concerned by the Resolution by the Africa National Congress (ANC), adopted at its National General Council meeting on 11 October 2015, calling on South Africa to withdraw from the ICC and lead other African States to withdraw from being members of the Rome Statute ;
The NGO Forum calls upon the African Union Member States to :
- Pay particular attention to the rights to justice and reparation for victims of the most serious human rights violations and international crimes, and the effective implementation of these rights into domestic legislation ;
- Recall that it is the perpetration of international crimes and impunity of their authors that constitute the most serious threat to peace and security, and not the investigation and prosecution of those crimes ;
- Recall that they have the primary obligation to investigate grave human rights violations and to prosecute those responsible;
- Ensure that the gravest crimes under international law are defined in national legislation and genuinely prosecuted and that those responsible are brought to justice in their domestic courts in accordance with internationally recognized fair trial standards ;
- Fully cooperate with the ICC in its efforts to investigate and bring to justice those responsible for international crimes ;
- Respect the jurisdiction of the ICC to determine cases before on the basis of legal principles andwithout undue influence from external sources ;
- Reject any special -favourable or unfavourable- treatment in investigations and prosecutions for international crimes based on the official capacity of the suspect or accused that is inconsistent with the principle of equality before the law ;
- When they have not yet done so, ratify the Rome Statute of the International Criminal Court and to ensure its effective implementation at the national level ;
- Include members of the African Commission on Human and Peoples’ Rights in all discussions relating to impunity, in conformity with its role for the promotion and the protection of human rights in Africa.
Done in Banjul, The Gambia – 2nd November, 2015
