06/08/2011 (B616) LDDH : espérons que ce sera le mois des procès publics !

Le Président


En ce mois béni du Ramadan espérons
que ce sera le mois des procès publics
et transparents comme celui
d’aujourd’hui au Caire

Oui, le mois bénis du Ramadan permettra peut-être aux Forces Armées Djiboutiennes d’arrêter le dictateur Djiboutien passible de Crimes contre l’Humanité et autres Crimes Organisés ;

Oui, ce mois béni du Ramadan devra encourager tous les Peuples opprimés de la Corne d’Afrique à se débarrasser des Dictateurs qui continuent à semer la peur et la terreur avec les Forces armées étrangères ou d’occupation, qui continuent à piller les ressources pétrolières, minières comme en Ogaden, en Somalie, qui pillent les ressources maritimes et polluent les côtes d’Obock à Kismayo.

Oui, ce mois béni du Ramadan permettra, à nos populations de la Corne d’Afrique de se débarrasser des Forces tueuses de l’Ouganda et du Burundi, de toutes les Forces d’Occupation de la Somalie et de l’Ogaden et ensemble de trouver la stabilité politique tant nécessaire pour qu’enfin une solution durable, contre la famine et la sécheresse récurent et provoquées, soit mise en œuvre et libre des appels dégradants pour nos populations de la région, qui ont une large possibilité à s’auto suffire.

Que DIEU TOUT-PUISSANT guide nos pas.

______________________________ (En Anglais)

Observations and Recommendations on the International Criminal Court and the African Union in advance of the 17th African Union Summit (30 June-1 July)

I. Introduction

On the occasion of the 17th Ordinary Session of the Assembly of the African Union (AU)—which will take place in Malabo, Equatorial Guinea, from 30 June to 1 July—we, the undersigned African civil society organisations and international
organisations with a presence in Africa, write to share our views and make recommendations with regard to matters concerning the International Criminal Court (ICC) and the AU. The document covers seven areas of action, which we believe are critical for African ICC states parties to undertake. As discussed in detail below, we call on African ICC states parties to:

· Take clear positions in support of the ICC at African Union summits;

· Press for justice for serious crimes in violation of international law
in Darfur and Kenya;

· Direct concerns regarding AU deferral requests of ICC situations to the Security Council;

* Address concerns regarding expansion of the African Court to prosecute
serious crimes in violation of international law;

* Ensure cooperation with the ICC’s prosecution of serious crimes
committed in Libya;

* Uphold ICC state party obligations vis-à-vis visits by persons subject to ICC arrest warrants; and

* Ensure the selection of the most qualified candidate as the next ICC prosecutor through a fair and merit-based process.

II. Take clear positions in support of the ICC at African Union summits

Africa has been at the forefront of the fight against impunity for genocide, crimes against humanity, and war crimes. African states played a critical role in the negotiations that led to the formation of the ICC, and over 30 African states have ratified the Rome Statute, which establishes the ICC.

Following arrest warrants issued by the ICC for President Omar al-Bashir of Sudan for genocide, war crimes, and crimes against humanity committed in Darfur, the ICC’s relationship with the AU has been strained. The AU has expressed its deep concern over the arrest warrants, and undertaken initiatives that undermine the court, including calling for non-cooperation by AU member states in the arrest of President al-Bashir.[1]AU officials have also suggested that the ICC is targeting Africans.[2]

It is a fact that all situations under ICC investigation to date are in Africa, which has been a source of disquiet among some observers. Furthermore, international justice has yet to be applied evenly around the globe; individuals from powerful states and their allies have been able to evade accountability for serious crimes in violation of international law, for example, in Burma, Chechnya, and Gaza/Israel.

However, the number of African cases is also a manifestation of African commitment to justice for the most serious crimes. A majority of the ICC’s situations came about as a result of voluntary referrals by the governments of states where the crimes were committed.[3]We believe Africa should build on support for accountability as opposed to scaling down its resolve because others have failed to demonstrate their commitment or temporarily managed to avoid judicial scrutiny. The AU should indeed work proactively to achieve wider access to justice for the worst crimes, rather than seeking to limit the ICC’s ability to function effectively.

Support and cooperation by ICC states parties for the ICC is vital. Without its own enforcement mechanism, the court depends heavily on state cooperation to operate. Accordingly, we call upon African ICC states parties to:

* Express support for the ICC and cooperation with the ICC at AU summits;

* Work to avoid further calls by the AU for member states not to cooperate with the ICC or otherwise undermine the ICC’s ability to advance its mission and mandate;

· Express individual government positions in support of the ICC where AU action might suggest lack of support;[4]and

* Press for the establishment of an ICC liaison office at AU headquarters and conclusion of a memorandum of understanding between the AU and the ICC.[5]

III. Press for accountability for crimes committed in Kenya and Darfur and direct any concerns regarding requests for deferral of ICC situations to the UN Security Council

At the January 2011 summit, the AU adopted a decision to endorse Kenya’s request for a deferral pursuant to article 16 of the Rome Statute of the ICC’s cases involving Kenya.[6]Following this endorsement, the government of Kenya submitted a formal request to the United Nations (UN) Security Council for the two cases to be deferred. The Security Council held two meetings to consider this request in 2011, but did not grant it.

The undersigned organizations believe that a deferral of the ICC’s investigations and prosecutions in Kenya is unwarranted. For a deferral to be granted, the Security Council must find a threat to international peace and security pursuant to article 16 of the Rome Statute. This is a high threshold and suggests that deferrals should only be granted in exceptional circumstances. Notably, one of the main justifications for the AU’s support of Kenya’s bid for a deferral was to allow for national prosecutions. However, national accountability efforts are not a legal basis for deferrals, consistent with articles 17 and 19 of the Rome Statute.

In supporting a deferral of the ICC’s Kenya cases, we believe the AU has given inadequate attention to the will of the citizens of its states and the victims of atrocities who wish to see justice done. For example, opinion polls in Kenya have indicated that the majority of Kenyans support the ICC process, and that the ICC is the only process that could bring justice and address the festering culture of impunity.[7]

The situation in Darfur is distinct. While the Security Council has discussed the AU’s deferral request on Darfur,[8]the council’s consideration of the request was less direct than for Kenya.[9]Nevertheless, the victims of atrocities in Darfur similarly yearn for justice. The AU’s own panel on Darfur found that in Darfur and Sudan, “many are strongly opposed to any suspension of the ICC action, seeing it as an escape route… from the demands of justice,” and “welcomed… ICC prosecutions as the only appropriate mechanism for dealing with the situation they have suffered in Darfur.”[10]Accordingly, we urge African ICC states parties to urge the AU to:

* Take concrete steps to encourage the governments of Kenya and Sudan, consistent with the AU’s rejection of impunity in Article 4 of its Constitutive Act, to ensure accountability for serious crimes that have been committed in both states; and

* Direct any outstanding concerns regarding deferrals of cases in the Kenya and Darfur situations to the UN Security Council (as opposed to the ICC, or the threat of non-cooperation with the court). The ICC has no authority to grant or reject deferral requests. This is a power left exclusively to the Security Council under article 16 of the Rome Statute.

IV. Concerns regarding expansion of the African Court’s jurisdiction

The AU has indicated its intention to expand the jurisdiction of the African Court of Justice and Human Rights (African Court) to include prosecutions of individuals for genocide, war crimes, and crimes against humanity. Increased avenues for accountability are positive in principle. However, the undersigned organisations have concerns with the proposed expansion given the range of challenges the African Court already faces and the additional challenges that expansion of its jurisdiction will pose.

The AU decided in 2008 to merge two courts on the continent, the African Court on Human and Peoples’ Rights and the African Court of Justice, to establish the African Court. The new court—whose protocol will enter into force once 15 states ratify it—comprises two chambers, one for general legal matters and one for rulings on human rights treaties. Notably, states will be required to submit declarations to enable individuals and non-governmental organizations (NGO) to submit claims directly to the African Court; only five states have made these necessary declarations for such submissions to the African Court on Human and Peoples’ Rights.

The African Court is limited to cases that relate to the responsibility of states and interpretation of treaties. Expanding the court’s jurisdiction to prosecutions of individuals for serious crimes would thus put enormous challenges on the court to address a large, distinct area.For example, prosecutions of individuals require criminal investigations, which often span many different locations and relate to multiple actors and incidents. They also require expertise in examining witnesses and victims with due regard to their protection, while ensuring the rights of the accused.

Against this backdrop, we encourage African ICC states parties to insist on:

· Wider consultation with civil society—including victim groups and bar associations—and officials of the existing African Court and African Commission on Human and Peoples’ Rights regarding expansion of the African Court’s jurisdiction;

* Adherence by the African Court to international standards and best practice regarding any prosecutions of serious crimes in violation of international law, including, but not limited to, regarding judicial and prosecutorial independence, rights of the accused, and witness and victim protection;

· The matching of the political commitment to expand the African Court’s jurisdiction and resources to enable operations in accordance with international standards and best practices; and

· Clarity regarding the relationship between an expanded African Court and the ICC, and recognizing the ICC’s ultimate role in determining which cases come under its authority, ensuring that expansion of the African Court does not undermine the ICC’s role as a crucial court of last resort where accountability for serious crimes is not otherwise possible, consistent with the AU’s rejection of impunity in Article 4 of its Constitutive Act.

V. Ensure cooperation with the ICC’s prosecution of serious crimes committed in Libya

On 26 February 2011, the UN Security Council passed Resolution 1970 referring the situation in Libya to the ICC. The unanimous vote for the referral, which was supported by the three African members of the Security Council—Gabon, Nigeria and South Africa—followed sustained reports of grave human rights violations committed by the Libyan government. The Security Council was also mindful of widespread condemnation by the AU and others of violations committed in Libya.

The timing of the Security Council referral makes this the earliest the ICC has become involved in a situation. On 16 May 2011, the prosecutor disclosed that he was seeking arrest warrants for widespread and systematic attacks on civilians
in Libya, namely for Libyan leader Muammar Gaddafi, his son Saif al-Islam, and intelligence chief Abdullah al-Sanussi.

Meanwhile, on 17 March 2011, the Security Council adopted Resolution 1973, authorizing all means necessary short of foreign occupation to protect civilians in Libya. Although supported by the African members of the Security Council, the resolution was of immediate concern to the AU, which opposes any form of foreign military intervention in Libya.[11]

The AU subsequently issued a decision to on 25 May, which we believe creates a risk that Resolutions 1970 (ICC referral) and 1973 (the authorization of the use of force) are being conflated.[12]Specifically, the decision states: “[T]he Assembly… expressed deep concern at the dangerous precedence being set by one sided interpretations of these resolutions [1970 and 1973], in an attempt to provide a legal authority for military and other actions on the ground that are clearly outside the scope of these resolutions….”

The ICC’s investigation and prosecution of crimes in Libya is distinct from the authorization of the use of force. While the interpretation and implementation of Resolution 1973 may pose concerns, the ICC’s work is a separate matter of accountability.Moreover, cooperation of ICC states parties is likely to be critical to the ICC’s investigation and prosecution of crimes committed in Libya: the court is investigating crimes committed in a country where the government is overtly hostile to proceedings and the enforcement of any future arrest warrants will be a major challenge.

Accordingly, we urge African ICC states parties to:

* Ensure that concerns regarding the Security Council’s authorization of force in Libya do not detract from the ICC’s independent, judicial role in ensuring accountability for crimes committed in Libya; and

* Ensure cooperation with the ICC in relation to its Libya investigations and prosecutions.

VI. Uphold obligations as ICC states parties vis-à-vis visits by persons subject to ICC arrest warrants

Following the AU decision calling for non-cooperation by AU member states with the ICC in the arrest of President al-Bashir, some officials have argued that the AU call for non-cooperation takes precedence over ICC treaty obligations.[13]Such claims, however, do not take into account that the ICC’s Rome Statute is a multilateral treaty, which contains binding international obligations.Suchobligations are not negated by AU decisions, irrespective of conflicts that may arise between states’ commitments as AU and ICC members.

In ratifying the Rome Statute, African ICC states parties assumed obligations that require them to cooperate with the court, including arrest and surrender of suspects. Accordingly, while states can be expected to face pressure to allow President al-Bashir on their territory without arrest, ICC states parties are well-placed to take the position that:

* A visit by President al-Bashir creates the prospect of a breach by ICC states parties of their obligations as parties to the court; and

* Given their obligations under the Rome Statute, states parties should arrest President al-Bashir if he enters their territory, but at a minimum they should prevent visits by him.

This is consistent with an AU decision, which calls for states to balance ICC
and AU obligations.[14]

VII. Support the fair selection of the most qualified candidate as the next ICC prosecutor

In December 2011 the Assembly of States Parties (ASP) of the ICC will elect its second prosecutor. The election of a new prosecutor will have a major impact on the court’s work, credibility, and legitimacy over the next decade.

We understand that the selection of the next ICC prosecutor may be considered during the AU summit. To ensure that the most highly qualified candidate is elected, it is essential that the search for the next ICC prosecutor be driven by merit. In this regard, we believe key qualifications include demonstrated experience in: prosecuting complex criminal cases, actingindependently and impartially,managing institutionswith professional excellence, and communicating effectively to a wide variety of constituencies.

The ASP Bureau’s December 2010 decision to establish a search committee to seek out possible candidates and carefully review expressions of interest with a view to recommending at least three prosecutor candidates is therefore a welcome development. Accordingly, we urge African ICC states parties to:

* Forward to the search committee the names of as many of the most qualified candidates to ensure the search committee has the best possible pool of candidates from which to draw;[15]and

* Avoid politicization of the elections process, which risks obscuring the merits of applications.

Organisations signing on to this document are:

1. African Assembly for the Defense of Human Rights (RADDHO), Dakar,
2. Cameroon Coalition for the International Criminal Court, Douala, Cameroon
3. Center for Accountability and Rule of Law (CARL-SL), Freetown Sierra Leone
4. Coalition for the International Criminal Court, Benin
5. Human Rights Network-Uganda (HURINET-U), Kampala, Uganda
6. Human Rights Watch, Johannesburg, South Africa
7. Southern Africa Litigation Centre (SALC), Johannesburg, South Africa
8. International Crime in Africa Programme (ICAP), Institute for Security Studies, Pretoria, South Africa
9. Nigeria Coalition for the ICC (NCICC), Abuja, Nigeria
10. West African Bar Association (WABA), Abuja, Nigeria
11. Kenyan Section of the International Commission of Jurists (ICJ-Kenya), Nairobi,