AFRICA'S CIVIL SOCIETY GROUPS WRITE TO THE AU HEADS OF STATE ON HUMAN RIGHTS ATROCITIES IN AFRICA

January 26, 2012

African States Parties to the ICC

Dear African Heads of State and Foreign Ministers,

On the occasion of the 18th Ordinary Session of the Assembly of the African Union (AU)–
which will take place in Addis Ababa, Ethiopia, on January 29-30, 2012–we, the undersigned
African civil society organizations and international organizations with a presence in Africa,
write to share some important developments affecting international criminal justice in Africa
and to encourage African states parties to reaffirm their strong support for the International
Criminal Court (ICC) and its goal of ending impunity for grave international crimes.

Our organizations note that the ICC is not on the formal agenda of the AU Assembly at the
upcoming summit. The summit is however an opportunity for gathered African states parties
to informally exchange observations about recent developments and discuss concrete steps
that they and the AU can take to advance justice for the victims of crimes under international
law, in accordance with Article 4 of the African Union Constitutive Act.

Significant moment in the evolution of the ICC and need for renewed support from Africa

2011 was marked by a number of important developments for justice for crimes under
international law, such as a higher number of ratifications of the ICC Statute than in previous
years, strong popular calls for justice in North Africa, and important elections to top positions
at the ICC that will result in a change of leadership at the institution in 2012.

Six new states ratified the ICC Statute in 2011, thus affirming their support to the values of
justice and accountability it embodies. Among these six states, two are African (Tunisia and
Cape Verde), thus bringing the total number of African states that are parties to the court’s
treaty to 33–still the largest geographical group in the membership of the court. The court
now enjoys support from 120 nations around the world, with ongoing consideration of
possible additional ratifications, including African countries such as Côte d’Ivoire and Egypt.
Mali has also become the first African state party to enter into an enforcement of sentences
agreement with the ICC.

The popular uprisings in North Africa have brought to light the strong desire for justice of
populations that had been subjected to repressive rule for several decades. Because of these
clear aspirations, ratification of the ICC Statute as well as national prosecutions of grave
human rights violations are on the agenda of some of the new governments in that region.
Government changes in North Africa have the potential to bring a positive shift in the way
these countries approach the ICC and accountability for grave crimes. This, in turn, could
lead to a more positive atmosphere on these issues at the AU in the future.

In December 2011, members of the ICC Assembly of States Parties (ASP) elected two
Africans, Fatou Bensouda and Chile Eboe Osuji, for the positions of the chief prosecutor and
judge of the ICC respectively. The two candidates supported by the AU were elected to these
2 positions based on their merit, strong qualifications and experience in international law.
Currently, 5 of the 18 ICC judges are from Africa.

The appointment of African officials to senior offices at the ICC reflects the important role
that individual Africans are playing in contributing to the success of the court and is of great
significance to promoting mutual understanding and strengthening cooperation between the
ICC and the AU. Our organizations hope that African states and the AU will lend their
support to the newly elected ICC prosecutor, while fully respecting her independence.

The new prosecutor and the ICC face important challenges at this juncture. With the addition
of three new situations (Kenya, Libya and Côte d’Ivoire), the ICC has almost doubled its
work-load in not even two years. However, despite this increase in activities, in December
2011, the ASP imposed budgetary cuts on the ICC for 2012 beyond those suggested by the
ASP’s expert financial body. It is clear that the coming year will be challenging for the ICC
to implement its mandate within the resources approved by its member countries.

Another major challenge to the court’s authority and ability to deliver justice is of course the
fact that several suspects against whom the court has issued arrest warrants have still not been
arrested and surrendered for trial, in relation to situations in Uganda, the Democratic
Republic of Congo, the Darfur region of Sudan, and Libya. A further challenge is that
numerous victims in the 8 countries under preliminary examinations in 4 different continents
are still waiting the ICC to advance justice.

In the face of these challenges, and because all situations currently under investigation at the
ICC are in Africa, renewed support from African states and the AU are of particular
importance. The ICC and the AU indeed share a commitment to end impunity for the
perpetrators of the worst crimes around the world.

In this regard, we would like to highlight three areas of action for your consideration:

1. Renew and strengthen dialogue between the AU and the ICC: Despite past
differences of opinion between the ICC and AU, the two institutions have made
efforts to strengthen their ties and collaborate with each other as illustrated by the
joint seminar between the ICC and the AU which took place at the AU headquarters,
in Addis Ababa, on July 18-19, 2011. This type of exercise should be renewed, and
complemented by other regular meetings and exchange of views between the ICC,
African states, and AU officials.

 2. Reconsider the creation of an ICC liaison office in Addis Ababa: our organizations
continue to believe that such an office would greatly contribute to consolidating the
understanding and relationship between the ICC and the AU. African states parties
should propose that its establishment be reconsidered and make efforts to reach out to
African states non-parties to the ICC to explain its proposed purpose and functions.

 3. Uphold cooperation obligations under the ICC Statute: Full cooperation with the
ICC and respect for the court’s decisions are of paramount importance to preserve the
court’s effectiveness and ability to deliver justice. In this light, we renew our
appreciation to African states parties which have publicly affirmed that they will
abide by their obligations under the ICC Statute, notably with regards to the execution
of pending arrest warrants. These include Botswana and South Africa (in relation to the situation in Darfur), the Central African Republic, the Democratic Republic of Congo, and Uganda (in relation to the situation in Uganda), and Burkina Faso, Mali, and Niger (in relation to the situation in Libya).

The undersigned organizations also congratulate African states parties for adopting, along
with other ICC member countries, important ASP procedures to deal with occurrences of
non-cooperation with the court. This non-cooperation protocol foresees two steps: 1) an early
warning mechanism through which the President of the ASP will use his good offices, with
the assistance of regional focal points, to approach the state party which may find itself in
breach of its ICC obligations with a view to promoting full cooperation; 2) once the court has
referred an issue of non-cooperation, the bureau of the ASP will take some steps to have a
dialogue with the concerned state party and report to the full ASP. These procedures are
crucial to encourage full cooperation with the court.

To be effective, the procedures will require the full support of African states.

Promoting justice before national courts

In light of the ICC’s limited resources, the court cannot be the sole actor in pursuing the fight
against impunity. Under the ICC Statute, states retain the primary responsibility to bring to
justice those responsible for war crimes, crimes against humanity, and genocide. Recalling
the centrality of the principle of “complementary” jurisdiction in the Rome Statute system,
the undersigned organizations encourage African states parties to the ICC to remain fully
committed to complementarity and national prosecutions of grave international crimes. To
that effect, our organizations call on African states parties to enact effective implementing
legislation of the ICC Statute where such legislation is lacking and to support work towards
strengthening of domestic systems to handle international crimes.

Concerns over the expansion of the African Court’s jurisdiction

In advance of the AU summit of June 18, 2011, many of the undersigned organizations wrote
to African states parties regarding the intention of the AU to expand the jurisdiction of the
African Court of Justice and Human Rights (African Court) to include prosecution of
individuals for genocide, war crimes, and crimes against humanity.

Increased avenues for accountability are positive in principle. However, we are concerned
about the proposed expansion of the court for a number of reasons. Notably, the African
Court already faces serious challenges implementing its current mandate and giving it
jurisdiction over a distinct type of offenses (crimes under international law committed by
individuals, as opposed to human rights violations by states) would require significant time to
establish new expertise and a vast overhaul in the way the court is currently set-up.

Consequently, our organizations encourage African states parties to insist on a number of
conditions to ensure that the expansion of the African court’s jurisdiction will advance the
cause of justice for crimes under international law, including the following:

Wider consultation with civil society 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 practices
regarding any prosecutions of serious crimes in violation of international law;

 Recognition that AU member states have the primary obligation to investigate and, if
there is sufficient evidence, prosecute persons suspected of crimes under international
law before their national courts;

 Matching political commitment to expand the African Court’s jurisdiction and
personnel, financial and material resources to enable operations in accordance with
international standards and best practices; including effective protection and support
for victims and witnesses, outreach to victims and affected communities, pre-trial
detention, investigations and prosecutions, trials and imprisonment;

 Clarity regarding the relationship between an expanded African Court and the ICC.
We hope this information is useful and wish you fruitful consultations at the upcoming
summit.

Yours Sincerely,

1. Action of Christian Activists for Human Rights in Shabunda (ACADHOSHA), DRC
2. African Assembly for the Defense of Human Rights (RADDHO), Senegal
3. African Association for Human Rights (ASADHO), DRC
4. Amnesty International, Ghana
5. Amnesty International, Senegal
6. Amnesty International, Togo
7. Association of Human and Prisoner Rights (ADHUC), Brazzaville, R of Congo
8. Benin Coalition for the ICC, Benin
9. Burundi Coalition for the ICC, Burundi
10. Cameroon Coalition for the ICC, Cameroon
11. Central African Republic Coalition for the ICC, CAR
12. Centre for Accountability and Rule of Law, Sierra Leone
13. Centre for Human Rights and Rehabilitation (CHRR), Malawi
14. Children Education Society(CHESO), Tanzania
15. Civil Resource Development and Documentation Centre (CIRDDOC), Nigeria
16. Club of Friends of Congolese Law, Democratic Republic of Congo
17. Coalition of Eastern NGOs (CENGOS), Nigeria
18. Coalition for the International Criminal Court, with offices in Benin and the DRC
19. Congolese Coalition for Transitional Justice (CCJT), DRC
20. Congolese Initiative for Justice and Peace (ICJP), DRC
21. Human Rights Network-Uganda (HURINET), Uganda
22. Human Rights Watch, with offices in the DRC, Kenya,Rwanda and SA
23. International Commission of Jurists, Kenya
24. International Crime in Africa Programme (ICAP), Institute for Security Studies (ISS), SA
25. Ivorian Coalition for the ICC, Côte d’Ivoire
26. League for Peace, Human Rights and Justice (LIPADHOJ), DRC
27. National Coalition on Affirmative Action (NCAA), Nigeria
28. Network of Human Rights Associations from Sud Kivu (RADHOSKI), DRC
29. Nigeria Coalition on the ICC (NCICC), Nigeria
30. Speak Human Rights & Environmental Initiative, Mauritius
31. Southern Africa Litigation Centre, South Africa
32. Synergy of Congolese NGOs for Victims (SYCOVI), DRC
33. Uganda Coalition on the International Criminal Court, Uganda
34. West African Bar Association (WABA), Nigeria