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Seminar on Justice SEMINAR ON JUSTICE Organised by FIDH and the United Nations Office of High Commissioner for Human Rights To the attention of the Permanent Representatives Committee, the African Union Commission and the African Union Peace and Security Council 13 and 14 December 2012 CONCEPT NOTE and PROVISIONAL AGENDA of person. Article 4: No one shall be held in slavery Article 1: All human beings are born free and equal or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5: No one shall be subjected to in dignity and rights. They are endowed with reason and conscience and should act towards one another in a torture or to cruel, inhuman or degrading treatment or punishment. Article 6: Everyone has the right to recognition spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, everywhere as a person before the law. Article 7: All are equal before the law and are entitled without any discrimi- without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nation to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the Declaration and against any incitement to such discrimination. Article 8: Everyone has the right to an effective rem- basis of the political, jurisdictional or international status of the country or territory to which a person edy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. by law. Article 9: No one shall be subjected to arbitrary arrest, Article 3: Everyone has the right to life, liberty and security November 2012 H 2 / Titre du rapport – FIDH I – The African Union and the fight against impunity of perpetrators of the most serious crimes The fight against violations of human rights and international humanitarian law and against impunity of their perpetrators plays an important role in the mandate of the African Union (AU) and of many of its bodies and institutions. The AU Constitutive Act (2000) mandates 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). More importantly, the AU is empowered, and even encouraged “to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity” (article 4.h). The AU’s political commitment to fight the impunity of those responsible for international crimes, reiterated in several Declarations, Decisions and Strategic plans, is being implemented in a variety of ways. The most recent and emblematic example of this commitment can be found in the agreement signed on 22 August 2012 by the AU and the Government of Senegal. Through this agreement, Extraordinary African Chambers will be embedded in the Senegalese judicial system to prosecute the person(s) most responsible for international crimes committed in Chad between 1982 and 1990, thus making it possible for Hissène Habré to be judged and for a model law on universal jurisdiction to be drafted. Similarly, 33 AU member states have ratified the Statutes of the International Criminal Court (ICC), which transposition into national law, especially in countries such as Kenya and Uganda, are evidence of the conveyance of this commitment at the national level. Last, the plan to expand the jurisdiction of the African Court on Human and Peoples’ Rights to enable it to prosecute and sentence those responsible for international crimes is further evidence of this momentum. The legal and institutional tools developed by the African Union to fight the most serious crimes and to guarantee victims’ access to justice, take this political orientation even further. Many AU texts – including the African Charter on Human and Peoples’ Rights (1981), the African Charter on the Rights and Welfare of the Child (1990), the Protocol to the African Court (1998), the Protocol on the Rights of Women in Africa (2003) and the African Charter on Democracy, Elections and Governance (2007) – include numerous provisions on the administration of justice and the obligations of States Party to guarantee access to justice and equal protection before the law for all1, an independent judicial system2, and prosecution of perpetrators of war crimes, crimes against humanity and genocide3. Similarly, by virtue of the “principle of non-indifference” towards the most serious crimes, the AU Peace and Security Council (2003) was created to foresee and prevent conflicts and to 1. Articles 5, 6 and 7 of the African Charter on Human and Peoples’ Rights; Article 17 of the African Charter on the Rights and Welfare of the Child; Article 8 of the Protocol to the African Charter on Human and Peoples’ Right on the rights of women in Africa. 2. Article 26 of the African Charter on Human and Peoples’ Rights; Articles 2.5 and 32.3 of the African Charter on Democracy, Elections and Governance. 3. Article 11.3 of the Protocol to the African Charter on Human and Peoples’ Right on the Rights of Women in Africa. FIDH and OHCHR / Seminar on justice / 3 promote, restore and consolidate peace and security, and also to promote and encourage the protection of human rights and international humanitarian law. In carrying out its mandate, it is guided by the provisions of article 4.h of the Constitutive Act. Furthermore, the AU has been undertaking a consolidation process of the regional system for the promotion and protection of human rights, in particular by increasing the technical and financial capacity of the related mechanisms such as the African Commission on Human and Peoples’ Rights (ACHPR) – which has also adopted several texts on the fight against impunity4 – and the African Court on Human and Peoples’ Rights. Despite this engagement, there are still many obstacles to the systematisation and effectiveness of criminal prosecutions for perpetrators and persons responsible for crimes on a continent that is prone to conflict (Mali, the East of the Democratic Republic of Congo, Somalia...) and political instability (Guinea-Bissau...). Political, legal, technical and financial obstacles to the initiation of procedures at national level, tense relations between the AU and the International Criminal Court (ICC), questions linked to the use of universal jurisdiction and the reluctance often observed with regard to the implementation of transitional justice mechanisms, are the main challenges to the effective fight against impunity on the African continent. The seminar participants will have the opportunity to discuss all these issues. II – A seminar on the fight against the impunity of the perpetrators of the most serious crimes, for the Permanent Representatives Committee (PRC), the African Union Commission and the AU Peace and Security Council Subsequent to a specific request from several Ambassadors, members of the AU’s Permanent Representative Committee (PRC), FIDH and the Regional Bureau of the U.N. Office of the High Commissioner for Human Rights (Addis Ababa) are planning a seminar on the fight against impunity of the perpetrators of the most serious crimes, from 13 to 14 December 2012, if possible, at the African Union headquarters. A) Overall objectives The purpose of this seminar, which is being held in response to a request from PRC representatives, will be to stimulate discussion on the issues, challenges and prospects of fighting impunity in 4. Mention could be made, inter alia of the Resolution on the Right to Recourse and Fair Trial (March 1992), the Resolution on Respect and the Strengthening of the Independence of the Judiciary (March 1996), the Resolution Urging States to Envisage a Moratorium on the Death Penalty (November 1999), the Resolution on the Right to Fair Trial and Legal Aid (November, 1999), Directives and Principles on the Right to Fair Trial and Legal Aid in Africa, Guidelines and Measures for the Prohibition and Prevention of Torture, and Cruel, Inhuman or Degrading Treatment or Punishment in Africa (2008) that calls upon the States to adopt measures against the impunity of the perpetrators of torture by criminalising it and authorising the national courts to investigate, the Resolution on the right to a remedy and reparation for women and girls victims of sexual violence (November 2007) or the Resolutions on the ratification of the Rome Statute of the International Criminal Court and the integration of its provisions in national law (1998, 2002 and 2005). 4 / Seminar on justice / FIDH and OHCHR present-day Africa. Experts (lawyers, jurists, academics) who will be speaking at the seminar will have discussions with the participants on the general principles of international criminal justice (concepts, new dynamics, etc.) and the legal, political and financial implications of their application at national, regional and international levels. As the African Union celebrates its 10th anniversary and the African Commission on Human and Peoples’ Rights its 25th, experts, together with the participants, will consider the more general role of the AU in the fight against impunity of the perpetrators of the most serious crimes and victims’ effective access to the justice system. What means of action? What obstacles? What perspectives? III – FIDH action in support of justice for victims of the most serious crimes The International Federation for Human Rights (FIDH) is composed of 164 human rights organisations in over 100 countries and defends all the rights (civil, political, economic, social and cultural) set out in the Universal Declaration of Human Rights and in other regional and international human rights instruments.
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