January 21, 2010

Your Excellency,

Human Rights Watch welcomes the initiative by the African Union to use its 14th summit (January 25 - February 2, 2010) as a forum to review, among other matters, the state of peace and security on the continent, and to debate related issues of good governance, justice, and human rights.

In August 2009, during their special session in Tripoli, the Heads of State declared 2010 the "Year of Peace and Security in Africa." This momentous dedication represents African leaders' stated commitment to redouble their efforts to seek sustainable solutions to ongoing armed conflicts in Africa.

As preparations for the 14th annual summit move forward, Human Rights Watch commends the African Union and its Peace and Security Council for action taken so far to address the humanitarian and human rights implications of those conflicts. At the same time, Human Rights Watch calls for renewed and stronger attention to several ongoing crises and issues such as civilian protection and impunity which, if not dealt with adequately, will continue to undermine Africa's aspirations for peace and security.

On Sudan

The situation in Sudan requires particular attention. With general elections planned for April, conditions on the ground throughout Sudan demand effective regional and international scrutiny. As Human Rights Watch has extensively documented, in the north, Sudanese authorities have maintained a climate of fear and oppression by, for example, harassing and arresting Darfuris, suspected rebels, opposition party members, and human rights activists, often detaining them for long periods without bringing charges. Authorities have also stifled freedom of expression. In December, security forces violently suppressed peaceful demonstrations in Khartoum and other northern cities. In Southern Sudan, authorities have arrested, detained, and mistreated dozens of people for their political opinion in the lead up to elections. 

These incidents are clear indications that elections are unlikely to be free, fair, and transparent-as required by the 2007 African Charter on Democracy, Elections and Governance-and could result in the re-election of an individual indicted for war crimes and crimes against humanity as president in a flawed process. In these conditions, we urge the African Union to promptly deploy a robust election observer team across Sudan, including in Darfur, and ensure that regional standards for elections observation and reporting are strictly met.

With regard to continuing concerns about civilian protection in Sudan, in the south, inter-ethnic violence is on the rise and is likely to intensify as the 2011 referendum nears, putting civilians at greater risk without adequate protection from the southern government or the United Nations Mission in Sudan (UNMIS). UNMIS has not done enough to protect southerners from increasing violence. It should significantly increase its presence in volatile areas and respond more rapidly to security threats to civilians. Human Rights Watch urges the African Union to press UNMIS and its troop contributors to give priority to the "protection of civilians" aspect of its mandate. 

In Darfur, serious abuses against civilians by government soldiers, militias, rebels, and bandits in and around internally displaced persons camps continue. To help fill the gap in civilian protection left by Khartoum's expulsions last March of humanitarian and human rights agencies from Darfur, the African Union-United Nations Hybrid Operation in Darfur (UNAMID) should increase its patrolling in and around those camps. UNAMID's leadership should ensure that the mission reports regularly and transparently on civilian protection and human rights concerns throughout Darfur.

The report of the AU High-Level Panel on Darfur (the Mbeki Panel Report), issued in November, lays out concrete proposals for achieving both justice and peace in the region. The report stresses the need for prosecutions of those responsible for the worst abuses committed in Darfur-including through the creation of a hybrid court to try international crimes. The panel's work was given serious consideration by the UN Security Council on December 21. We urge the African Union to take appropriate measures to expedite the implementation of the panel's proposals to ensure fair and credible justice for serious crimes in Darfur. Notably, the Mbeki Panel took no position on the proposed hybrid court's relationship with the International Criminal Court (ICC). We believe a new hybrid court should not be viewed as a possible substitute for the ICC's cases for Darfur crimes. More-not less-justice is needed for the people of Darfur.

On Somalia

The African Union has made important efforts to tackle the massive security challenges in Somalia. The situation in Somalia continues to worsen, however, and impunity remains a key catalyst for the crimes committed there. Human Rights Watch urges the African Union to focus on neglected aspects of the crisis, namely, accountability and the human rights dimensions of the conflict.

As you know, tens of thousands of civilians have been killed and injured by the conflict since the beginning of 2007. Hundreds of thousands have been displaced. Mogadishu remains a war zone with all parties to the conflict - including AU troops - committing crimes that devastate the civilian population. In parts of southern Somalia controlled by Al Shabaab, women in particular are forced to endure new patterns of repression and abuse linked to the severe and arbitrary application of Shari'a (Islamic law). The country's humanitarian crisis continues to deepen and recently hundreds of thousands of people were cut off from World Food Program-provided assistance in the south.

Human Rights Watch reiterates its call for a UN Commission of Inquiry into the most serious abuses in Somalia. Such an initiative could help pave the way for effective accountability and contribute to eventual stability in the region. We believe it is the AU's responsibility to take the first step in formally requesting such an inquiry and the upcoming summit provides a unique opportunity for the AU to take this step.

The AU should also ensure that all allegations of indiscriminate bombardment of civilian neighborhoods in Mogadishu by all parties, including by troops from the AU Mission in Somalia (AMISOM), are promptly, transparently, and impartially investigated by independent experts operating under the mandate of its Peace and Security Council. Underestimating the human rights consequences arising from actions taken by various actors on the ground serves to exacerbate the suffering of Somalis and compromises ongoing efforts to achieve a lasting peace in the Horn of Africa.

On the Question of Justice for Victims of Human Rights Abuses in Africa

The AU's 14th summit will include important opportunities for Africa to advance justice for victims of human rights violations, drawing on the principle that rejection of impunity (as per article 4 of the AU's Constitutive Act) constitutes a crucial way to strengthen the rule of law and long-term stability.

The November 2009 African Union meeting, which discussed the Review Conference of the ICC in Kampala this May and June, produced recommendations, including a proposal to extend the power of the UN Security Council to suspend ICC activities under article 16 of the Rome Statute to the UN General Assembly. Human Rights Watch believes that deferrals under article 16 risk political interference in the court's work and should be avoided. The inclusion of article 16 in the Rome Statute - which was opposed by African states during negotiations to establish the court - was the result of a compromise, and should not be expanded because it would adversely affect the court's independence and effectiveness. The AU proposal on article 16 was further discussed during the Assembly of States Parties (ASP) of the ICC last November in The Hague. The proposal did not garner sufficient support among African and other states to be considered at the upcoming Review Conference. Nevertheless, the proposal was sent to a new committee of the ASP that will examine amendment proposals on a continuous basis.

The option of expanding the jurisdiction of the African Court on Human and Peoples' Rights to prosecute serious international crimes also warrants close scrutiny. Adding criminal jurisdiction to the African Court's mandate will require much more than amending its statute, as an entirely new prosecutorial, defense, and witness protection capacity capable of ensuring justice in accordance with international standards would be needed. Since its inception in 2006, the African Court has suffered from a serious lack of resources and has yet to raise its profile in the eyes of thousands of victims on the continent. Part of its difficulties came from the lack of political support by the AU state members. For example, only two states have accepted the African Court's jurisdiction over complaints made by individuals. Under these circumstances, Human Rights Watch believes that investing in the African Court's human rights mandate rather than diverting resources and energy into the expansion of its competence is likely to better serve accountability and the promotion of human rights and the rule of law within Africa.

Finally, as the AU summit prepares to review the progress on the Hissène Habré case, Human Rights Watch notes that the case has remained uninvestigated 10 years after the first indictment by a Senegalese court, and three and a half years after the African Union called on Senegal to prosecute the former Chadian dictator "in the name of Africa." We hope the ongoing negotiations between the AU Commission and the European Union over an appropriate budget needed for the prosecution of this case will be concluded rapidly and that the African Union will contribute to the financing of the trial so that the Chadian victims can at last obtain justice.

Human Rights Watch enjoys a positive, productive dialogue with the AU Commission and many AU member states. We look forward to strengthening that dialogue in the coming months. Our best wishes for a successful and productive summit.

Sincerely,

Aloys Habimana,
Africa Deputy Director, Human Rights Watch

cc: Jean Ping, Chairperson of the Commission of the African Union
To all African Union member states