President Joaquim Alberto Chissano
Maputo
Mozambique

Dear President Chissano,

On behalf of Human Rights Watch may I congratulate you on your new role as the chair of the African Union (A.U.).

We have followed with interest the recent African Union summit held in Maputo, and welcome many of the decisions taken there. However, we also have some concerns at some of those decisions; and would like to raise with you other important matters we believe worthy of your attention during your period in office.

1. Protocol on the Rights of Women in Africa

We congratulate the African Union on the adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. The protocol, if properly implemented, would require states parties to undertake very important measures to end discrimination and violence against women, eliminate harmful traditional practices, ensure the right of women to protection against sexually transmitted diseases including HIV/AIDS, ensure women’s inheritance rights, and promote women’s participation in political processes.

We were disappointed that the failure of African states to send a sufficient number of experts to the drafting meetings meant that the protocol could not be adopted at the inaugural summit of the African Union in 2002. We hope that this initial lack of enthusiasm for the protocol will not be reflected in the willingness of states to ratify the document now that it has been adopted by the summit. We urge you, as chair of the African Union, to call for early ratification of the protocol by member states, so that it enters into force at the earliest opportunity. The African Union should ensure proper funding for the African Commission on Human and Peoples’ Rights, which is the body responsible for monitoring states’ compliance with the protocol once it comes into force, both for its work on women’s rights and on human rights in Africa generally. In addition, the women’s rights guaranteed in the new protocol should be integrated into the programs of the African Union, including the New Partnership for Africa’s Development (NEPAD).

NEPAD describes promotion of the role of women in all activities as one of its two long-term objectives (after the eradication of poverty). We are pleased to see that there were five women among the seven commissioners in the A.U. Commission elected by the summit. We also welcome the election of one woman to each of the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child, though we look forward to greater participation by women in these bodies in the future.

2. Terrorism in Africa

Terrorism is the antithesis of respect for human rights. Indeed, it is the body of international human rights and humanitarian law—which define the limits placed on permissible means to political ends—that best explains why acts of terrorism are not legitimate acts of war or politics. Such law makes clear that governments have a responsibility to protect citizens from politically motivated violence of this kind and to cooperate internationally to bring to justice the perpetrators of such abuse. In fighting terrorism, however, governments must also ensure they meet their other obligations to their people by ensuring that counter-terrorist measures respect and do not themselves violate international human rights, humanitarian, and refugee law. Human Rights Watch has expressed serious concerns that many counter-terrorism measures, including those implemented by the United States, do not in fact respect these standards. We have called for the appointment of a new special representative of the U.N. secretary-general charged with monitoring and reporting on developments in this area.

For this reason, we welcome the decision of the African Union to elaborate “a Code of Conduct geared towards combating terrorism and promoting humanitarian and moral values based on solidarity, tolerance and the rejection of any form of discrimination, injustice, extremism and hatred.”

We also welcome the affirmation of the principles of the A.U.—including respect for democratic principles, human rights, the rule of law and good governance, and the promotion of social justice to ensure balanced economic development—contained in the Plan of Action on the Prevention and Combating of Terrorism in Africa (“Plan of Action”), adopted by a high-level intergovernmental meeting of the African Union in September 2002, and endorsed by the Maputo summit. In addition, the 1999 Algiers Convention on the Prevention and Combating of Terrorism (“Convention on Terrorism”), which came into force in December 2002 and to which the Plan of Action relates, states that nothing it contains shall be interpreted as derogating from the general principles of international law, “in particular international humanitarian law and the African Charter on Human and Peoples’ Rights.”

We do, however, have some concerns relating both to the Convention and to the Plan of Action.

It would have been preferable had the Convention on Terrorism explicitly restated the core obligations of international human rights law as they might apply to the measures governments are urged to undertake to combat terrorism—especially in relation to the arrest, detention, trial, and extradition of suspected perpetrators of terrorist acts. More particularly, we are concerned that the Plan of Action urges states “for the purposes of criminal responsibility, [to] place the mastermind, the apologist, the accomplice, the instigator and the sponsor of a terrorist act on the same pedestal as the perpetrator of such an act.” Different levels of criminal responsibility should be carefully distinguished; and we are disturbed by the concept that an “apologist” could face the same sanction as the perpetrator of an act. In addition, the Plan of Action calls for governments to “take adequate measures to prevent and outlaw the printing, publication and dissemination, by one or several persons residing on the territory of any Member State, of news items and press releases initiated by apologists of terrorist acts which are prejudicial to the interest and security of any other Member State.” This language opens up possibilities for governments to designate their political opponents or the opponents of the governments of neighboring states as “apologists” for terrorism and take measures against them accordingly.

In light of these concerns, we believe that the proposed Code of Conduct should explicitly be stated to govern the implementation of the Convention on Terrorism and the Plan of Action and should include undertakings to respect human rights and humanitarian law standards in full. These standards should include full due process protections for those accused of involvement in terrorist acts, including the prohibition of arbitrary arrest and detention, and the rights to be presumed innocent, to have access to counsel of one’s choice, to have adequate facilities to prepare a defense, to be tried in public proceedings before a competent, independent and impartial tribunal, and to appeal a conviction to a higher court. Suspects must be protected from torture and other cruel, inhuman, or degrading treatment or punishment. Respect also must be maintained for the rights to freedom of expression, association and assembly in accordance with the applicable international law. We urge the A.U. to consult with the Office of the U.N. High Commissioner for Human Rights as the code is prepared.

3. HIV/AIDS

By the adoption of the Maputo Declaration on HIV/AIDS, tuberculosis, malaria and other related infectious diseases, the A.U. has restated its recognition of the seriousness of the health crisis facing the continent. The declaration notes that women and girls are disproportionately affected by AIDS since the burden of care for orphans and persons ill with AIDS falls on them. We urge you and the other leaders of the African Union, however, to use every occasion to sharpen this analysis to recognize and decry the grave problem of sexual abuse, violence and coercion of women and girls as driving forces of the HIV/AIDS epidemic in Africa. The African Union can play a significant role in changing the debate among donors and policy-makers to ensure that basic protections from sexual abuse of women and children are at the center of AIDS program funding decisions. The A.U.’s recognition of gender inequality should be accompanied by strong advocacy on its part for member states to make the reform of inequitable property and inheritance laws a central part of HIV/AIDS programs and policy.

4. NEPAD

The Maputo summit adopted a Declaration on NEPAD, in which the A.U. once again endorsed the NEPAD project and welcomed progress on various aspects, including the development of an African Peer Review Mechanism (APRM). Human Rights Watch shares NEPAD’s recognition that “Peace, security, democracy, good governance, human rights and sound economic management are conditions for sustainable development.” We urge you to keep at the heart of your programs as chair of the A.U. the commitments made by the NEPAD democracy and good governance initiative. The APRM can make a significant contribution to this goal, and we urge you to promote the development of an effective mechanism. However, since the APRM is a voluntary initiative, to which member states can choose, or not, to subscribe, it is equally important that all A.U. member states are held to the core obligations in relation to these issues contained in the A.U. Constitutive Act, in the African Charter on Human and Peoples’ Rights, and in the African Charter on the Rights and Welfare of the Child (as well, of course as the Protocol on the Rights of Women in Africa).

To this end, A.U. member states should fully support and fund all the bodies responsible for monitoring compliance with these instruments, including the African Commission on Human and Peoples’ Rights, the African Committee of Experts on the Rights and Welfare of the Child, and the Conference on Security, Stability, Development and Cooperation in Africa. Member states should appoint individuals to these bodies who are, in the words of the African Charter on Human and Peoples’ Rights, “personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights.” In this regard, we are disappointed that many of those who are current or recent members of the African Commission on Human and Peoples’ Rights are ambassadors or civil servants, and thus may not be perceived as truly impartial in their work.

5. Conflict Zones

The African Union has an important role to play in the resolution of conflicts on the African continent, through the Mechanism for Conflict Prevention, Management and Resolution (until it is replaced by the Peace and Security Council). We would like to draw to your attention to three conflicts in particular, which should be priorities for you and for the Central Organ of the Mechanism.

In these and other wars in Africa, we urge you to take action to address ongoing impunity for war crimes and other violations of international humanitarian law. In 1996, the Council of Ministers of the Organisation of African Unity (OAU) endorsed a “Plan of Action Against Impunity in Africa” adopted by the ACHPR earlier that year, but to date we have seen no real political will to implement that plan. In the “solemn declaration” on the Conference on Security, Stability, Development and Cooperation in Africa adopted at the 2000 OAU summit in Lomé, Togo, African heads of state and government made a commitment to “condemn genocide, crimes against humanity and war crimes in the continent and undertake to cooperate with relevant institutions set up to prosecute the perpetrators.” Again, the political will to back this statement has apparently been lacking.

Liberia
It is clear that urgent action is required to address the devastating humanitarian and human rights situation in Liberia. Liberia will likely remain a source of regional instability for some time, despite the efforts of the Economic Community of West African States (ECOWAS) countries to bring the parties to the conflict to the peace table. Unfortunately, support from many of these same regional governments to the different parties to the conflict has undermined peace initiatives in the past. The flow of arms and combatants, including mercenaries, across porous borders must be stemmed.

We welcome the interim chairperson of the Commission of the African Union’s recent appointment of a Special Envoy for Liberia. Working with ECOWAS, the Special Envoy should urge that the peacekeeping forces that are currently being deployed act consistently to protect civilians and to respect international humanitarian law. The Special Envoy should condemn past and ongoing human rights abuses and call for mechanisms to be put in place to ensure that those most responsible for these abuses are brought to justice. The African Union should call on all African governments to support the indictment of the recently stepped-down Liberian president Charles Taylor by the Special Court for Sierra Leone, and on the Nigerian government in particular to arrest and transfer him to Sierra Leone for trial, in line with the commitment made in the declaration on the Conference on Security, Stability, Development and Cooperation in Africa (originally an initiative of President Obasanjo of Nigeria before he became head of state for the second time).

Democratic Republic of Congo (DRC)
Despite three peace agreements aimed at ending the five-year-long Congolese war, fighting in eastern DRC, particularly in Ituri and South Kivu has intensified in the past year. The current violence in Bunia is only the latest episode in this war that has left an estimated 3.3 million civilians dead throughout the Congo, a toll that makes it more deadly to civilians than any other conflict since World War II. The conflict in the DRC presents the African Union with a critical test of its commitment to conflict prevention, management and resolution in Africa. The complex mix of local, national, and regional conflicts in eastern DRC endangers the peace process throughout the DRC and in the Great Lakes region as a whole. The A.U. should use its influence to curb this conflict by ensuring the Ugandan, Rwandan and DRC governments commit themselves to not providing any military or financial assistance to political armed groups in eastern DRC.

War crimes, crimes against humanity and other violations of international humanitarian and human rights law have been carried out on a massive scale in eastern DRC. Those responsible are rarely, if ever, brought to justice. The A.U. should support the establishment of an international justice mechanism to hold accountable those responsible for serious past abuses of human rights and humanitarian law in the DRC, and the work of the prosecutor of the International Criminal Court for crimes that fall within his jurisdiction.

Burundi
There are recent hopeful signs that the nine-year-long war in Burundi may be drawing to end, including the transfer of power to a new government, the signing of cease-fires, the passage of laws on justice, and the infusion of foreign aid-. But there are also less promising signs: conflict and violence continue throughout the country and the new laws on justice are encumbered with provisions that will slow their implementation.

We commend the African Union for its willingness to undertake a peacekeeping mission in Burundi—the African Mission in Burundi—and South Africa in particular for its contribution of troops. In your role as chair of the African Union you should press donor countries more vigorously for funding to enable other member states that have offered to do so, including Ethiopia and Mozambique, to deploy troops. . The African Union should also expand the mandate of the mission so that it has an explicit duty to protect civilians and to monitor and report on human rights abuses.

Burundian legislators have recently passed several laws important for delivering justice under the new government, including a long-promised law against genocide, war crimes and crimes against humanity. Passage of the law marks a major step in this country that has seen large-scale ethnic slaughter in the past, but the law is encumbered with a complicated mechanism that may delay dealing with these crimes. The African Union should support these efforts and insist upon the full and rapid implementation of provisions in the Arusha Accord of August 2000, reaffirmed by the December 2002 ceasefire agreement, including those for bringing to justice those accused of violations of international humanitarian law.