Counting gains, filling gaps - Strengthening African Union's response to human rights violations committed in conflict situations
The nature and intensity of conflicts and crises in Africa vary considerably. However, they are generally characterized by gross human rights violations, including acts that constitute crimes under international law.
For instance, the African Union Commission of Inquiry on South Sudan (AUCISS), established following the eruption of conflict in South Sudan in November 2013, found that parties to the conflict had committed crimes against humanity and war crimes. In December 2016, the UN Commission on Human Rights in South Sudan further reported that a steady process of ethnic cleansing was underway in the country. In Nigeria, several human rights groups, including Amnesty International, have in the recent past gathered evidence which suggests that both sides to the conflicts, Boko Haram and government forces, have committed war crimes. In addition to war crimes, the catalogue of crimes committed by Boko Haram may also constitute crimes against humanity. A similar pattern of violations has been reported in Cameroon where government forces are equally fighting the armed group Boko Haram. In Sudan, Amnesty International has collected evidence which suggest possible use of chemical weapons in the Jebel Marra region. The scale of atrocities in recent and ongoing conflicts has prompted the African Union (AU) in general and its Peace and Security Council (PSC) in particular to recognize the intimate link between peace and security and human rights, and perhaps more importantly, to begin to take measures to address human rights violations that lead to and/or committed in conflict situations. For instance, the AU has deployed human rights monitors to Burundi, Central African Republic (CAR), and Mali, and established a commission of inquiry to investigate human rights violations and abuses in South Sudan. It has also begun to recognize the role of AU human rights institutions, such as the African Commission on Human and Peoples’ rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), in responding to conflict and crisis situations. For instance, the PSC has on a number of occasions requested the ACHPR to investigate human rights violations and abuses committed in the context of conflict or crisis.
The AU human rights institutions have also sought to respond to human rights violations committed in conflict through a relatively rich catalogue of approaches. The ACHPR has generated a burgeoning body of jurisprudence on the right to peace, undertaken fact-finding missions to countries experiencing conflict, and adopted country-specific resolutions condemning conflict-related human rights violations. In addition to conducting country visits to South Sudan and CAR, the ACERWC has also recently published a study on the impact of conflict on children, urging AU member states to demonstrate real political commitment to end conflicts.
However, despite the increasing number of interventions, the increasing recognition of the nexus between conflict management and human rights protection, advances in normative development as well as institutional reforms, major gaps remain in AU’s efforts to integrate respect, promotion, and protection of human rights in its peace and security processes. This report has identified many gaps which could be classified into six major gaps.
First, there are major gaps in the mechanisms for the prevention of conflicts. The AU recognizes that responding to conflict situations which have already erupted is a very expensive venture, and as such, investment and focus should be on the prevention of conflicts. For this reason, the core mandate of three out of the five components of the African Peace and Security Architecture (APSA) relates to conflict prevention.
Prevention of conflicts is a primary function of the PSC, the Continental Early Warning System (CEWS) and the Panel of the Wise. Through the collection of early warning data and the deployment of preventive diplomacy, the AU has in the past successfully prevented certain crises from escalating to full-blown conflicts. In 2015, the APSA Impact Report indicates that AU preventive measures contributed to successful de-escalation of crises in four countries (Burkina Faso, Guinea-Bissau, Guinea and Nigeria). Partial success was registered in two countries (Tanzania and Togo) while failure was registered in one country (Burundi). But there is more that can and should be done in strengthening AU’s conflict prevention measures. In particular, there is dire need to fill gaps in the collection of data on human rights violations as part of the early warning system. The CEWS is linked to and receives information on a routine basis from the early warning mechanisms of the Regional Economic Communities (RECs). However, no similar structure exists for the CEWS to receive and process information from the regional human rights treaty bodies and in particular from the ACHPR and the ACERWC. As the primary regional human rights body, the ACHPR specifically receives and holds a rich body of information on patterns of human rights violations. This valuable information which could significantly contribute to early detection of conflicts, needs to be injected into the CEWS.
Another related challenge lies in the capacity and determination of ACHPR itself to respond to conflict situations before they escalate. Primarily, its response to human rights issues in conflict-affected countries is generally activated too late in the day when the conflicts have reached their peak. Therefore, while its public statements on the deterioration of the human rights situation in a country may serve as a warning of potential conflict, ACHPR’s contribution to conflict prevention processes is limited. Moreover, the ACHPR has generally left its mandate under Article 58 of the African Charter on Human and Peoples’ Rights to go into disuse. Article 58(1) specifically mandates the ACHPR to notify the AU Assembly of cases which reveal the existence of a series of serious or massive human rights violations while Article 58(3) mandates it to notify the AU Assembly of emergency situations that it has duly noticed. The ACHPR has rarely invoked these provisions.
Second, while the practice of deploying human rights observers, undertaking fact-finding missions or establishing commissions of inquiry is growing, there is a consistent pattern of failures to consider, publish and implement the recommendations of the reports emanating from these processes. There is little doubt that the ACHPR fact-finding missions deployed on the instruction of the PSC to Darfur (2004), Mali (2013), and Burundi (2015), contributed towards efforts of documenting conflict-related human rights violations committed in those countries. Similarly, the report of the AU Commission of Inquiry on South Sudan (AUCISS) remains one of the authoritative official reports on the nature and gravity of violations committed in South Sudan. The challenge in all instances where the PSC has authorized investigations into conflict-related human rights violations lies in considering, publishing and implementing the final outcomes of these missions. Delays in considering and publishing have resulted in situations in which reports of fact-finding missions have little practical use or policy implications. The report of the July 2004 ACHPR mission to Darfur for instance was not made public for close to three years. Even more concerning is the fact that there is no record to show that the PSC considered the report. A similar fate met the report of the 2013 ACHPR fact-finding mission to Mali. The report of the ACHPR mission to Burundi (2015) was considered by the PSC but long after its contents had been, in the view of the PSC itself, overtaken by other relevant developments. A similar situation occurred in respect to the AUCISS report which was finalized in November 2014 but only released to the public close to a year later. Similarly, reports of investigations into human rights violations committed by AU peacekeepers are often released to the public either partially or not at all. The AU must seek to fill this gap and ensure that the reports it commissions are promptly considered and published. The AU must also commit to implement recommendations of fact finding missions or commissions of inquiry. Thus far, the bulk, if not all, of recommendations contained in PSC authorized fact-finding missions or inquiries remain unimplemented and ignored.
Third, there are consistent gaps in following up and enforcing decisions by the regional human rights treaty bodies on conflict-related human rights violations. The regional human rights treaty bodies have all made several decisions (either in the form of recommendations or orders) relating to conflict-related human rights violations. These decisions require that the respondent states in those specific cases take specific measures to address particular violations identified by the treaty bodies, including by providing reparation to victims of violations. All of these decisions have been met by a deafening silence from the respondent states. While the ACHPR and the African Human Rights Court have repeatedly brought cases of non-compliance to the attention of the AU Executive Council, respondent states have not been held to account. At the very least, the AU Assembly should demand that respondent states submit reports to it indicating the steps they have taken to implement those recommendations or orders. Fourth, there remains major challenges in ensuring accountability for serious human rights violations committed in the context of conflicts. Related to delays in considering and publishing human rights reports is AU’s apparent lack of political will to bring to justice perpetrators of conflict-related violations. In simply taking note of the ACHPR report of its fact-finding mission to Burundi, the PSC failed to consider and take measures to implement an important recommendation contained in the report, that is, the recommendation for the establishment of an accountability mechanism that would hold perpetrators of gross human rights violations to account. In relation to South Sudan, the establishment of the AU’s Hybrid Court for SouthSudan (HCSS) is yet to be a reality more than a year since the release of the AUCISS report and the signing of the peace agreement. The accountability gap is also evident in peace support operations. On a number of occasions, AU peacekeepers have been accused of serious abuses and violations of the rights of the civilians they have been deployed to protect. AMISOM troops for instance have been implicated in killings of civilians as well as in acts of sexual exploitation and abuse. Similarly, MISCA troops were implicated in allegations of killings, enforced disappearances, torture and sexual violence. In a number of cases, the response of the AU to alleged violations committed by its peacekeepers has been seriously flawed. For example, the AU did not institute independent investigations into allegations that the soldiers of the Chadian contingent of MISCA had killed civilians in 29th March 2014 incident in Central African Republic (CAR). Moreover, mechanisms for holding AU troops accountable for their acts and misconduct are generally not strong enough. The responsibility of peacekeepers accountability so far lies with troop-contributing countries, with the AU and the peacekeeping mission playing no significant role in the process. The AU lacks a mechanism to follow-up the outcomes of disciplinary or criminal proceedings initiated by troop-contributing countries. Where the AU has indicated that investigations have been initiated to determine whether specific peacekeepers committed alleged violations, the outcome of these processes have been rarely released to the public. In other instances, measures taken by peacekeeping missions to address human rights violations committed by peacekeeping forces have been inadequate.
Fifth, efforts by the AU to ensure protection of civilians and respond to human rights violations being committed in conflict situations are seriously impeded by logistical and resource challenges. While the AU has commendably advanced in ensuring its peacekeeping missions have specific mandates to protect civilians, in most cases these missions are not resourced adequately to enable them discharge their mandate. Similarly, the deployment of human rights observers has been delayed in certain cases (e.g. Burundi) partly for lack of funding to operationalize the deployment. Gaps in logistical support and resources reflect a larger and more complex capacity challenge facing the AU - heavy dependence on donor funding for its peace and security operations. Development partners and other international actors are responsible for footing close to 100% of the AU peace and security budget. In particular, the AU covers only 2% of its peace and security budget while development partners and other international actors, such as the UN, cover the remaining 98% of the budget. In July 2016 during the 27th ordinary session of the AU Assembly, member states committed to remit to the AU monies collected from the imposition of a levy of 0.2% on eligible imports into their respective countries. This decision was taken with a view to ensuring that by 2020 the AU will be capable of footing at least 25% of its peace and security activities. As far as Amnesty International is aware, by the end of March 2017 it was only Rwanda that had commenced the domestic process for collecting the 0.2% levy on eligible imports. To overcome its funding challenges, all AU member states need to fulfil their respective financial commitments to ensure effective protection of civilians and response to human rights violations in AU’s peace and security operations.
Sixth, there are deep-rooted challenges in the area of institutional coordination and synergy. The lack of a coordinated response hampers AU’s capacity to take effective measures towards protection and promotion of human rights in its peace and security processes. For instance, while the Protocol Relating to the Establishment of the Peace and Security Council of the African Union (PSC Protocol) specifically requires the PSC to seek close cooperation with the ACHPR, the two institutions have had very little interaction. Article 19 the PSC Protocol envisages a two-way relationship between the PSC and the ACHPR but this provision is yet to be implemented. Similarly, there seems to be gaps in PSC’s interactions with the CEWS, including as a result of the lack of established formal avenues for CEWS to directly feed information into the PSC decisionmaking process. There are thus growing calls for the CEWS to channel information directly to the PSC. The PSC is gradually moving towards institutionalizing its annual session with the ACERWC, although it has not constantly afforded the ACERWC the opportunity to address it during relevant ad hoc sessions such as the recent one on “Protecting Children from conflicts: highlighting the case of child soldiers in Africa” held in February 2017. The above challenges are not insurmountable nor are they particularly unique to the AU. This report concludes with a set of recommendations aimed at supplementing the measures already taken or being considered by the AU. Amnesty International believes that the implementation of the recommendations will contribute to greater integration of human rights in the peace and security processes of the AU.
KEY RECOMMENDATIONS TO THE PEACE AND SECURITY COUNCIL
Pursuant to Article 8(5) of the PSC Protocol, establish within its structure a committee on human rights charged with ensuring that respect, protection and promotion of human rights are incorporated or integrated in all policies and actions of the PSC.
Ensure prompt consideration and publication of reports of fact-finding missions or commissions of inquiry established pursuant to its decisions.
Ensure follow-up and implementation of recommendations from fact-finding missions and commissions of inquiry. In this regard, the PSC should in particular take steps to implement the recommendations contained in ACHPR report of its fact-finding mission to Burundi.
Institutionalize the emerging practice of deployment of human rights observers to countries affected by conflict and call on the AUC to develop policy guidelines for the deployment of human rights observers.
Ensure AU peace-keeping missions have clear, specific and strong mandates on the protection of civilians. Such mandates should be accompanied with sufficient resource and logistical support for effective implementation.
Clarify, operationalize and institutionalize modalities for regular interaction or meetings with the ACHPR and ACERWC as envisaged under Article 19 of the PSC Protocol.
Encourage the ACHPR to revive the use its mandate under Article 58 of the African Charter by, inter alia, developing guidelines for receiving and considering Article 58 referrals.
Institutionalize the emerging practice of receiving regular briefings from the CEWS and develop, in consultation with the AUC Chairperson, a channel for the direct flow of information from the CEWS to the PSC.
KEY RECOMMENDATIONS TO THE AFRICAN UNION COMMISSION CHAIRPERSON
Implement the recommendations contained in the August 2016 Report of the High Representative on the Peace Fund and in particular, the recommendation relating to the development of an AU integrated human rights compliance framework and the finalization of the AU conduct and discipline policy.
Develop policy guidelines on the mandate, design, organization and the working methods of human rights observers deployed to monitor human rights violations in conflict and crisis situations.
Promptly publish reports of human rights observers deployed to monitor human rights violations committed in conflict or crisis situations.
Expedite the development of a comprehensive and transparent database of human rights experts who may on short notice be deployed as human rights observers to conflict and crisis situations.
Take urgent measures to address impunity for gross human rights violations committed by parties to conflicts as well as by AU peacekeeping forces. In this regard, the AUC Chairperson should:
- establish the Hybrid Court of South Sudan without further delay;
- establish a standing and independent oversight mechanism responsible for investigating alleged human rights violations by AU peacekeepers as recommended by the AU High Representative on the Peace Fund as well as by the 2014 team tasked to investigate allegations of sexual exploitation and abuse by AMISOM troops.
Ensure AU peace-keeping missions have clear, specific and strong mandates on the protection of civilians. Such mandates should be reflected in all mission documents (e.g. Rules of Engagement, Concept of Operations, and Mission Strategy) and accompanied with sufficient resource and logistical support for effective execution.
Develop a human rights compliance framework for AU peacekeeping operations as proposed in the August 2016 report of the AU High Representative on the Peace Fund, and ensure that the AUC, peacekeeping missions and troop contributing countries implement the framework. This framework should cover areas selection, screening and training of peacekeeping troops as well as the establishment of effective accountability mechanisms.
RECOMMENDATIONS TO THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
Revive and effectively utilize its mandate under Article 58 of the African Charter to notify the AU Assembly of the existence of a series of serious or massive violations of human rights as well as cases of emergency.
Urge member states to extend an open and standing invitation to it to conduct fact-findings missions and ensure consistent follow-up of pending requests through the AU Assembly;
Follow-up on the implementation of its decisions emanating from the communications procedure as well as recommendations contained in reports of fact-finding missions and in country-specific and thematic resolutions. This follow-up may be undertaken through a variety of mechanisms including during promotional missions and during the process of examining state party reports.
Expedite the preparation of the study on human rights in conflict situations in Africa and the development of a compressive strategy and framework for responding to human rights violations committed in conflict situations as envisaged under Resolution 332. This process should ensure proper consultation with all relevant stakeholders including civil society;
Ensure systematic, institutionalized and regular engagement with the PSC and in particular bring to the attention of the PSC information relating to patterns of human rights violations that potentially lead to or committed in conflict situations. In this regard, work out, as a matter of urgency, modalities for giving effect to Article 19 of the PSC protocol that provided for cooperation with the PSC.
Establish within its secretariat a research unit for gathering and analyzing information on gross human rights violations that could lead to or committed in conflict and crisis situations. The research unit should be equipped with necessary resources and capacity to undertake research and investigations in conflict situations;