THE AFRICAN UNION’S RESPONSE IN THE PROSECUTION OF SEXUAL AND GENDER-BASED VIOLENCE IN ARMED CONFLICT SITUATIONS AT
5.2 REGIONAL INSTRUMENTS OF THE AFRICAN UNION RELATING TO SEXUAL AND GENDER-BASED CRIMES COMMITTED IN ARMED
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5.2 REGIONAL INSTRUMENTS OF THE AFRICAN UNION RELATING TO
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humanity’, the words ‘as well as a serious threat to legitimate order to restore peace and stability to the member state of the Union upon the recommendation of the Peace and Security Council’.1094 This additional clause was included to enable the AU to be flexible in deciding when to intervene.1095 Notably, the CA does not define war crimes, genocide and crimes against humanity, but the Rome Statute provides guidance to the definition of these crimes. The 34 African states parties to the ICC probably intended that the Rome Statute’s definition of these crimes, would also apply to those listed in the CA.1096 Also, these crimes are similarly defined in the Malabo Protocol in line with the definition given to them in the Rome Statute.1097 The AU’s office of legal counsel has noted that article 4(h) of the CA ‘provides the basis of the practice of the African Union on universal jurisdiction over war crimes, genocide and crimes against humanity’.1098
5.2.2 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
The Maputo Protocol complements the African Charter on Human and Peoples’ Rights and International Human Rights conventions as it ‘focuses on concrete actions and goals to grant women rights’.1099 The Maputo Protocol came into force on 25 November 2005 after 15 of its 53 member states ratified the Protocol.1100 The protection of women’s rights and supplementing the
1094 Idem art 4(h).
1095 Ben Kioko ‘The right of intervention under the African Union’s Constitutive Act: From non-interference to non- intervention’ (2003) 85 Revue Internationale de la Croix-Rouge/International Review of the Red Cross 807 at 812.
1096 For the list of African states which have ratified the Rome Statute see African group of States – ICC available at https://www.icc.cpi.int/.../states%20parties/african%20states/.../african%2... (accessed 20 January 2015). Though the CA came into force on 26 May 2001, it can be assumed that when the Rome Statute was adopted on 17 July 1998, the African member states, which agreed to its adoption, would agree to the contents of the Rome Statute, which include the definition of the crimes contained in the Rome Statute. Kindiki is of the opinion that as the Rome Statute has already defined war crimes, genocide and crimes against humanity, it would be difficult for the AU to develop other definitions. Kithure Kindiki ‘The normative and institutional framework of the African Union relating to the protection of human rights and the maintenance of international peace and security: A critical appraisal’ (2003) 3 African Human Rights Law Journal 97 at 108.
1097 The Malabo Protocol is not yet in force. See section 5.3.2 with regard to these crimes.
1098International criminal justice and Africa, the state of play, Chapter 4 at 26 available at www.ictj.org/international-crimes (accessed on 18 April 2016).
1099 Mary Wandia ‘Rights of women in Africa: Launch of petition to the African Union’ (3 June 2004) available at http://www.pambazuka.org/gender-minorities/rights-women-africa-launch-petition-african-union (accessed 6 December 2016).
1100 At present 36 member states have signed and ratified the Protocol and 15 member states have signed but not ratified the Protocol. These states are Algeria, Burundi, Central African Republic, Chad, Eritrea, Ethiopia, Madagascar, Mauritius, Niger, Sahrawi Arab Democratic Republic, Sao Tome and Principe, Sierra Leone, Somalia, South Sudan and Sudan. Botswana, Egypt and Tunisia have not signed or ratified the Protocol. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, available at www.achpr.org/instruments/women.protocol/ (accessed 18 April 2016).
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African Charter on Human and Peoples’ Rights (the Banjul Charter, ACHPR) informed the implementation of the protocol.1101
In contrast to the Banjul Charter, the Maputo Protocol explicitly recognises gender-based violence committed against women in armed conflict situations.28 The definition ‘violence against women’ in article 1(J) of the Maputo Protocol, for instance, includes violence committed in ‘situations of armed conflicts or of war’. The stated definition of ‘violence against women’ is:
All acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war.1102
The Maputo Protocol also dedicates a whole article to the ‘protection of women in armed conflicts’,1103 thus incorporating international humanitarian law provisions in the article along with the jurisprudence of international tribunals.1104 Under article 11(1) of the Maputo Protocol, state parties ‘undertake to respect and ensure respect for the rules of international humanitarian law applicable in armed conflict situations, which affect the population, particularly women’. In an armed conflict, state parties are enjoined to protect civilians ‘irrespective of the population to which they belong’.1105 This duty arises from international humanitarian law. The protocol specifically mentions that the protection given to civilians extends to women.1106 Article 11(3) provides for protection from ‘all forms of violence, rape and sexual exploitation’ of ‘asylum- seeking women, refugees, returnees and internally displaced persons’ by state parties.1107 These categories of people often come into being as the after-effect of an armed conflict. The article also provides for finding the perpetrators who shall be liable for the atrocities committed against their victims, which are considered ‘war crimes, genocide and/or crimes against humanity’.1108 Although it prima facie appears that these acts can only be committed against the groups of
1101 African (Banjul) Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev.5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986, available at University of Minnesota Human Rights Library, ‘African (Banjul) Charter on Human and Peoples’ Rights …’ available at https://www1.umn.edu/humanrts/instree/z1afchar.htm (accessed 12 April 2016).
1102 The Maputo Protocol also defines ‘discrimination against women’ under article 1(f).
1103 Maputo Protocol, art 11.
1104 Fareda Banda (2008) Protocol to the African Charter on the Rights of Women in Africa in Rachael Murray and Malcolm D Evans (eds) The African Charter on Human and Peoples’ Rights: The System in Practice 1986-2006 at 455 (Cambridge University Press).
1105 Maputo Protocol, art 11(2).
1106 Ibid.
1107 Idem at art 11(3).
1108 Ibid.
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people mentioned in the subsection, the contention is that these acts could also be committed against women in armed conflict situations who fall outside these groups. This is by virtue of the interpretation given to article 11(2), by which states parties have an obligation under international humanitarian law to protect women ‘irrespective of the population to which they belong’.1109 The last sub-paragraph of article 11 provides that state parties should ensure that children, especially the girl child under 18, do not engage in hostilities and are forcibly recruited as soldiers.1110
When the ACJHPR comes into force, the General Affairs Section of the court will be competent to hear cases relating to the Maputo Protocol, which include cases under its article 11 relating to SGBCs in armed conflict situations.1111 An individual or non-governmental organisation (NGO) with observer status before the AU or its organs or institutions, can bring cases relating to the Maputo Protocol before the General Affairs Section of the ACJHPR.1112 The Statute of the ACJHPR categorically states that the individual or NGO must be African.1113 They would only have a right to bring such cases if the member state concerned ‘has made a Declaration accepting the competence of the court to receive cases or applications submitted to it directly’.1114 In the event of a member state not making a Declaration, according to article 9(3) of the protocol the court will not receive the case or application.1115 It would be difficult for an individual or NGO in most cases to bring a case or application under the Maputo Protocol challenging a state for SGBCs, as most member states are reluctant to make such a Declaration.
With the present African Court, that is the ACHPR; to be taken over by the ACJHPR when it
1109 Susana SaCouto and Katherine Cleary ‘The Women’s Protocol to the African Charter and sexual violence in the context of armed conflict or other mass atrocity’ (2009) 16 Washington & Lee Journal of Civil Rights & Social Justice 173 at 188. Ntombizozuko Dyani ‘Protocol on the Rights of Women in Africa: Protection of women from sexual violence during armed conflict” (2006) 6 African Human Rights Law Journal 166 at 181.
1110 Maputo Protocol, art 11(4).
1111 Statute of the African Court of Justice and Human and Peoples’ Rights, article 7 replaces article 17, Statute of the African Court of Justice and Human Rights. Article 7 states that article 17 shall read that ‘[t]he General Affairs Section shall be competent to hear all cases submitted under Article 28 of the Statute except those assigned by the Human and Peoples’ Rights Section and the International Criminal Law Section as specified in this Article.’ Under article 28(c) the ACJHPR will have jurisdiction over:
‘The interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned;’
1112 Idem at art 16. Article 16 is titled ‘Other entities eligible to submit cases to the court.’
1113 Ibid.
1114 Ibid.
1115 Ibid.
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comes into force, the protocol to ACHPR also specifies that a declaration must be made by member states granting NGOs or individuals access to the court.1116 Since the ACHPR’s coming into force on 25 January 2004, only eight member states have made an article 34(6) Declaration, with the Republic of Benin being the most recent member state to lodge its Declaration with the AU’s Commission.1117 At the same time, states tend to withdraw their declarations to limit those who may bring an application or case against them.1118
Although the ACJHPR is not yet in force, an international court for the first time has made a pronouncement on the provisions of the Maputo Protocol.1119 The ECOWAS Community Court of Justice found the Federal Republic of Nigeria had violated articles 2, 3, 4(1), 5, 8 and 25 of the Maputo Protocol,1120 and other conventions and human rights instruments. Article 2 of the Maputo Protocol provides for the ‘elimination of discrimination against women’ while article 3 for their ‘right to dignity’, whilst article 4 provides for one’s ‘right to life, integrity and security’, article 4(1) states that ‘[e]very woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited’. Article 5 provides for the ‘elimination of harmful practices’
and article 8 for ‘access to justice and equal protection before the law’. Lastly, article 25 provides for remedies, as reflected in the following case. The plaintiffs were wrongfully arrested
1116 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, June 9, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III), entered into force Jan.
25, 2004. University of Minnesota Human Rights Library, ‘Protocol to the African charter on human and peoples’
right ….’ available at www.peacewomen.org/.../hr_protocoltotheafricancharteronhumanandpe... (accessed 12 April 2016). Article 34(6) provides that:
‘At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5(3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.
Article 5(3) states that:
‘The Court may entitle relevant non-governmental organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.’
1117 The other states are Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Rwanda and Tanzania. Benin deposits article 34(6). Declaration available at www.africancourtcoalition.org › In the News (accessed 14 February 2017).
1118 In 2016, Rwanda withdrew its declaration with the ACHPR claiming that it was to prevent individuals from exploiting its use and [to] avoid the declaration from being used contrary to the intention for why it was made (sic).
International Justice Resource Centre ‘Rwanda withdraws access to the African Court for individuals and NGOs available at www.ijrcenter.org/.../rwanda-withdraws-access-to-african-court-for-individuals-and-n (accessed 14 February 2017).
1119 Dorothy Chioma Njemanze & 3 Others v The Federal Republic of Nigeria, ECOWAS Community Court of Justice, ECW/CCJ/APP/17/14/ECN/CCJ/JUD/08/17, 12 October 2017.
1120 Idem at 43-45.
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by the defendant’s agents on the pretext that they were prostituting themselves on the streets at night, in Abuja, Nigeria. They were detained under inhuman conditions and subjected to sexual, physical and verbal abuse. They were neither charged nor offered apologies by the defendant’s agents when they were released. The court awarded the first, third and fourth plaintiffs’ damages in the sum of 6 million naira each. The court however, dismissed the second plaintiff’s claim as statute barred. Although this case did not occur in an armed conflict situation, it is positive news for female victims of SGBV committed in armed conflict, as these victims may also bring their case before the ECOWAS Community Court of Justice against ECOWAS member states, since the court cannot prosecute individuals.
5.3 THE AFRICAN COURT OF JUSTICE AND HUMAN AND PEOPLES’ RIGHTS