We, the participants of the NGO Forum preceding the 54^th Ordinary Session of the African Commission on Human and Peoples’ Rights (ACHPR) and the 28^th African Human Rights Book Fair held from 18^th – 20^th October, 2013 in Banjul, The Gambia

Noting that victims and the community they belonged to are central to decisions on serious crimes;

Recalling the provisions of the Constitutive Act of the African Union, mandating the organization to promote and protect human and peoples’ rights, peace, security and stability across the continent, to support democratic institutions and principles, ensure good governance (articles 3.h and 4.m) and to condemn and reject impunity (article 4.o);

Recalling the Resolutions of the African Commission on Human and Peoples’ Rights calling on AU Member states to ratify the Rome Statute on the International Criminal Court (27,1998; 59,2002), its Resolution on the end of impunity in Africa and the domestication and implementation of the Rome Statute of the International Criminal Court (ICC) (87, 2005), and its Resolution on transitional justice (235, 2013);

Recalling that African States played a crucial role in the creation of the ICC and the entering into force of its Statute;

Recalling that 34 African States are parties to the ICC Statute and have voluntarily committed to the principle of equality before the law in cases involving criminal responsibility for international crimes;

Recalling that all States have the obligation under international law to investigate human rights violations, to prosecute those responsible and to ensure reparation to victims;

Deeply concerned by the grave human rights violations committed in different parts of the African continent, including sexual and gender – based violence, that may amount to genocide, crimes against humanity and war crimes, and other violations of international human rights and international  humanitarian law, and further concerned by the endemic impunity that their perpetrators continue to enjoy and the denial of justice and reparation to victims;

Concerned by the final declaration of the extraordinary Summit, on 11-12 October 2013,  which addressed Africa’s relations with the ICC, where the AU determined that Heads of State and government in office, or anyone acting in that capacity, should not be prosecuted by the ICC, arguing that “otherwise the sovereignty, stability and peace [of member states] would be undermined”;

Noting that the absence of immunity of acting heads of state is a well-established principle under the ICC Statute and before other international criminal jurisdictions;

Recalling further that four African States (Uganda, the Democratic Republic of Congo, the Central African Republic and Mali) voluntarily referred situations on their territories to the ICC ; that the UN Security Council referred the situation in Darfur and Libya to the ICC, and that the ICC Prosecutor opened an investigation into the situation in Kenya and Ivory Coast (following the declaration recognising the ICC jurisdiction made by the President of Ivory Coast, non State party at that time) given the gravity of those crimes and the situation of total impunity;

Recalling that the establishment of the ICC constitutes an important development in the fight against impunity for the most serious crimes, such as crimes of genocide, crimes against humanity and war crimes, and that there is no peace without justice;

Noting that by attempting to punish those responsible for these crimes, the ICC is a crucial court of last resort for victims of the most gravest crimes and intended to prevent against the repetition of future crimes;

Recalling the importance of the principle of complementarity in the functioning of the ICC which  has jurisdiction only when national authorities are unwilling or unable to genuinely investigate and prosecute those international crimes;

Recalling thus, that States shall adopt implementing legislation of the Rome Statute, to strengthen the capacity and ensure the independence of their national justice system, to prosecute those responsible for international crimes;

Concerned by the increasing acts of threats and intimidation against victims and witnesses in the ICC proceedings as well as those supporting them, including human rights defenders;

Calls on the African Commission to pay a particular attention to the right to justice and reparation of victims of flagrant human rights violations and of international crimes.

• The NGO Forum also calls on the African Commission to adopt a resolution:
• Reminding all member states of the AU that they have the primary obligation to investigate grave human rights violations and to prosecute those responsible;
• Calling on all member states to ensure that the gravest crimes under international law are incorporated in national legislation, genuinely investigated and prosecuted and that those responsible are brought to justice in domestic courts, in accordance with internationally recognized fair trial standards;
• Calling on all member states to support as necessary the ICC, to adopt adequate protective measures, and to take all necessary measures to prevent further acts of threats and intimidation against victims, witnesses and those supporting them, including human rights defenders;
• Recall that the perpetration of international crimes and impunity of their authors constitutes the most serious threat to peace and security, and not the intervention of the ICC;
• Encourage the Assembly of Heads of State and Government of the AU to urge its member states to fully cooperate with the Court in its efforts to bring to justice those prosecuted by the ICC;
• Urge all member states of the African Union that have not yet done so to ratify the ICC Statute and to ensure its effective implementation at the national level;
• Encourage the AU to finalise and adopt he AU transitional justice policy framework and to implement it as a measure of realizing its mandate as stipulated in the AU constitutive act as complementary to international and national justice mechanisms;
• Encourage the AU to include members of the African Commission on Human and Peoples’ Rights and African civil society in all discussions relating to impunity, including the ICC, in conformity with its role for the promotion and the protection of human rights in Africa.

Done in Banjul, The Gambia on 20^th October, 2013