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RAPPORTEUR
20th session: Commissioner Duarte
21st session: Commissioner Ondziel-Gnelenga
22nd session: Commissioner Ondziel-Gnelenga
23rd session: Commissioner Ondziel-Gnelenga
24th session: Commissioner Ondziel-Gnelenga
25th session: Commissioner Ondziel-Gnelenga
26th session: Commissioner Rezag Bara
27th session: Commissioner Rezag Bara
28th session: Commissioner Rezag Bara
29th Session: Commissioner Rezag Bara
30th session: Commissioner Rezag Bara
31st session: Commissioner Rezag Bara
32nd session: Commissioner Rezag Bara
33rd session: Commissioner Rezag Bara
SUMMARY OF FACTS
1. The communication was submitted by the Association Pour la Sauvegarde de
la Paix au Burundi (ASP-Burundi, Association for the Preservation of Peace
in Burundi), a non-governmental organisation based in Belgium. The
communication pertains to the embargo imposed on Burundi by Tanzania, Kenya,
Uganda, Rwanda, Zaire (now Democratic Republic of Congo), Ethiopia, and
Zambia following the overthrow of the democratically elected government of
Burundi and the installation of a government led by retired military ruler,
Major Pierre Buyoya with the support of the military.
2. The Respondent states cited in the communication are all in the Great
Lakes region, neighbouring Burundi and therefore have an interest in peace
and stability in their region. At the Summit of the Great Lakes summit held
in Arusha, Tanzania on 31 July 1996 following the unconstitutional change of
government in Burundi, a resolution was adopted imposing an embargo on
Burundi. The resolution was later supported by the United Nations Security
Council and by the OAU. All except the Federal Republic of Ethiopia were, at
the time of the submission of the communication, state parties to the
African Charter on Human and Peoples' Rights. Ethiopia acceded to the
African Charter on 17 June 1998.
THE COMPLAINT
3. The Complainant claims that the embargo violates:
- Article 4 of the African Charter, because it prevented the importation of
essential goods such as fuel required for purification of water and the
preservation of drugs; and prevented the exportation of tea and coffee,
which are the country's only sources of revenue;
- Article 17 (1) of the African Charter, because the embargo prevented the
importation of school materials;
- Article 22 of the African Charter, because the embargo prevented
Burundians from having access to means of transportation by air and sea;
- Article 23(2) (b) of the African Charter, because Tanzania, Zaire and
Kenya sheltered and supported terrorist militia.
4. The communication also alleges violation of Articles 3(1), (2) and (3) of
the OAU Charter, because the embargo constitutes interference in the
internal affairs of Burundi.
PROCEDURE
5. The communication is dated 18th September 1996 and was received at the
Secretariat on 30th September 1996.
6. At its 20th session, held in October 1996 in Grand Bay, Mauritius, the
Commission decided to be seized of the communication.
7. On 10th December 1996, the Secretariat sent copies of the communication
to the Ugandan, Kenyan, Tanzanian, Zambian, Zairian and Rwandan governments.
8. On 12th December 1996, a letter was sent to the Complainant indicating
that the admissibility of the communication would be considered at the 21st
session.
9. At its 21st session, held in April 1997, the Commission decided to be
seized of the communication and deferred consideration of its admissibility
to the following session. It also requested the Respondent States Parties to
send in their comments within the stipulated deadline.
10. At its 22nd session, the Commission declared the communication
admissible and asked the Secretariat to obtain clarification on the terms of
the embargo imposed on Burundi from the Secretary General of the OAU. The
Respondent States Parties were also, once again, requested to provide the
Commission with their reactions, as well as their comments and arguments as
regards the decision on merit.
11. On 18th November 1997, letters were addressed to the parties to inform
them of the Commission's decision.
12. On 24th February 1998, the Secretariat of the Commission wrote to the
OAU Secretary General requesting clarification on the terms of the embargo
imposed on Burundi.
13. On 19th May 1998, the Secretariat received the Zambian government's
reaction to the allegations made against it by the plaintiff. It claims that
the sanctions imposed on Burundi ensued from a decision taken by Great Lakes
countries in reaction to the coup d'état of 25 July 1996, which brought
Major Pierre Buyoya to power, ousting the democratically elected government
of President Ntibantuganya.
14. According to Zambia, the said sanctions were aimed at putting pressure
on the regime of Major Buyoya with a view to causing it to restore
constitutional legality, reinstate Parliament, which is the symbol of
democracy, and lift the ban on political parties. It was also aimed at
causing the regime to immediately and unconditionally initiate negotiations
with all Burundian groups so as to re-establish peace and stability in the
country, in accordance with the decisions of the Arusha regional Summit of
31 July 1996.
15. Regarding the allegation that Zambia violated resolution 2625(XXV),
adopted on 24th October 1970 by the General Assembly of the United Nations,
the Zambian government claims that the United Nations Security Council, in
resolution n° 1072(1996), upheld the decision of the Arusha regional Summit
to impose sanctions on Burundi.
16. Furthermore, Zambia states that it has derived no benefit of any sort
from the embargo imposed on Burundi. On the contrary – the embargo had
affected not only the inhabitants of Burundi, but also those of the States
that imposed it. In Zambia for example, it continues, many workers at the
Mpulungu port were sent on unpaid leave because there was no work, as a
result of the embargo. The Zambian State thereby lost many billion Kwacha in
revenue. This, according to the Zambian government, is the cost Zambia
accepted to pay to contribute to the international effort to promote
democracy, justice and the rule of law.
17. Regarding the allegation of violation by Zambia of Article 3(1), (2) and
3 of the Charter of the Organisation of African Unity on non-interference in
the internal affairs of member States, the Zambian government recalls that
the Organisation of African Unity, through its Secretariat, has held many
meetings on the situation in Burundi. It concludes, therefrom that the
decisions of the Arusha Regional Summit were endorsed by the Organisation of
African Unity. Moreover, it points out that the sanctions imposed on Burundi
were decided in consultation with the United Nations Organisation and the
Organisation of African Unity.
18. As regards the allegation of violation by Zambia of the provisions of
article 4 of the African Charter on Human and Peoples' Rights on the right
to life and physical and moral integrity, Zambia points out that the
sanctions monitoring committee had authorised the importation into Burundi,
through United Nations agencies, of essential items such as infants' food,
medical and pharmaceutical products for emergency treatment, among others.
It concludes therefore that the embargo is far from being a total blockade.
19. To the allegation of violation of article 17 of the African Charter on
Human and Peoples' Rights on the right to education, Zambia responds with
the same arguments indicated above.
20. Zambia stresses that it is a democratic State. This, it states, is
enshrined in article 1.1 of its Constitution, which states that the country
"...is a sovereign, unitary, indivisible, multiparty democratic State". It
thereby justifies what it refers to as its support for the ongoing
democratisation process in Africa and claims to abhor regimes led by ethnic
minorities. The Great Lakes countries in general and Zambia in particular,
it continues, were right in imposing sanctions on Burundi to bring about the
restoration of democracy and discourage coups d'état in Africa.
21. On 8th September 1998, the Secretariat received the reaction of the
Tanzanian government on the communication under consideration. The latter
rejected the allegations made against its country and ended with a plea for
inadmissibility of the communication on the grounds among others that it
contains several contradictions which were only aimed at defending the
aggrieved state's interests. This country proceeded to argue its case as
follows:
22. "There is great confusion in the facts as presented by the Complainant;
there are also many lies contained therein, particularly the accusation that
Tanzania was preparing to send its army to Burundi at the request of the
International Monetary Fund and the World Bank which had promised to fund
the operation. The undeniable truth, and ASP-Burundi knows it well, is that
the essential reason why Tanzania and the other countries in the region
decided to impose sanctions is to bring about the negotiation of a lasting
peace among all Burundian parties. The sanctions are used as a means of
pressure, and the results are palpable, as in the restoration of the
National Assembly, the lifting of the ban on political parties and the
initiation of unconditional negotiations among all parties to the conflict.
The discrete contacts with Mr. Léonard Nyangoma of CNDD are a step in the
right direction envisaged in the imposition of the sanctions".
23. Regarding the allegation that Tanzania violated article 4 of the African
Charter, citing the article, it stresses, "it is rather surprising to see
ASP-Burundi using this article to support an allegation of human rights
violations resulting from the sanctions. This association forgets or
pretends to be unaware that the security situation in Burundi took a turn
for the worse before and after the coup d'état and that it can be said
emphatically that this provision of the Charter had been violated in a
shameless way during this period. In June 1996, President S. Ntibantuganya
and the then Prime Minister, Mr. Nduwayo, came to Arusha to solicit
sub-regional assistance in the form of troops". Tanzania then goes on to
enumerate some cases of violation of human rights by the Burundian
government. It emphasises, inter alia, "that the war being waged against the
Hutu militia by the Burundian army is conducted with ever increasing vigour,
the massacre by the Burundian army of 126 refugees on their way back to
their country from Tanzania, the establishment of concentration camps in
Karugi, Mwamanya and Kayanza, camps that are populated by Hutus who are
denied food even to the point of death, the detention of the Speaker of the
National Assembly, Mr. Léons Ngandakumana...etc.".
24. Reacting to the allegation of violation of article 17(1) of the Charter,
Tanzania points out that "education and educational institutions were not
the targets of the embargo; however, due to its multiplier effect, they were
affected. In view of this, at the meeting held in Arusha on 6 April 1997,
the leaders of the countries that had imposed the embargo decided to exclude
educational materials on the list of items that are not subject to the
embargo. This was with a view to alleviating the suffering of ordinary
citizens".
25. Responding to the allegation of violation of article 22 of the Charter,
Tanzania argues that it is "difficult to conceive that it is possible to
enjoy economic and socio-cultural rights without enjoying the fundamental
rights, which are the political rights that condition the others. The most
fundamental and important rights, which deserve to be recognised and which
are currently being trampled upon by the regime in power are political
rights. The Great Lakes countries, other African countries and the
international community at large would like to see an end to the cycle of
violence in Burundi. This can only be achieved by way of a political
settlement negotiated among the various Burundian factions".
26. Tanzania argues "the enjoyment of economic, cultural and social rights
cannot be effective in the morass that Burundi has fallen into.
Constitutional legality has first to be restored. That is the reinstatement
of a democratically elected Parliament, the lifting of the ban on political
parties, and the beginning of political talks involving all parties to the
conflict...". In reaction to the allegation of violation of article 23,2 of
the Charter, Tanzania states "it has never granted shelter to terrorists
fighting against Burundi. However, Tanzania admits that it has always
welcomed in its territory streams of refugees from Rwanda and Burundi each
time trouble fares up in those two countries. Tanzania has always refused to
serve as a rear base or staging post for any armed movement against its
neighbours. Leaders of political parties and factions are welcomed in
Tanzania just like other refugees are. But they are not allowed to carry out
military activity against Burundi from Tanzanian territory".
27. In response to the accusation that it violated the provisions of article
III paragraphs 1,2 and 3 of the OAU Charter, Tanzania states that "it has
not violated any of the principles enshrined in those texts". It emphasises
that "despite its [small] size, Burundi remains a sovereign State like any
other African State. The sanctions imposed on it by its neighbouring
countries do not undermine its sovereignty or its territorial integrity, nor
much less its inalienable right to its own existence". On the contrary,
continues Tanzania, "the sanctions could play an important role in reminding
the Burundian authorities of the content of the preamble to the OAU Charter,
which states that all members of the OAU are conscious of the fact that
freedom, equality, justice and dignity are essential objectives for the
achievement of the legitimate aspirations of the African peoples. Another
provision states that in order to create conditions for human progress,
peace and security must be established and maintained. Peace and security
are lacking in Burundi and the sanctions imposed on it could be one of the
means of achieving them through dialogue".
28. As regards the allegation of violation of article III paragraph 4 de of
the OAU Charter, Tanzania comments "ASP-Burundi deliberately ignores one
very important provision of the OAU Charter which states that OAU members
solemnly affirm their adherence to the principle of the peaceful resolution
of disputes by negotiation, mediation, conciliation and arbitration. The
idea behind the imposition of the sanctions is precisely that of causing the
application of this principle which a view to achieving lasting peace in
Burundi. Contrary to ASP-Burundi's contention that a dangerous precedent had
been set, Tanzania believes that the countries of the Great Lakes region had
set a favourable precedent. In the pursuit of the goals and objectives of
the OAU, article II paragraph 2(2) states "to these ends, the member States
shall cooperate and harmonise their general policies in the political and
diplomatic fields" Tanzania concludes its exposition with a response to
ASP-Burundi's accusation that it had violated certain texts adopted by the
United Nations, including some provisions of the Organisation's Charter. It
emphasises in particular that "the concept of regional arrangement adopted
by the Great Lakes countries is straight out of chapter VIII of the United
Nations Charter: "article 52 of the said Charter stipulates that regional
arrangements may be used for keeping international peace and security, with
the proviso that such actions shall be consistent with the goals and
principles of the United Nations. This provision allows for regional
arrangements to be used for peaceful settlements before having recourse to
the Security Council. And indeed, the Council encourages regional
arrangements".
29. "Tanzania does not believe that the imposition of sanctions is an
interference in the internal affairs of Burundi. Tanzania is more concerned
about the potential consequences of the instability currently prevailing in
Burundi. All neighbouring countries share the same concern, since it is true
that the instability in Burundi signifies for them inflow of refugees,
instability in their own territory as a consequence of that prevailing in
Burundi and which could transform into a generalised conflagration in the
entire region. The imposition of sanctions should be seen as a preventive
means of self defence aimed at avoiding seeing the region plunge into
instability and chaos".
30. Tanzania further emphasises that "in fact, all the sanctions that were
adversely affecting the ordinary Burundian citizen were softened when the
leaders of the Great Lakes countries met in Arusha on 16 April 1997. This
included the lifting of the sanctions on food products, school materials,
construction materials, as well as all medical items, and agricultural
products and inputs".
31. "The sixth Summit of the Great Lakes countries held in Kampala on 21
February 1998, unanimously decided to maintain the sanctions against the
Burundian military regime. In this vein, the enforcement of the sanctions
shall be scrupulously monitored by the organ established for this purpose;
this is with a view to ensuring the implementation of the decisions taken by
the countries of the region. It is important to note that the sanctions were
declared by the countries of the region and not unilaterally by Tanzania.
Hence, if ASP-Burundi has a just cause to defend, it should do so against
the region and not against Tanzania".
32. At its 24th session held in Banjul, The Gambia, after hearing the
Rwandan Ambassador, who presented his government's position on this affair,
and considering the responses of Zambia and Tanzania, the Commission decided
to address a recommendation to the Chairman in Office of the Organisation of
African Unity (OAU), with a copy to the Secretary General, requesting the
States involved in the affair to find means of reducing the effects of the
embargo. It was however stressed that this should be without any prejudice
to the decision that the Commission would take on the merit of the
communication.
33. The Secretariat wrote to the parties informing them of the Commission's
decision.
34. On 26th March 1999, the Secretariat received the reaction of the author
of the communication to the Tanzanian and Zambian memoranda. In its view,
Tanzania's argument that it did not violate art. 4 of the African Charter is
baseless. It argues that "after the coup d'état security in the country
improved considerably. On the contrary, the embargo deprived the Burundian
people of their basic needs, especially as regards health care and
nutrition, claiming many victims".
35. It continues: "Tanzania claims not to have violated art. 17 of the
Charter with the argument that the embargo was relaxed in April 1997. This
shows a contrario that before the relaxation, which had no effect in
reality, the said provision had been violated; that is from 31/07/96 to
April 1997".
36. According to the plaintiff,
"Tanzania also claims not to have violated art. 22 of the Charter with the
argument that of all human rights, it is what it refers to as the "political
right" that matters most". It continues by saying that Tanzania's argument
is unfounded since "...the right to life for example is more important than
any "political right". The choice is clear between someone who takes your
life and someone who denies you your right to elect your head of State".
37. According to the plaintiff,"all groups that are attacking Burundi –
PALIPEHUTU, FROLINA, CNDD... etc. – operate from that country".
38. The Complainant avers,
"Tanzania claims not to have violated art. 3 items 1, 2, 3 of the OAU
Charter. But imposing on Burundi a manner whereby it can "resolve" its
internal problems, under the pressure of an embargo, undoubtedly constitutes
interference in the internal affairs of Burundi".
39. The Complainant continues: "it is evident that Tanzania violated
international law by imposing an embargo on Burundi. ASP-Burundi hereby
calls on the African Commission on Human and Peoples' Rights to declare that
country guilty and condemn it to pay damages". As regards the memorandum
submitted by Zambia, the plaintiff states that:
40. "Zambia claims not to have violated resolution 2625 of the United
Nations with the argument that the UN had approved the decision to impose
the embargo. Whether the UN approved the measure or not changes nothing, for
the initiative should have come from the United Nations and not the other
way around! Hence, the decision to impose the embargo had no legal basis".
41. It continues: "along the same line of thought, Zambia claims that it did
not violate Art. 3(1), (2), and (3) of the OAU Charter for the reason that
the OAU had approved the embargo. Once again, the approval came after the
fact. It was not the OAU that mandated these countries to impose the
embargo".
42. According to the petitioner, "Zambia claims [...] that it did not
violate art. 4 of the African Charter on Human and Peoples' Rights with the
argument that in April 1997, some alleviation measures were introduced.
ASP-Burundi points out that this provision was violated from the time of the
imposition of the embargo (August 96) to the date those measures were
introduced (April 97), and the measures did not even bear any effect in
reality".
FROM THE FOREGOING, THE COMPLAINANT DRAWS THE FOLLOWING CONCLUSION
43. "It is abundantly clear that Zambia, as well as Tanzania, have violated
international law and that this violation caused very serious injury to the
Burundian people. ASP - Burundi therefore urges the African Commission on
Human and Peoples' Rights to declare Zambia guilty of this and to constrain
it to pay the relevant damages".
44. On 24 March 2000, the Secretariat received a Note Verbale from the
Kenyan Ministry of Foreign Affairs requesting a copy of the communication
submitted by ASP-Burundi. The request was met, and a reaction is still being
awaited.
45. At its 27th ordinary session held in Algeria, the Commission examined
the case and deferred its further consideration to the next session.
46. The Commission's decision was communicated to the parties on 20 July
2000.
47. On 17th August 2000, the Secretariat of the Commission received a Note
Verbale from the Ministry of Foreign Affairs of the Republic of Uganda
claiming that it had never been notified of the existence of this
communication.
48. On 21st August 2000, the Secretariat of the Commission replied the said
Ministry stating among other things that such notification had long been
served the competent authorities of the Republic of Uganda, in 1996, as soon
as the case was filed. A copy of the communication was however forwarded to
the Ministry.
49. During the 28th ordinary session held in Cotonou, Benin, from 26 October
to 6 November 2000, the Commission considered the communication and noted
that although Ethiopia was a party to the case, it had never received
notification of the communication.
50. The Commission therefore asked the Secretariat to check whether Ethiopia
had ratified the African Charter at the time the decision on the embargo was
taken.
51. If it had, the Secretariat should then send it notification of the
communication opposing that embargo and ask for its comments and
observations on the issue.
52. Given that Ethiopia ratified the African Charter two years after the
decision to impose the embargo on Burundi was taken, the Secretariat of the
Commission did not send a copy of the case file to Ethiopia for
notification.
53. The Secretariat acted in this manner in accordance with the decision
taken by the 28th ordinary session of the Commission.
54. Moreover, this decision of the Commission is in line with the principle
of non-retroactivity of the effects of agreements, which is contained in
Article 28 of the Vienna Convention on Treaties.
55. The Secretariat informed the concerned parties about the decision of the
30th session, and the Tanzanian and Zambian Embassies in Addis Ababa reacted
by saying that their respective Governments were never informed of this case
and they requested to be given a copy of the case-file.
56. In reply, the Secretariat conveyed the documents requested to the two
Embassies, as well as all necessary information that could help elucidate
the progress of the case submitted to the Commission, in respect of which
their States had contributed by submitting defence statements.
57. At the 31st session (2-16 May 2002, Pretoria, South Africa), delegates
from some of the accused States (DRC, Rwanda, Tanzania, Uganda and Zambia)
presented some oral comments on the position of their respective Governments
during the Commission's consideration of the communications.
58. The said delegations in turn flatly rejected the allegations levelled
against their Governments pointing out in a nutshell, that:
- The sanctions adopted by the summit of the countries of the Great Lakes
region held on 31 July 1996, in Arusha, Tanzania, was not aimed at providing
advantages to the countries that made the decisions but, were meant to put
pressure on the Government brought about by the military coup d'etat of 25
July 1996 in Burundi, with a view to bringing it to restore constitutional
legality, democracy, peace and stability.
- The joint initiative taken by their Governments were part of their
contribution to the international efforts aimed at promoting the rule of
law, in spite of the sacrifices that this initiative entailed for the people
of the countries that initiated the embargo against Burundi, who also
suffered from the consequences of the said embargo.
59. After the session, the Secretariat informed the States concerned and the
Complainants about the status of the communication by Note Verbale and by
letter respectively.
60. At the 32nd Session held from 17th to 23rd October 2002, in Banjul, The
Gambia, the Commission was unable to consider the merits of Communication,
because of time constraints occasioned by the reduction of this session's
duration.
61. The African Commission consequently deferred consideration of the matter
to its 33rd Ordinary Session scheduled to take place from 15th to 29th May
2003, in Niamey, Niger.
62. The African Commission considered this communication during the 33rd
Ordinary Session and decided to deliver its decision on the merits.
LAW
ADMISSIBILITY
63. The Commission had to resolve the matter of the locus standi of the
author of the communication. It would appear that the authors of the
communication were in all respects representing the interests of the
military regime of Burundi. The question that was raised was whether this
communication should not rather be considered as a communication from a
state and be examined under the provisions of Articles 47-54 of the African
Charter. Given that it has been the practice of the Commission to receive
communications from non-governmental organisations, it was resolved to
consider this as a calls action. In the interests of the advancement of
human rights this matter was not rigorously pursued especially as the
Respondent states did not take exception by challenging the locus standi of
the author of the communication. In the circumstances the matter was
examined under Article 56.
64. Under article 56(5) and (6) of the African Charter on Human and People's
Rights, communications other than those referred to in Article 55 received
by the Commission and relating to human and people's rights shall be
considered if they:
- (5) "are sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged";
- (6) "are submitted within a reasonable period from the time local remedies
are exhausted, or from the date the Commission is seized with the matter".
65. These provisions of the African Charter are hardly applicable in this
matter inasmuch as the national courts of Burundi have no jurisdiction over
the state Respondents herein. This is yet another indication that this
communication appropriately falls under Communications from States (Articles
47-54).
66. However, drawing from general international law and taking into account
its mandate for the protection of human rights as stipulated in Article
45(2), the Commission takes the view that the communication deserves its
attention and declares it admissible.
MERITS
67. The communication was submitted by the Association pour la Sauvegarde de
la Paix au Burundi against States of the Great Lakes region (DRC, Kenya,
Rwanda, Tanzania, Uganda, Zambia) and Ethiopia, in the wake of an embargo
declared by these countries against Burundi on 31 July 1996, following the
coup d'etat carried out by the Burundian army on 25 July against the
democratically elected government.
68. The communication alleges that by its very existence this embargo
violated and continues to violate a number of international obligations to
which these States have subscribed, including those emanating from the
provisions of the Charter of the Organisation of African Unity (OAU), the
African Charter on Human and Peoples' Rights, as well as Resolution 2625
(XXV) of the General Assembly of the United Nations on the principles of
international law applicable to friendly relations and cooperation between
States on the basis of the United Nations Charter.
69. The States accused in the communication, particularly Zambia and
Tanzania which submitted written conclusions on the case, reject the
allegations against them, stating among other things, that while it is true
that the decision to impose an embargo against Burundi was taken at the
Arusha summit of 31 July 1996 at which they participated, (with the
exception of Zambia, which only joined the others after the Arusha
decision), it is equally true that following this, the decision to impose an
embargo against Burundi was endorsed by the Organisation of African Unity
and the United Nations Security Council.
70. The decision to impose the embargo against Burundi is thus based, by
implication, on the provisions of Chapters VII and VIII of the United
Nations Charter, regarding "Action With Respect to Threats to the Peace,
Breaches of the Peace, and Acts of Aggression" and "Regional Arrangements",
in the sense that the military coup which deposed the democratically elected
government constituted a threat to, indeed a breach of, the peace in Burundi
and the region.
71. The Respondent States took collective action as a sub-regional
consortium to address a matter within the region that could constitute a
threat to peace, stability and security. Their action was motivated by the
principles enshrined in the Charters of the OAU and of the United Nations.
The Charter of the OAU stipulates that "freedom, equality, justice and
dignity are essential objectives for the achievement of the legitimate
aspirations of the African peoples." It goes on to promote international
cooperation "to achieve a better life for the peoples of Africa..."
72. The resolution to impose the embargo on Burundi was taken at a duly
constituted summit of the states of the Great Lakes Region who had an
interest in or were affected by the situation in Burundi. The resolution was
subsequently presented to the appropriate organs of the OAU and the Security
Council of the United Nations. No breach attaches to the procedure adopted
by the states concerned. The embargo was not a mere unilateral action or a
naked act of hostility but a carefully considered act of intervention which
is sanctioned by international law. The endorsement of the embargo by
resolution of the Security Council and of the summit of Heads of State and
Government of the OAU does not merit a further enquiry as to how the action
was initiated.
73. The United Nations Security Council is vested with authority to take
prompt and effective action for the maintenance of international peace and
security. In doing so, states agree that the Security Council "acts on their
behalf..." This suggests that, once endorsed by resolution of the Security
Council, the embargo is no longer the acts of a few neighbouring states but
that it imposes obligations on all member states of the United Nations.
74. The Charter of the United Nations allows that member states of the UN
may be called upon to apply measures including, "complete or partial
interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of
diplomatic relations..." Economic sanctions and embargoes are legitimate
interventions in international law.
75. The critical question and one which may affect the legitimacy of the
action is whether such action as has been determined is excessive and
disproportionate, is indiscriminate and seeks to achieve ends beyond the
legitimate purpose. Sanctions therefore cannot be open-ended, the effects
thereof must be carefully monitored, measures must be adopted to meet the
basic needs of the most vulnerable populations or they must be targeted at
the main perpetrators or authors of the nuisance complained of. The Human
Rights Committee has adopted a General Comment in this regard precisely in
order to create boundaries and limits to the imposition of sanctions.
76. We are satisfied that the sanctions imposed were not indiscriminate,
that they were targeted in that a list of affected goods was made. A
monitoring committee was put in place and situation was monitored regularly.
As a result of these reports adjustments were made accordingly. The report
by the Secretary General of the OAU is indicative of the sensitivity called
upon in international law: "...besides their political, economic and
psychological impact, they (the sanctions) continue to have a harsh impact
on the people. The paradox is that they enrich the rich and impoverish the
poor, without effectively producing the desired results... It would, perhaps,
be appropriate to review the question of the sanctions, in such a way as to
minimise the suffering of the people, maximise and make effective the
pressures on the intended target" (CM/2034 (LXVIII), 68th Ordinary Session
of the Council of Ministers, Ouagadougou, 1-6 June 1998).
77. We accept the argument that sanctions are not an end in themselves. They
are not imposed for the sole purpose of causing suffering. They are imposed
in order to bring about a peaceful resolution of a dispute. It is
self-evident that Burundians were in dispute among themselves and the
neighbouring states had a legitimate interest in a peaceful and speedy
resolution of the dispute.
78. With regard to the allegations of interference in the domestic affairs
of other sovereign states, the Commission recognises that international law
has provided careful procedures where such interference may be legitimate.
It is our view that the present matters falls on all fours with the
provisions of international law.
79. Having thus dismissed the seminal charges against the Respondent states,
however, the Commission wishes to observe that the matters complained of
here have now been largely resolved. The embargo has been lifted and by the
agency of the OAU and with the active participation of neighbouring states a
peace process is underway in Burundi.
FOR THESE REASONS, THE AFRICAN COMMISSION
Finds that the Respondent States are not guilty of violation of the African
Charter on Human and Peoples' Rights as alleged.
Takes note of the entry into force of the Burundi Peace and Reconciliation
Agreement, alias Arusha Accords, and that the Respondent States in the
communication are among the States that have sponsored the said Accord.
Also notes the efforts of the Respondent States aimed at restoring a lasting
peace, for the development of the rule of law in Burundi, through the
accession of all Burundian parties to the Arusha Accord.
Welcomes the entry into force of the Constitutive Act of the African Union
in 2000 to which the Republic of Burundi and all the Respondent States are
now party, and which also provides for the promotion and respect of human
and peoples' rights and the explicit censure of States that "come to power
by unconstitutional means".
Done at the 33rd Ordinary Session held in Niamey, Niger from 15th to 29th
May 2003. |
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